CHAPTER I:

EFFECT AND APPLICATION OF LAWS

Article 1. This Act shall be known as the "Civil Code of the Philippines." (n)
Art. 2. Laws shall take effect after fifteen days 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)

Effectivity of Civil Code: Aug 30, 1950

Article 2 Amended by E.O 200

Statutes effective only after 15 days following publication in OG or newspaper of
general circulation
Full publication
PD, EO, Admin rules and regulations (if purpose is to enforce or implement an
existing law)
Memorandum Circulars, orders, only when it concerns the general
public/provides penalties
Charter of city
Interpretative regulations need not be published
Local and private laws

Unless it is otherwise provided / Effectively immediately

15 day period, not publication

published in the Official Gazette, prior to the act or omission imputed to him.
Art. 4. Laws shall have no retroactive effect, unless the contrary is provided. (3)

Prospective

EXCEPTIONS
1. Law expressly provides/necessarily implies
Does not prejudice or impair VESTED or acquired rights in accordance with the
Civil Code
2. Law is curative or remedial
3. Law is procedural pending and future actions
4. Interpretative statutes
5. Emergency laws
6. Laws creating new rights
7. When the law is penal in character and favorable to the accused (EXCEPTION:
habitual criminal)

Art. 3. Ignorance of the law excuses no one from compliance therewith. (2)

Law passed+ publication = construction notice of laws existence and effectivity;

conclusive presumption

Mandatory and prohibitory laws

Art. 5. Acts executed against the provisions of mandatory or prohibitory laws shall be
void, except when the law itself authorizes their validity.

Mandatory the omission of which, renders the proceeding or acts to which it relates
generally illegal or void
Prohibitory containing positive prohibitions and are couched in negative terms
importing that the act required shall not be done otherwise than designated

GR: Acts contrary to mandatory or prohibitory laws are VOID

EXCEPTIONS:
1. The law makes the act valid but punishes the violator
2. Law itself authorizes its validity
3. Law makes the act only voidable
4. Law declares the nullity of the act but recognizes its effects as legally existing

TAADA v TUVERA unpublished presidential issuances which are of general application

The task of the Supreme Court is merely to interpret and apply the law as conceived and
approved by the political departments of the government in accordance with prescribed
procedure. Hence, the Court declared that all laws shall immediately upon their approval or
as soon thereafter as possible, be published in full in the Official Gazette, to become effective
only after 15 days from their publication, or on another date specified by the legislature, in
accordance with Article 2 of the Civil Code. The clause unless otherwise provided pertains
to the date of publication and not the requirement of publication.
PEOPLE v QUE PO LAY failing to sell foreign exchange
Before the public is bound by its contents, especially its penal provisions, a law, regulation, or
circular must first be published and the people officially and specifically informed of said
contents and its penalties. Circular No. 20 had no force and effect because it was not

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.

WAIVER intentional relinquishment of a known right and is not to be presumed but

a. Must be convincingly shown express stipulation, or acts admitting no other
reasonable explanation
b. Right must exist at the time of the waiver
Examples of rights that cannot be renounced
Natural rights
Rights which do not exist
Right to be heard in court
c. Exercised by a duly capacitated person actually possessing the right

TET DOMINGO

Waiver cannot be established by a consent given under a mistake or

misapprehension of fact; person knows that a right exists and has adequate
knowledge to make intelligent decision
GR: Waivers allowed
EXCEPTIONS:
1. Contrary to law, public order, public policy, morals, good customs
2. Prejudicial to a third person with a right recognized by law
-

DM CONSUNJI v. CA Construction workers wife

Waiver requires a knowledge of the facts basic to the exercise of the right waived, with an
awareness of its consequences.
CUI V ARELLANO scholarship, unreleased transcripts
The waiver was repugnant to sound morality and civic honesty.
Art. 7. Laws are repealed only by subsequent ones, and their violation or nonobservance shall not be excused by disuse, or custom or practice to the contrary.
When the courts declared a law to be inconsistent with the Constitution, the former
shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid only when they
are not contrary to the laws or the Constitution.

REPEAL: legislative act of abrogating through a subsequent law the effects of a previous
statute or portions thereof
Express: literally declared by a new law either in
Specific terms particular laws/provisions declared repealed
General terms provision in new law declares all laws and parts of laws
inconsistent therewith to be repealed
Implied: new law contains provisions contrary to or inconsistent with those of
former, without expressly repealing them

A special statute, providing for a particular case or class of cases is not repealed by a
general statute, UNLESS the intent to repeal/alter is manifest

Every presumption favors the validity of a statute, and given the meaning not in conflict
with the Constitution

DOCTRINE OF OPERATIVE FACT: Acts done pursuant to a law which was

subsequently declared unconstitutional remain valid, but not when the acts are done
after the declaration of unconstitutionality; a legislative or executive act, prior to its being
declared as unconstitutional by the courts, is valid and must be complied with
Applicable when a declaration of unconstitutionality will impose an undue burden on
those who have relied on the invalid law

TET DOMINGO

PARTIAL UNCONSTITUTIONALITY OF STATUTES: where a portion of a stature is

rendered unconstitutional and the remainder valid, only the constitutional portion is
upheld, UNLESS the parts of the statute are so mutually dependent and connected

Art. 8. Judicial decisions applying or interpreting the laws or the Constitution shall
form a part of the legal system of the Philippines.

Judicial decisions assume the same authority as the statute itself and become the
criteria which control until authoritatively abandoned; doctrines applied prospectively,
should not prejudice persons who relied on the overturned doctrines while the same
were still controlling

Legis interpretation legis vim obtinet the interpretation placed upon the written law by a
competent court has the force of law

Supreme Court decisions authoritative, precedent-setting

Inferior courts, CA persuasive

DOCTRINE OF STARE DECISIS: "to stand on decided case"

Enjoins adherence to judicial precedents and is based on the principle that
once a question of law has been examined and decided, it should be deemed
settled and closed to further argument
Courts must use previous court's holding and apply to future cases with same
set of facts to insure uniformity of law; established doctrines regarding an issue
must be used

RES JUDICATA: "a matter judged" - You can't re-sue a winning party on a matter already
decided on; if a case has been settled, it should not be reopened

RULES & REGULATIONS/ADMINISTRATIVE AND EXECUTIVE ACTS

Binding on the courts so long as the procedure fixed for its promulgation is followed,
and its scope is within the statutory authority granted by the Legislature;
Law cannot be extended
Art. 9. No judge or court shall decline to render judgment by reason of the silence,
obscurity or insufficiency of the laws. (6)

Judicial legislation to fill in the gaps in the law

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.

Law is clear applied accdg to unambiguous provisions; Courts apply the law

Construction only after it has been demonstrated that application is

impossible/inadequate without them
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.

CUSTOMS:
a. A rule of conduct,
b. Formed by repetition of facts,
c. Uniformly observed or practiced as a social rule,
d. Legally binding and obligatory

Must be proven as fact and the courts are not to take judicial notice thereof

Local customs vs Juridical customs

Local customs as a source of right cannot be considered by courts unless properly
established by competent evidence
Even if proven, cannot prevail over a statutory rule or legal rule
Juridical custom can supplement statutory law
Art. 13. When the laws speak of years, months, days or nights, it shall be understood
that years are of three hundred sixty-five days each; months, of thirty days; days, of
twenty-four hours; and nights from sunset to sunrise.
If months are designated by their name, they shall be computed by the number of days
which they respectively have.
In computing a period, the first day shall be excluded, and the last day included. (7a)

Implied repeal by Admin Code 1987

Year 12 calendar months
month 30 days

FELI
Art. 14. Penal laws and those of public security and safety shall be obligatory upon all
who live or sojourn in the Philippine territory, subject to the principles of public
international law and to treaty stipulations. (8a)

GR: Territoriality principle

Citizens and foreigners are subject to all penal laws imposed by the Philippines as well
as all laws enacted for the maintenance of public security and safety
EXCEPTION: Immunity from suit, no criminal prosecution
Phil govt has waived its criminal jurisdiction based on principles of PIL and
treaty stipulations
Diplomatic agent: head of mission, member of the diplomatic staff
Heads of state
When foreigners are within the territory of their embassies considered as
foreign soil
Parliamentary immunity

TET DOMINGO

Article 2 of RPC
Phil ship/airship
Forge/counterfeit any coin or currency note of PI or obligations
Introduction of the obligations/securities issued
Public officers committing offense in the exercise of their functions
Crimes against national security and the law of nations

Art. 15. Laws relating to family rights and duties, or to the status, condition and legal
capacity of persons are binding upon citizens of the Philippines, even though living
abroad.

Nationality rule
Art. 16. Real property as well as personal property is subject to the law of the country
where it is stipulated.
However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and 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 and
regardless of the country wherein said property may be found. (10a)

GR: Real property + personal property shall be governed by the law of the place where
they are situated
EXCEPTION: (national law of the decedent applies)
1. Order of succession
2. Amount of successional rights
3. Intrinsic validity of the provisions of the will
4. Capacity to succeed
MICIANO V BRIMO Turkish will
...it is my wish that the distribution of my property and everything in connection with this, my
will, be made and disposed of in accordance with the laws in force in the Philippine islands
The second clause of the will regarding the law which shall govern it, and to the condition
imposed upon the legatees, is null and void for being contrary to law. It expressly ignores the
testator's national law when, according to article 10 of the civil Code above quoted, such
national law of the testator is the one to govern his testamentary dispositions.
PILAPIL V IBAY-SOMERA German divorce
The fact that private respondent obtained a valid divorce in his country, the Federal Republic
of Germany, is admitted. Said divorce and its legal effects may be recognized in the
Philippines insofar as private respondent is concerned in view of the nationality principle in
our civil law on the matter of status of persons Under the same considerations and rationale,
private respondent, being no longer the husband of petitioner, had no legal standing to
commence the adultery case under the imposture that he was the offended spouse at the

time he filed suit.

ROEHR V RODRIGUEZ
As a general rule, divorce decrees obtained by foreigners in other countries are recognizable
in our jurisdiction, but the legal effects thereof, e.g. on custody, care and support of the
children, must still be determined by our courts.
GARCIA V RECIO
A marriage between two Filipino cannot be dissolved even by a divorce decree obtained
abroad because of Articles 15 and 17 of the Civil Code.
Art. 17. The forms and solemnities of contracts, wills, and 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, and those which have, for
their object, public order, public policy and good customs shall not be rendered
ineffective by laws or judgments promulgated, or by determinations or conventions
agreed upon in a foreign country. (11a)

Extrinsic Validity laws of the country where they are executed Lex Loci Celebracionis

Acts before diplomatic and consular officials solemnities under Phil law

Prohibitive laws not rendered ineffective by laws agreed upon in a foreign country
Art. 18. In matters which are governed by the Code of Commerce and special laws,
their deficiency shall be supplied by the provisions of this Code. (16a)
CHAPTER 2
HUMAN RELATIONS (n)
Art. 19. Every person must, in the exercise of his rights and in the performance of his
duties, act with justice, give everyone his due, and observe honesty and good faith.
Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to
another, shall indemnify the latter for the same.
Art. 21. Any person who wilfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the latter for the
damage.

ABUSE OF RIGHT DOCTRINE

1. Legal right or duty
2. Exercised in bad faith
3. Sole intent of prejudicing or injuring another

TET DOMINGO

Presupposes loss or injury, material or otherwise

INTENTIONAL act which causes injury to another may be made the basis for an award
of damages

Art. 19: sets certain standards which may be observed not only in the exercise of ones
rights but also in the performance of ones duties
Good faith is presumed and he who alleges bad faith has the duty to prove the
same

Art 20: general sanction for all other provisions of law which do not especially provide
their own sanction

Art 21: Acts contra bonus mores designed to fill in the gaps in the statutes
1. There is an act which is legal
2. But which is contrary to morals, good customs, public order, public policy
3. It is done with intent to injure
NIKKO HOTEL MANILA V REYES
Reyes brought whatever damage he incurred upon himself. Under the doctrine of volenti non
fit injuria, by coming to the party uninvited, Reyes opens himself to the risk of being turned
away, and thus being embarrassed. The injury he incurred is thus self-inflicted.

Volenti non fit injuria: one who assents to an injury cannot claim damage
SPS. QUISIMBING V MERALCO
Under the law, MERALCO may immediately disconnect any electric services on the ground of
meter tampering. However, they may do only in the presence of an officer of law or by a duly
authorized representative of the energy regulatory board where they can personally
witnessed and attested the discovery of the tampering.
GASHEM SHOOKAT BAKSH V CA
It is the deceit and fraud employed by Gashem that constitutes a violation of Article 21 of the
Civil Code. His promise of marrying Marilou was a deceitful scheme to lure her into sexual
congress. As found by the trial court, Marilou was not a woman of loose morals. She was a
virgin before she met Gashem. She would not have surrendered herself to Gashem had
Gashem not promised to marry her.
ALBENSON ENTERPRISE CORP V CA Eugenio v Eugenio III
It was normal for petitioners to find means to make the issuer of the check pay the amount
thereof. In the absence of a wrongful act or omission or of fraud or bad faith, moral damages
cannot be awarded and that the adverse result of an action does not per se make the action
wrongful and subject the actor to the payment of damages, for the law could not have meant
to impose a penalty on the right to litigate
UNIVERSITY OF THE EAST V JADER Incomplete requirements
It is the contractual obligation of the school to timely inform and furnish sufficient notice and
information to each and every student as to where he or she had already complied with the
entire requirement for the conferment of a degree or whether they should be included among

those who will graduate. The school cannot be said to have acted in good faith.
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.

SOLUTIO INDEBITI
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.

UNJUST ENRICHMENT: when a person unjustly retains a benefit to the loss of another
or when a person retains money or property of another against the fundamental
principles of justice, equity, and good conscience
Reasonable remuneration for services rendered, in the absence of gratuitous
service
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.

Liberal construction of pleadings and remedial laws so that litigants have ample
opportunity to pursue their claims
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.

Entities given legal standing to seek COURT-ISSUED INJUNCTION: government,

private charitable institution
Art. 26. Every person shall respect the dignity, personality, privacy and 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:
(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.

List is NOT EXCLUSIVE; similar acts analogous causes

TENCHAVEZ V ESCANO secret marriage

TET DOMINGO

by reason of the fact that Escao left without the knowledge of Tenchavez and being able to
acquire a divorce decree; and Tenchavez being unable to remarry, the SC awarded
P25,000.00 only by way of moral damages and attorneys fees to be paid by Escao and not
her parents.
Escaos parents were not guilty of any improper conduct in the whole deplorable affair. The
SC reduced the damages awarded from P45,000.00 to P5,000.00 only.
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 and other relief against he latter, without prejudice to any
disciplinary administrative action that may be taken.

Relief against public officials refusal or neglect

A public officer who commits a tort or other wrongful act, done in excess or beyond the
scope of his duty, is not protected by his office and is personally liable therefor
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.
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.

Civil action

PROOF BEYOND REASONABLE DOUBT: amount of proof which forms an abiding

moral certainty that the accused committed the crime charged

PREPODERANCE OF EVIDENCE: as a whole, the evidence adduced by one side

outweighs that of the adverse party

The fact that guilt was not proven beyond reasonable doubt must be expressly stated in
the criminal decision OR inferred from the decision itself
Art. 30. When a separate civil action is brought to demand civil liability arising from a
criminal offense, and 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.

QUANTUM OF EVIDENCE
Preponderance of evidence: greater weight of the evidence; evidence which is
more convincing to the court as worthy of belief than that which is offered in
opposition thereto.
Clear and convincing evidence: more than mere preponderance, but not to extent of
such certainty as is required beyond reasonable doubt as in criminal cases
Substantial evidence: consists of more than a mere scintilla of evidence but may be
somewhat less than a preponderance
Proof beyond reasonable doubt
Reasonable doubt is not meant that which of possibility may arise but it is that
doubt engendered by an investigation of the whole proof and an inability, after
such an investigation, to let the mind rest easy upon the certainty of guilt
Amount of proof which forms an abiding moral certainty that the accused
committed the crime charged

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.

Obligation not arising from the act or omission complained of as a felony = sources such
as law or contract

Quasi-delict
Acquittal from an accusation of criminal negligence, whether on reasonable doubt
or not, shall not be a bar to a subsequent civil action, not for civil liability arising
from criminal negligence but for damages due to quasi-delict/culpa aquiliana

Culpa contractual
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 and 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;

TET DOMINGO

(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 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 and 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; and
(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 and distinct civil action for damages, and for other relief. Such
civil action shall proceed independently of any criminal prosecution (if the latter be
instituted), and mat 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.

KINDS OF DUTIES:
Duty owing to the public collectively
Duty owing to particular individuals

PARTICULAR WRONG OR INJURY in determining whether a public officer is liable for

an improper performance or non-performance of a duty, it must first be determined which
of the two classes is involved (PARTICULAR)

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

1.
2.
3.

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

Separate civil action for violation of constitutional rights

Doctrine of Respondeat Superior principal agent or employer employee
relationship, not superior military officers - subordinates
GR: GOOD FAITH NOT A DEFENSE
EXCEPTION: JUDGES excluded from liability for any of their official acts, no matter
how erroneous, so long as they act in good faith. (within legal powers and jurisdiction)
Exception: fraud, corruption, gross ignorance, error (must be gross or patent,
deliberate and malicious, or incurred with evident bad faith

Art. 33. In cases of defamation, fraud, and physical injuries a civil action for damages,
entirely separate and distinct from the criminal action, may be brought by the injured
party. Such civil action shall proceed independently of the criminal prosecution, and
shall require only a preponderance of evidence.

Defamation, fraud, physical injuries ordinary sense

Not reckless imprudence

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, and the city or municipality shall be subsidiarily
responsible therefor. The civil action herein recognized shall be independent of any
criminal proceedings, and a preponderance of evidence shall suffice to support such
action.
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
criminal proceedings, the complaint 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.

RESERVATION OF CIVIL ACTIONS: Rule 111

TET DOMINGO

A. Institution of criminal and civil actions

Civil action deemed instituted
Exception
Waiver of civil action
Reservation of right to institute it separately
Before prosecution starts presenting evidence
Under circumstances affording the offended party a reasonable
opportunity to make such reservation
Filing fees - first lien on judgment awarding damages (if not specified)
Counterclaim/cross-claim/3P complaint cannot be filed by the accused
in the criminal case. BUT may be litigated in a separate civil action
Institutes the civil action prior to the criminal action
BP 22: deemed to include the corresponding civil action
If filed separated and has NOT YET commence, may be CONSOLIDATED
Art. 36. Pre-judicial 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 and which shall not be in conflict with the provisions
of this Code.

GR: Where both a civil and a criminal case arising from the same facts are filed in court,
the criminal case takes precedence.
Exception: prejudicial questions

PREJUDICIAL QUESTION: one that arises in a case, the resolution of which is a logical
antecedent of the issue involved therein; criminal case is suspended because the issues
in the civil are determinative of the outcome of the criminal case
1. The civil action involves an issue similar or intimately related to the issue raised in
the criminal action
2. The resolution of such issue determines whether or not the criminal action may
proceed
ABUNADO V PEOPLE
The subsequent judicial declaration of the nullity of the first marriage was immaterial because
prior to the declaration of nullity, the crime of bigamy had already been consummated.
BELTRAN V PEOPLE
In a case for concubinage, the accused (Beltran) need not present a final judgment declaring
his marriage void for he can adduce evidence in the criminal case of the nullity of his
marriage other than proof of a final judgment declaring his marriage void.
With regard to Beltrans argument that he could be acquitted of the charge of concubinage
should his marriage be declared null and void, suffice it to state that even a subsequent
pronouncement that his marriage is void from the beginning is not a defense.

TE V CA
RTC based its denial of demurrer on two grounds: first, Choa and her counsel established a
prima facie case for bigamy against petitioner, and second, petitioners allegation of demurrer
were insufficient to justify the grant of the same. SC also clarifies that by denying of demurrer
of petitioner of demurrer doesnt mean that he is pronounced as liable for the case.
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 and is lost only through death. Capacity to act, which
is the power to do acts with legal effect, is acquired and may be lost. (n)

JURIDICAL CAPACITY fitness to be the subject of legal relations

Acquired upon birth, terminated upon death

CAPACITY TO ACT power to do acts with legal effect

Not inherent
May be attained, lost
Art. 38. Minority, insanity or imbecility, the state of being a deaf-mute, prodigality and
civil interdiction are mere restrictions on capacity to act, and do not exempt the
incapacitated person from certain obligations, as when the latter arise from his acts or
from property relations, such as easements. (32a)
Art. 39. The following circumstances, among others, modify or limit capacity to act:
age, insanity, imbecility, the state of being a deaf-mute, penalty, prodigality, family
relations, alienage, absence, insolvency and trusteeship. The consequences of these
circumstances are governed in this Code, other codes, the Rules of Court, and in
special laws. Capacity to act is not limited on account of religious belief or political
opinion.
A married woman, twenty-one years of age or over, is qualified for all acts of civil life,
except in cases specified by law. (n)

Restrictions on Capacity to Act (Art 38)

Minority
Insanity
Imbecility
Deaf-mute
Prodigality

Modifies Capacity to Act (Art 39)

Age

TET DOMINGO

Insanity
Imbecility
Deaf-mute
Penalty
Prodigality
Family relations
Alienage
Absence
Insolvency
Trusteeship
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 intrauterine life of less than seven months, it is not deemed born if it dies within twentyfour hours after its complete delivery from the maternal womb. (30a)

Commencement of Civil Personality/ PROVISIONAL PERSONALITY

From conception IF
Completely delivered and born
EXCEPTION death within 24 hours
Intra-uterine life of less than 7months

If aborted/Art 40-41 not met = parents can obtain damages in their own right

Birth Certificate
Best evidence of fact of birth
Becomes public document upon registration with office of the local civil registrar
Only prima facie evidence, disputable presumption

Confidentiality of Birth Records

Cannot be revealed except in cases provided by law, by request by
Person himself/person authorized
Spouse, parents, direct descendants, guardian, institution
Court or proper public official when necessary
Nearest of kin, in case of death

Mere filing =/= constructive notice

QUIMIGING V ICAO support from baby daddy, no allegation of birth

A conceived child, although yet as unborn, is given by law a provisional personality of its own
for all purposes favourable to it. It may receive donations as prescribed by Art. 742 of the
Civil Code: Donations made to conceived and unborn children may be accepted by those
persons who would legally represent them if they were already born.
The second reason for reversing the orders appealed from is that a married man to force a
woman not his wife to yield to his lust constitutes a clear violation of the rights of the victim
that entitles her to claim compensation for the damage caused.
GELUZ V CA 3 abortions
Parents of unborn foetus cannot sue for damages on its behalf. A husband of a woman who
voluntarily procured her abortion could not recover damages from the physician who caused
the same.
3rd Such damages must be those inflicted directly upon the parents, as distinguished from the
injury or violation of the rights of the deceased, his right to life and physical integrity
DE JESUS V SYQUIA
As for the recognition of the child, the acknowledgment of paternity is satisfied by the
production of more than 1 document of indubitable authenticity.
He recognized his paternity of the first child in writing with a letter to the priest and
uninterrupted possession of natural child status for one year
No proof upon which a judgment could be based requiring the defendant to recognize
the second baby
Art. 42. Civil personality is extinguished by death.
The effect of death upon the rights and obligations of the deceased is determined by
law, by contract and by will. (32a)

Death Certificate
No one should be buried unless proper death certificate has been presented,
recorded
Physician
Health officer
Any member of the family
Any person having knowledge of the death
Details
Date + place
Full name
Age
Occupation or profession
Residence

TET DOMINGO

Civil statues
Nationality
Probable cause of death
Effect of death on rights and obligations controlled by contract, will, the law
Creditors may claim from Estate (juridical person)
Disinherit heirs on grounds provided by law
Disrespect to the dead

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)

Prove through positive evidence; must be derived from existing fact

Applies only to persons who are called to succeed each other

LIMJUCO V ESTATE OF PEDRO FRAGRANTE
Unless otherwise expressly provided by law, any action affecting the property or rights of a
deceased person which may be brought by or against him if he were alive, may likewise be
instituted and prosecuted by or against the administrator, unless the action is for recovery of
money, debt or interest thereon, or unless, by its very nature, it cannot survive, because
death extinguishes the right.
DUMLAO V QUALITY PLASTICS
Pedro Oria was not and could not have validly served the summons since he had no more
civil personality and juridical capacity. Both of these were already lost upon his death.
A counsel cannot validly appear for a dead codefendant. Estoppel does not apply in this
case. Juridical capacity is the fitness to be the subject of legal relations
CHAPTER 3
JURIDICAL PERSONS
Art. 44. The following are juridical persons:
(1) The State and its political subdivisions;
(2) Other corporations, institutions and entities for public interest or purpose, created
by law; their personality begins as soon as they have been constituted according to
law;
(3) Corporations, partnerships and associations for private interest or purpose to
which the law grants a juridical personality, separate and distinct from that of each
shareholder, partner or member. (35a)

Art. 45. Juridical persons mentioned in Nos. 1 and 2 of the preceding article are
governed by the laws creating or recognizing them.
Private corporations are regulated by laws of general application on the subject.
Partnerships and associations for private interest or purpose are governed by the
provisions of this Code concerning partnerships. (36 and 37a)

Corporations 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 existence
Corporation Code general law governing private corporations
Special charters creates government/public corporations

Art. 46. Juridical persons may acquire and possess property of all kinds, as well as
incur obligations and bring civil or criminal actions, in conformity with the laws and
regulations of their organization. (38a)

JURIDICAL PERSON is a being of legal existence susceptible of rights and

obligations, or of being the subject of juridical relations
1. State + Political subdivisions

State: sovereign person with the people composing it viewed as an organized corporate
society under a government with the legal competence to exact obedience with its
commands
Political organization of a society legally supreme
State can enter into treaties and contracts
State cannot be sued without its consent
Express consent: general law/special law
Implied consent: entry into contracts
Suability vs liability
Suability depends on consent of the state to be sued
Liability depends on applicable law + facts established

Political Subdivisions municipal corporations

Two fold capacity
a. Right springing from sovereignty
Duties performed - Political and governmental acts
b. Private, proprietary or corporate right
Rights arising from their existence as legal persons
Actions in behalf of the municipalities in their corporate or individual capacity
Suability
Immune: when engaged in governmental functions (agency of the state)
Charter provides
WON the agent of the municipality acting in behalf of the municipality is
performing governmental or proprietary functions
In the absence of evidence regularity of the performance of official duty
is presumed

3.

Corporations, partnerships, and associations for private interest

Granted a juridical personality separate and distinct from each
shareholder/partner/member
Separate and distinct personality is merely a fiction created by law for convenience and
to promote the ends of justice
Doctrine of Piercing the veil of corporate fiction
Used to defeat public convenience, justify wrong, protect fraud
Confuse legitimate or judicial issues
Perpetrate deception or otherwise circumvent the law
Corporate entity is being used as an alter ego, adjunct or business conduit for
the sole benefit of the stockholders

2.

Other corporations, institutions and entities for public interest or purpose

TET DOMINGO

Art. 47. Upon the dissolution of corporations, institutions and other entities for public
interest or purpose mentioned in No. 2 of Article 44, their property and other assets
shall be disposed of in pursuance of law or the charter creating them. If nothing has
been specified on this point, the property and other assets shall be applied to similar
purposes for the benefit of the region, province, city or municipality which during the
existence of the institution derived the principal benefits from the same. (39a)

Corporations
Charters (private)
Corp Code (public)

Partnership civil code

Title II. - CITIZENSHIP AND DOMICILE
Art. 48. 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 and, upon reaching the age of
majority, elect Philippine citizenship;
(5) Those who are naturalized in accordance with law. (n)

10


A.

B.
C.
D.

CITIZENSHIP Article 4 of the Consti now governing

Citizens
1. At the time of the adoption of the constitution
2. Whose fathers and mothers are citizens of the Philippines
3. Those born before Jan 17, 1973, of Filipino mothers who elect Phil citizenship
4. Those naturalized in according to law
Natural Born Citizens who are citizens of the Philippines from birth, without having to
perform any act to acquire or perfect their Phil citizenship
Citizens of the Philippines who marry aliens shall retain their citizenship, UNLESS by
their act or omission are deemed, under the law, to have renounced it
Dual allegiance of citizens is inimical to the national interest
Jus Sanguinis vs Jus Soli
Jus Sanguinis citizenship by blood
Jus soli citizenship on the basis of the place of birth

Art. 49. Naturalization and the loss and reacquisition of citizenship of the Philippines
are governed by special laws. (n)

NATURALIZED: the process of acquiring the citizenship of another country (governed by

Commonwealth Act No. 473) Certificate of Naturalization

Attributes of naturalization
Citizenship is not a right, it is a privilege
The requisite conditions for naturalization are laid down by Congress; courts cannot
change or modify them
Only foreigners maybe naturalized
Naturalization may be revoked
Naturalization demands allegiance to our Constitution

Qualifications for naturalization

a. Not less than 21 years of age on the date of the hearing of the petition
Hearing not the date of the declaration of intention not the date of filing
b. Not less than ten years residence
Actual and substantial residence
Reduced to five years

Honorably held office

Established a new industry or introduced a useful invention

Married to a Filipino woman

Engaged as a teacher in a public or recognized private school not

established for exclusive instruction of children of persons of a particular

TET DOMINGO

nationality or race in any of the branches of education or industry for 2

years

Born in the Philippines

c. Must be of good moral character, and believe in the principles underlying
the Philippine Constitution and must have conducted himself in a proper and irreproachable
manner during the entire period of his residence in the Philippines in relation with the
constituted government and with the community in which he is living
Proper and irreproachable conduct determined by the standards of morality
prevalent in the country
d. He must own real estate in the Philippines, worth not less that P5000 or must have
some lucrative trade, profession, or lawful occupation (ALTERNATIVE)
e. He must be able to speak and write English or Spanish and any of the principal
Philippine languages
f.
He must have enrolled his minor child or children of school age in any of the public
or private schools recognized by the Office of Private Education of the Philippines
where Philippine history, government, and civics are taught or prescribed as part of
the school curriculum during the entire period of the residence required of him

Disqualification for naturalization

a. Opposed to organized government
b. Defending or teaching the necessity or propriety of violence, personal assault, or
assassination for the success and predominance of their ideas
c. Polygamists
d. Persons convicted of crimes involving moral turpitude
e. Persons who have not mingled socially with the Filipinos or no sincere desire to
learn and embrace customs traditions during their period of residence
f.
Citizens or subjects of nations with whom US and Philippines are at war
g. Citizens or subjects of a foreign country except US whose laws do not grant
Filipinos the right to become naturalized citizens

Loss of Citizenship
1. Naturalization in a foreign country
2. Express renunciation of citizenship
3. Subscribing to an oath of allegiance to support the constitution or laws of a foreign
country upon attaining 21 years of age or more
4. Rendering service to, or accepting commission in the armed forces of a foreign
country (with exceptions)
5. Cancellation of the certificate of naturalization
6. Having been declared by competent authority a deserter of the Phil armed forces in
time of war

11

7.

Woman upon her marriage to a foreigner, if, by virtue of the laws in force in her
husbands country, she acquires his nationality

Grounds for reacquisition of citizenship

1. Naturalization, if no grounds for disqualification exist
2. Repatriation of deserters of the Army, Navy, Air Corps
3. Direct act of Congress

Art. 50. For the exercise of civil rights and the fulfillment of civil obligations, the
domicile of natural persons is the place of their habitual residence. (40a)

DOMICILE denotes fixed permanent residence to which, when absent, one has the
intention of returning (residence + intention to remain for an unlimited time)
A minor follows the domicile of his parents
Husband and wife shall fix the family domicile
CHANGE OF DOMICILE
a. Actual removal or an actual change of domicile
b. Bona fide intention of abandoning the former place of residence, establishing a new
one
c. Acts which correspond to the purpose

RESIDENCE used to indicate a place of abode, whether permanent or temporary

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.
MO YA LIM YAO V COMMISSIONER OF IMMIGRATION
An alien woman married to an alien who is subsequently naturalized here follows the
Philippine citizenship of her husband the moment he takes his oath as Filipino citizen,
provided that she does not suffer from any of the disqualifications
FRIVALDO V COMELEC ex-disqualified for running for office
Decisions declaring the acquisition or denial of citizenship cannot govern a person's future
status with finality. This is because a person may subsequently reacquire, or for that matter
lose, his citizenship under any of the modes recognized by law for the purpose.
UYTENGSU V REPUBLIC
Petitioner had stayed in the United States, practically without interruption, from early 1947 to
late in 1951, or for almost five (5) years, over three years and a half of which preceded the
filing of the application, it may be said that he resided as distinguished from domiciled
in the United States at that time and for over a year subsequently thereto.
ROMUALDEZ-MARCOS V COMELEC

TET DOMINGO

Her domicile is in Tacloban City. An individual does not lose his domicile even if he has lived
and maintained residences in different places. It cannot be correctly argued that petitioner
lost her domicile of origin by operation of law as a result of her marriage to the late President
Ferdinand E. Marcos in 1952.
EXECUTIVE ORDER NO. 209
THE FAMILY CODE OF THE PHILIPPINES July 6, 1987
Article 1. Marriage is a special contract of permanent union between a man and a
woman entered into in accordance with law for the establishment of conjugal and
family life. It is the foundation of the family and an inviolable social institution whose
nature, consequences, and incidents are governed by law and not subject to
stipulation, except that marriage settlements may fix the property relations during the
marriage within the limits provided by this Code.

One of the basic civil rights of man, fundamental to our existence and survival

While by nature a sacred obligation, is nevertheless a civil contract, usually regulated by

law; at least a civil contract, with the status and interest of the State added to it
Marriage creates a social status or relation between the contracting parties

Cannot be restricted by discriminatory policies of private individuals or corporations

Legitimate business concern

Constitution Protection
Sec 12, Art 2 sanctity of family life, and shall protect and strengthen the family as a
basic social institution
Sec 2, Art 15)
Legislature may impose such restrictions, but not contravene the mandates of the
Constitution

While a lawful marriage seeks to create a permanent union between man and woman, it
does not shed the spouses integrity or privacy as individuals
Privacy of communication and correspondence

Property Relations
Cannot provide any stipulation that the commencement of such property regime
shall be at anytime other than at the precise moment that the marriage was
celebrated
STAR PAPER V SIMBOL
It shall be unlawful for an employer to require as a condition of employment or continuation of
employment that a woman employee shall not get married, or to stipulate expressly or tacitly
that upon getting married a woman employee shall be deemed resigned or separated, or to
actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely
by reason of her marriage.

12

In the case at bar, there is no a reasonable business necessity. The employees were hired
after they were found fit for the job, but were asked to resign when they married a coemployee. Star Paper failed to show how the marriages of the employees could be
detrimental to its business operations. The policy is premised on the mere fear that
employees married to each other will be less efficient.
PT&T V NLRC
Private respondents act of concealing the true nature of her status from PT&T could not be
properly characterized as willful or in bad faith as she was moved to act the way she did
mainly because she wanted to retain a permanent job in a stable company. In other words,
she was practically forced by that very same illegal company policy into misrepresenting her
civil status for fear of being disqualified from work. While loss of confidence is a just cause for
termination of employment, it should not be simulated.
ESTRADA V ESCRITURA
In the area of religious exercise as preferred freedom, however, man stands accountable to
an authority higher than the state, and so the state interest sought to be upheld must be so
compelling that its violation will erode the very fabric of the state that will also protect the
freedom.
It is essential that the government be given an opportunity to demonstrate the compelling
state interest it seeks to uphold in opposing the respondents position that her conjugal
arrangement is not immoral and punishable as it is within the scope of free exercise
protection.
GOITIA V CAMPOS-RUEDA
The law provides that defendant, who is obliged to support the wife, may fulfill this obligation
either by paying her a fixed pension or by maintaining her in his own home at his option.
However, the option given by law is not absolute. The law will not permit the defendant to
evade or terminate his obligation to support his wife if the wife was forced to leave the
conjugal abode because of the lewd designs and physical assaults of the defendant, Beatriz
may claim support
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 and a female; and
(2) Consent freely given in the presence of the solemnizing officer. (53a)
Art. 3. The formal requisites of 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;
and
(3) A marriage ceremony which takes place with the appearance of the contracting
parties before the solemnizing officer and their personal declaration that they take
each other as husband and wife in the presence of not less than two witnesses of legal
age. (53a, 55a)

TET DOMINGO

Art. 4. The absence of any of the essential or formal requisites shall render the
marriage void ab initio, except as stated in Article 35 (2).
A defect in any of the essential requisites shall not affect the validity of the marriage
but the party or parties responsible for the irregularity shall be civilly, criminally and
administratively liable. (n)
Art. 5. Any male or female of the age of eighteen years or upwards not under any of the
impediments mentioned in Articles 37 and 38, may contract marriage. (54a)
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 and declare in the presence of not less than
two witnesses of legal age that they take each other as husband and wife. This
declaration shall be contained in the marriage certificate which shall be signed by the
contracting parties and their witnesses and 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.

ESSENTIAL REQUISITES
1. Legal Capacity
18 y.o above
Not related
Male and female
Effect of sex change
Silverio v Republic: sex is determined by visually looking at the genitals of
a baby at the time of birth is immutable and that there is no law legally
recognizing gender sex re-assignment
Republic v Cagandahan: the SC considered the person as an intersex
individual and granted the preference of the person to be considered
2. Consent
a. Freely given
b. Made in the presence of the solemnizing officer
For the sake of notoriety, certainty of its being made
Personal presence
Total absence of consent makes marriage void ab initio
Consent in marriage obtained through fraud, force, intimidation, or undue influence
makes such marriage merely annullable or voidable

13

At the time of the marriage ceremony; they were capable of intelligently

understanding the nature and consequences of the act

FORMAL REQUISITES
1. Authority of solemnizing officer
The authority of the officer or clergyman shown to have performed a marriage
ceremony will be presumed in the absence of any showing to the contrary
Not bound to investigate whether a marriage license has been duly and
regularly issued by the local civil registrar
Criminal penalties are imposable against a person who solemnizes a marriage
without authority
2. A valid marriage license
Must be issued by the local civil registrar of the place where the marriage
application was filed
Lifetime of 120 days, effective in any part of the Philippines; not effective abroad
Facts that do not invalidate the marriage
Name other than true name
Age in order to avoid parental consent
Non-disclosure of divorce
3. Marriage ceremony
Personal appearance + declaration of consent in the presence of at least 2
witnesses of legal age
Absence of witnesses = irregularity
Absence of ceremony = void

COMMON LAW MARRIAGES non-ceremonial or informal marriage by agreement,

entered into by a man and a woman having capacity to marry, ordinarily without
compliance with such statutory formalities; not recognized in the Philippines

ABSENCE, DEFECT, IRREGULARITIES IN ESSENTIAL AND FORMAL

REQUIREMENTS

Absence/Defect in Essential/formal = void

Exceptions: absence of marriage license
1. articulo mortis
2. no means of transportation
3. marriage among Muslims/cultural minorities
4. 5 year cohabitation + affidavit
Exceptions: authority of solemnizing officer

TET DOMINGO

Good faith belief of parties that such solemnizer had the proper authority
Irregularity in formal = not void
Absence of 2 witnesses
Absence of marriage cert
Marriage solemnized not in allowed places
Unsworn application for marriage license
Lack of parental consent
Failure to undergo marriage counseling
Failure of local civil registrar to post the required notices
Marriage by way of jest
Marriage for financial consideration is valid, not in jest
Republic v Albios: intention to be bound in order to create the very bond
necessary to allow the respondent to acquire American citizenship
Marriage by proxy is void

Breach of Promise to Marry mere breach is not an actionable wrong

Wassmer v Velez: But to formally set a wedding and go through preparation and
publicity

ENRIQUEZ V VELEZ
We hold that the provisions of the Civil Code, unless expressly providing to the contrary as in
Article 144, when referring to a "spouse" contemplate a lawfully wedded spouse.
COSCA V PALAYPAYON
The Family Code pertinently provides that the formal requisite of marriage, inter alia, a valid
marriage license except in the cases provided for therein. Complementarily, it declares that
the absence of any of the essential or formal requisites shall generally render the marriage
void ab initio and that, while an irregularity in the formal requisites shall not affect the validity
of the marriage, the party or parties responsible for the irregularity shall be civilly, criminally
and administratively liable. Thus, respondent judge is liable for illegal solemnization of
marriage.
WASSMER V VELEZ
It was not a simple breach of promise to marry. because of such promise, Wassmer made
preparations for the wedding. Velezs unreasonable withdrawal from the wedding is contrary
to morals, good customs or public policy. Wassmers cause of action is supported under
Article 21 of the Civil Code which provides in part any person who wilfully causes loss or
injury to another in a manner that is contrary to morals, good customs or public policy shall
compensate the latter for the damage.
Art. 7. Marriage may be solemnized by:
(1) Any incumbent member of the judiciary within the courts jurisdiction;

14

(2) Any priest, rabbi, imam, or minister of any church or religious sect duly authorized
by his church or religious sect and registered with the civil registrar general, acting
within the limits of the written authority granted by his church or religious sect and
provided that at least one of the contracting parties belongs to the solemnizing
officers church or religious sect;
(3) Any ship captain or airplane chief only in the case mentioned in Article 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 Article
32;
(5) Any consul-general, consul or vice-consul in the case provided in Article 10. (56a)

WHO ARE AUTHORIZED TO SOLEMNIZE MARRIAGE

States consent is essential to every marriage

GOOD FAITH that such solemnizing officer has such authority mistake of fact only!
A. JUDGES

Only within their courts jurisdiction

CTA, Sandiganbayan, CA, SC judges national
Navarro vs Domagtoy: non-observance of this rule is a mere irregularity wrong,
but mere obiter dictum

Incumbent

Highly irregular for a judge to collect fees for the ceremony

B. PRIEST, RABBI, IMAM, OR MINISTER OF ANY CHURCH OR RELIGIOUS SECT
a. Duly authorized by his her church/religious sect
b. Acting within lmits granted to him/her
c. Registered with the civil registrar general
d. At least one of the contracting parties whose marriage he or she is to solemnize
belongs to his/her church or religious sect
C. SHIP CAPTAIN AND AIRPLANE CHIEF

Only an airplane chief; even in his death, assistant pilot cannot assume authority
a. At least one of the parties is in articulo mortis
b. Must be between passengers or crew members (NOT stow-away)
c. Generally, the ship must be at sea or the plane must be in flight
D. MILITARY COMMANDER
a. Military commander of a unit
b. Commissioned officer; at least a 2nd lieutenant
c. Chaplain must be assigned to such unit
Unit battalion
d. Such chaplain is absent at the time of the marriage
if chaplain is available, he must be the solemnizer
e. Marriage is in articulo mortis

TET DOMINGO

f.

Contracting parties, whether military or civilian must be within the zone of military
operation
Even if contracting parties do not belong to his or her unit
Military operation: not simulated exercise

E. CONSUL-GENERAL, CONSUL, OR VICE CONSUL

Only when the contracting parties are both Filipino citizens

Act as solemnizer, and local civil registrar

No authority to solemnize a marriage in the Philippines

F. MAYOR

Local Government Code

If temporarily incapacitated, for physical or legal reasons, the vice mayor or highest
ranking sanggunian member shall automatically exercise the powers and perform the
duties of the local chief excecutive
NAVARRO V DOMAGTOY
Whether wittingly or unwittingly, it was manifest error on the part of Domagtoy to have
accepted the joint affidavit submitted by the groom. Such neglect or ignorance of the law has
resulted in a bigamous, and therefore void, marriage. On the second issue, the request to
hold the wedding outside Domagtoys jurisdiction was only done by one party, the bride, NOT
by both parties. More importantly, the elementary principle underlying this provision is the
authority of the solemnizing judge. Under Article 3, one of the formal requisites of marriage is
the authority of the solemnizing officer. Under Article 7, marriage may be solemnized by,
among others, any incumbent member of the judiciary within the courts jurisdiction.
ARANAS V JUDGE OCCIANO
The wife was not able to inherit the properties left by her groom because there was nonissuance of marriage license during her marriage. Except in cases provided by law, it is the
marriage license that gives the solemnizing officer the authority to conduct marriage.
Respondent judge did not possess such authority when he solemnized the marriage of the
petitioner.
The marriage was also done outside his territorial jurisdiction. Where a judge solemnizes a
marriage outside his court's jurisdiction, there is a resultant irregularity in the formal requisite,
which while it may not affect the validity of the marriage, may subject the officiating official to
administrative liability.
Article. 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 the consul-general, consul
or vice-consul, as the case may be, and not elsewhere, except in cases of marriages
contracted on the point of death or in remote places in accordance with Article 29 of
this Code, or where both of the parties request the solemnizing officer in writing in

15

which case the marriage may be solemnized at a house or place designated by them in
a sworn statement to that effect. (57a)

VENUE: directory

Non-observance will not invalidate a marriage, but can subject the person/persons who
caused the violation to civil, criminal, or administrative liability

EXCEPTIONS:
Articulo mortis
Remote place
By request of both parties
Art. 9. A marriage license shall be issued by the local civil registrar of the city or
municipality where either contracting party habitually resides, except in marriages
where no license is required in accordance with Chapter 2 of this Title. (58a)

MARRIAGE LICENSE
PLACE OF ISSUE: local civil registrar where either of parties reside
If not followed = mere irregularity
Certificate of Compliance by local Family Planning Office
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 and the duties of the local civil registrar and of the solemnizing
officer with regard to the celebration of marriage shall be performed by said consular
official. (75a)

CONSULAR OFFICIALS
Act as solemnizer, and local civil registrar; issuer of marriage license
Marriage ceremony must be in accordance with the laws of the Philippines
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 the contracting party;
(2) Place of birth;
(3) Age and date of birth;
(4) Civil status;
(5) If previously married, how, when and where the previous marriage was dissolved or
annulled;
(6) Present residence and citizenship;
(7) Degree of relationship of the contracting parties;
(8) Full name, residence and citizenship of the father;
(9) Full name, residence and citizenship of the mother; and

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(10) Full name, residence and citizenship of the guardian or person having charge, in
case the contracting party has neither father nor mother and is under the age of
twenty-one years.
The applicants, their parents or guardians shall not be required to exhibit their
residence certificates in any formality in connection with the securing of the marriage
license. (59a)

Purpose of documentary requirements for application of MARRIAGE LICENSE

To secure publicity
To require a record to be made of marriages
Competent evidence of the marriage; legitimacy of the offspring

Marriage application if local civil registrar has knowledge of such impediment note
down, not deny (ministerial)
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 documents duly attested by the
persons having custody of the originals. These certificates or certified copies of the
documents by this Article need not be sworn to and shall be exempt from the
documentary stamp tax. The signature and 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 fifteen days prior to the date of the application, such
party may furnish in lieu thereof his current residence certificate or an instrument
drawn up and sworn to before the local civil registrar concerned or any public official
authorized to administer oaths. Such instrument shall contain the sworn declaration of
two witnesses of lawful age, setting forth the full name, residence and citizenship of
such contracting party and of his or her parents, if known, and the place and date of
birth of such party. The nearest of kin of the contracting parties shall be preferred as
witnesses, or, in their default, persons of good reputation in the province or the
locality.
The presentation of birth or baptismal certificate shall not be required if the parents of
the contracting parties appear personally before the local civil registrar concerned and
swear to the correctness of the lawful age of said parties, as stated in the application,
or when the 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. (60a)

16

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 the absolute divorce, 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 this circumstance and his or her actual civil status and the name and date
of death of the deceased spouse. (61a)
Art. 14. In case either or both of the contracting parties, not having been emancipated
by a previous marriage, are between the ages of eighteen and twenty-one, they shall,
in addition to the requirements of the preceding articles, exhibit to the local civil
registrar, the consent to their marriage of their father, mother, surviving parent or
guardian, or persons having legal charge of them, in the order mentioned. 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 two witnesses and attested before any official authorized by law to
administer oaths. The personal manifestation shall be recorded in both applications for
marriage license, and the affidavit, if one is executed instead, shall be attached to said
applications. (61a)

PARENTAL CONSENT
For at least 18 21 years of age
Statute is directory only; Non-compliance does not make the marriage invalid, but
merely annullable, does not add anything to the legal capacity
Preference: father
Art. 15. Any contracting party between the age of twenty-one and twenty-five shall be
obliged to ask their parents or guardian for advice upon the intended marriage. If they
do not obtain such advice, or if it be unfavorable, the marriage license shall not be
issued till after three 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, this fact shall be stated in the sworn statement. (62a)
Art. 16. In the cases where parental consent or parental advice is needed, the party or
parties concerned shall, in addition to the requirements of the preceding articles,
attach a certificate issued by a priest, imam or minister authorized to solemnize
marriage under Article 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 certificates of marriage counseling shall

TET DOMINGO

suspend the issuance of the marriage license for a period of three 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 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. (n)

PARENTAL ADVICE for 21-25 years of age

Does not affect the marriage
Art. 17. The local civil registrar shall prepare a notice which shall contain the full
names and residences of the applicants for a marriage license and other data given in
the applications. The notice shall be posted for ten consecutive days on a bulletin
board outside the office of the local civil registrar located in a conspicuous place
within the building and 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. (63a)

Duty of the Local Civil Registrar

Notice 10 days on a bulletin board
Marriage license issued after the completion of the period of publication

If parental advice is not obtained or unfavored, marriage license will be issued only after
3 months
If not followed: still valid, but have administrative sanctions for issuing party
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 and his findings thereon in the
application for 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 interest party. No filing fee shall be charged for
the petition nor a corresponding bond required for the issuances of the order. (64a)
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 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. (65a) chan
robles virtual law library

17

INVESTIGATIVE POWER OF LOCAL CIVIL REGISTRAR AND COURT

INTERVENTION
Impediments known to the local civil registrar note down, but he is duty bound to
issued said license after payment of the necessary fees
Only court intervention directing the non-issuance of the marriage license can
empower the LCR to validly refuse to issue said license
Issuance of License despite TRO irregularity only
CRIMINAL LIABILITY OF LCR
1. Influencing parties in religious respects
2. Illegal issuance or refusal of license

Art. 20. The license shall be valid in any part of the Philippines for a period of one
hundred twenty days from the date of issue, and shall be deemed automatically
canceled at the expiration of the said period if the contracting parties have not made
use of it. The expiry date shall be stamped in bold characters on the face of every
license issued. (65a)

MARRIAGE LICENSE
Valid only in Philippines
120 days from the date of issue
automatically becomes ineffective after 120 days
Art. 21. When either or both of the contracting parties are citizens of a foreign country,
it shall be necessary for them before a marriage license can 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 herein required, submit an affidavit stating the circumstances showing
such capacity to contract marriage. (66a)

CERTIFICATE/AFFIDAVIT OF LEGAL CAPACITY

Both contracting parties are foreigners; adheres to their national law
If no cert LCR will not issue license
If not followed still valid

STATELESS PERSONS/REFUGEES
Affidavit stating circumstances
Art. 22. The marriage certificate, in which the parties shall declare that they take each
other as husband and wife, shall also state:
(1) The full name, sex and age of each contracting party;
(2) Their citizenship, religion and habitual residence;
(3) The date and precise time of the celebration of the marriage;

TET DOMINGO

(4) That the proper marriage license has been issued according to law, except in
marriage 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 either or both of the contracting parties have complied with the legal
requirement regarding parental advice in appropriate cases; and
(7) That the parties have entered into marriage settlement, if any, attaching a copy
thereof. (67a)
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 Article 6
and to send the duplicate and triplicate copies of the certificate not later than fifteen
days after the marriage, to the local civil registrar of the place where the marriage was
solemnized. Proper receipts shall be issued by the local civil registrar 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
copy of the marriage certificate, the original of the marriage license and, in proper
cases, the affidavit of the contracting party regarding the solemnization of the
marriage in place other than those mentioned in Article 8. (68a)

PRESUMPTION OF MARRIAGE strongest known to law

Semper presumity pro matrimonio always presume marriage

When celebration of marriage is once shown, everything necessary to the validity of
marriage in the absence of contrary proof, will be presumed

PROOF OF MARRIAGE
Marriage contract/marriage certificate primary or best evidence, may be proved
by evidence of any kind

Parol evidence: testimony of eyewitness as to all circumstances, public and

open cohabitation, solemn statement in the will of a deceased

PROOF TO ATTACK VALIDITY OF MARRIAGE

Strong, distinct, satisfactory evidence

Declaratory Relief
Any person interested under a deed, will, contract or other written instrument
Rights are affect by statute, EO, regulation, ordinance, governmental regulation
Art. 24. It shall be the duty of the local civil registrar to prepare the documents required
by this Title, and to administer oaths to all interested parties without any charge in
both cases. The documents and affidavits filed in connection with applications for
marriage licenses shall be exempt from documentary stamp tax. (n)

18

Art. 25. The local civil registrar 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 on which
the marriage license was issued, and such other data as may be necessary. (n)

Effect of Duty of LCR given high probative value

Marriage Register all persons married in its locality

1.

LIM TAN HU V RAMOLETE

Tan Put's allegation that she is the widow of Tee Hoon Lim Po Chuan has not been
satisfactorily established and that, on the contrary, the evidence on record convincingly
shows that her relation with said deceased was that of a common-law wife.
VDA. DE CHUA V CA
Petitioner herein failed to establish the truth of her allegation that she was the lawful wife of
the decedent. The best evidence is a valid marriage contract which the petitioner failed to
produce. Transfer Certificates of Title, Residence Certificates, passports and other similar
documents cannot prove marriage especially so when the petitioner has submitted a
certification from the Local Civil Registrar concerned that the alleged marriage was not
registered and a letter from the judge alleged to have solemnized the marriage that he has
not solemnized said alleged marriage. The lower court correctly disregarded the Photostat
copy of the marriage certificate which she presented, this being a violation of the best
evidence rule.
REPUBLIC V CA AND CASTRO
The certification of due search and inability to find issued by the civil registrar of Pasig enjoys
probative value, he being the officer charged under the law to keep a record of all data
relative to the issuance of a marriage license. Unaccompanied by any circumstance of
suspicion and pursuant to Section 29, Rule 132 of the Rules of Court, a certificate of due
search and inability to find sufficiently proved that his office did not issue marriage license no.
1396182 to the contracting parties. There being no marriage license, the marriage of
Angelina and Edwin is void ab initio.

5.
6.
7.

Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws
in force in the country where they were solemnized, and valid there as such, shall also
be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6),
3637 and 38. (17a)
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a
divorce is thereafter validly obtained abroad by the alien spouse capacitating him or
her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law.
(As amended by Executive Order 227)

Lex Loci Celebrationis marriages solemnized abroad and which are valid there as
such are recognized as valid here; general principle of international law

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2.
3.
4.

8.

EXCEPTIONS
Either or both contracting Filipinos and they are below 18 years of age
Nationality rule
Bigamous and polygamous marriages
Mistake of Identity even if mistake of foreigner
Psychologically Incapacitated even if valid in the foreign country where it has been
solemnized
Incestuous
Against public policy
Common-law marriages obtained by Filipinos abroad
Solemnization performance of the formal act or ceremony by which a man and a
woman contract marriage and assume the status of husband and wife
Same sex marriage of Filipinos abroad
Proof of Foreign marriage
Upon the one who asserts the validity of the marriage celebrated abroad
Presumption that marriage was performed in accordance with the law of that
jurisdiction upon submission of proof
Processual presumption he who asserts that the marriage is not valid under our
law bears the burden of proof to present the foreign law
ABSOLUTE DIVORCE
Absolute divorce between 2 citizens of the Philippines not recognized in the
Philippines
Divorce initiated by a Filipino is against public policy, even if recognized in the
country they obtained it from
Where a valid marriage is celebrated, either in Philippines or abroad, bet Filipino
citizen and foreign spouse, and foreign spouse obtains a valid divorce abroad
capacitating him /her to remarry, the Filipino spouse shall likewise have capacity to
remarry under Philippine law (Garcia v Recio, Pilapil vs Ibay-Somera, Van Dorn v
Romillo)
If the Filipino spouse subsequently acquires foreign spouses citizenship before
divorce and he/she initiates the divorce proceeding, the eventual divorce decree will
be recognized because of our adherence to the nationality principle
Foreign divorce must be proven as a fact and valid under the national law of
the alien spouse; only Filipino spouse can avail of the remedy (Corpus v Sto
Tomas)
States recognize divorces of aliens obtained abroad as a matter of
international comity
Void and Voidable Foreign Marriages

19

If null and void under the laws of the state where it was solemnized, likewise null
and void in the Philippines
Chapter 2. Marriages Exempted from License Requirement

GARCIA V RECIO failure to establish divorce decree as fact

In mixed marriages involving a Filipino and a foreigner, Article 26 of the Family Code allows
the former to contract a subsequent marriage in case the divorce is validly obtained abroad
by the alien spouse capacitating him or her to remarry.
Therefore, before our courts can recognize a foreign divorce, the party pleading it must prove
the divorce as a fact and demonstrate its conformity to the foreign law allowing it.
Even after the divorce becomes absolute, the court may under some foreign statutes, still
restrict remarriage. Respondent also failed to produce sufficient evidence showing the foreign
law governing his status. Together with other evidences submitted, they dont absolutely
establish his legal capacity to remarry.
PILAPIL V IBAY-SOMERA adultery after divorce
The crime of adultery cannot be prosecuted except upon a sworn written complaint filed by
the offended spouse.
The fact that private respondent obtained a valid divorce in his country, the Federal Republic
of Germany, is admitted, insofar as private respondent is concerned in view of the nationality
principle in our civil law on the matter of status of persons. Private respondent, being no
longer the husband of petitioner, had no legal standing to commence the adultery case under
the imposture that he was the offended spouse at the time he filed suit.
VAN DORN V ROMILLO properties in divorce
Aliens may obtain divorces abroad, which may be recognized in the Philippines, provided
they are valid according to their national law.
He would have no standing to sue as Reyess husband as he is not entitled to exercise
control over conjugal assets.
REPUBLIC V OBRECIDO capacity to remarry of Filipino spouse
When Ciprianos wife was naturalized as an American citizen, there was still a valid marriage
that has been celebrated between her and Cipriano. The naturalized alien wife subsequently
obtained a valid divorce capacitating her to remarry. Clearly, the twin requisites for the
application of Paragraph 2 of Article 26 are both present in this case. Thus Cipriano, the
divorced Filipino spouse, should be allowed to remarry.
CORPUZ v STO TOMAS
Petitioner was a former Filipino citizen who acquired Canadian citizenship through
naturalization. He went back to Canada and filed a petition for divorce and was
granted. Petitioner filed for judicial recognition of foreign divorce and declaration of marriage
as dissolved, but was denied due to lack of locus standi.
The alien spouse cannot claim under the second paragraph of Art 26 of the Family Code
because the substantive right it establishes is in favour of the Filipino spouse. Only the
Filipino spouse can invoke the second par of Art 26 of the Family Code.

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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 and shall remain
valid even if the ailing party subsequently survives. (72a)
Art. 28. If the residence of either party is so located that there is no means of
transportation to enable such party to appear personally before the local civil registrar,
the marriage may be solemnized without necessity of a marriage license. (72a)
Art. 29. In the cases provided for in the two preceding articles, the solemnizing officer
shall state in an affidavit executed before the local civil registrar 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 there is no means of transportation to enable such party to appear
personally before the local civil registrar and that the officer took the necessary steps
to ascertain the ages and relationship of the contracting parties and the absence of
legal impediment to the marriage. (72a)
Art. 30. The original of the affidavit required in the last preceding article, together with
the legible copy of the marriage contract, shall be sent by the person solemnizing the
marriage to the local civil registrar of the municipality where it was performed within
the period of thirty days after the performance of the marriage. (75a)
Art. 31. A marriage in articulo mortis between passengers or crew members may also
be solemnized by a ship captain or by an airplane pilot not only while the ship is at sea
or the plane is in flight, but also during stopovers at ports of call. (74a)
Art. 32. A military commander of a unit, who is a commissioned officer, shall likewise
have authority to solemnize marriages in articulo mortis between persons within the
zone of military operation, whether members of the armed forces or civilians. (74a)
Art. 33. Marriages among Muslims or among members of the ethnic cultural
communities may be performed validly without the necessity of marriage license,
provided they are solemnized in accordance with their customs, rites or practices.
(78a)
Art. 34. No license shall be necessary for the marriage of a man and a woman who
have lived together as husband and wife for at least five years and without any legal
impediment to marry each other. The contracting parties shall state the foregoing facts

20

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 are found no legal impediment to the marriage. (76a)

EXEMPTION FROM MARRIAGE LICENSE

1. Articulo Mortis
All those authorized to solemnize under Article 7 and Mayor are empowered to act
as the solemnizer of a marriage even without marriage license
2. Far Areas
So located that there is no means of transportation to enable such party to appear
personally before the LCR
3. Articulo Mortis + Ship captain/airplane pilot
Plane is in flight, ship is at sea
Stopovers, ports of call
Passengers and crew members only
4. Articulo Mortis + Military commander
Commissioned officer
Second lieutenant above
Commander of a unit, at least a battalion
In the absence of a chaplain
Within the zone of military operaton
Members of armed forces and civilians
5. Muslims, ethnic groups
For as long as the marriage will be solemnized in accordance with their customs,
rites, and practices
Muslims Code of Muslim Personal Laws
Organic Act for CAR indigenous tribal groups
6. AFFIDAVIT of 5 years cohabitation
5 yrs characterized by continuity and exclusivity
Without any legal impediment to marry each other only at the time of the actual
marriage celebration

Directory Requirements
Non-observance of duties of solemnizing officer re: affidavit he or she has to
execute is merely directory
Will not render the marriage void; only sanctions
NIAL V BAYADOG murdered first wife
From the time Pepitos first marriage was dissolved to the time of his marriage with
respondent, only about 20 months had elapsed. Pepito had a subsisting marriage at the time
when he started cohabiting with respondent.

TET DOMINGO

The 5-year common law cohabitation period, which is counted back from the date of
celebration of marriage, should be a period of legal union had it not been for the absence of
the marriage. This 5-year period should be the years immediately before the day of the
marriage and it should be a period of cohabitation characterized by exclusivity-meaning no
third party was involved at any time within the 5 years and continuity is unbroken.
MANZANO V SANCHEZ
Respondent Judge take refuge on the Joint Affidavit of David Manzano and Luzviminda
Payao stating that they had been cohabiting as husband and wife for seven years. They also
expressly stated the fact of their prior existing marriage. In their marriage contract, it was
indicated that both were "separated." Just like separation, free and voluntary cohabitation
with another person for at least five years does not severe the tie of a subsisting previous
marriage. Respondent Judge knew or ought to know that a subsisting previous marriage is a
diriment impediment, which would make the subsequent marriage null and void.
Clearly, respondent Judge demonstrated gross ignorance of the law when he solemnized a
void and bigamous marriage.
COSCA V PALAYPAYON marriage fees, no license + outside jurisdiction
The formal requisite of marriage, inter alia, a valid marriage license except in the cases
provided for therein. Complementarily, it declares that the absence of any of the essential or
formal requisites shall generally render the marriage void ab initio and that, while an
irregularity in the formal requisites shall not affect the validity of the marriage, the party or
parties responsible for the irregularity shall be civilly, criminally and administratively liable.
Thus, respondent judge is liable for illegal solemnization of marriage.
MARIATEGUI V CA succession rights over fathers estate
The spouses deported themselves as husband and wife, and were known in the community
to be such. Although no marriage certificate was introduced to this effect, no evidence was
likewise offered to controvert these facts. Moreover, the mere fact that no record of the
marriage exists does not invalidate the marriage, provided all requisites for its validity are
present. The laws presume that a man and a woman, deporting themselves as husband and
wife, have entered into a lawful contract of marriage; that a child born in lawful wedlock, there
being no divorce, absolute or from bed and board is legitimate; and that things have
happened according to the ordinary course of nature and the ordinary habits of life.
REPUBLIC V DAYOT lied about 5 year cohabitation
The falsity of the allegation in the sworn affidavit relating to the period of Jose and Felisas
cohabitation, which would have qualified their marriage as an exception to the requirement
for a marriage license, cannot be a mere irregularity, for it refers to a quintessential fact that
the law precisely required to be deposed and attested to by the parties under oath. Hence,
Jose and Felisas marriage is void ab initio. The court also ruled that an action for nullity of
marriage is imprescriptible.
Chapter 3. Void and Voidable Marriages

21

Art. 35. The following marriages shall be void from the beginning:
(1) Those contracted by any party below eighteen years of age even with the consent
of parents or guardians;
(2) Those solemnized by any person not legally authorized to perform marriages
unless such marriages were contracted with either or both parties believing in good
faith that the solemnizing officer had the legal authority to do so;
(3) Those solemnized without license, except those covered the preceding Chapter;
(4) Those bigamous or polygamous marriages not failing under Article 41;
(5) Those contracted through mistake of one contracting party as to the identity of the
other; and
(6) Those subsequent marriages that are void under Article 53.

VOID MARRIAGE not valid from its inception; absence of any of the essential or
formal requirements for marriage makes it void; only marriages declared void by the
legislature should be treated as such
Grounds for a void marriage may co-exist in one case
No splitting cause of action (Mallion v Alcantara); you can have as many grounds
as may exist, but only 1 cause of action
solemnization may be held liable for damages

VOIDABLE (annulled) presupposes it subsists but later ceases to have legal effect;
VOID (null) declares a status or condition which already exists from the beginning
VOIDABLE
Valid until otherwise declared
by court
Generally ratified or
confirmed by free
cohabitation
Cannot be assailed
collaterally except in a direct
proceeding

Remedy to
the infirmity

Action prescriptible; Can be

assailed only during the
lifetime of the parties, and
not after death of parties

Prescriptio
n

Imprescriptible; Can be questioned even after

death

Only the parties, and those

designated by law (parents,
guardians)

Who may
Attack

Any proper interested party may attack; even

the psychologically incapacitated one

Generally conjugal

Property

Rules regarding co-ownership

TET DOMINGO

partnership
Legitimate children

Illegitimate children

General rule: GOOD FAITH/BAD FAITH immaterial in void marriages

Equitable doctrine of unclean hands not as a rule applied
Party who knew that he/she was entering a void marriage before its solemnization
may be held liable for damages
EXCEPTIONS:
1. Good faith in believing that a solemnizing officer has authority to solemnize a
marriage
2. Where a spouse disappears for 4 years or 2 years, the present spouse can marry
again if:
a. Well-founded belief that his/her spouse is dead
b. Procures a judicial declaration of presumptive death
c. At the time of the marriage ceremony, is in good faith with the subsequent
spouse
3. Disposition of properties in a void marriage
Effects of bad faith
General Rule: Void marriage has property regime of co-ownership
Exception: one of the parties is in bad faith
The share of the bad faith party in co-ownership shall be forfeited,
upon the termination of cohabitation:
1. In favor of common children
2. In case of default/waiver of common children: respective surviving
descendants of common children
3. Absence of descendants: innocent party
Void marriage pursuant to Art 40 (final judgment of void 1st marriage
for purpose of remarriage)
1. Common children
2. Children of guilty spouse by a previous marriage
3. Innocent spouse

Collateral and direct attack

COLLATERAL can be asserted even if it is not the main principal issue of a case
and that no previous judicial declaration of nullity is required by law
DIRECT filing a case precisely putting forth as principle issue the marriage; only
husband and wife can file for declaration of nullity

VOID
Considered to have never taken place
Status

attack

regime
Status of
children

Can never be ratified

Can be attacked collaterally

22

Cases where direct attack on the nullity of the marriage must first be undertaken so that the
proper effects provided by law can appropriately apply:
1. For purposes of remarriage under Article 40; if a person has a void marriage and wants
to remarry, he must first file a civil case precisely to obtain a judicial declaration of the
nullity of the first marriage
2. For purposes OTHER THAN remarriage, no judicial declaration of nullity is necessary;
however a court may pass upon the validity of a marriage even in a suit not directly
instituted to question the marriage (suits on: heirship, legitimacy of children, settlement
of estate, criminal case, etc)
3. Article 50; if a donor desires to revoke a donation propter nuptias given to one or both of
the married couple the existence of the valid judicial declaration of nullity will give the
donor the cause of action to revoke the donation
A. Below 18 years even if consent present; it will not make the marriage valid
B. Non-authority of solemnizer
Reasonable belief by one or both of the parties that they were honestly married
Good faith is always presumed until the contrary is shown
Putative marriage: applied to a matrimonial union which has been solemnized in
due form and 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
Ignorance of law vs mistake of fact if contracting parties go before a person not
specifically mentioned by law as having authority to solemnize a marriage, then
they are not excused
C. No marriage license
D. Bigamous/polygamous marriage
VALID FIRST MARRIAGE (Art 37): A subsequent marriage contracted during the life
of the first spouse with any person other than said spouse, is illegal and void
VOID FIRST MARRIAGE (Art 40): If subsequent marriage is contracted without a
prior judicial declaration of nullity of the first marriage, the subsequent marriage is
also void
Art 40 judicial declaration of nullity + Arts 52 & 53 recording in LCR
E. MISTAKE IN IDENTITY the contracting party absolutely did not intend to marry the
other; mistake in the actual physical identity (twins)
F. VOID UNDER ART 53 liquidation, partition, and distribution of their properties;
delivery of presumptive legitimes; recorded in civil registry
CHI MING TSOI v CA small peen
The Supreme Court held that the prolonged refusal of a spouse to have sexual intercourse
with his or her spouse is considered a sign of psychological incapacity. If a spouse, although
physically capable but simply refuses to perform his or her essential marriage obligations,

TET DOMINGO

and the refusal is senseless and constant, Catholic marriage tribunals attribute the causes to
psychological incapacity than to stubborn refusal. Senseless and protracted refusal is
equivalent to psychological incapacity.
DOMINGO V CA Discovery of prior marriage; claim of properties
Marriage of petitioner and private respondent celebrated while the former's previous marriage
with one Emerlina de la Paz was still subsisting is bigamous. It stands to reason that the
lower court before whom the issue of nullity of a first marriage is brought is likewise clothed
with jurisdiction to decide the incidental questions regarding the couple's properties.
NIAL v BAYADOG murdered first wife
Pepito had a subsisting marriage at the time when he started cohabiting with respondent. It is
immaterial that when they lived with each other, Pepito had already been separated in fact
from his lawful spouse. The subsistence of the marriage even where there is was actual
severance of the filial companionship between the spouses cannot make any cohabitation by
either spouse with any third party as being one as husband and wife.Having determined
that the second marriage involve in this case is not covered by the exception to the
requirement of a marriage license, it is void ab initio because of the absence of such element.
Any marriage subsequently contracted during the lifetime of the first spouse shall be illegal
and 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. (As amended by Executive Order 227)

No definition; determination of psychological incapacity depends on the facts of the case

intentionally made so the concept is not straight-jacketed

Should not be equated with insanity or a total mental inability to function in all aspects of
human life

Medical malady must be such as to seriously and effectively prevent them from having a
functional and normal marital life clearly conducive to bringing up a healthy inter-marital
relationship within the family which is necessary for growth

Senseless, protracted, and constant refusal to comply with the essential marital
obligations by one or both of the spouses

Does not comprehend any and all forms of mental incapacity; limited only to compliance
with his/her essential marital obligations

Does not mean that just because a person is psychologically incapacitated to perform
his/her marital obligations with his/her present spouse, this would also be the case with
any person other than his or her present spouse

Must be present at the time of the marriage ceremony, but can be manifested later on
during the marriage
Cannot be ratified, cured by cohabitation, bearing of children

23

Indicators: insanity, unreasonable attachment by the spouse to his family, abandonment,

self-centeredness, sociopathy
PROVING PSYCHOLOGICAL INCAPACITY
Deals with a state of mind, can only be proven by indicators or external
manifestations of the person
Must be clearly alleged in the complaint filed in court
Observation of duty towards spouse and children
EXPERT TESTIMONY
Not a requirement for a declaration of psychological incapacity; court may not
accept the testimony of a psychologist/psychiatrist because the decision must be
based on the totality of evidence
Reading pertinent court records vs. personal examination
JURISPRUDENTIAL GUIDELINES (Republic v CA and Molina)
1. The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any
doubt should be resolved in favor of the existence and continuation of the marriage,
and against its nullity
2. Root cause of the psychological incapacity must be identified as a psychological
illness and its incapacitating nature fully explained:
a. Medically or clinically defined
b. Alleged in the complaint
c. Sufficiently proven by experts
d. Clearly explained in the decision
3. The incapacity must be proven to be existing at the time of the celebration of the
marriage
4. Incapacity must be shown to be medically or clinically permanent or incurable
5. Such illness must be grave enough to bring about the disability of the part to
assume the essential obligations of the marriage
Cannot be mere refusal or neglect to comply with the obligations; must be
downright incapacity
6. The essential marital obligations must be those embraced by Articles 68 71 as
regards husband and wife; Articles 220, 221 225 as regards to parents and their
children
7. Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic
Church in the Philippines, while not controlling or decisive, should be given great
respect
8. The trial court must order the prosecuting attorney or fiscal and the Solicitor
General to appear as counsel for the state
DAMAGES
No award of moral, exemplary damages and attys fees. Incapacity negates bad
faith

TET DOMINGO

REPUBLIC V CA & MOLINA see discussion on jurisprudential guidelines

It appears to us to be more of a difficulty, if not outright refusal or neglect in the
performance of some marital obligations. Mere showing of irreconcilable differences and
conflicting personalities in no wise constitutes psychological incapacity.
CHI MING TSOI V CA
The Supreme Court held that the prolonged refusal of a spouse to have sexual intercourse
with his or her spouse is considered a sign of psychological incapacity. If a spouse, although
physically capable but simply refuses to perform his or her essential marriage obligations,
and the refusal is senseless and constant, Catholic marriage tribunals attribute the causes to
psychological incapacity than to stubborn refusal. Senseless and protracted refusal is
equivalent to psychological incapacity.
LOUEL SANTOS V CA abandonment; left for US and never returned
PI should refer to no less than a mental (not physical) incapacity that causes a party to be
truly incognitive of the basic marital covenants that concomitantly must be assumed and
discharged by the parties to the marriage which (Art. 68), include their mutual obligations to
live together, observe love, respect and fidelity and render help and support.
This psychological condition must exist at the time the marriage is celebrated. The SC also
notes that PI must be characterized by (a) gravity, (b) juridical antecedence, and (c)
incurability. The incapacity must be grave or serious such that the party would be incapable
of carrying out the ordinary duties required in marriage; it must be rooted in the history of the
party antedating the marriage, although the overt manifestations may emerge only after the
marriage; and it must be incurable or, even if it were otherwise, the cure would be beyond the
means of the party involved.
REPUBLIC V QUINTERO-HAMANO
In proving psychological incapacity, there is no distinction between an alien spouse and a
Filipino spouse.
Toshios act of abandonment was doubtlessly irresponsible but it was never alleged nor
proven to be due to some kind of psychological illness. After Lolita testified on how Toshio
abandoned his family, no other evidence was presented showing that his behavior was
caused by a psychological disorder.
It is not enough to prove that a spouse failed to meet his responsibility and duty as a married
person; it is essential that he must be shown to be incapable of doing so due to some
psychological, not physical, illness
CHOA V CHOA
Respondent claims that the filing by petitioner of a series of charges against him are proof of
the latters psychological incapacity to comply with the essential obligations of marriage.
These charges included Complaints for perjury, false testimony, concubinage and
deportation.
To rule that the filings are sufficient to establish her psychological incapacity is not only totally
erroneous, but also grave abuse of discretion bordering on absurdity.Court clearly explained

24

that "psychological incapacity must be characterized by (a) gravity, (b) juridical antecedence
and (c) incurability.
DEDEL V CA anti-social
Sharons sexual infidelity does not constitute PI nor does it constitute the other forms of
psychoses which if existing at the inception of marriage, like the state of a party being of
unsound mind or concealment of drug addiction, habitual alcoholism, homosexuality or
lesbianism, merely renders the marriage contract voidable pursuant to Article 46, Family
Code.
REPUBLIC V RODOLFO O. DE GRACIA new family
The Supreme Court also ruled: Although expert opinions furnished by psychologists
regarding the psychological temperament of parties are usually given considerable weight by
the courts, the existence of psychological incapacity must still be proven by
independent evidence.
VALERIO E. KALAW V MA. ELENA FERNANDEZ
Tyrone was not able to prove Elenas psychological incapacity since the expert witnesses he
presented heavily relied on Tyrones allegations of Elenas constant mahjong sessions, visits
to the beauty parlor, going out with friends, adultery, and neglect of their children. Tyrones
allegations, which served as the bases or underlying premises of the conclusions of his
experts, were not actually proven. In fact, during trial, Elena was able to rebut Tyrones
allegations. Even their children testified that Elena attended to them and had no issues with
the care shown them by their mother.
Art. 37. Marriages between the following are incestuous and void from the beginning,
whether relationship between the parties be legitimate or illegitimate:
(1) Between ascendants and descendants of any degree; and
(2) Between brothers and sisters, whether of the full or half blood. (81a)

Incestuous marriages universally condemned, as grossly indecent, immoral, and

inimical to the purity and happiness of the family

Intermarriages very often result in deficient and degenerate offsprings

Social prohibitions against incest promote the solidarity of the nuclear family
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 fourth
civil degree;
(2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
(4) Between the adopting parent and the adopted child;
(5) Between the surviving spouse of the adopting parent and the adopted child;
(6) Between the surviving spouse of the adopted child and the adopter;
(7) Between an adopted child and a legitimate child of the adopter;

TET DOMINGO

(8) Between adopted children of the same adopter; and

(9) Between parties where one, with the intention to marry the other, killed that other
person's spouse, or his or her own spouse. (82)

MARRIAGES VOID FOR BEING AGAINST PUBLIC POLICY exclusive list

Will not serve the fundamental objective of nurturing a stable family unit

A.

COLLATERAL BLOOD RELATIVES BY CONSANGUINITY

To prevent the coming together in their offspring of any deleterious recessive genes
Up to fourth civil degree consider their nearest and immediate common ascendant
and then count the number of relatives from one of them to the common ascendant and
from the common ascendant to the other one (basically just count everyone theyre
connected to between them)
COLLATERAL HALF-BLOOD RELATIVES BY CONSANGUINITY
Uncle, aunt, niece, nephew, first cousins
Law does not provide that marriages between collateral blood relatives by the half-blood
are prohibited only those expressly prohibited by law are void as such
RELATIONSHIP BY AFFINITY
The only marriages by affinity prohibited in the FC are marriages between step-parents
and step-children as well as parents-in-law and children-in-law
In the event that the marriage is annulled or nullified in accordance with law, there can
be no question that the relationship by affinity between the step-parents and stepchildren as well as parents-in-law and children-in-law is terminated; they are allowed to
marry legally
Marriage terminated by death? If spouses have no living issues, relationship by affinity is
dissolved
ADOPTIVE RELATIONSHIP
Duplicates the structure of a natural family
Adopter cannot marry:
The adopted
Surviving spouse of the adopted
Adopted cannot marry:
The adopter
The surviving spouse of the adopter
The legitimate child of the adopter
Other adopted children of the adopter
Adopted can marry:
Parents of the adopter
Illegitimate child of the adopter

B.

C.

D.

25

E.

Relatives of the adopter

Adopter can marry:
Legitimate, illegitimate, or adopted child of the adopted
The natural parent of the adopted
Other relatives of the adopted
INTENTIONAL KILLING OF SPOUSE
Guilty party must be animated by an intention to marry another person
Mere preponderance of evidence is required to prove the killing; no prior criminal
conviction required
Even the unknowing party will be affected by the void character of the marriage

Art. 39. The action or defense for the declaration of absolute nullity of a marriage shall
not prescribe. (As amended by Executive Order 227 and Republic Act No. 8533; The
phrase However, in case of marriage celebrated before the effectivity of this Code and
falling under Article 36, such action or defense shall prescribe in ten years after this
Code shall taken effecthas been deleted by Republic Act No. 8533 [Approved
February 23, 1998]).

PRESCRIPTIVE PERIOD
The judicial decree merely declares or confirms the voidness of a marriage

Only the husband or the wife can file a court case declaring the marriage void
Heirs cannot file
Second wife would have no legal interest
A void marriage can still be collaterally attacked by any interested party in any
proceeding where the determination of the validity of marriage is necessary to give
rise to certain rights for purposes of inheritance

Equitable doctrine of unclean hands where the Court should not grant relief to the
wrongdoer is not applied in nullity actions
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. (n)

JUDICIAL DECLARATION OF NULLITY FOR PURPOSES OF REMARRIAGE

If a marriage bet 2 contracting parties is void ab initio, any one of them cannot
contract a subsequent valid marriage without a previous judicial declaration of
nullity of the previous void marriage
And registered with the LCR
Liquidation, partition, distribution of properties

TET DOMINGO

Domingo v CA: for the purpose of establishing the validity of a subsequent marriage, the
absolute nullity of a previous marriage may only be invoked on the basis of a final
judgment declaring such nullity
To do away with any continuing uncertainty on the status of the second marriage
Article 40 Bigamy vs Criminal Bigamy
Article 40 bigamy if the first marriage is void and a party to that first marriage
subsequently remarries without obtaining a judicial declaration of nullity of the first
marriage, there is no doubt that the subsequent marriage is likewise void
Criminal bigamy a subsequent marriage was contracted at the time when the
first marriage, which is valid in all respects, was still subsisting

ABUNADO V PEOPLE
The subsequent judicial declaration of the nullity of the first marriage was immaterial because
prior to the declaration of nullity, the crime had already been consummated. In this case,
even if Abunado eventually obtained a declaration that his first marriage was void ab initio,
the point is, both the first and the second marriage were subsisting before the first marriage
was annulled. In short, all the elements of bigamy were present the nullity of the prior
marriage is immaterial.
MORIGO V PEOPLE
A judicial declaration of nullity of a previous marriage is necessary before a subsequent one
can be legally contracted. One who enters into a subsequent marriage without first obtaining
such judicial declaration is guilty of bigamy. This principle applies even if the earlier union is
characterized by statutes as void.
In the instant case, however, no marriage ceremony at all was performed by a duly
authorized solemnizing officer. Lucio Morigo and Lucia Barrete merely signed a marriage
contract on their own. The mere private act of signing a marriage contract bears no
semblance to a valid marriage and thus, needs no judicial declaration of nullity.
WEIGEL V SEMPIO-DY
Since no annulment has yet been made, it is clear that when she married Karl, she was still
validly married to Eduardo, her first husband; consequently, her marriage to Karl is VOID.
There is likewise no need of introducing evidence about the existing prior marriage of
Eduardo at the time they married each other, for then such a marriage though void still
needs a judicial declaration of such fact.
DOMINGO V CA
The Court had ruled that no judicial decree is necessary to establish the invalidity of a void,
bigamous marriage.
The Family Code has clearly provided the effects of the declaration of nullity of marriage, one
of which is the separation of property according to the regime of property relations governing
them. It stands to reason that the lower court before whom the issue of nullity of a first
marriage is brought is likewise clothed with jurisdiction to decide the incidental questions
regarding the couples properties.

26

VALDES V RTC
In a void marriage, regardless of the cause thereof, the property relations of the parties
during the period of cohabitation is governed by the provisions of Article 147 or Article 148,
such as the case may be, of the Family Code. Petitioner and private respondent own the
family home and all their common property in equal shares, as well as in concluding that, in
the liquidation and partition of the property owned in common by them, the provisions on coownership under the Civil Code, not Articles 50, 51 and 52, in relation to Articles 102 and
129, 12 of the Family Code, should aptly prevail
PEOPLE V ARAGON
Proceso Rosima contracted a marriage to one Maria Gorrea in the Philippine Independent
Church in Cebu while he is still married to Maria Gorrea. Yet again, the accused now under
the name of Proceso Aragon contracted another a canonical marriage with Maria Faicol.
It is to be noted that the action was instituted upon complaint of the second wife, whose
marriage with the appellant was not renewed after the death of the first wife and before the
third marriage was entered into. Hence, the last marriage was a valid one and appellants
prosecution for contracting this marriage can not prosper.
MERCADO V MERCADO
All the elements are present when Mercado married Tan. When he married Tan, his first
marriage was still subsisting and was not declared void. In fact, Mercado only filed an action
to declare his first marriage void after Tan filed the bigamy case. By then, the crime of bigamy
had already been consummated.
Art. 41. A marriage contracted by any person during subsistence of a previous
marriage shall be null and void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four consecutive years and the spouse
present has a well-founded belief that the absent spouse was already dead. In case of
disappearance where there is danger of death under the circumstances set forth in the
provisions of Article 391 of the Civil Code, an absence of only two years shall be
sufficient.
For the purpose of contracting the subsequent marriage under the preceding
paragraph the spouse present must institute a summary proceeding as provided in
this Code for the declaration of presumptive death of the absentee, without prejudice
to the effect of reappearance of the absent spouse. (83a)
Art. 42. The subsequent marriage referred to in the preceding Article shall be
automatically terminated by the recording of the affidavit of reappearance of the
absent spouse, unless there is a judgment annulling the previous marriage or
declaring it void ab initio.
A sworn statement of the fact and circumstances of reappearance shall be recorded in
the civil registry of the residence of the parties to the subsequent marriage at the
instance of any interested person, with due notice to the spouses of the subsequent

TET DOMINGO

marriage and without prejudice to the fact of reappearance being judicially determined
in case such fact is disputed. (n)

Bigamy and Petition for Recognition of Foreign Judgment

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
Presumptive evidence of a right between the parties

JUDICIAL DECLARATION OF PRESUMPTIVE DEATH

EXCEPTION to bigamous marriage in relation with Art 40

A bigamous marriage may be considered valid if, prior to the subsequent

marriage and without prejudice to the effect of the reappearance of the other
spouse, the present spouse obtains a judicial declaration of presumptive death via
a summary proceeding in a court of competent jurisdiction
Absence of spouse for 4 consecutive years
2 years in case of disappearance where there is danger of death
Well founded belief that the absent spouse is dead
Well-founded belief: the belief that the present spouse must be the result
of proper and honest to goodness inquiries and efforts to ascertain the
whereabouts of the absent spouse (Republic v Nolasco)
Absence of 7 years, it being unknown whether the absentee still lives, he shall be
presumed dead for all purposes EXCEPT succession
The judicial proceeding shall be summary in nature; immunizes the present spouse
from being charged of bigamy, adultery, or concubinage
SUCCESSION OF THE ABSENT SPOUSE AFTER THE FIRST MARRIAGE HAS BEEN
LIQUIDATED
Only after an absence of 10 years
If 75 years old upon disappearance absence of 5 years only
SWORN STATEMENT OF REAPPEARANCE
The judicial declaration of presumptive death is without prejudice to the effect of
reappearance of the absent spouse
After the issuance of the judicial declaration of presumptive death, the properties of
the first marriage should be liquidated
Failure to liquidate: the property regime of the subsequent marriage is
complete separation of property
Liquidation: parties may agree in their settlement, or absolute community
Void subsequent marriage: rules of co-ownership

27

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 residence of the parties to the subsequent marriage
Any interested party may file
Effect: judicial declaration of presumptive death is immediately rendered
functus officio
Such termination is without prejudice to the outcome of any judicial
proceeding questioning such reappearance
Mere fact of reappearance renders without effect the judicial declaration of
presumptive death
Effect of non-filing of affidavit of reappearance
2 valid marriages; but the law or the state shall continue to protect the
second marriage rather than the firs
The reappearing spouse cannot enter into a contract of marriage

REPUBLIC V NOLASCO
The Republic of the Philippines opposed the petition through the Provincial Prosecutor of
Antique who had been deputized to assist the Solicitor-General in the instant case. The
Republic argued, first, that Nolasco did not possess a well-founded belief that the absent
spouse was already dead, 2 and second, Nolascos attempt to have his marriage annulled in
the same proceeding was a cunning attempt to circumvent the law on marriage.
Respondent failed to establish that he had the well-founded belief required by law that his
absent wife was already dead that would sustain the issuance of a court order declaring
Janet Monica Parker presumptively dead.
Well-founded belief: the belief that the present spouse must be the result of proper and
honest to goodness inquiries and efforts to ascertain the whereabouts of the absent spouse
LUKBAN V REPUBLIC
The court ruled that Lukban does not need to secure declaration of presumptive death of her
husband because Civil Code prevails during their marriage in 1933. It provides that for the
purposes of the civil marriage law, it is not necessary to have the former spouse judicially
declared an absentee. The declaration of absence made in accordance with the provisions of
the Civil Code has for its sole purpose to enable the taking of the necessary precautions for
the administration of the estate of the absentee. For the celebration of civil marriage,
however, the law only requires that the former spouse has been absent for seven
consecutive years at the time of the second marriage, that the spouse present does not
know his or her former spouse to be living, that each former spouse is generally reputed to
be dead and the spouse present so believes at the time of the celebration of the marriage.
ARMAS V CALISTERIO
The marriage between the respondent and decedent was solemnized in 1958 where the law
in force at the time was the Civil Code and not the Family Code. Article 256 of the Family

TET DOMINGO

Code limits its retroactive effect only to cases where it would not prejudice or impair vested or
acquired rights in accordance with the Civil Code and other laws. Since the Civil Code
provides that declaration of presumptive death is not essential before contracting marriage
where at least 7 consecutive years of absence of the spouse is enough to remarry, then
Mariettas marriage with Teodorico is valid and therefore she has a right to claim a portion of
Teodoricos estate.
Art. 43. The termination of the subsequent marriage referred to in the preceding Article
shall produce the following effects:
(1) The children of the subsequent marriage conceived prior to its termination shall be
considered legitimate;
(2) The absolute community of property or the conjugal partnership, as the case may
be, shall be dissolved and 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;
(3) Donations by reason of marriage shall remain valid, except that if the donee
contracted the marriage in bad faith, such donations made to said donee are revoked
by operation of law;
(4) The innocent spouse may revoke the designation of the other spouse who acted in
bad faith as beneficiary in any insurance policy, even if such designation be stipulated
as irrevocable; and
(5) The spouse who contracted the subsequent marriage in bad faith shall be
disqualified to inherit from the innocent spouse by testate and intestate succession.
(n)
Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage
shall be void ab initio and all donations by reason of marriage and testamentary
dispositions made by one in favor of the other are revoked by operation of law.

EFFECTS OF TERMINATION OF SUBSEQUENT MARRIAGE (ART 41)

Status of Children
During subsequent Art 41 marriage and before termination legitimate
Property Regime
Dissolved and liquidated; equally or in accordance with the sharing stipulated
in a valid marriage settlement
If parties were in bad faith
Guilty spouse no share in the net profits of the property regime
Common children

28

Children by a previous marriage of the guilty spouse

Innocent spouse
DONATIONS BY REASON OF MARRIAGE
If both parties in good faith valid
Donee in bad faith terminated by operation of law
Both bad faith void
DESIGNATION AS BENEFICIARY IN INSURANCE POLICY
Choice of revoking or maintaining the other spouse who acted in bad faith
Even if designation is irrevocable
DISQUALIFICATION AS TO INHERITANCE
One who contracted subsequent marriage in bad faith disqualified to inherit from
the innocent spouse by testate and intestate succession
Both parties testamentary dispositions made by one over the other are revoked
Void marriage no inheritance
Good faith of the present spouse must be present up to the time of the celebraton of the
subsequent marriage
Subsequent marriage is void only when both spouses are in bad faith in contracting
subsequent marriage

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
eighteen years of age or over but below twenty-one, and 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 twenty-one,
such party freely cohabited with the other and both lived together as husband and
wife;
(2) That either party was of unsound mind, unless such party after coming to reason,
freely cohabited with the other as husband and 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 and wife;
(4) That the consent of either party was obtained by force, intimidation or undue
influence, unless the same having disappeared or ceased, such party thereafter freely
cohabited with the other as husband and wife;
(5) That either party was physically incapable of consummating the marriage with the
other, and such incapacity continues and appears to be incurable; or
(6) That either party was afflicted with a sexually-transmissible disease found to be
serious and appears to be incurable.
Art. 46. Any of the following circumstances shall constitute fraud referred to in Number
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 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 the marriage.

TET DOMINGO

29

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.

3.

EXCLUSIVITY OF GROUNDS FOR ANNULMENT

Public policy consideration: permanency of the marriage relaton
Clear & undeniable proofs are necessary

4.

A.

UNSOUND MIND
Derangement of the mind to prevent the part from comprehending the nature of the
contract and from giving it his free and intelligent consent; an understanding of the
obligations assumed
Not mere weakness/dullness of intellect, eccentricities, partial dementia

C.

FRAUD
1. Non-disclosure of previous conviction
Final conviction foa crime involving moral turpitude
Mortal turpitude: everything which is contrary to justice, honestly, or good morla
Burden is on the convicted party to reveal his criminal record
2.

Concealment of pregnancy
Only to the wife; the fact of the husbands having a child in a concealed prior
relationship is speculative and difficult to prove
Concealment must have been done in bad faith
Mere pregnancy alone at the time of the marriage is not sufficient, there must be
concealment
Except: if pregnancy was readily apparent to the man, he cannot claim lack
of knowledge of such pregnancy
Misrepresented pregnancy to induce marriage not applicable

TET DOMINGO

Concealment of Drug Addiction and Habitual Alcoholism as Fraud

Habitual drunkenness persistent habit of becoming intoxicated; fixed and
irresistible habit of drunkenness, whereby he has lost the power or will to control
his appetite for intoxicating liquor; he becomes drunk periodically
it must appear that he drinks to excess so frequently as to become a fixed
practice or habit with him
renders him unfit for the duties of the marital relation and disqualifies him from
caring for the children

NO PARENTAL CONSENT
At least 18, below 21
Annullable at the instance of the:

party whose parent/guardian/person having substitute parental authority did

not give his/her consent
parents
guardian
person having substitute parental authority

B.

Concealment of sexually transmitted disease

Nature or gravity is irrelevant
Enough that there is concealment at the time of the marriage ceremony

5.

Concealment of Homosexuality/Lesbianism
Ground is not homosexuality, lesbianism per se but the concealment of such
sexual orientation; may be ratified
Element of bad faith

D.

VITIATED CONSENT
Force, intimidation, undue influence
Violence constituting duress physical or moral; coercion of the person
continuing down to the moment of the celebration of the marriage or coercion by
antecedent threats of bodily harm
Intimidation compelled by a reasonable and well-grounded fear of an imminent
of gravel evil upon his person or property/person or property of his spouse,
ascendants/descendants
Must be proven by preponderance of evidence
Criminal liablity attaches

E.

INCAPACITY TO CONSUMMATE
Permanent inability to perform the complete act of sexual intercourse
Physical incapability
Must exist at the time of the marriage cereony
Continuous, appears to be incurable
May be caused by:

a physical or structural defect in the anatomy of one of the parties

chronic illness
inhibitions or fears arising in whole or in part from physiopsychological
causes

30

nervous disorder: vaginismus

merely suffering from epilepsy, not sufficient
whoever alleges has the burden of proving the same; preponderance of evidence
incapacity or impotence need not be universal
Rule on Triennal Cohabitation
If the wife remains a virgin for at least 3 years from the time the spouses
started cohabiting, the husband must show that he was not impotent during
the said period and the burden will be upon him to overcome the
presumption of impotence
Sterility does not imply want of power for copulation

F.

SEXUALLY TRANSMITTED DISEASE

Serious and incurable
If obtained after the marriage ceremony, it cannot be a ground for annulment; can
be used as evidence of sexual infidelity

RATIFICATION OF ANNULLABLE MARRIAGES

Free cohabitation
1. No consent free cohabitation after attaining the age of 21
2. Insanity insane spouse ratifies by free cohabitation; sane spouse who knew of
the insanity at the time of ratification cannot ratify
3. Fraud full knowledge + FC
4. Vitiated consent after disappearance of force/intimidation/undue influence + FC

Incapacity to consummate FC will not ratify (not defective consent) but if not
brought to suit 5 years after the marriage: barred forever

Art. 47. The action for annulment of marriage must be filed by the following persons
and within the periods indicated herein:
(1) For causes mentioned in number 1 of Article 45 by the party whose parent or
guardian did not give his or her consent, within five years after attaining the age of
twenty-one, or by the parent or guardian or person having legal charge of the minor, at
any time before such party has reached the age of twenty-one;
(2) For causes mentioned in number 2 of Article 45, by the same spouse, who had no
knowledge of the others insanity; or by any relative or 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 number 3 of Article 45, by the injured party, within five
years after the discovery of the fraud;

TET DOMINGO

(4) For causes mentioned in number 4 of Article 45, by the injured party, within five
years from the time the force, intimidation or undue influence disappeared or ceased;
(5) For causes mentioned in number 5 and 6 of Article 45, by the injured party, within
five years after the marriage.

Actions in rem; depends on the nationality/domicile of the parties, not place of

celebration
PRESCRIPTIVE PERIOD
GROUND
Party to file the suit
Prescription Period
1. No parental consent
a. parent/guardian having
Anytime before no consent
legal charge of no-consent party reaches age of 21
party
b. no consent party
Within 5 years after 21
2. Insanity
a. sane spouse w/o
At any time before death of
knowledge of insanity
either party
b. relative, guardian, or
person having legal charge
of insane
c. Insane spouse
during lucid interval or after
regaining sanity
3. Fraud
Injured Party
Within 5 years after
discovery of fraud
4. Vitiated consent
Injured party
Within 5 years from time
force/intimidation/or undue
influence disappeared or
ceased
5. Incapability to
Injured Party
Within 5 years after the
Consummate/STD
marriage ceremony

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 it to appear on behalf
of the State to take steps to prevent collusion between the parties and to take care that
evidence is not fabricated or suppressed.
In the cases referred to in the preceding paragraph, no judgment shall be based upon a
stipulation of facts or confession of judgment.
Art. 49. During the pendency of the action and in the absence of adequate provisions
in a written agreement between the spouses, the Court shall provide for the support of
the spouses and the custody and support of their common children. The Court shall
give paramount consideration to the moral and material welfare of said children and

31

their choice of the parent with whom they wish to remain as provided to in Title IX. It
shall also provide for appropriate visitation rights of the other parent.
PROCEDURE OF ANNULMENT AND IN DECLARATION OF NULLITY CASES
1. Complaint for annulemtn/declaration of nullity filed with RTC
2. Defendants Answer within 15 days from receipt of the summons and copy of complaint
Failure to answer NOT DEFAULT, Order of full blown hearing; if erroneous default
no legal effect
Answer all the issues are joined, Order of the hearing; Fiscal required to appear to
make sure there is no collusion, and evidence is not fabricated
Investigation of collusion if petitioner refuses upon subpoena, annulment may be
dismissed upon motion of the fiscal
No suspension of the case can be made for the purpose of discussing a compromise
upon the question of the validity of the mariage
3. Full Blown Hearing preponderance of evidence; summary proceedings not allowed,
judgment on pleadings not allowed, even if admitted
ROLE OF FISCAL AND SOLICITOR GENERAL
Prosecuting attorney or fiscal must be present
OSG may intervene defensor vinculi defender of marital bond; marriage is vested
with public interest
Prosecuting attorney must actively participate, but his non-intervention is not fatal when
the case is strongly opposed and heatedly contested
Partial voluntary separation of property duly approved by the court prior to the judicial
declaration of nullity of marriage is valid
COLLUSION
For purposes of getting an annulment/nullity decree, the parties come up with an
agreement making it appear that the marriage is defective
Corrupt agreeent between the husband and the wife, renderes dismissible any
annulment or nullity case
Failure to answer is not the evidence of collusion
Judge who fails to order an investigation of collusion can be subject to administrative
sanction
STIPULATION OF FACTS/CONFESSION OF JUDGMENT

Stipulation of facts admission by both parties made in court agreeing to the existence
of the act constituting the ground for annulment

Confession of Judgment admission made in court by the respondent or defendant

admitting fault as invoked by the plaintiff to sever the marriage ties

TET DOMINGO

HOWEVER, if sufficiently supported by other independent substantial evidence may

warrant annulment/declaration of nullity. What the law prohibits is judgment based
exclusively or mainly on defendants confession

NULLITY DECISION PRIOR TO DETERMINATION OF OTHER INCIDENTAL ISSUES

Other issues can be thresed out; after decision is rendered, or upon entry of judgment
granting the petition, befroe the decree is issued
a.

Support of Spouses and custody of children governed by whatever agreement the

parties have made with respect to the same
Support given to spouse not entitled return with legal interest
Support during the pendency need not be reimbursed
b. Visitation rights for compelling reasons may deprive the other prent; may be
reinstated
Art. 50. The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and by
Article 44 shall also apply in the proper cases to marriages which are declared ab initio
or annulled by final judgment under Articles 40 and 45.
The final judgment in such cases shall provide for the liquidation, partition and
distribution of the properties of the spouses, the custody and support of the common
children, and the delivery of third presumptive legitimes, unless such matters had
been adjudicated in previous judicial proceedings.
All creditors of the spouses as well as of the absolute community or the conjugal
partnership shall be notified of the proceedings for liquidation.
In the partition, the conjugal dwelling and the lot on which it is situated, shall be
adjudicated in accordance with the provisions of Articles 102 and 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 of
both of the parents; but the value of the properties already received under the decree
of annulment or absolute nullity shall be considered as advances on their legitime.
JUDGEMENT OF ANNULMENT OR NULLITY OF MARRIAGE
1. Factual and legal basis for its dispositive conclusion

32

Judgment not in conformity with the allegations void (coram non judice)
Psychological incapacity final and binding on the Supreme Court, unless clearly and
manifestly erroneous
2. Dissolution of property regime liquidation, partition, and distribution unless already
adjudicated upon or regime of separation of property
() All creditors of the spouses, ACP/CPG shall be notified
3. Delivery of presumptive legitime
4. While common childred are not parties to the annulment, they are specially granted by
law legal standing to seek the enforcement of the judgment

ENTRY OF JUDGMENT AND DECREE OF NULLITY OR ANNULMENT

Final upon the expiration of 15 days from receipt of parties UNLESS MR

Upon finality Decree of Absolute Nullity or Annulment of Marriage shall be issued,

after the registration of Entry of Judgment in the proper local civil registries

Art 40 bigamous marriage -> after registration of the approved partition and distribution
of properties in the proper registry of deeds
Art 40 Bigamous Marriage

Art 43 paragraphs (2)-(5)

(2) The absolute community of property or the conjugal partnership, as the case
may be, shall be dissolved and liquidated, guilty spouses part is forfeited
(3) Donations by reason of marriage shall remain valid, except if donee is in bad
faith
(4) The innocent spouse may revoke the designation of the other spouse who acted
in bad faith as beneficiary in any insurance policy, even if such designation be
stipulated as irrevocable; and
(5) The spouse who contracted the subsequent marriage in bad faith shall be
disqualified to inherit from the innocent spouse by testate and intestate succession.

Art 44
all donations by reason of marriage and testamentary dispositions made by one in
favor of the other are revoked by operation of law.

Delivery of presumptive legitime

All other Void marriage

governed by the Ordinary Rules on Co-Ownership accdg to Art 147-148

dwelling shall be co-owned equally, in the absence of evidence that it is the exclusive
property of one party

marriage can be declared void without waiting for the liquidatio of the properties
Delivery of Presumptive Legitime (see Valdes v RTC ruling)

TET DOMINGO

Art 40 bigamous marriage

Voidable marriage

PRESUMPTIVE LEGITIME part of the testators property which he cannot dispose of

because the law has reserved it for certain heirs who are called compulsory heirs

Delivered in: cash, property, sound securities

Computed as of the date of the final judgment of the trial court

Judicial proceeding for the approval summary

Does not prejudice the ultimate successional rights of the children, but value of property
already received under the Decree shall be considered advanced on their legitime

Art 52: recording of the presumptive legitime in the proper registry of property

Art. 52. The judgment of annulment or of absolute nullity of the marriage, the partition
and distribution of the properties of the spouses and the delivery of the children's
presumptive legitimes shall be recorded in the appropriate civil registry and registries
of property; otherwise, the same shall not affect third persons.
Art. 53. Either of the former spouses may marry again after compliance with the
requirements of the immediately preceding Article; otherwise, the subsequent
marriage shall be null and void.
Art. 54. Children conceived or born before the judgment of annulment or absolute
nullity of the marriage under Article 36 has become final and executory shall be
considered legitimate. Children conceived or born of the subsequent marriage under
Article 53 shall likewise be legitimate.
LIQUIDATION AND PARTITION OF PROPERTIES

Void ordinary rules on co-ownership

Voidable rules in ACP/CPG

Partial voluntary separation of property

RECORDING IN THE CIVIL REGISTRY AND REGISTRY OF PROPERTY (for voidable and
art 40 void)
1. Judgment of annulment/absolute nullity
2. Partition and distribution
3. Delivery of presumptive legitime

Non-compliance non issuance of a decree of nullity/annulment

Appropriate civil registry and registry of property duty of successful petition

33

LCR where marriage was recorded

Where Court granting petition is located
Registry of property where properties are located

STATUS OF CHILDREN

Outside valid marriage/inside void marriage illegitimate

EXCEPT (article 54) legitimate
Psychologically incapacitated (children conceived and born inside marriage)
Have not complied with mandatory recording and distribution requirements

Inside annullable/voidable marriage legitimate

RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARRIAGES AND
ANNULMENT OF VOIDABLE MARRIAGES
Petition for declaration of absolute nullity of void marriages
A. who may file husband or wife
B. where to file family court
C. imprescriptibility shall not prescribe
D. allegations complete facts, physical manifestations
Petition for annulment of voidable marriage
a. who may file see art 46
b. where to file family court where petitioner/respondent had been residing for at least 6
months prior
c. contents and form
names, ages
provisional order
verified, certification against forum shopping
six copies
d. summons
e. motion to dismiss ONLY on ground of lack of jurisdiction over the subject matter or over
the parties
f. answer within 15days from service of summons, within 30 days from the last issue of
publication
failure =/= default; public prosecutor to investigate
g. investigation report of public prosecutor
collusion state the basis, dismiss the petition
no collusion pre-trial
h. social worker report at least 3 days before the pre-trial

TET DOMINGO

i.
j.
k.

l.
m.
n.

o.

p.

q.
r.
s.
t.
u.

v.
w.

pre-trial mandatory; on motion or motu proprio; after the last pleading has been served
and filed, upon receipt of the report of the public prosecutor that no collusion exists
notice of pre-trial pre-trial conference date, pre-trial brief requirement
contents of pre-trial brief
statement of willingness of the parties to enter into agreements
respective claims
stipulations of facts
evidence
witnesses
effect of failure to appear at the pre-trial
pre-trial conference
pre-tial order 5 days after to propose corrections
facts undisputed
facts and issues to be litigated
evidence
witnesses
schedule of presentation of evidence
prohibited compromise
civil status
validity of marriage/legal separation
ground for legsep
future support
jurisdiction of courts
future legitime
trial
judge only
no delegation of the reception of evidence to a commissioner shall be allowed except
as to matters involving property relations
grounds for nullity/annulment must be proved
memoranda within 15 days from the date trial is terminated
decision declare only after rules on liquidation, partition, distribution
notice of appeal
liquidation, partition, distribution, custody, support, delivery of presumptive legitimes
issuance of decree of declaration of absolute nullity or annulment of marriage
registration of the entry of judgment
registration of the approved partition and distribution
delivery of the presumptive legitimies
registration and publication of the decree, decree as best evidence
effect of death of a party
any stage of proceedings closed, terminated, settle the estate
after the entry of judgement binding upon the parties and successors

34

Rule on Provisional Orders

1. When issued any time during proceeding; upon receipt of petition; motu proprio or
upon application under oath of any of the parties, guardian, designated custodian
2. Spousal support
From the ACP or CPG
In such amount, for such period of time, attendant factors (custodian of child,
comparative financial resources, needs and obligationsetc)
May deduct the salary of the spouse
3. Child support
o
ACP or CPG
o
Either parent or both may give amount in proportion to their resources
4. Child Custody best interests, material and moral welfare
1
To both parents jointly
2
Either parent
3
Surviving grandparent/grandparent chosen by the child unless unfit/dq
4
Eldest bro or sis over 21
5
Childs actual custodian over 21
6
Any other deemed suitable by the court
5. Visitation rights unless unfit/dq
6. Hold Departure
o
May be issued ex parte
o
Issued by: Bureau of Immigration and Deportation
o
Furnish the DFA and BOI and DOJ a copy
7. Order of Protection
o
Stay away from home/school/business
o
Refrain from harassing/intimidating
o
Refrain from acts of commission/omission that create unreasonable risk
o
Permit person entitled to visitation
o
Permit to enter residence
o
Comply with other orders
8. Administration of Common Property
o
Abandonment without just cause
o
Applicant or a 3rd person
o
May not dispose or encumber any common property/separate property without prior
authority of the court
o
Registered in the proper RD
TITLE II
LEGAL SEPARATION

TET DOMINGO

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 six years,
even if pardoned;
(5) Drug addiction or habitual alcoholism of the 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; or
(10) Abandonment of petitioner by respondent without justifiable cause for more than
one year.
For purposes of this Article, the term "child" shall include a child by nature or by
adoption.
Legal Separation
Does not affect the marital status
Bed and boad separation
Terminable at the will of the parties by merely filing a manifestation in court
Exclusivity of grounds may or may not exist at the time of the marriage ceremony
1. Repeated Physical Violence or Grossly Abusive Conduct
Does not include repeated physical violence upon the child of the respondent or the
guilty spouse
Inflicted with bad faith or malice
Grossly Abusive conduct determined on a case to case basis, continued
manifestation of indifference or aversion, couple with persistent neglect of the duties
incident to the marital relation
Use of offensive language
2. Compulsion by Physical Violence or Moral Pressure to Change Religious or Political
Affiliation
3. Corruption or Inducement to Engage in Prostitution
One of the spouses induces the

35

 Petitioner
A common child
Child of the petitioner
Prostitution only; mere attempt is a ground
Child of the guilty spouse with another person not included
Ground to terminate parental authority
4. Final Judgment Involving more than 6 years of Imprisonment
Need not necessarily be against the other spouse, their common children,or
petitioners children
Invocable despite valid pardon
5. Drug Addiction, Habitual Alcoholism
- ground can exist even after marriage ceremony
6. Lesbianism or Homosexuality
7. Bigamy
Illegally contracting a 2nd marriage despite full knowledge that the first marriage is stll
validly existing
If committed abroad, the guilty party cannot be criminally prosecuted for bigamy in
the Phils
8. Sexual Infidelity or Perversion
Even a single act of sexual intercourse with another woman
Clear betrayal of trust by having intimate affairs with other persons
Perversion not only with 3P but also with the spouse
9. Attempt on Life
Must proceed from an evil design, and not from any justifiable cause (self-defense,
caught in flagrante delicto)
May disinherit the guilty spouse
10. Unjustified abandonment
Willful design to forsake the other spouse intentionally
Deliberate intent to cease living with the other spouse
Wrongful intent to desert, without justifiable cause
Absolute cessation of marital relations, duties and rights, with the intention of
perpetual separation
Abandonment must be for more than 1 year
Leaving conjugal dwelling without intention of returning presumed after a period of
3 months

(3) Where there is connivance between the parties in the commission of the 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 decree of legal separation; or
(6) Where the action is barred by prescription.

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 has consented to the commission of the offense or act
complained of;

Art. 59. No legal separation may be decreed unless the Court has taken steps toward
the reconciliation of the spouses and is fully satisfied, despite such efforts, that
reconciliation is highly improbable.

TET DOMINGO

GROUNDS FOR DENIAL

1. Condonation
Act of forgiving the offense after its commission; implies a condition of future good
behavior by the offending spouse
2. Consent
either of the spouses agreed to or did not object, despite full knowledge, to the act
giving rise to a ground for legal separation, before such act was in fact committed
may be deduced also from the acts of the spouses; if he does nothing to interfere or
assert rights as spouse
3. Connivance
direction, influence, personal exertion, or other action with knowledge and belief that
such action would produce certain results and which results are produced
employment of agents to induce, persuade, and coerce his wife in participating in
illicit sexual activities
corrupt consenting
4. Recrimination or Equal Guilt
He who comes into equity must come with clean hands; not in pari delicto
5. Collusion
Corrupt agreement to commit marital offense between spouses looking to the
procuring of a divorce
Confession does not mean collusion
6. Prescription
Within 5 years from the occurrence of the cause
Art. 57. An action for legal separation shall be filed within five years from the time of
the occurrence of the cause.
Art. 58. An action for legal separation shall in no case be tried before six months shall
have elapsed since the filing of the petition.

36

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 prevent collusion between the parties and to take care that the evidence
is not fabricated or suppressed.

(3) The custody of the minor children shall be awarded to the innocent spouse, subject
to the provisions of Article 213 of this Code; and
(4) The offending spouse shall be disqualified from inheriting from the innocent
spouse by intestate succession. Moreover, provisions in favor of the offending spouse
made in the will of the innocent spouse shall be revoked by operation of law.

Art. 61. After the filing of the petition for legal separation, the spouses shall be entitled
to live separately from each other.
The court, in the absence of a written agreement between the spouses, shall designate
either of them or a third person to administer the absolute community or conjugal
partnership property. The administrator appointed by the court shall have the same
powers and duties as those of a guardian under the Rules of Court.

EFFECTS OF A DECREE OF LEGAL SEPARATION final after lapse of period to appeal the
decision
1. Marriage Bond maintained entitled to live separately
2. Liquidation of property no right to any share of the net profits
3. Custody of minor children no child under 7 shall be separated from the mother, unless
compelling reasons
4. Intestate and testate disqualication

Art. 62. During the pendency of the action for legal separation, the provisions of Article
49 shall likewise apply to the support of the spouses and the custody and support of
the common children.

Procedure
1. Complaint
2. Answer within 15 days no hearing on the merits (on validity/invalidity of the ground for
legal separation) shall be set by the courts for 6 mos (cooling off period, designed to give
the parties enough time to further contemplae their positions with the end in view of
attaining reconciliation)
Quantum of Evidence preponderance of evidence
No prejudicial question and no suspension of criminal case civil action for legal
separation may proceed ahead with a criminal action for concubinage

Judgment cannot be based on a confession of judgment or stipulation of facts

If petition is denied, the Court cannot compel the parties to live with each other

Management of Properties designate either of the spouses, or a 3P to administer the

ACP/CPG

Death terminates Legal Separation case purely personal; heirs cannot continue the
suit

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
bonds shall not be severed;
(2) The absolute community or the conjugal partnership shall be dissolved and
liquidated but the offending spouse shall have no right to any share of the net profits
earned by the absolute community or the conjugal partnership, which shall be forfeited
in accordance with the provisions of Article 43(2);

TET DOMINGO

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 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 and 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 five years
from the time the decree of legal separation become final.

Donations and beneficiary in insurance acts of liberality

Action for revocation within 5 years from the time the decree of legal separation
has become final
Designation of the insurance beneficiary shall take effect upon written notification
thereof to the insurer
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 Articles shall have the following
consequences:
(1) The legal separation proceedings, if still pending, shall thereby be terminated at
whatever stage; and

37

(2) The final decree of legal separation shall be set aside, but the separation of
property and 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. (108a)
Art. 67. The agreement to revive the former property regime referred to in the
preceding Article shall be executed under oath and shall specify:
(1) The properties to be contributed anew to the restored regime;
(2) Those to be retained as separated properties of each spouse; and
(3) The names of all their known creditors, their addresses and the amounts owing to
each.
The agreement of revival and the motion for its approval shall be filed with 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 measure to
protect the interest of creditors and such order shall be recorded in the proper
registries of properties.
The recording of the ordering in the registries of property shall not prejudice any
creditor not listed or not notified, unless the debtor-spouse has sufficient separate
properties to satisfy the creditor's claim.

Effect of Reconciliation
Joint manifestation
Case still pending terminate
Decree issued set aside, WON final
Recorded in the proper civil registries
Separation of properties subsist, unless an agreement to revive is approved by
Court
Revival and Adoption revive their original property regime
No other property regime
Inheritance disinheritance is ineffectual
Option of reinstituting the provisions in a will
Recording of the order of revival
TITLE III
RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE

TET DOMINGO

Art. 68. The husband and wife are obliged to live together, observe mutual love,
respect and fidelity, and render mutual help and support. (109a)

Duties and Obligations:

Mutual love
Respect
Fidelity
Help and support

Procreation

No compulsion to live together

No action for damages merely because of a breach of marital obligations; other

remedies may be availed of

Rape may be committed against the wife

Art. 69. The husband and 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 and compelling reasons for the exemption. However,
such exemption shall not apply if the same is not compatible with the solidarity of the
family. (110a)

Domicile fixed by husband and wife

Place where the parties intend to have their permanent residence with the intention
of always returning
Disagreement summary judicial proceeding
EXCEPT
1. Living abroad
2. Valid and compelling reasons
Except: not compatible with solidarity

Art. 70. The spouses are jointly responsible for the support of the family. The expenses
for such support and other conjugal obligations shall be paid from the community
property and, in the absence thereof, from the income or fruits of their separate
properties. In case of insufficiency or absence of said income or fruits, such
obligations shall be satisfied from the separate properties. (111a)

Support joint responsibility

Paid from community property
Absence: income/fruits of separate properties; separate properties

38

Art. 71. The management of the household shall be the right and the duty of both
spouses. The expenses for such management shall be paid in accordance with the
provisions of Article 70. (115a)

Management right and duty of both spouses

Expenses (see 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 or injury to the other or to the
family, the aggrieved party may apply to the court for relief. (116a)

Neglect/Bring danger, dishonor, or injury apply to the court for relief (legsep,
receivership, judicial separation of property, authority to be the sole administrator)
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,
and moral grounds.
In case of disagreement, the court shall decide whether or not:
(1) The objection is proper; and
(2) Benefit has occurred 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
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.

Legitimate Profession/occupation/business/activity without the consent of the other

Objectionable: valid, serious, moral grounds
Disagreement COURT
Objection is propert
Benefit has accrued prior to the objection
Before obligation shall be enforced against the ACP
After obligation is enforced against the separate property
No prejudice to the rights of credits

GR: debts and obligations, of whatever nature and regardless of the time they were
incurred whether before or after the marriage ceremony but redounding to the benefit of
the family, shall be chargeable to the CPG/ACP
E: professions which are seriously invalid, Separate property shall be liable even if
benefits accrued in favor of the family WHEN the innocent spouse has no knowlede
of spouses engagement in an immoral activity
TITLE IV
PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE

TET DOMINGO

Chapter 1. General Provisions

Art. 74. The property relationship between husband and wife shall be governed in the
following order:
(1) By marriage settlements executed before the marriage;
(2) By the provisions of this Code; and
(3) By the local custom.
Property Relations governed by:
1. marriage settlements
2. provisions of this Code
3. local customs
rule of conduct formed by repetition of acts uniformly observed as a social rule,
legally binding and obligatory
failure to stipulate which regime ACP
marriage settlement not ACP nor local customs = void = ACP
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. (119a)
Agreement of future spouses
ACP, CPG, Separate, any other regime
Absence/Void Regime = ACP

cannot agree that the regime will start at a time other than precise moment of celebration
of marriage (void)
cannot sell property to each other
oneness
protection of creditors
undue influence
no donation during marriage

Art. 76. In order that any modification in the marriage settlements may be valid, it must
be made before the celebration of the marriage, subject to the provisions of Articles
66, 67, 128, 135 and 136. (121)
Modifications must be made before the celebration of marriage
Modifications after the marriage
shall need judicial approval

39

only in the instances of:

revival
judicial separation of property (due to abandonment, and other grounds)
voluntary petition to modify property regime to a separate community

Art. 77. The marriage settlements and any modification thereof shall be in writing,
signed by the parties and executed before the celebration of the marriage. They shall
not prejudice third persons unless they are registered in the local civil registry where
the marriage contract is recorded as well as in the proper registries of properties.
(122a)
Modifications
1. in writing
EXCEPTIONS
death and no subsequent liquidation subsequent marriage of surviving
spouse will use separation of property regime
2. signed by parties
3. executed before celebration of mariage
4. shall not prejudice 3P
Unless they are registered in the LCR where marriage is contracted and LCR of the
property

Fairness in marriage settlement measured at the time of the execution of the

agreement
Spouse must have signed freely, voluntarily, intelligently, and upon competent and
independent advice

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
Article 14 to give consent to the marriage are made parties to the agreement, subject
to the provisions of Title IX of this Code. (120a)
Minor who may contract marriage may also execute marriage settlement
But the MS is valid only if the persons designated to give consent are made parties
to the agreement
Art. 79. For the validity of any marriage settlement executed by a person upon whom a
sentence of civil interdiction has been pronounced or who is subject to any other
disability, it shall be indispensable for the guardian appointed by a competent court to
be made a party thereto. (123a)
MS made by person with civil interdiction/disability
Guardian appointed by court must be a party thereto

TET DOMINGO

Art. 80. In the absence of a contrary stipulation in a marriage settlement, the property
relations of the spouses shall be governed by Philippine laws, regardless of the place
of the celebration of the marriage and 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 and executed in the country where the property is located; and
(3) With respect to the 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. (124a)
Rules Governing Property Relations
GR: Filipinos: governed by Philippine laws, regardless of the place of the celebration
E:
1. both spouses are aliens
2. Extrinsic validity of contracts affecting property not situated in the Philippines, executed in
foreign country (foreign property, foreign contract)
Law of country where it is situated
Extrinsic validity of contract foreign country
3. Extrinsic validity of contracts entered into Philippines but affecting property situated in a
foreign country (foreign property, Phil contract)
Extrinsic validity of contract foreign country
Art. 81. Everything stipulated in the settlements or contracts referred to in the
preceding 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
marriages shall be valid.
Efficacy of MS
Stipulations, including donations bet. Prospective spouses VOID if marriage does
not take place
(consideration is the love and affection)
separable provisions that do not depend upon the celebration of marriage shall be
valid
Chapter 2. Donations by Reason of Marriage
Art. 82. Donations by reason of marriage are those which are made before its
celebration, in consideration of the same, and in favor of one or both of the future
spouses. (126)
Donations proper nuptias donations by reason of marriage

40

should be made prior to the celebration of the marriage

without onerous consideration, marriage as the motive of the donation remain subject to
reduction, if infringes the legitime of a forced heir
Not included
1. donations after the marriage
2. executed in favor of the spouses but not in consideration of the marriage
3. granted to persons other than the spouses, though founded on the marriage
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. (127a)
Present property rules on ordinary donations
Acceptance
Oral donation + delivery
Must be in writing if above 5k

Immovable
Public document
Acceptance during lifetime of donor
Art. 84. If the future spouses agree upon a regime other than the absolute community
of property, they cannot donate to each other in their marriage settlements more than
one-fifth of their present property. Any excess shall be considered void.
Donations of future property shall be governed by the provisions on testamentary
succession and the formalities of wills. (130a)

Donations between Future Spouses

valid marriage settlement
MS stipulates property regime other than ACP (if ACP = useless??)
Donation must not be more than 1/5 of present property (excess = void)
To prevent undue influence
Only in MS; if in other deed of donation; Art 84 not applicable
Donation must be accepted by the would be spouse
Comply with the requisites on donations

Donations of future property governed by rules on testamentary succession,

formalities of wills

Art. 85. Donations by reason of marriage of property subject to encumbrances shall be

valid. In case of foreclosure of the encumbrance and the property is sold for less than

TET DOMINGO

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. (131a)

Donation by reason of marriage, with encumbrance valid

Foreclosure + property sold for less than amount of obligation donee not liable
for deficiency
Foreclosure + property sold for more than the total amount donee entitled to the
excess
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
donations made in the marriage settlements, which shall be governed by Article 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, and the donee acted in bad faith;
(4) Upon legal separation, the donee being the guilty spouse;
(5) If it is with a resolutory condition and the condition is complied with;
(6) When the donee has committed an act of ingratitude as specified by the provisions
of the Civil Code on donations in general. (132a)
DONATION PROPTER NUPTIAS REVOKED:
1. marriage not celebrated/marriage judicially declared void

marriage not celebrated

option to revoke within 5 years from the the time the right of action accrues
if in MS void
if not propter nuptias effective

marriage declared void

judicial declaration
Art 40 bigamy revoked by operation of law
Action for recovery
Movable 8 years
Real 30 years
Bad faith + presumptive death revoked by operation of law
Void other than Art 40 option
Regular bigamy
2nd marriage donation option to revoke
2nd marriage donation by married person void
bigamy but 1st marriage void revoked by operation of law upon
finality of judicial declaration of nullity

41

good faith option to revoke

2. no consent of parents or guardian

does not require annulment first

donor has 5 years to revoke from the time he had knowledge

3. annulled marriage and donee acted in badfaith

revoked by operation of law

4. legal separation

option to revoke: 5 years from finality of legsep

5. resolutory condition

option to revoke: 5 years from happening of condition

6. acts of ingratitude:

option to revoke: 1 year from knowledge

1. offense against the person/honor/property of the donor/his wife/children
2. imputes against the donor any criminal offense/act involving moral turpitude
even though he should prove it
EXCEPT: if act was done to donee/wife/children
3. unduly refuses to give him support when the donee is legally or morally bound
to give support
VOID DONATIONS

donations by persons guilty of adultery or concubinage at the time of donation

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 each other on the occasion of any family rejoicing. The prohibition shall also
apply to persons living together as husband and wife without a valid marriage.
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 each other on the occasion of any
family rejoicing.
The prohibition shall also apply to persons living together as husband and wife without a valid
marriage.
-

Financial capacity of the donor

Indirect donations voidable/annullable
Stepchild with no compulsory/legal heirs than the spouse
Common child with no compulsory/legal heirs than the spouse
Parents of the other spouse

TET DOMINGO

To the other spouses adopted child with no compulsory/legal heirs/suriving

relatives than the spouse
Common adopted child with no compulsory/legal heirs than the spouse
Who can challenge the validity of the transfer those who bear such a relation to
the parties making the transfer or to the property itself that such transfer interferes
with their rights/interests
Effect on Reserva Troncal an ascendant who inherits from his descendant any
property which the latter may have acquired by operation of law for the benefit of
relatives who are within the third degree and who belong to the ine from which said
property came
Continues to operate, although void
Chapter 3. System of Absolute Community

Art. 88

Commences at the precise moment that the marriage is celebrated

Any stipulation for the commencement of the ACP at any other time Void;
automatically converts to ACP

Alien married to a Filipino an alien cannot seek recovery of real estate/land as his/her
share in the community property; constitutional prohibition - right to acquire lands of the
public domain is reserved only to Filipino citizens
They may be reimbursed the funds used in purchasing the propety
Art 89.
GR: No waiver of rights/interests/shares and effects of the ACP during the marriage
The interest of the parties in the community properties are merely inchoate, or an
expectancy prior to liquidation
E:
1. judicial separation of property
waiver w/o judicial separation void
2. after dissolution/annulment of marriage

public instrument

recorded

creditors of the spouse making waiver may rescind the waiver to the extend of the
amount sufficient to cover the amount of their credits
Art 90.

Provisions on co-ownership applied suppletorily

42

Section 2. What Constitutes Community of Property

Art 91.
GR: all the property owned by the spouses at the time of the celebration of the marriage or
acquired thereafter
E:
1. unless otherwise provided in this chapter
2. marriage settlements
Art 92.
EXCLUSIONS FROM COMMUNITY PROPERTY
1. Marriage settlement
2. Property acquired by Gratuitous title during the marriage; unless expressly provided by
the donor that is will form part of community property
Must be a valid acquisition (not valid = spouse donation to spouse)
Includes fruits and income, unless donor says they are part of ACP
3. Personal and exclusive use
Exception: jewelry
Interpreted in terms of value
4. Property from previous marriage
Spouse must have had legitimate descendants by a former marriage
Includes fruits and income
If the marriage was declared null and void, the children are illegitimate, and the
properties from part of ACP

nature of acquired property using separate properties still part of ACP; if

sold/bartered, the money obtained is ACP

Art 93.
Presumption: Property acquired during marriage belongs to ACP
Section 3. Charges upon and Obligations of the Absolute Community
Art 94.
LIABILITIES OF THE ACP
1. Support
Support of illegitimate children provisions on support
2. Debts and Obligations by the administrator spouse for the benefit of the community/both
spouses/one spouse with consent
3. Debts and Obligations one spouse without consent, to the extent that the family may
have been benefited

TET DOMINGO

4. Taxes, Liens, Charges, Repairs upon the community property

Can be without the consent of the other spouse
5. Taxes, Expenses for Preservaton of Separate Property
6. Expenses for Self-Improvement
Including loss
7. Ante-nuptial debts
Contracted prior to the marriage, ACP liable if it redounded to the benefit of the
family
If not redounding to the benefit of the family separate property
8. Donation for self-improvement
By both spouses, in favor of common legitimate children, for the completing a
professional/vocational courtse
9. Liabilities by Reason of a Crime or Quasi-Delict
Support of illegitimate children
Ante-nuptial debts NOT redounding to the benefit of the family
Separate property of the erring spouse will be liable for the debt arising from crime
or quasi-delict; support of illegitimate
In the absence or insufficiency thereof, the ACP will pay, but will be considered as
an advance from the share of the debtor spouse upon liquidation of the community
10. Expenses of Litigation
Suit is between husband and wife; not groundless ACP liable
Suit NOT bet husband and wife, but benefits the family ACP

1.

Solidary Liability of Spouses if the ACP is insufficient to cover liabilities (except 9)

Insolvency of Spouses as long as ACP subsists, its property shall not be among the
assets to be taken possession of by the assgnee for the payment of the insolvent
debtors oligations, except insofar as the latter has redounded to the benefit of the famiy
Insolvency proceeding assignee is appointed

Art 95. Gains and Losses in Games of chance

Gains ACP
Losses borne by the loser
Section 4. Ownership, Administrative,
Enjoyment and Disposition of the Community Property
Art. 96
Administration and enjoyment of the ACP both spouses

May act individually in cases of repairs for preservation

Expenses to improve/embellish joint

43


Alteration must be with consent, even though benefits all
Disagreement Husbands decision prevails; subject to recourse to the court by the wife for
a proper remedy (availed of within 5 years)

4.

Incapacitated/Unable to participate assume sole powers of administration

GR: Does not include powers of disposition or encumbrance
E:
1. with authority of the court
2. with written consent of the other spouse
Effect of alienation/encumbrance void, but construed as a continuing offer on the part of
the consenting spouse & the 3P. binding upon the acceptance of the other spouse or
authorization by the court
Remedy of the aggrieved spouse compel the erring spouse to account for the proceeds of
the sale as part of the ACP; if purchaser for value is innocent/in good faith
Art 97. Disposition of interest in the ACP by will

provided that it will not infringe on the legitime of the compulsory heirs

Interest in the ACP, not in specific property

Art 98. Prohibition of Donations
GR: neither spouse may donate ACP
E: 1. With consent
2. moderate donations for charity, or occassions of family rejoicing

Subject to revocation/reduction if infringes on legitimes

Section 5. Dissolution of Absolute Community Regime
Art 99. Termination of ACP
1. Death of either spouse
2. Decree of legal separation

Offending spouse no right to share in the net profits

Upon reconciliation, may agree to revive ACP

3. Marriage is annulled/declared void

Annulment Decree
Final judgement provides for the liquidation, partition, and distribution of the
properties of the spouses, the custody & support, and the delivery of their
presumptive legitime
Bad faith spouse his/her share in the net profits will be forfeited in favor of
the common children

Nullity Decree

TET DOMINGO

5.

Liquidation in accordance with the rules on co-ownership

Bad faith spouse forfeit whole share in favor of common children
Judicial separation of property during the marriage

Voluntary
Agreement for separation of property in court
May be revived, but cannot anymore be voluntary separation

Involuntary
Sufficient cause
1
Sentenced to a penalty carrying civil interdiction
2
Judicially declared an absentee
3
Loss of parental authority
4
Abandonment/failure to comply with his/her obligations to the family
5
Abuse of power of administration
6
Spouses have been separated in fact for at least 1 year, reconciliation is
highly improbable
Court approval
Liquidation after affidavit of reappearance

After termination of subsequent marriage of disappearing spouse

Art 100. Effect of Separation in Fact

Does not affect ACP except:

1. No support for spouse who
a. Leaves the conjugal home/refuses to live therein
b. Without just cause
2. Court Authorization obtained in a summary manner consent of one spouse is required
by law
3. Solidary Liability in case of absence of ACP

Income or fruits of separate properties, before separate properies

Judicial authority to administer any specific separate propery of the other spouse to use
the fruits/proceeds thereof

Only present spouse is give standing

One purpose satisfy the other spouses share in the obligations used to support
the family
Art 101.
Abandonment without just cause/fails to comply with family obligations

Petition the court for receivership, for judicial separation of property, or for authoirty to be
the sole administrator of the absolute community
Subject to such precautionary conditions as the court may impose

44

Obligations marital, parental, property

Presumption of abandonment
Left conjugal dwelling
Without intention of returning
For a period of 3 months, does not give information as to his/her whereabouts
prima facie presumed to have intention of returning
Section 6. Liquidation of the Absolute Community Assets and Liabilities

Art 102.
LIQUIDATION PROCEDURE, Upon dissolution
1. Inventory

All properties, whether ACP or separate

Assessed value at the time of liquidation

2. Payment of Debts

Debts against ACP

Advances from share of debtor spouse Payments made by ACP due to

insufficiency of separate property for:
Liabilities by Reason of a Crime or Quasi-Delict
Support of illegitimate children
Ante-nuptial debts NOT redounding to the benefit of the family

Insufficiency of assets separate properties

3. Delivery of Exclusive Properties

After payment of advances

4. Partition of Net Assets

Net remainder of the community property

Equal sharing does not apply if:

different proportion is agreed upon in MS
valid waiver
public instrument
judicial separation of property
marriage has been dissolved/annulled
annulment; bad faith spouse forfeit of share in net profits
nullity, bad faith spouse forfeit his share (co-ownership)
5. Delivery of Presumptive legitime

After finality of a judicial decree of ANNULMENT

Nullity of a subsequent void marriage (Art 40)

Summary judicial proceeding

TET DOMINGO

6.

Cash, property, sound securities

Conjugal Dwelling

To the spouse with whom the majority of the common children choose to remain

Children below 7 years deemed to have chosen the mother, unless court decides
otherwise

Art 103.
LIQUIDATION, upon death

Same proceeding for the settlement of the estate

A. no judicial settlement proceeding

liquidate the ACP either judicially or extrajudicially within 1 year from the death of the
deceased spouse
no will, no debts divide among themselves via public instrument
1 heir affidavit in the office of the register od feeds
spouses & compulsory heirs co-ownership
act of dominion over interest (and fruits and benefits), but not to specific
property
interest may be attached for purposes of execution
claims against the estate
no complaint for the collection of indebtedness chargeable to the community or
conjugal properties can be brought against the surviving spouse unless
solidarily liable

upon lapse of 1 year disposition, encumbrance involving ACP of the terminated

marriage void
any disposition of any specific property before liquidation is premature/void
only the interest to the property is vested on the heirs
B. Subsequent marriage after death, without liquidation mandatory regime of complete
separation of property for the subsequent marriage
Art 104.
SIMULTANEOUS LIQUIDATION

2 or more marriages contracted by the same person before the effectivity of this Code

Capital, fruits, and income shall be determined upon such proof

Divided between or among the different communities in proportion to the capital and
duration of each

45

The law protects the properties of the previous marriage from the possibility of mxing
with the properties of the 2nd marriage, whether liquidation of the properties of the
previous marriage has already been terminated
If termination is by nullity property regime in the subsequent marriage is co-ownership
Chapter 4. Conjugal Partnership of Gains
Section 1. General Provisions

Art. 105

Provisions apply in supplementary application

Art. 106
Conjugal Partnership of Gains

Common fund; fruits of separate properties and the income from their work or industry

Fruits of paraphernal properties form part of the assets of the CGP, subject to
payment of debts and expenses of spouses, but not to the payment of personal
obligation of the husband

Conjugal nature of a property is determined by law; no one spouse may change the
character

Upon the dissolution net gains/benefits shall be divided equally

Art 107.

Commencement of CGP precise moment the marriage is celebrated

Prohibitionon waiver none can be made during the marriage except upon judicial
separation of property
Art 108.

CGP is a special type of partnership; governed by the rules of partnership in all that are
not in conflict with what is expressly determined in this chapter
Section 1. Exclusive Property of Each Spouse
Art 109. EXCLUSIVE PROPERTY OF EACH SPOUSE (OGRE)
1. that which is brought to the marriage as his 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 belonging
to only one of the spouses
4. that which is purchased with exclusive money of the wife or the husband

brought into the marriage as their own

TET DOMINGO

the partnership does not produce the merger of the properties of each spouse
each spouse can exercise all rights of dominion or of ownership over the exclusive
properties; cannot be encumbered, alienated without the consent of the ownerspouse
if property is asserted as separate property and a title has been issued under the
name of the one asserting; conjugal nature cannot be belatedly claimed
registration of a property after the marriage under the co-ownership of the both
spouses creates a trust
exclusive properties shall be principally used for the payment of personal debts; if
assets of CGP insufficient to pay partnership debts, the spouses shall be solidarily
liable with their separate properties
gratuitous title
honorarium
those by way of succession
income & fruits of these properties are considered conjugal
redemption/barter/exchange
property belongs to the spouse who has the right to redeem regardless of whether
he/she used personal funds
if conjugal funds used redeeming spouse is liable to the CGP for the
reimbursement; CGP shall have a lien for the amount paid by it
exchange if separate property is used as part of the purchase price of a new
property in addition to the conjugal funds new property is considered conjugal

Art 110. Administration of Exclusive Properties

includes entering into contracts, engaging in litigation, etc

even when there is a transfer, the owner-spouse may still donate, encumber, alienate
Art 111. Acts of Administration

mortgage, encumber, alienate or dispose

Art 112. Termination of Administration

alienation proceeds of such shall be turned over to the owner-spouse

if separation in fact administer/encumber any specific separate property of the other

spouse; owner-spouse cannot revoke the judicially approved admnistration of the
present spouse over the specific property
Art 113. Property donated or left by will to the spouses

spouses jointly

may designated the determinate share of each spouse

46

Partly from exclusive funds and partly from conjugal BUYER if vested before
marriage; CONJUGAL if vested after the marriage (upon last installment)

Any amount advanced from CGP reimbursed upon liquidation

Art 119. Payment of Credit in Favor of Spouse

Payment on prncipal spouse; Interest CPG

Art 114. Accretion in case of donation

no right of accretion unless expressly so provided;

if husband dies before testator there is right of accretion; wife receives it

payment using conjugal funds donee shall reimburse the CGP but property remains to
be his/her exclusive property
Art 115. Retirement benefits, pensions, annuities, gratuities, usufructs

Gratuity separate property

If entitled to the benefit as a matter of right conjugal

Art 120. Improvements made on Separate Property

Source of fund is CGP, value of improvement + increase is more than the value of the
property at the time of improvement property is CGP upon reimbursement of owner at
the time of liquidation; usufructuary before reimbursement

If property worth more than improvement retain ownership

Section 3. Conjugal Partnership Property

Section 4. Charges Upon and Obligations of the CPG
Art 116. Presumption all property acquired during the marriage is conjugal unless contrary
is proved

Presumption applies even though the spouses are living separately

Conveyance of the property of the wife to a 3P and its reconveyance to her months
afterward does not transform it into conjugal property
Art 117. Conjugal Partnership Properties OWFHOLC
1. Acquired by onerous title during the marriage at the expense of the common fund;
whether acquisition is for partnership, or for only one of the spouses
o
Exclusive money, sole right of redemption, damages from contract solely financed
by a spouse
o
Damages awarded to spouse personal physical injuries personal
2. Obtained from labor, industry, work, or profession of either/both of the spouses
3. The fruits natural, industrial, civil due or received during the marriage from the
common property; net fruits from the exclusive property
o
Net fruits
Fruits of separate property will be applied first to the expenses of
administration
4. The share of either spouse in the hidden treasure which the law awards to the
finder/owner of the property where the treasure is found
5. Those acquired through occupation
6. Livestock existing upon the dissolution of the partnership in excess of the number of
each kind brought to the marriage by either spouse
7. Those which are acquired by chance winnings
Art 118. Installment Purchases

TET DOMINGO

Art 121. CGP Charges

1. Support
o
Except: support for illegit children,
o
Liabilities for fines and pecuniary indemnities from crime or quasi-delict
2. Debts and Obligations during the marriage for the benefit of the CGP, or with consent as
representative of CPG, not as independent debtors
3. Debts and Obligations without consent to the extent of benefit of the family
o
Separate property of spouses can only be held solidarily liable if the CPG property is
insufficient
o
Insolvency assignee is appointed
4. Taxes, Liens, Charges and Expenses, Repairs on CPG
5. Taxes and expenses for mere preservation made during the marriage on the separate
property of either spouse
6. Expenses for activity for self-improvement
7. Antenuptial debts redounding to the benefit of the family
8. Donations in favor of children for activities for self-improvement
9. Expenses of litigation
Art 122.

Payment of Personal Debts, Fines, Indemnities before or during the marriage not
chargeable to CPG except if it redounded to the benefit of the family

Debts, Fines, Indemnities, SUPPORT of illegitimate children may be enforced upon

CPG; but as advances against the share of the spouse required to pay
After charges of 121
No exclusive property/insufficient exclusive property

47

Art 123. Game of Chance losses borne by losert; winnings = CPG

Section 5. Administration of the Conjugal Partnership Property
Art 124.

Both spouses jointly

Disagreement H decision prevails, W has recourse to the court for proper remedy (5
years)

Incapacitated assume sole powers of administration; EXCEPT: disposition &

encumbrance (needs court authority or consent of the other spouse)
Acts of disposition and encumbrance VOID, but continuing offer
Art 125. Donation of CPG property without consent; EXCEPT: moderate donations
Section 6. Dissolution of Conjugal Partnership Regime
Art 126.
1. Death
2. Decree of Legal Separation
3. Marriage is Annulled or declared void
4. Judicial Separation of Property during Marriage
Art 127. Separation in Fact does not affect CPG EXCEPT:
1. Spouse leaves conjugal home/refuses to live therein without just cause
2. Consent of one spouse to any transaction is required by law judicial authorization shall
be obtained in a summary proceeding
3. In the absence of sufficient CPG property, the separate property of both spouses shall be
solidarily liable for the support of the family
o
Petition in a summary proceeding to be given judicial authority to
administer/encumber any specific separate property of the other spouse
Art 128. Abandonment/ Failure to comply with Obligations

Petition court for:

Receivership
Judicial separation of property
Authority to be the sole administrator of CPG

Obligations marital, parental, property relations

Prima Facie presumption of Abandonment: left the conjugal dwelling without intention of
returning for a period of 3 months; failed to inform whereabouts within 3 months

TET DOMINGO

Section 7. Liquidation of the Conjugal Partnership Assets and Liabilities

Art 129.
1. Inventory CPG properties, exclusive properties
2. CPG amounts advanced in payment of personal debts and obligations
3. Reimbursement in favor of spouse: for acquisition of property/value of exclusive property
4. CGP conjugal debts; insufficiency solidary liability
5. Deliverables: remaining exclusive properties
6. CGP payment for loss & deterioration of exclusive movable property UNLESS already
indemnified
7. Net remainder of CPG = profits, divided equally UNLESS diff proportion agreed upon
8. Presumptive legitime delivered
9. Conjugal dwelling adjudicated to the spouse with whom the majority of the common
children choose to remain. Below 7 years deemed to have chosen the mother, unless
court decides otherwise
Art 130.

Termination by death CGP liquidated in same proceeding as estate settlement

No judicial settlement liquidate judicially/extrajudicially within 1 year from death

If no liquidation any disposition/encumbrance with CPG is void

Surviving spouse contracts subsequent marriage without compliance mandaratory

separation of property regime
Art 131. Liquidation of CPG of 2 or more marriages (same person, before FC)

Capital, fruits, income of each CPG is determined upon proof

Doubt divided between/among in proportion to capital and duration

Art 132. Rules of Court
1. Appraisal and sale of property in CPG in administration of estate of deceased
2. Other matters not expressly determined
Art 133. Support during the liquidation of inventoried property

Common mass of property

Until delivery of what belongs to them

Amount received for support is deducted from deliverables if the fruits of the same
are insufficient (so deduct amounts from fruits first)
Chapter 5. Separation of Property of the
Spouses and Administration of Common Property by
One Spouse During the Marriage

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Art. 134. Judicial separation of property

GR: Separation of property cannot take effect in the absence of express declaration in MS
E: Judicial order

Voluntary

For Sufficient cause

Art. 135. Sufficient Causes
(1) Penalty with Civil Interdiction final decision
(2) Declaration of Absence
o
2 years without any news
o
5 years in case absentee left a person in charge with the administration of property
o
Instituted by:
Spouse
Heirs
Relatives intestacy
Some subordinated
(3) Loss of Parental Authority decreed by court
o
malice, abuse, bad faith, culpable negligence
(4) Abandonment, failure to comply with obligations to the family
o
3 months
o
marital, parental, property relations
(5) Abuse of administration
o
Willful, utter disregard of the interests of the partnership, repetition of deliberate
acts, ommissions
(6) Separation in Fact 1 year
Art. 136. Voluntary Separation

Verified petition with the court

Creditors listed in the petition, notified of the filing

The court shall take measures to protect the creditors and other persons with
pecuniary interest.

Separation takes effect from the time of judicial order

Art. 137.

Pendency of proceedings ACP/CPG liable for support

Decree of Separation of Property Liquidation of ACP/CPG

Delivery of Presumptive Legitimes

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Annulment of voidable marriage

Art 40 void.

Art. 138. After dissolution of ACP/CPG

Provisions on complete separation of property shall apply

Mere filing =/= separation
Art. 139. The petition for separation of property and the final judgment granting the same
shall be recorded in the proper local civil registries and registries of property.
Art. 140. The separation of property shall not prejudice the rights previously acquired by
creditors.
Art. 141. Revival of Previous Regime before Separation
(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 parental authority is judicially restored to the spouse previously deprived thereof;
(6) When the spouses who have separated in fact for at least one year, reconcile and resume
common life; or
(7) When after voluntary dissolution of the absolute community of property or conjugal
partnership 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 Article 67.

Judicial Proceeding for Revival Motion in same court

Properties to be contributed anew
Retained as separate properties
List of creditors
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

49

(4) When one spouse becomes a fugitive from justice or is in 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.

Separation in fact
Petition in summary proceeding to be given judicial authority to
administer/encumber any specific property of the other spouse
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.

Marriage settlement first

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. (213a)
Art. 145. Each spouse shall own, dispose of, possess, administer and 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 and all fruits, natural, industrial or
civil, due or received during the marriage from his or her separate property. (214a)
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.chan robles virtual law library
The liabilities 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 and a woman who are capacitated to marry each other, live exclusively
with each other as husband and wife without the benefit of marriage or under a void marriage,
their wages and salaries shall be owned by them in equal shares and the property acquired
by both of them through their work or industry shall be governed by the rules on coownership.
In the absence of proof to the contrary, properties acquired while they lived together shall be
presumed to have been obtained by their joint efforts, work or industry, and shall be owned by
them in equal shares. For purposes of this Article, a party who did not participate in the

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acquisition by the other party of any property shall be deemed to have contributed jointly in
the acquisition thereof if the former's efforts consisted in the care and maintenance of the
family and of the household.
Neither party can encumber or dispose by acts inter vivos of his or her share in the property
acquired during cohabitation and owned in common, without the consent of the other, until
after the termination of their cohabitation.
When only one of the parties to a void marriage is in good faith, the share of the party in bad
faith in the co-ownership shall be forfeited in favor of their common children. In case of default
of or waiver by any or all of the common children or their descendants, each vacant share
shall belong to the respective surviving descendants. In the absence of descendants, such
share shall belong to the innocent party. In all cases, the forfeiture shall take place upon
termination of the cohabitation.
INFORMAL CIVIL RELATIONSHIP special kind of co-ownership
1. Capacitated to marry each other
2. Live exclusively with each other as husband and wife
3. Without the benefit of marriage/under a void marriage
o
Void marriage:
Psychological incapacity
Subsequent marriage
Subsequent marriage without liquidation
Absence of consent, license, ceremony
Structure:
1. Salaries & wages equal shares
2. Exclusive property acquired own property
3. Jointly acquired co-ownership
4. Acquired while living together presumed to be jointly acquired
o
If no participation in acquisition deemed to have contributed if efforts consisted in
the care and maintenance of the family/household
5. Fruits of separate property exclusive
6. Property acquired after separation separate
7. Disposition & encumbrance need consent
Waiver of share allowed, but not gratuitous advantage to the partner (cannot donate yours
to partner)
8. Good faith party in void marriage ENTIRE share of party (vs net share in Art 40) in BF
forfeited in favor of common children descendants innocent party

50

Art. 148. In cases of cohabitation not falling under the preceding Article, only the properties
acquired by both of the parties through their actual joint contribution of money, property, or
industry shall be owned by them in common in proportion to their respective contributions. In
the absence of proof to the contrary, their contributions and corresponding shares are
presumed to be equal. The same rule and presumption shall apply to joint deposits of money
and evidences of credit.
If one of the parties is validly married to another, his or her share in the co-ownership shall
accrue to the absolute community or conjugal partnership existing in such valid marriage. If
the party who acted in bad faith is not validly married to another, his or her shall be forfeited in
the manner provided in the last paragraph of the preceding Article.
The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith.
INFORMAL CIVIL RELATIONSHIP BAD
1. partners live together but not capacitated to marry
2. adulterous relationship
3. bigamous/polygamous
4. incestuous void marriage
5. void marriage by reason of public policy
Structure
1. Salaries & wages separately owned
2. Property solely acquired exclusive
3. Actual joint acquisition co-ownership in proportion to contribution
4. Contribution deemed equal unless proven otherwise
5. Rules apply to joint deposits of money and evidences of credit
6. If 1 is validly married his co-ownership shall accrue to the valid marriage
TITLE X
Chapter 1. The Family as an Institution
Art 149. The family: foundation of the nation, basic social institution which public policy
cherishes and protects
Family relations governed by law; no custom/practice/agreement destructive of the family
shall be recognized/given effect

H&w sue or be sued jointly except as provided by law

Art 150.Family relations
1. Husband and wife
2. Parents & Children

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3.
4.

Ascendants/Descendants
Brothers and sisters

Art 151. No suit between members shall prosper unless it should appear from the verified
complaint or petition that earnest efforts toward a compromise have been made, but the
same have failed
Exception: a stranger is included in the suit

Civil status

Validity of marriage

Legal separation

Future support

Jurisdiction of courts

Future legitime
Chapter 2. The Family Home
Art 152. Family Home dwelling house + land
Art 153. Constitution
Jointly by husband and wife
Unmarried head of famiy
From the time it is occupied as a family residence
As long as any beneficiaries actual reside
Exempt from execution, forced sale, attachment
Art 154. Beneficiaries
1. husband & wife, unmarried head of family
2. parents, ascendants, descendants, bro & sis, whether legit/illegit who are:

living in family home

depend upon head of the family for legal support

Art 155. Exempt from execution/forced sale/attachment EXCEPT
1. non-payment of taxes
2. debts incurred prior to the constitution of the family home
3. debts secure by mortgages on the premises before or after such constitution
4. for debts due to laborers/mechanics, architects, builders, materialmen and others who
have rendered service or furnished material
Art 156. Family home must be:

part of the properties of the ACP/CPG

51

exclusive property _ consent

unmarried head his/her property
Subject of unconditional sale on installment where ownership is reserved by the vendor
only to guarantee payment of the purchase price

Art 157. Actual value shall not exceed:

300k urban, 200k rural

value most favorable

urban areas chartered cities, municipalities

Art 158. Disposition

sold/alienated/donated/assigned/encumbered by owner with written consent of those

who constituted the family home (constitutor, spouse, majority of beneficiaries
Art 159. Limitation after death

Death of one/both spouses or unmarried head 10 years as long as there is a minor

beneficiary

Heirs cannot participation the same unless compelling reasons

Art 160. Judgment Credit
Not in exceptions, but Home is more than max amoun apply the court sale of
property under execution
No bid below value allowed
Amount in 157 liabilities under judgment
Art 161. Benefits 1 family home
Art 162. Applicable to family residences
TITLE VI
PATERNITY AND FILIATION
Chapter 1. Legitimate Children
Art 163. Filiation
a. Nature legitimate/illegitimate
b. Adoption
Art 164. Legitimate

Children conceived/born during marriage

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Children conceived through artificial insemination; sperm of husband/donor +

authorization/ratification in instrument
No criminal liability for adultery of wife artificially inseminated without consent of
husband

Art 165. Illegitimate conceived & born outside valid marriage

Art 166. Impugning legitimacy of a child:
1. Physically impossible for the husband to have had sex within the first 120 days of the 300
days [first 3 mos of the 9 mos] which immediately preceded the birth of a child because
of:
a. Physical incapacity
b. Fact of separate living
c. Serious illness
2. Could not have been husbands child for biological or scientific reasons

Sterility at time of conception

Vasectomy no re-channelization, entirely sterile

3. Artificial Insemination, written authorization obtained through mistake, fraud, violence,
intimidation, undue influence
Art 167. Legitimate despite:
a. Declaration of mother of illegitimacy
b. Mother sentenced of adulteress
Art 168. Marriage terminated, 2nd marriage within 300 days of terminated marriage
1. A child born before 180 days [6 months] after the solemnization of the of 2nd marriage +
born 300 days [~9mos] after termination of marriage 1 presumption: conceived during
marriage 1
2. A child born after 180 days [6 months] following the solemnization of the solemnization of
2nd marriage + born 300 days [~9mos] after termination of marriage 1
Art 169. Legitimacy/Illegitimacy of child born 300 days following termination of marriage shall
be proved by whoever alleges such legitimacy/illegitimacy
Art 170. Action to impugn legitimacy

Brought within 1 year from knowledge of birth or its recording in the civil register if H
resides in city/municipality where birth took place

Otherwise, 2 years if residing in Philippines, 3 years if abroad

Concealed birth counted from discovery/knowledge of birth

52

Art 171. Heirs impugn the filiation of the child:

a. husband dies before the expiration of the period fixed
b. husband dies after filing of the complaint, no desistance
c. child born after death of husband
Chapter 2. Proof of Filiation
Art 172. The filiation of legitimate children is established by:
1. Record of birth appearing in civil register or final judgment
2. Admission of legitimate filiation iin a public document or private handwritten instrument,
signed by the parent concerned
Absence of such:
1. open and continuous possession of status of a legit. child
2. any other means allowed by Rules of Court, special laws
Art 173. Action to claim legitimacy, brought by
1. Child within his lifetime but
2. Heirs during minority/stateof insanity - within 5 years
Art 174. Rights of Legitimate Children
1. Bear surname of father, mother
2. Receive support from parents, ascendants, brothers & sisters
3. Entitled to the legitime and other successional rights
Chapter 3. Illegitimate Children
Art 175. Claim of Illegitimate children Established:

same way, same evidence as legit children (clear & convincing)

record of birth, public document lifetime of child
open & continuous, any other means lifetime of alleged parent
Art 176. Rights of Illegitimate Child

Surname, parental authority of mother

Entitled to support

Surname of father if filiation has been recognized by father through record of birth/public
document/private handwritten instrument

Father has right to institute action to prove non-filiation

Legitime of legitimate childs

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Chapter 4. Legitimated Children

Art 177. Requirements
1. Parents do not suffer any legal impediment or disqualification
2. Child conceived/born outside of marriage
3. Parents subsequently enter into a valid marriage
Art 178. Takes place:

Subsequent valid marriage between parents

Annulment shall not affect the legitimation

Art 179. Rights: same as legitimate
Art 180. Effects: retroact to the time of the childs birth
Art 181. Legitimation of children who died before the celebration of the marriage shall benefit
their descendants
Art 182. Legitimation may be impugned

Those (successional) rights have been prejudiced

Within 5 years
TITLE VII. ADOPTION
Domestic Adoption Act of 1998

Statutory creation
Child below 18 years
Child legally available for adoption voluntarily/involuntarily committed to the
Department or to a child-placing agency
WHO MAY ADOPT (FILIPINO):
1. Legal age, full civil capacity, good moral character
2. No conviction of crime involving moral turpitude
3. Emotionally and psychological capable of caring for chuldren
4. At least 16 years older EXCEPT (may be waived)
a. Biological parent
b. Spouse of adoptees parent
5. In a position to support/care of his/her children
WHO MAY ADOPT (ALIEN):

53

1. Same qualifications above

2. Diplomatic relations with the Philippines
3. Living in the Philippines for at least 3 continuous years prior to application, maintains
residence until the adoption decree is entered
4. Certified by diplomatic/consular office/govt agency that he/she has legal capacity to
adopt in his country and that his govt allows the adoptee to enter country as his/her
adopted son/daughter

4.
5.

Husband and Wife Jointly adopt, EXCEPT: joint parental authority

1. One spouse seeks to adopt the legitimate son/daughter of the other
2. One spouse seeks to adopt his/her own illegitimate son/daughter, with CONSENT
of the other spouse
3. Spouses are legally separated
WHO MAY BE ADOPTED
1. Any person below 18, administratively or judicially declared available for adoption
2. The legitimate son/daughter of 1 spouse by the other spouse
3. Illegitimate son/daughter by a qualified adopter to improve his status to that of
legitimacy
4. De Facto adoption: Person of legal age if person has consistently been considered
and treated as own child since minority
5. Child whose adoption has been previously rescinded
6. Biological/adoptive parents have died no proceedings shall be held within 6
months from time of death of said parents
Consent necessary to the adoption
1. Adoptee 10 years of age or over
2. Biological parents of the child (if known), legal guardian, proper government
instrumentality which has legal custody

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Legitimate & adopted sons/daughters 10 years of age or over of the adopter and
adoptee
Illegitimate sons/daughters, 10 years of age if living with said adopter & spouse
Spouse of person adopting/adopted

Effects of Adoption
1. Parental Authority
2. Legitimacy rights and obligations as legitimate children
Upon death of adoptive parents, no rights re-established in the natural parents
Limited to the adopting parents and does not extend to other relatives, except
as expressly provided
3. Succession reciprocal rights of succession without distinction from legitimate
filiation
Except: will testamentary succession shall govern

Grounds for Rescision of Adoption upon petition of the adoptee

1. repeated physical and verbal maltreatment by adopter despite counseling
2. attempt on the life of the adoptee
3. sexual assault or violence
4. abandonment and failure to comply with parental obligations

Adopter may not rescind; only disinherit; GROUNDS:

1. Attempt against the life of the testator/testators spouse, descendants, ascendants
2. Accused the testator of a crime for which the law prescribes imprisonment for 6+
years, accusation was groundless
3. Conviction of adultery or concubinage with the spouse of the testator
4. Fraud, violence, intimidation, undue influence in causing to make a will
5. Refusal to support the parent/ascendant without justifiable cause
6. Maltreatment word or deed, by child or descendant
7. Dishonorable/disgraceful life
8. Conviction of a crime with civil interdiction

Effects of Rescission
1. Parental authority of adoptees biological parents are restored if
minor/incapacitated
2. Reciprocal rights of adopter/adoptee extinguished
3. Cancellation/amendment of certificate of birth of the adoptee, restore original
4. Succession status prior to adoption, but only as of the date of judgment of judicial
rescission

Requirements for Aliens may be waived:

1. Former Filipino citizen who seeks to adopt a relative within the 4th degree of
consanguinity/affinity
2. Seeks to adopt the legitimate son/daughter of Filipino spouse
3. Married to a Filipino citizen and seeks to adopt jointly with spouse a relative within
the 4th degree of consanguinity or affinity

Guardian with respect to the ward after termination of the guardianship and clearance of
financial accountabilities

3.

54

Violations and penalties

1. Vitiated consent
2. Non-compliance with procedure
3. Exposing child to danger
4. Simulation of birth

Urgent need & special circumstances order only 1 to furnish the support provisionally,
with right to claim other shares
2+ recipients should the latter not have sufficient means to satisfy all claims order
established, unless the concurrent obligees should be the spouse and child subject to
parental authority
TITLE VIII
SUPPORT

Art 194. Support comprises everything indispensable for sustenance, dwelling, clothing,
medical attendance, education and transportation, in keeping with the financial capacity of the
family
Art 195. Obliged to support each other:
1. Spouses
2. Legitimate ascendants and descendants
3. Parents & legitimate children, legitimate and illegitimate children of the children
4. Parents & illegitimate children, legitimate and illegitimate children of the children
5. Legitimate brothers & sisters, whether full or half blood
Art 196. Brothers & sisters not legitimately related, whether full/half blood bound to support
each other to the full extent set by Art 194 EXCEPT ONLY when the need for support is due
to a cause imputable to the claimants fault or negligence
Art 197. Support of Legitimate ascendants/descendants, whether legit/illegit; bros & sis,
whether legit/illegit only separate property shall be answerable

Obligor has no separate property

ACP/CPG if financially capable, shall advance the support deducted from share of the
spouse obliged upon the liquidation

Art 201. In proportion to the resources or means of the giver

Art 202. Reduced/increased proportionately
Art 203. Demandable from the time has right to receive needs it for maintenance, but shall
not be paid except from the date of judicial or extrajudicial demand
Support pendente lite may be claimed in accordance with ROC
Payment made within the first 5 days of each month
Death heirs not obliged to return
Art 204. Fulfill obligation
a. pay allowance fixed
b. receiving/maintaining in the family dwelling the person who has a right to receive support
Art 205. Right to receive support; money/property obtained as support not subject to
attachment/execution
Contractual support/given by will excess in amount beyond that required for legal support
Art 206. Support from stranger has right of claim, unless given without intention to be
reimbursed
Art 207. Upon refusal/failure to give support urgently needed; 3P may furnish with right of
reimbursement
TITLE IX
PARENTAL AUTHORITY
Chapter 1. General Provisions

Art 198. Support pendente lite during proceedings for legsep/annulment supported from the
properties of the ACP or CPG; After final judgment, obligation of mutual support ceases
Art 199. Liability in order
1. Spouse
2. Descendants in nearest degree
3. Ascendants in nearest degree
4. Brothers & sisters
Art 200. Obligation to give support is given to 2 persons payment shall be divided between
them in proportion to the resources of each

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Art 209.
Parental Authority natural right and duty of parents over the person and property of their
unemancipated children

Caring for

Rearing

Civic consciousness
Art 210.

55

Renunciation and transfer of parental authority only in cases authorized by law

Art 211.

Joint Parental Authority

Cannot be waived except in cases of adoption, guardianship, surrender to
chuldrens home
Terminated in accordance with legal grounds

Preferential choice of the father, in case of disagreement only a court can alter it

Duties of Children
Responsibilities of a child under Child and Youth Welfare Code
Art 212.

Absence/death of either parent parental authority of the present spouse

Remarriage does not affect parental authority

Except: court appoints another person
Art 213.

Separation parental authority exercised by the parent designated by the Court

Choice of the child over 7 years of age
Unless parent chosen is unfit

Custody of Children childs best interest as the cardinal principle, and paramount
consideration
Custody Hearings Rule on Custody of Minors, Writ of Habeas Corpus in Relation
to Custody of Minors
Habeas corpus is proper remedy to enable parents to regain the custody of a
minor even though the latter be in the custody of 3P of her free will

Parental Preference rule natural parents as against foster, prospective adoptive

Maternal Preference
No child under 7 shall be separated from the mother
Unless the court finds compelling reasons to order otherwise
Compelling reason must be clearly shown by positive and clear evidence of
the unfitness of the mother
Its determination is left to the sound judgment of the courts

Custody granted to others

If it would serve the paramount interest of the child

No finality of custody judgment

Art 214.
Substitute Parent authority of grandparents

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Surviving
Grandparents designated by the court

10. death
11. absence
12. unsuitablity
Art 215.

Filial privilege no descendant shall be compelled to testify against his parents and
grandparents in a criminal case
Exceptions:
1. indispensable in a crime
2. against the descendant
3. case by one parent against the other

privilege solely addressed to the descendant-witness

Marital Privilege
Husband or 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
Criminal case for a crime committed by one against the other
Criminal case for a crime committed by one against the latters direct
descendants or ascendants
Chapter 2. Substitute and Special Parental Authority

Art 216.
Substitute Parental Authority

In default of parents/judicially appointed guardian

Applicable also in the appointment of a judicial guardian over the property of the child
1. Surviving grandparents
2. Oldest brother or sister over 21; unless unfit/dq
3. Childs actual custodian, over 21; unless unfit/dq
Art 217
Unfortunate children

Foundling newborn child abandoned by parents

56

Abandoned - no proper parental care or guardianship; parents/guardians have

deserted him for a period of at least 6 mos

Neglected basic needs have been deliberately unattended or inadequately

attended
Physical
Emotional
Abused child

Dependent child one without parent, guardian, custodian; one whose p,g,c for
good cause desires to be relieved of his care and custody, is dependent on the
public for support
PA shall be entrusted to heads of childrens homes, orphanages, similar institutions
Summary judicial proceedings
Involuntary DSWD, petition
Voluntary commitment to DSWD

Art 218. Special parental authority:

While the minor child is under their supervision, instruction, or custody

All authorized activities whether inside or outside the premises of the school, entity, or
institution
1.
2.
3.
4.

School
Administrators
Teachers
Individual/entityinstitution engaged in child care

Art 219.

Liability of Persons possessing special parental authority

Principally and solidarily liable for damages caused by the acts or omissions of the
unemancipated minor

Liability of Parents or persons exercising substitute parental authority

Subsidiary liability

Defense of persons with special parental authority

Proof that they exercised the proper diligence required
Quasi-delict
The teachers or heads of establishments of arts and trades shall be liable for
damages caused by their pupils and students so long as they remain their custody
Clear showing of negligence or laxness in the enforcement of discipline

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Chapter 3. Effect of Parental Authority upon the Persons of the Children

Art 220. Parental rights and duties
1. To keep them in their company, to support, educate and instruct them by right precept
and good example, and to provide for their upbringing in keeping with their means;
2. To give them love and affection, advice and counsel, companionship and understanding;
3. To provide them with moral and spiritual guidance, inculcate in them honesty, integrity,
self-discipline, self-reliance, industry and thrift, stimulate their interest in civic affairs, and
inspire in them compliance with the duties of citizenship;
4. To furnish them with good and wholesome educational materials, supervise their
activities, recreation and association with others, protect them from bad company, and
prevent them from acquiring habits detrimental to their health, studies and morals;
5. To represent them in all matters affecting their interests;
6. To demand from them respect and obedience;
7. To impose discipline on them as may be required under the circumstances; and
8. To perform such other duties as are imposed by law upon parents and guardians.
Rights of the Children
Art 221.
Primary liability of parents/persons exercising PA

Civilly liable for the injuries and damages caused by the acts or omissions of the
unemancipated children living in their company

Defense: diligence of a good father of the a family (Libi v IAC)

Art 222.
Guardian of the childs property
Guardian ad litem

Officers of the court in a limited sense

Appointed by court

When the best interests of the child so require

Art 223.
Aid from the Court

Parents

(absence of parents) individual/entity exercising PA

petition the proper court where the child resides, for an order providing for the
disciplinary measures over the child
child shall be entitled to the assistance of counsel

if petitioner is at fault

57

deprivation or suspension of PA

Art 224.

Commitment of the child for not more than 30d in entities or institutions engaged in child
care or childrens homes

Parent exercising parental authority shall not interfere with the care of the child
whenever committed
Must provide support

Terminate the commitment

Upon proper petition
At courts own instance
Chapter 4. Effect of Parental Authority upon the Propert of the Children
Art 225.
Joint exercise of legal guardianship over the property of the unemancipated common child
without the necessity of a court appointment

Market value of the property/annual income of the child > 50,000

Parents are required to furnish a bond in such amount as the court may determine,
but not less than 10% of the value of the property/annual income, to guarantee the
performance of the obligations prescribed for general guardians
Verified petition for approval of the bond shall be filed in the propert court of the
place
Summary special proceeding
Ordinary rules on guardianship shall be merely suppletorry
Art 226. Ownership of childs property

Acquired with his work or industry

Onerous/gratuitous title

Devoted exclusively to his support and education

Unless the title provides otherwise

Rights of the parents over the fruits/income

Limited primarily to the childs support
Secondarily collective daily needs of the family
Art 227.

Allowance of unemancipated child

Management and administration of properties net proceeds of property belong to
the owner BUT

TET DOMINGO

Monthly allowance of management & administration not less than what would be
paid to a regular administrator
EXCEPT: when owner grants the entire proceeds to the child;not charged to
the childs legitime
Chapter 5. Suspension or Termination of Parental Authority

Art 228. Termination of Parental Authority

1. Upon death of the parents
2. Upon death of the child
3. Upon emancipation of the child
Art 229. Termination of Parental Authority unless subsequently revived
1. upon adoption of th echild
2. upon appointment of a general guardian
3. upon judicial declaration f abandonment of child in a case filed for the purpose clear and
convincing proof
4. upon judicial declration of absence or incpacity of the person exercising parental authority
Art 230. Suspension of parental authority
Upon conviction of the parent or the person exercising the same of a crime which carries with
it the penalty of civil interdiction.
Reinstated:

service of the penalty

upon pardon

upon amnesty
Art 231. Suspension of parental authority (upon action filed for the purpose)
1. treat the child with excessive harshness/cruelty
2. gives the child corrupting orders
3. compels the child to beg
4. subjects the child or allows him to be subjected to acts of lasciviousness

includes cases resulting from culpable negligence

deprive parental authority
degree of seriousness
welfare of the child
suspension revoked
case filed for the purpose

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same proceeding, if the court finds that the cause therefor has ceased

Art 232. Permanent deprivation

1. subjected the child to sexual abuse
2. allows him to be subjected to sexual abuse
Art 233.

GR: persons exercising substitute parental authority have the same authority over the
child as the parent

Corporal Punishment by school administrator, teacher, individual engaged in child care,

exercising parental authority (special parental authority) prohibited
Administratively/civilly liable, but not criminal
USE OF SURNAMES
Art 364. Legitimate & legitimate surname of father
Art 365. Adopted child adopter
Art 366. Natural child acknowledged by both parents surname of the father
If only one parent surname of recognizing parent
Art 367. Natural children by legal fiction surname of father
Art 368. Illegitimate children surname of mother
Art 369. Children conceived befoe the decree anulling a voidable marriage surname of
father
Art 370. Married woman
5. Maiden first name and surname + husbands surname
6. Maiden first name + husbands surname
7. Mrs. + Husbands full name

Wife is guilty party resume maiden name and surname

Wife is innocent spouse resume maiden name and surname OR continue employing
her former husbands surname UNLESS
Court decrees otherwise
She or the former husband is married again to another person

Art 372. Legal separation continue using her name + surname employed before the legal
separation
Art 373. Widow deceased husbands surname as though he were still living
Art 374. In case of identity of names and surnames younger person shall use additional
name or surname
Art 375. Identity of names and surnames between ascendant and descendant

Junior = son

Grandsons
Middle name/mothers surname
Add roman numerals
Art 376. No person can change his name or surname without judicial authority
Art 377. Usurpation of name and surname action for damages and other relief
Art 378. Unauthorized or unlawful use of anothers surname right of action
Art 379. Pen names, permitted and cannot be usurped
1. good faith
2. no injury to 3P
Art 380. No personal shall use different names and surnames
E: art 379.

Art 371. In case of annulment:

TET DOMINGO

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