EFFECT AND APPLICATION

OF LAW

R: Laws should have PROSPECTIVE

EFFECT. Law is made applicable to situations or acts done
AFTER the passage of the law.

ER: Unless the law provides its

RETROAVTIVE EFFECT. Law is made

Art. 1 Civil Code of the Philippines

Art. 2 When does a law take effect:
R: Law shall take effect:
Q1:
15
days
following
the
Q2: completion of their publication in
the:

applicable to situations or acts done BEFORE the

passage of the law.
THE FOLLOWING STATUTES ARE GIVEN RETROACTIVE
EFFECT Re Pe Cu N E T P: (provided NO VESTED RIGHTS
ARE INVOLVED property rights or interest which has become
fixed and established therefore should no longer be open to
controversy)
1.

A. Official Gazette; or

FC art. 40 requires the necessity of final

judgment declaring previous marriage void
(Atienza v. Brillantes)

B. Newspaper of general circulation

in the Philippines;

CRIMPRO being a statute regulating

procedure of the court are construed as
applicable
to
actions
PENDING
and
UNDERTIMINED at the time of their passage.
(Cancio v. Isip)

ER: UNLESS otherwise provided by law

hence the exception here refers only to the 15 days period
which may be extended or shortened by the congress but the
publication is indispensable. (Tanada v. Tuvera)

The filing of civil action for quasidelict while a criminal case is pending is
allowed by the rules. (Casupanan v. Laroya)

LAWS THAT ARE REQUIRED TO PUBLISH:

1.
2.
3.
4.
5.

All statutes including those of local application

and private laws;
Executive orders which is punitive in
character;
Admin rules and regulations for purposes of
enforcing or implementing existing law
Central Bank Circular which is punitive in
character;
The Charter of a City

REMEDIAL LAWS - no vested rights may attach to

nor arise from procedural laws

2.
3.
4.
5.
6.
7.

RATIO: Publication must be FULL or COMPLETE to

comply with due process whereby the public must be
informed of the full content of the law. (Ibid.)

PENAL LAWS provided (1) favorable to the accused

(2) accused is NOT a habitual delinquent
CURATIVE LAWS intended to correct errors or
irregularities in judicial or admin proceedings
LAWS CREATING NEW RIGHS
EMERGENCY LAWS
TAX LAWS being the lifeblood of the state
LAWS THAT PROVIDES RETROACTIVITY (NOT EX POST
FACTO LAW)
FC
Art.
256
provides
retroactive effect of the said law

the

Art. 2 Ignorance of the law excuses

no one from compliance therewith:

Art. 5 when acts are void; exception

thereof:

APPLICATION: ALL DOMESTIC LAW which is mandatory or

prohibitory in character.

Q: When the acts are executed against

MANDATORY and PROHIBITORY LAWS

Hence, FOREIGN LAW is a matter of fact which must

be pleaded and proven in court since the court does not take
judicial notice thereof otherwise the rule on processual
presumption applies whereby laws of the foreign country is
the same as our domestic law.
JUDGES
WHO
DEMONSTRATED
IGNORANCE OF THE LAW:

GROSS

A judge who solemnized marriage between

parties already having prior marriages as stated in
their affidavits (Manzano v. Sanchez)
A judge who grants a motion to strike out in
a nature a motion to dismiss in action governed by
summary proceeding (Pascual v. JOvellanos)

ER: the law itself authorizes their

validity (Horse racing, Gambling in Casino, Valid
until annulled contracts)

Art. 6 Waiver Of Rights:

R: Rights may be waived
WAIVER refers to the intentional or voluntary
relinquishment
of
a
known
right
either
express/implied

ER: UNLESS the waiver is:

A judge who failed to award civil damages in

a conviction where there was no waiver, reservation
or separate civil action instituted by the offended
party (Corpuz v. Siapno)

Art. 3
EFFECTIVITY
OF
Concept
of
PROSPECTIVE
RETROACTIVE LAW:

A. contrary to law, public order,

public policy, morals or good
customs OR
B. prejudicial to 3rd person with a
right recognized by law

LAW;
and

REQUISITES OF A VALID WAIVER:

Page 1 of 27

1.
2.
3.
4.
5.
6.

The person waiving must have legal capacity;

The waiver must be clear and unequivocal to
relinquish a known right;
He/she must be the actual holder of a right to be
renounce;
The formalities required by law should be complied;
NOT contrary . . . . ;
NOT predjudicial . . . ;

JUDICIAL DECISIONS refers to the doctrines

formulated by the decisions of the SC. Aka
Jurisprudence.

E: Forms part of the LEGAL SYSTEM of

the Philippines.
STARE DECISIS is a doctrine which refers to
adherence of precedents for reasons of stability in
law. Once a case has been decided in one way, then
another case, involving exactly, the same point in
issue, should be decided in the same manner.

EXAMPLES OF A RIGHT WHICH CANNOT BE

RENOUNCED:
A.
B.

Natural rights (right to live)

Inchoate rights

There is no waiver because the person waiving did

not specifically mention a waiver of hereditary rights, hence
the latter lacks the knowledge of said right. Moreover the
person waiving is yet to prove their filiation.

Art. 9 JUDGMENT IS INDISPENSABLE:

(regardless) of the silence, obscurity or
insufficiency of the LAW.

Nevertheless, parents or guardians with respect to

their ward are not allowed to repudiate the inheritance
UNLESS there is judicial authorization NCC Art. 1044.

This article does NOT apply to CRIMINAL CASE under

the doctrine Nullum Crimen, Nulla Poena Sine Lage or there is
no crime when there is no law punishing it.

(Guy v. CA)

The grant of change of name is denied. There is no

law allowing change of name or sex on the ground of sex
change surgery. Judges are limited only in interpreting or
applying the law. Judges should not enact or amend the law
which is tantamount to judicial legislation. (Silverio v. Rep)

Art. 7 How laws are repealed:

1. Laws are repealed by subsequent
ones. (either express or implied)
A. Express repeal refers to an express provision of
law stating that an existing law or part thereof is
thereby repealed
B. Implied repeal refers to previous law and
subsequent law which could not be reconciled being
substantially inconsistent with each other.
R1: The special law is considered as an exception if a
GENERAL LAW was enacted before a (->)SPECIAL
LAW;
R2: The special law remains valid if a (->)GENERAL
LAW was enacted after a SPECIAL LAW unless there
is express or implied repeal OR there is a clear
intention to replace the special law

2. LAW declared by the Court to be

consistent with the Constitution
3. EXECUTIVE ACTS which are contrary
to law or the Constitution
CONDITIONS OF THE REVIVAL OF A REPEALED
LAW: (OPERATIVE FACT DOCTRINE)
A. The 1st law will be revived unless otherwise
provided WHEN (Q1) the 1st law was repealed
IMPLIEDLY by the 2nd law (Q2) and then the 2nd law
was repealed by the 3rd law
B. The 1st law will NOT be revived unless otherwise
provided WHEN (Q1) the 1st law was repealed
EXPRESSLY by the 2nd law (Q2) and then the 2nd law
was repealed by the 3rd law

Art. 8 Judicial decision has

FORCE and EFFECT of laws:

the

Q:
Judicial
decisions
APLYING
or
INTERPRETING
the
laws
or
the
Constitution

Art. 10 Interpretation of law when

there is DOUBT:
E: There is a PRESUMPTION that the
intention of every law is that RIGHT and
JUSTICE PREVAILS.
R1: NO doubt,Dura Lex Sed Lex applies where the law may be
harsh but that is still the law.
R2: there is DOUBT, the ends desired by the Congress
prevails that is right and justice. The policy behind this law is
that we should interpret not by the letter that killeth, but by
the spirit that giveth life

Art. 11 Customs should be in

CONFIRMITY with: (1) LAW (2) PUBLIC
ORDER (3) PUBLIC POLICY
CUSTOM refers to a rule of conduct formed by repetition of
acts, uniformly observed as a social rule.

Art. 12 How Customs PROVEN:

Q1. Proven as a fact
This is because there is no judicial notice of customs
UNLESS there is already a final and executor decision
recognizing its existence.

Q2. In accordance with the rules of

evidence
Art. 13 When the laws speaks of a
period; Rule of computing a period
1. a YEAR consist of 365 days;
2. a MONTH consist of 30 days each;

Page 2 of 27

ER: the corresponding day of the

month PROVIDED a month is
DESIGNATED BY NAME

COURTS [i.e., custody, support, real property in the

Philippines]. (Roehr v. Rodriguez)
R2: Divorce decree should be alleged and proven as
a fact since courts in the Philippines do not take
judicial notice of foreign laws.

3. a DAY consist of 24 hours;

Foreign judgment is proven through an

OFFICIAL PUBLICATION or a COPY thereof which must
be attested by the officer having legal custody of
the document. (ROC, sec. 24 and sec. 25)

4. a NIGHT consist a sunset to sunrise.

R: First day EXCLUDED an the last day
INCLUDED
R1: in a period prescribe under an ORDINARY
CONTRACT; the act is due even if the last day
falls in a Sunday or a legal holiday.
This is because obligations arising from
contract have the force of law between the
contracting parties Art. 1159

ER: Nationality Principle as an exception should

NOT be applied when a Philippine National is
discriminated against her own country if the ends
of justice are to be served.
An alien is bound by the decision of his own
countrys court which validly exercise jurisdiction over
him. An alien who obtained a divorce decree with his Filipino
spouse;

R2: in a period prescribed ROC, ORDERS of the court

or ANY OTHER APPLIBLE STATUTE, if the last day is a
Sunday or Legal Holiday, the last day should really
be the next day which is neither a Sunday nor
Legal Holiday.

Art.
14
PRINCIPLE
TERRETORIALITY:

Admitting there was no communal property

there and later asserting his conjugal rights in the
Philippines is not allowed. (Vandorn v. Romillo)
Filed of criminal complaint for concubinage
or adultery in the Philippines should be dismissed
since the latter is NOT the offended spouse. (Pilapil v.
Ibay-Somera)

OF

R: PENAL LAWS, PUBLIC SECURITY LAWS

and SAFETY LAWS shall be obligatory
upon all who
live/soujourn in the
Philippine Territory. Alien who stays in the Philippines

2. Status;
3. Condition;
4. Legal Capacity.

owes temporary allegiance to the latter.

APPLICATION: binding upon CITIZENS

even though living abroad

ER: Unless exempted by virtue of

(A) Public intl law; or

(exclusive on
Diplomatic, officials [consuls not included being
economic representative], foreign ambassadors,
visiting heads of states)

(B) Treaty Stipulations

ART. 15 Governing laws relating to
PERSONS AND FAMILY RELATIONS
(a.k.a Nationality Principle):

Art. 16 Governing laws relating to

PROPERTY (a.k.a Lex Rei Sitae):
R: REAS as well as PERSONAL property is
subject to the law of the country
where it is situated.
ER: (In all cases) NATIONAL LAW OF
THE DECEDENT APPLIES with
respect to:

NATIONALITY PRINCIPLE or LAW is where the law of

the country where he is a CITIZEN will govern.

1.
Intestate
SUCCESSION;

Testate

2. Incidents of succession:

DOMICILLIARY PRINCIPLE or LAW is where the law of

the country where he is a RESIDENT will govern.

COVERAGE:

or

RENVOI DOCTRINE: The doctrine is where Philippine law

refers a case to a foreign country for solution but the law of
latter refers it back to our country for determination. Thus, the
forum will have to accept the referring back.

PHILIPPINE LAWS RELATING TO

1. Family rights and duties;

R1: Alien may obtain divorce abroad, which may be
recognized in the Philippines PROVIDED they are
valid according to their law. (Vandorn v. Romillo)

An alien who is a citizen in the US while domiciled in

the Phil died testate. US law provides the law of the domicile
governs while Phil law provides the National law of the
decedent. The court will accept the renvoi so as to prevent
the vicious circle of passing the effective of law between the
countries likened as an international pingpong. (Aznar v.
Christensen)

BUT THE LEGAL EFFECTS OF DIVORCE

DECREE MUST STILL BE DETERMINED BY PHILIPPINE

Page 3 of 27

(a) Order of Succesion

(b) Amount of successional
rights (c) Intrinsic validity of
testamentary provision

Art. 19 The Principle of Abuse of

Rights:
R: Ever person must:

1. ACT WITH JUSTICE;

2. GIVE EVERYONE HIS DUE;
3. OBSERVE
HONESTY
GOODFAITH

(d) Capacity to succeed Art. 1039

Art. 17 Governing laws relating to

CONTRACT,
WILLS
and
INSTRUMENTS
(a.k.a
Lex
Loci
Celebrationis):
R1: FORMS and SOLEMNITIES (hence, Extrinsic
validity
only)
of Contract, Wills, and
Instruments shall be governed the law of
the country in which they are
executed.
FORMS refers to the external appearance of technical
manner to be observed in the preparation of an instrument for
validity purposes.
SOLEMNITIES refers to those prescribed by law for
purposes of validity, enforceability and convenience.
ORDER OF PREFERENCE: (Manresa)
1ST: STIPULATION of the contracting parties;
2ND: NATIONAL LAW of both the contracting parties provided
they are of the SAME nationality;
3RD: LEX LOCI CELEBRATIONIS if contracting parties are NOT
of the same nationality;
4TH: DOMICILLIARY LAW of the passive subject if the PLACE
ARE NOT SPECIFIED.

ER:
(a.k.a
Principle
of
Exterritoriality) PHILIPPINE LAW
shall be observed WHEN it is
executed before Diplomatic or
Consular officials of the Republic of
the Philippines in a foreign country.

Q:
or

AND

GOOD FAITH refers to an honest intention to

refrain from taking undue advantage of another
BAD FAITH presupposes a dishonest purpose
or moral obliquity and conscious performance of
a wrong

A. in the exercise of his/her rights;

B. in the performance of his/her

duties
RATIONALE: Observance of the rightful relationship between
human beings and for the stability of the social order. It is
designed to indicate certain norms that spring from the
fountain of good conscience.
R1: Human relations applies equally well to gov and to private
individuals.
ER: Nevertheless human relations are subjected to:
1. The legitimate exercise of the States sovereign
powers
2. Does not apply to the exercise of absolute rights
> Right of parental consent to contract
marriage aging 18-21 yrs of age;
> Right of testator to freely dispose the
disposable portion of his estate
> Right to set nullity of contract as
a defense
R2: Human relations is available to question the exercise of
ministerial duties
> ART. 27 When there is Refusal or Neglect in the
PERFORMANCE OF OFFICIAL DUTY WITHOUT JUST
CAUSE
R3: Violation of the provisions of human relations is actually a
commission of tort. As such the defences available for torts
are also available against the cause of action arising from
human relations
PROVISION ON HUMAN RELATIONS IS NOT A
SELF-REDRESSING PROVISION:
I. ELEMENTS THEREOF MUST CONCUR:
1. There is legal right or duty;
The importance of due process;
hence,
a right should
not
be
confused with the manner
which
such
right is to be exercised. (Metropolitan
Waters v. Act Theater; Cebu Country Club
v. Elizagaque)

R2: PROHIBITIVE LAW concerning (a)

persons (b) their acts (c) or property (d)
those object of Public order, Public Policy
and Good Customs REMAINS EFFECTIVE
notwithstanding laws, judgment, or
conventions agreed upon in a
foreign country.

2. Which is exercised in bad faith; (arbitrary

or unjust)
3. For the sole intent of prejudicing or
injuring another
II. Art. 19 is not a source of damage UNTIL applied
together with Art. 20 and 21

Art. 18 This Code SUPPLETORY to

Code of commerce and Special laws

HUMAN RELATIONS

(STANDARD OF CONDUCT)

A common thread woven in Art.

21 is that the act complained of must be
that is tainted with bad faith. (China
CA) Hence in Art. 20 it may be by
negligence only.

19, 20 and
intentional,
Banking v.
reason of

R4: Provision on human relations can be set up in all forums,

PROVIDED the law on human relations applies.
> ART..29 WHEN an accused acquitted because of
reasonable doubt, a civil action for damages may be

Page 4 of 27

instituted which requires only preponderance of

evidence
> ART.. 31 WHEN an obligation NOT arising from the
act/omission complained of, an independent civil
action is proper

iii.
iv.

promise
was a subtle
scheme
or
deception to
entice sexual act.
(Baksh v. CA)
Wilfull injury
to
her honor and
reputation
Such injury contra bonus mores

> LABOR LAWS as amended, labor arbiter may award

damages for termination contrary to law, morals,
good custom or public policy (Globe-Mackay Case)

To formally set up a wedding and go through all the

preparations and publication, ONLY TO WALK OUT OF IT when
it is about to be solemnized. (Wassmer v. Velez)

ART. 20: Acts contrary to LAW every

person who:
1. contrary to law; (THERE MUST BE A LAW

A married man who ingeniously through the guise of

teaching a girl to pray the rosary won her affection and illicit
relations committed an injury against her family. (Pe v. Pe)
EER: NOT
actionable,
when
lust pursuant
to
(Hermosisima v.CA)

VIOLATED)
A wrong result given by a clinic found to be in
violation of The Clinical Lab Law which requires LICENSE
physician. In this case it was headed by a mere medical
technologist. (Garcia v. Salvador)

2. Causes damages to another:

(a) Wilfully or; (INTENT or MALICE)
(b) Negligently (FAULT or NEGLIGENCE)
EFFECT: shall indemnify the
the same

latter

there
is mutual
in pari delicto rule

ART. 22: Unjust Enrichment (ACCION IN

REM VERSO) every person:
1. Who
through
an act
or
performance by
another [(Q1) Defendant
enriched (Q2) Plaintiff suffered a loss] UP v. Philab

for

RATIONALE: Said provision is clearly meant to complement

all legal provision which may have inadvertently failed to
provide for indemnification or reparation of damages when
proper or called for.

ART. 21: Acts contrary to MORALS,

GOOD CUSTOMS and PUBLIC POLICY
every person
1. in a manner contrary to morals, good
customs and public poliy; (Contra Bonus Mores)

2. Acquires or comes into possession

something at the expense of the
latter
3. Without
just
grounds [(Q3) enrichment of

or

legal

defendant w/o just or legal

basis (Q4) Plaintiff HAS NO OTHER ACTION based on contract,
quasi-contract crime or quasi-delict] UP v. Philab
> You do not have the right to obtain it, you have to
return it

EFFECT: Shall return the same to him

BASIS: Under ART. 2142 certain lawful, voluntary and
unilateral acts give rise to a judicial relation of quasicontract

2. Wilfully (only) causes loss or injury to

another
EFFECT: shall compensate the latter for
damages
RATIONALE: To expand the concept of torts or quasi-delict by
granting adequate legal remedy for the untold number of
moral wrongs impossible for human foresight to specifically
enumerate and punish in the statute books.
ELEMENTS:
1. An act which is LEGAL but there is NO law that
punishes the act;
2. Such act is contrary to morals, public policy and
good customs;
The importance of due process; hence,
a right should not be confused with the manner
which such right is to be exercised. (Globe
Mackay case)
3. It is done with intent to injure
HEART BALM SUITS RULE:
R: Breach of promise to marry is NOT an actionable
wrong for an award of damages
ER: However damages arises when there is some act
independent of the breach of promise to marry such
as carnal knowledge;
When
there
is Criminal
moral seduction; Elements thereof:
i.

ii.

or

The promise
to
marry
was
the proximate cause giving herself unto
him in sexual congress;
Proven in reality that he has no
intention of marrying her and that said

ART. 23 Doctrine of restitution:

1. An act or event causing damages to
plaintiffs property
2. Not due to the fault or negligence of
the defendant

Page 5 of 27

3. BUT such act or event benefited the

defendant
EFFECT: Defendant
shall
be
liable indemnity.
ART. 24 The State as Parens Patria:
(UNDERDOG PROVISION)

1. In ALL contractual, property or other

relations
2. When one of the parties is at a
disadvantage on account of his moral
dependence,
ignorance,
indigence,
mental weakness, tender age or other
handicap
EFFECT: Court must be vigilant for his
protection in case of doubt, IT SHOULD BE CONSTRUED
AND RESOLVE IN FAVOR OF THE UNDERDOG
WHEN
THERE
IS CONTRACT
OF
ADHESION: doubt is to be resolve against the party
which prepared the contract in favour of the one who
merely adhered to it. Hence stipulations in such
contract are obscure or ambiguous.
Petitioners, being educated and business
persons as well cannot claim being the weaker or
disadvantage parties. Hence a stipulation plain and
unambiguous
which
leaves
no
room
for
interpretation the rule on contract of adhesion does
not apply (Litonjua v. L&R; Ayala case)
WHEN A PARTY IS BLIND, PARALAYZED OR OTHERWISE
MENTALLY OR PHYSICALLY HANDICAPPED: Under this
law, a presumption of fraud or undue influence arises UNLESS
rebutted.

ART. 25: Thoughtless extravagance

in expenses for pleasure or display:
Q: During a period of acute public want
or emergency
EFFECT: Stopped by order of the
court instituted
by (a)
any gov or (b)
private charitable institution
R: There is a need for an official declaration by the
State of public want or emergency
IMPLICATION OF THIS LAW:
1. It covers EMOTIONAL injury;
RATIONALE: to prevent incite of passion of those
who could not afford
2. Limitation of property rights (jus disponendi);
SUMPTUARY LAWS (law which attempt to regulate
habit of consumption); Others: CONSTI 11 sec.1
public officers to lead a modest lives; General Order
15 Martial Law
3. Affirmation of the POLICE POWER

ART. 26: Duty to respect dignity and

privacy of another; violation herein
although not a criminal offense:
A. Prying into the privacy of anothers
residence;
B. Meddling
with
or
disturbing the
private life or family relations of another;
C. Intriguing to
cause
another
to
be alienated from his friends;
D. Vexing or humiliating another ON
ACCOUNT of religious beliefs, lowly
station in life, place of birth, physical
defect or other physical condition

EFFECT OF
VIOLATION: Produce
a
cause
of action for damages, prevention and ot
her relief
ART. 27 When there is Refusal or
Neglect in
the PERFORMANCE
OF
OFFICIAL
DUTY WITHOUT
JUST
CAUSE: (Applies only to acts that is purely ministerial)
Q: Any person suffered material or moral
loss by reason thereof
EFFECT:
1. Cause of action for damages and other
reliefs;
2. Disciplinary
administrative
action maybe taken
ART.
28 Civil
action
for
Unfair competition:
Q: use of force, intimidation, deceit,
machination or any other unjust,
oppressive or highhanded method
EFFECT: Cause of action for damages by
a person who suffered thereof

ART. 29 When there is SEPARATE

CIVIL ACTION FOR DAMAGES against
an
accused
who
has
been
ACQUITTED. (DEPENDENT CIVIL ACTION)
REQ:
1.
There
must
be
a
CRIMINAL
PROSECUTION;
2. There must be ACQUITTAL of the
accused on the ground of reasonable
doubt;
3. The BASIS of Reasonable doubt must
be upon (a) Courts declaration or (b)
inferred from the text of the Decision;
EFFECT:
1. A CIVIL ACTION FOR DAMAGES for the
same act/omission maybe instituted
which requires only preponderance
of evidence.
A judgment of acquittal operates to extinguish the
criminal liability of but does not extinguish civil liability. Thus,
a rendition of judgment of acquittal and award of
damages in a criminal action at the same time is
allowed under Art. 29. The two liabilities are separate and
distinct to each other. ONE, affects social order whereby it
punishes or corrects the offender while the SECOND
affects private rights and shall be considered as
reparation of damages suffered by the aggrieved party.
(Padilla v. CA)

Page 6 of 27

2. Defendant upon motion may REQUIRE

THE PLAINTIFF TO FILE A BOND if the
complaint should be found malicious.
R: ALL CIVIL ACTION ARE DEPENDENT EXCEPT
UNLESS OTHERWISE PROVIDED BY LAW. (see Art.
29,30 and 35)
INDEPENDENT CIVIL ACTIONS
ARE THE FOLLOWING:
1.
Civil
Actions
for
violation
of
Constitutional Civil liberties Art. 32
2. Civil Actions for fraud, defamation, or
physical
injuries
intentionally
committed and used in its generic
sense Art. 33
3. Civil Actions when city/municipality
police force refuses or fails to render aid
or protection Art. 34
4. Quasi-Delict Art. 2176
(take note, determine whether it is a
dependent or independent civil action for
damage)
BASIS: RPC, Art. 100 provides that every person
criminally liable for a felony is also civilly liable
The death of accused BEFORE final
judgment terminates the criminal liability and
civil liability insofar as the crime/delict is
concerned. HOWEVER, the claim for civil liability
OTHER
THANT
CRIME/DELICT
survives
notwithstanding the death of accused. A separate
civil
action
is
proper
as
against
the
executor/administrator of the estate of accused. (Pp
v. Bayotas)

CRIMPRO: CrimPro, Section 1 of RULE 111, A

civil action is DEEMED IMPLIEDLY INSTITUTED in a
criminal proceeding UNLESS (referring to
dependent civil action)
(A) The civil action has been WAIVED; or
(B) A right to INSTITUTE A SEPARATE CIVIL
ACTION HAS BEEN RESERVED:
a.
Before the prosecution starts
presenting evidence
Even if there was NO ACTUAL RESERVATION but the
offended party informed the judge not to impose award of
damage before the prosecution started presenting evidence.
The purpose of the law has been achieved whereby the
offended party cannot recover damages twice from the same
act/omission. (Yakult v. CA)

b. Under circumstance affording

the
offended party reasonable opportunity to
make the reservation.

Even if there was NO ACTUAL RESERVATION, the

offended party is allowed to file an independent civil action
because the plea of guilty by the accused in the criminal case
prevented the prosecution to present evidence. Hence, the
offended party had no opportunity to prove his claim of
damages in that criminal action. (Reyes v. Sempio-Diy)

Based on Rule 110 section 16 and Rule 111 section 1 of the

Rules on Criminal Procedure.
R: An offended party may intervene in the prosecution of a
crime.
ER: except in the following instances:
(1) when, from the nature of the crime and the law defining and
punishing it, NO CIVIL LIABILITY ARISES in favor of a private
offended party; and
(2) when, from the nature of the offense, the offended parties
are ENTITLED TO CIVIL INDEMNITY, BUT (in short, opted for a
separate dependent civil action)
(a) they waive the right to institute a civil action,
(b) expressly reserve the right to do so or (c) the suit
has already been instituted.
In any of these instances, the private complainants
interest in the case disappears and CRIMINAL
PROSECUTION BECOMES THE SOLE FUNCTION OF THE
PUBLIC PROSECUTOR. (Rodriquez v. Hon. Thelma)

ART. 30 Civil Action for damages

allowed
even
if
NO
criminal
proceedings has been filed YET
which requires preponderance of
evidence. (DEPENDENT CIVIL ACTION)
EFFECT OF RESERVATON WHETHER BEFORE OR AFTER
THE FILING OF CRIMINAL ACTION: such civil action is
suspended until termination of the criminal action because it
is dependent on the ruling of a criminal case.

ART. 31 When there is INDEPENDENT

CIVIL ACTION; Effects thereof:
INDEPENDENT CIVIL ACTION is a
civil action based on an obligation NOT
arising from the acts or omission
complained of as a felony.
BASIS: Art. 1157 provides for the sources of
obligation:
(A) Law;
(B) Contracts;
(C) Quasi-Contracts;
(D) (NOT APPLICABLE)
(E) Quasi-delict.
Hence, a same act/omission give rise to two
(2) obligations based in ex-delictu or quasi delict. The
injured party is free to choose which of the two
liabilities he shall enforced against them. (in effect
we follow the English law; Barredo v. Garcia)
(Crime/delict),
affects
social
order
whereby it punishes or corrects the offender
while (other sources of obligation) affects private
rights and shall be considered as reparation of
damages suffered by the aggrieved party.
(Padilla v. CA)
In other words, it is based on an entirely
different cause of action. (Cancio v. Isip)

EFFECT: such civil action may proceed

INDEPENDENTLY
of
the
criminal
(C) The civil action was filed prior to the
proceeding regardless of the result of the
criminal action
latter.
Page 7 of 27

R: NO RESERVATION IS REQUIRED
LIMITATION: The offended party should not recover
twice the damages arising from the same
act/omission. (Section 1 of RULE 111, CrimPro)
The death of accused BEFORE final judgment
terminates the criminal liability and civil liability
insofar as the crime/delict is concerned. HOWEVER, the
claim for civil liability OTHER THANT CRIME/DELICT survives
notwithstanding the death of accused. A separate civil action
is proper as against the executor/administrator of the estate
of accused. (Pp v. Bayotas)

ART. 32 Independent Civil actions for

Violation
of Constitutional
Civil
Liberties: Liable for damages
Q: Any public officer or private
individual OBSTRUCT, DEFEATS,
VIOLATES or in any manner IMPAIRS
ER: Not demandable from a judge
UNLESS it constitutes a violation
under the RPC
1. Freedom of religion;
2. Freedom of speech;
3. Freedom to write for the press/maintain
periodical publication;
4. Freedom of arbitrary or illegal detention;
5. Freedom of suffrage;
6. Right to a due process of law;
7. Right to a just compensation in expropriation;
8. Right to a equal protection of laws;
9. Right to a unreasonable searches
and siezures;
IT IS NOT NECESSARY THAT THERE IS MALICE OR
BADFAITH. The wrongful seizure without search warrant of
respondents merchandise is actionable. (MHP Garments v.
CA)

10. Liberty of abode and of changing the same;

11. Privacy communication and correspondence;
12. Right to join association/society;
13. Right to peaceable assembly to redress
grievance to the gov;
14. Free from involuntary servitude;
15. Right against excessive bail;
16. Right to be heard, confront the witnesses
against him and speedy disposition of the case;
17. Right against self-incrimination;
18. Freedom from excessive fine and unusual
punishment;
19. Freedom of access to courts

ART. 33 There is Independent Civil

Action for damages in defamation,
fraud, and physical injuries:
Q: As long as it is entirely different and
distinct from the criminal action.
EFFECT: such civil action may proceed
INDEPENDENTLY
and
require
only
PREPNDERANCE OF EVIDENCE.
ART. 34 Independent Civil Action
When CITY/MUNICIPALITY
POLICE
FORCE refuses or fails to render aid
or protection

Q: any in person in case of danger to life

or property
EFFECT:
1. Peace officer, primarily liable for
damages
2. City/Municipality, subsidiarily responsi
ble thereof
3. Civil action independent from any
criminal proceeding
and preponderance of evidence suffice
Art. 35 Civil Action for damages
allowed
BUT
there
is
NO
independent civil action authorized
under the law which requires
preponderance of evidence. (DEPENDENT
CIVIL ACTION)

REQ:
1. There must a CLAIM OF CRIMINAL
OFFENSE;
2. But criminal proceeding is pending on
the grounds that;
a. there is NO REASONABLE
GROUND to hold accused for trial;
or
b. public prosecutor FAILED TO
INSTITUTE ANY CRIMINAL CASE
EFFECT:
1. A CIVIL ACTION FOR DAMAGES for the
same act/omission maybe instituted
which requires only preponderance
of evidence.
2. Defendant upon motion may REQUIRE
THE PLAINTIFF TO FILE A BOND if the
complaint should be found malicious.
3. Civil Action SUSPENDED if Information
is filed in court.
Art. 36 When there is PREJUDICIAL
QUESTION: the question must be
decided first
before
any criminal
prosecution may be instituted or
proceed. ROC governs Section 6 of RULE 111
(The criminal case must be suspended)
RATIONALE:
SDB)

To avoid two conflicting decisions. (Tuanda v.

Jurisprudence held that PREJUDICIAL

QUESTION EXIST when: (elements
thereof)

Page 8 of 27

1. The CIVIL ACTION involves an issue

similar or intimately related to the issue
raised in the CRIMINAL ACTION;

B. ARTIFICIAL PERSON refers to entities created by

law, group or association of men for certain lawful
purpose.
PERSONALITY the quality of being a person

R1: Prejudicial question may ONLY BE SUSPENDED

and not dismissed. In addition, it can only be invoked
UPON PETITION and not in the instance of the judge
or investigating officer. (Yap v. Paras _ PASI v.
Lichauco)
R2: Although actions involved are not civil and
criminal action, THE COURT UPON PETITION OF ANY
OF THE PARTY AND IN THE INTEREST OF GOOD
ORDER, suspend action on one case pending final
outcome of another case closely related or linked to
the first. (City of Pasig v. COMELECE, also Quimbao v.
Osorio)

STATUS is a state or condition. It is the legal relation of an

individual to the rest of the community. It refers to the rights,
duties, capacities and incapacities which determines a person
to a given class

Art. 37 A person has JURIDICAL

CAPACITY and CAPACITY TO ACT:
JURIDICAL CAPACITY is the fitness to
be a subject of legal relations.

2. The RESOLUTION OF SUCH ISSUE

determines whether or not criminal
action may proceed;
Unless and until SUCH ISSUE IN A (CIVIL ACTION or
otherwise) is resolved with finality, the determination of the
ISSUE RAISED IN A (CRIMINAL ACTION or otherwise) would
only be an exercise of futility. (ibid. see Apa v. Fernandez)

ACQUISITION: inherent in every

natural person
LOSS: Only through death
CAPACITY TO ACT is the power to do
acts with legal effects. (active)

3. And that the JURISDICTION TO TRY

SUCH ISSUE must be lodge in another
tribunal. (Magestrado v. Pp)
NO PQ. Civil case sum of money and cancellation of
mortgage; Criminal case Perjury; Issue is different. The
purchase by the petitioner of the land or his execution of real
estate mortgage has NO bearing on whether the latter
knowingly or fraudulently executed a false affidavit of loss.
(Magestrado v. Pp)

ACQUISITION: acquired
LOSS: other grounds other than
death
Art. 38 RESTRICTIONS on Capacity to
act; Effects thereof:
1. Minority;

CASES:
1. Admin Case Land dispute; Civil Case ejectment; Issue is
prior possession. (Quimbao v. Osorio) NEGATIVE
2. Civil case Boundary dispute; COMELEC case Plebiscite to
create a barangay; Issue is territorial jurisdiction. (City of
Pasig v. COMELEC) AFFIRMATIVE
3. Civil case Nullity of TCT; Criminal case Squatting; Issue
is ownership. (APA v. Fernandez) AFFIRMATIVE
4. 2 Civil case sum of money and cancellation of mortgage;
Criminal case Perjury; Issue is different. The purchase by the
petitioner of the land or his execution of real estate mortgage
has NO bearing on whether the latter knowingly or
fraudulently executed a false affidavit of loss. (Magestrado v.
Pp) NEGATIVE
CIVIL RELIEFS such as injunction and damages
w/ attachments thereafter estafa case does not involved
PQ because NOTWITHSTANDING THE RESOLUTION OF THE
CIVIL CASE (issues involved WON there was a duly constituted
agent; WON retrun payment and damages is propert) THE
CRIMINAL ACTION CAN STILL PROCEED (estafa thru
falsification may be convicted through conspiracy to falsify
public documents. (Pp v. Consing) NEGATIVE

2. Insanity;
3. Imbecility;
4. Deaf mute;
5. Prodigality;
6. Civil interdiction.
EFFECTS:
1. Restriction on capacity to act;
2. But do not exempt certain obligations
such as property relations or easement.
Art.
39
MODIFICATION
LIMITATION on Capacity to act:
1. AGE;
2. Insanity;

PERSONS

3. Imbecility;

PERSON is any being whether natural or artificial, susceptible

of legal rights or obligations

4. Deaf mute;

A. NATURAL PERSON refers to human being

Page 9 of 27

and

5. PENALTY;

Refers to penalty imposed over acts

punishable under the law such as but not limited to
suspension, etc.

R3:
Conditions of a child to be
considered born: (Art. 41) hence, the burden of
proof lies on the one alleging that the baby did not survive.

I.

6. Prodigality;
7. FAMILY RELATIONS;

such as but not limited to

prohibition of incest marriage, prohibited donations, Marital
and filial privilege communication, etc.

8. ALIENAGE;

aliens does not have political rights,

acquires real property in general, practice law, etc.

necessary)

II.
III.

9. ABSENCE;
ART. 390-391
DEATH:

RULES

OF PRESUMPTIVE

R1: An absentee is presume

dead
for
ALL PURPOSES EXCEPT succession AFTER
absence of 7 years

The FC allows remarriage to absentees

spouse
(Art.
41)
and
Petition
for
receivership, judicial separation of property
or for sole administration of conjugal
partnership of the spouse present

R2: An absentee is presume

dead
for purposes of OPENING SUCCESSION
AFTER absence of 10 years
ER1: However 5 years shall be
sufficient if absentee disappeared after
the age of 75
ER2: An absentee is presumed
dead
for
all
purposes
INCLUDING
succession AFTER
absence
of
4
years of said person is on:
a. board a vessel or aircraft which
is missing
b. Armed Force who is active in war
and has been missing
c. danger
of
death
under
circumstances
and
has
been
missing.

10. INSOLVENCY;

Art. 42 Effects of Death:

1. Civil personality is extinguished;
2. BUT the decedents RIGHTS and
OBLIGATIONS is determined by law,
contract, and by will.
AMONG OTHERS;
-

Art. 40 and 41 RULES

OF PRESUMPTIVE PERSONALITY
:
personality. (Art.

R2: A
conceived
child
shall
be
CONSIDERED BORN FOR
ALL
CIVIC
PURPOSES FAVORABLE TO IT (Art. 40)

Art. 43 When there is PRESUMPTION

OF SURVIVORSHIP: just like any other
presumption, this article may be rebutted by contradictory
evidence.

1. 2 or more decedents DIED AT THE

SAME TIME; and

1. Two or more persons are called to

succeed each other;
2. But there is doubt or there is no proof
that one died ahead of the other .
Accordingly Disputable presumptions under Rules of
Court provide that survivorship is determined from the
PROBABILITIES resulting from the strength and age of
the sexes as prescribed by the rules. (it applies as well to
persons who are NOT called to so succeed each other)

JURIDICAL PERSON

There is a presumption that the baby is born.

Dissolves a marriage;
Transmission of successional rights;
Terminates parental authority;
Dissolves a partnership;
Terminates community/conjugal partnership of gains;
Terminates a contract of agency;
Extinguishes criminal liability ex-delictu

REQ: when

NATURAL PERSON

determines

When a fetus survives and has

an intra-uterine life of AT LEAST
7 MONTHS; (24 hours alive not necessary)
When a fetus SURVIVES FOR
AT LEAST 24 HOURS which has
an intra-uterine life BELOW 7
months.

2. There will be NO TRANSMISSION OF

RIGHS FROM ONE TO THE OTHER.

11. TRUSTEESHIP.

R1: Birth
40)

When a child survived and is

completely delivered from the
mothers womb; (24 hours alive not

In view of the foregoing, a CONIEVED

UNBORN CHILD is entitled to inherit by will
or intestacy, recipient of donations NOT
burdensome and filiation recognized by
parents

Art. 44 The following

JURIDICAL PERSONS:

are

1. The STATE and its political subd;

Page 10 of 27

2.
Corporation,
institution
or
entities CREATED BY LAW for public
purposes;
3. Corporation, partnerships or
associations GRANTED BY LAW for
private purposes;
Art. 45 Governing
juridical persons:

laws

of

1. For (1) and (2), the laws creating

them;

CHAPTER 1: REQUISITES OF
MARRIAGE
Art. 1 Marriage as a special
contract:
AS A CONTRACT: A permanent union
between man and a woman entered into
in accordance with law
for the
establishment of conjugal and family life.
AS A STATUS: (since it is) the
Foundation of the Family and an
inviolable social institution:

2. For Private Corporations, the

laws of general application;
3. For Partnership and associations,
the civil code.
Art. 46 Powers of Juridical
persons; in conformity with their
governing laws
1. Acquire and possess all kinds of
property;

R: SEMPER PRAESUMITUR PRO MATRIMONIA The

rule is settled that every intendment of the law or
fact leans towards the validity of marriage. In other
words, there is a presumption of marriage exist for all
intents and purposes. (Sevilla v. Cardinas; See also
Beltran v. Pp)

1. Nature, consequence and incidents of

Marriage governed are by law;
2. Marriage NOT subject to stipulation
EXCEPT marriage settlement fixing the
property relations of the spouses in
accordance with law.
Contradistinguish to Ordinary Contract:

2. Incur obligations;

3. Bring civil or criminal action.

Art. 47 Effect of Dissolution for

juridical person par.2 of Art.
44: Dissolution governed by the
charter creating them;
A. Property and assets shall
be disposed in accordance
above;
B. In default thereof, applied
for similar purposes in the
locality where it derives its
principal benefit

Art. 2 ESSENTIAL (or INTRINSIC)

requirements of marriage:
1. LEGAL CAPACITY of the contracting
parties; Legal age, NO legal impediment to marry Art. 5
2. CONSENT FREELY GIVEN in the
presence of solemnizing officer. It refers to
ABSENCE of consent unlike VITIATED consent which renders
the marriage voidable.

Art. 3 FORMAL (or EXTRINSIC)

requirements of marriage:
1. AUTHORITY of the solemnizing officer;

FAMILY CODE
TITLE I
MARRIAGE

The contracting parties are only a man and a woman;

Being a permanent contract, it can only be dissolved
by death and annulled or declared void by the court;
Rights and duties of the parties cannot be stipulated
and fixed by law;
Breach thereof gave rise to penal and civil sanctions.

ER: (Still valid) even if the officer is NOT authorized

BUT the contracting parties believed in good faith in
his authority. Art. 4 par. 3; Art. 35(2)

2. VALID MARRIAGE LICENSE unless

exempt as prescribed by law

Page 11 of 27

An LCR certification categorically stating that there is

NO MARRIAGE LICENSE is sufficient proof to prove absence of
marriage license. (Rep v. CA and Castro)
Otherwise, the marriage is presumed subsisting,
pursuant to Section 28 of Rule 143, Rules of Court. (Sevilla v.
Cardenas)

Art. 6 Solemnities of Marriage

ceremony: There is NO prescribed form
of Marriage ceremony. Hence, acts or events not
in accordance in this article is considered only as an
IRREGULARITY of the formal requisites.

1. Contracting parties appears before the

solemnizing officer;

3. MARRIAGE CEREMONY whereby:

i. Contracting parties APPEARS
before the solemnizing officer;
ii. Parties personally declared to
take each other as husband and
wife in the presence of AT LEAST 3
WITNESSES.
Art. 4 ABSENCE of essential and
formal
requisite;
DEFECT
of
essential
requisites
and
IRREGULARITY of formal requisites;
EFFECTS thereof:

2. Parties personally declared to take

each other as husband and wife in the
presence of AT LEAST 3 WITNESSES.
3.
MARRIAGE
CERTIFICATE
which
contains the facts herein signed by
the contracting parties and the witnesses
and attested by the solemnizing officer
ER: in cases of Articulo mortis,
ONE witness is enough
Art. 7 Who are Solemnizing Officers:

ABSENCE
OF
ESSENTIAL
and/or
FORMAL REQUISITE: shall render the
marriage VOID AB INITIO

1. MEMBERS OF THE JUDICIARY within

the courts jurisdiction;

ER: (Still valid) even if the officer is NOT

authorized BUT the contracting parties
believed in good faith in his authority.
Art. 35(2)

2. PRIEST OF ANY CHURCH OR RELIGION

(Q1) duly authorized thereof (Q2)
registered with Civil Registrar (Q3) at
least one of the contracting parties
belong to such religion

DEFECT OF
ESSENTIAL
REQUISITE:
IRREGULARITY
OF FORMAL
REQUISITE:

1.
Shall
NOT
AFFECT
THE
VALIDITY
of
the
marriage
2.
parties
responsible for the
irregularity shall be
liable

A marriage ceremony took place and afterwards a

marriage license was issued where there is no proof that the
spouse is exempt from obtaining a license thereof proves the
absence of marriage license. Therefore void. (Sy v. CA)

3. SHIP CAPTAIN OR CHIEF PILOT (Q1) in

articlo mortis (Q2) between passengers
and crew members
4. MILITARY COMMANDER (Q1) in articlo
mortis (Q2) duly commissioned officer
(Q3)in the absence of chaplain assigned
5. CONSUL or VICE-COSUL for marriage
between Filipino abroad
6. MAYOR by virtue of LGC

IT IS THE MARRIAGE LICENSE THAT GIVES

SOLEMNIZING OFFICER THE AUTHORITY TO SOLEMNIZED
MARRIAGE. (Aranes v. Occiano)

Art.
8
PLACE
of
marriage
solemnization: R: Marriage shall be
solemnized PUBLICLY

Art. 5 Legal Capacity of

contracting parties to marry:

ER: (Public solemnization not needed)

the

1. Chambers of the judge;

1. Age of 18 and upwards;

2. Marriage should not be incestuous
(Art. 37) and/or contrary to public policy
(Art.38)

2. Marriage in articulo mortis Art. 27;

3. Marriage in remote place Art. 28;

Page 12 of 27

4. Place of both parties request upon

written
request
and
upon
sworn
statement.
Art. 9 WHERE to apply marriage
license: Issued by LCR where either of
the party habitually reside UNLESS no
license is required as prescribed by law.
Art.10 Marriage between Filipinos
ABROAD: may be
1. Solemnized by Consul or Vice-consul;
2. Said officer will be the one who will
issue a marriage license;
Art. 11 Content of the APPLICATION
for Marriage license. . . . . .
Art. 12 LCR to determine legal
capacity of contracting parties by:
1. Requiring presentation of original
BIRTH CERTIFICATE, or in the absence
thereof, BAPTISMAL CERTIFICATE;
2. If unable to provide above, an SWORN
STATEMENT of the reason thereof
acknowledge by 2 witnesses; or

Art. 15 Requirement of PARENTAL

ADVICE for contracting parties ages
21-25: SWORN STATEMENT of the
parents or guardians of their advise to
the marriage which is acknowledged by 2
witnesses.
The compliance shall be attached
in the application for marriage license.
Art. 16 Requirement of MARRIAGE
COUNSELLING
for
contracting
parties under Articles 14 and 15;
Effect of failure thereof: Certification
to that effect issued by the solemnizing
officer or duly accredited gov agency
FAILURE TO ATTACH: Suspension of
three (3) months in the issuance of
marriage license applied.
Art. 17 WHEN MARRIAGE LICENSE
ISSUED: upon
1. Completion of ten (10) days
Publication of Notice for application of
marriage license;

3. by mere looking at them with

presence of their respective parents.

2. Notice shall contain names and

residence of contracting parties, and
request all persons of any legal
impediment of their marriage.

Art. 13 LCR to determine legal

capacity where there is previous
marriage by:

Art. 18 The issuance of marriage

license MINISTERIAL unless ordered
otherwise by a competent court.

1. Requiring presentation of original

DEATH CERTIFICATE, or JUDICIAL DECREE
OF ABSOLUTE DIVORCE or JUDICAL
DECREE OF NULLITY OF MARRAIGE

Art. 19 Marriage license FEE FIXED

BY LAW.

2. If unable to provide Death certificate,

an AFFIDAVIT of the reason thereof.
Art. 14 Requirement of PARENTAL
CONSENT for contracting parties
ages 18-21: SWORN STATEMENT of the
parents or guardians of their consent to
the marriage which is acknowledged by 2
witnesses.
The compliance shall be attached in the
application for marriage license.

Art.
20
Marriage
license
APPLICABILITY
and
PERIOD
OF
VALIDITY thereof:
APPLICABILITY: Marriage license
valid in any part of the Philippines.

is

PERIOD OF VALIDITY: One hundred

twenty (120) days from date of issuance
and shall be deemed AUTOMATICALLY
CANCELLED upon expiration
Art. 21 Requirement for contracting
party who is an ALIEN or STATELESS
PERSON: for marriage licenses to be
issued (this article presupposes a marriage here in the
Philippines)

Page 13 of 27

(For aliens) submit a CERTIFICATE OF

LEGAL CAPACITY to contract marriage
issued
by
their
respective
diplomatic/consular official

a marriage between Filipino spouse abroad otherwise Conflict

of laws governs)

1. It is valid and in accordance with

the law in the place it was
solemnized; and

Legal capacity to contract marriage is determined by

the national law of the party concerned. Hence Philippine
personal law does not bound respondent since he has
acquired citizenship abroad. (Recio v. Recio)

2. NOT contrary to Philippine law

whereby;

(For Stateless person) submit an

AFFIDIVIT showing capacity and stating
the circumstances.

A. Contracting parties are

below 18 y/o Art. 35(1);
B. It is Bigamous/Polygamous
Art. 35(4);

Art. 22 Content of the MARRIAGE

CERTIFICATE . . . . The marriage
settlement if any will be attached herein.

C.
there
was
mistaken
identity Art. 35(5);

Nevertheless, in the absence of marriage certificate,

the fact of marriage may be proven through:

D. Void subsequent marriage

by reason of non-compliance
of the law Art. 35(6);

1. Testimony of witnesses to the matrimony;

2. Couples public and open cohabitation as husband and wife
adter the alleged wedlock;

E. Any of the Contracting

parties is
psychologically
incapacitated Art. 36;

3. Birth and Baptismal Certificates of children born during

such union;
4. Mention of such nuptial in subsequent documents. (Trinidad
v. CA)

F.
There
is
incestuous
marriage Art. 37;

Art. 23 Duty of the solemnizing

officer to FURNISH A COPY of the
marriage certificate: within 15 days
after the marriage
1. One (1) copy of either CONTRACTING
PARTIES;

G. By reason of public policy

Art. 38.
R2: A Filipino spouse shall have capacity
to remarry when:

2. Two (2) copies to LCR;

REQ:

3. One (1) copy retained by the

SOLEMNIZING OFFICER together with the
original marriage license.

1. There is valid marriage between

a Filipino citizen and an alien; and
2. A valid divorce is obtained by
the alien spouse capacitating
him/her to remarry. (Rep v.
Orbecido III)

Art. 24 It is the Duty of the LCR to

PREPARE
DOCUMENTS
and
ADMINISTER OATH in connection to
the application of marriage license.

R1: The reckoning point is not the

CITIZENSHIP of the parties at the time of the
marriage BUT AT THE TIME A VALID
DIVORCE IS OBTAINED ABROAD by the alien
spouse capacitating the latter to remarry.
(Ibid. _ Rep v. Crasus)

Art. 25 Entry of all application for

marriage license in the LCR must be
in CHRONOLOGICAL ORDER.
Art. 26 Rules governing marriage
abroad; When a Filipino a spouse
shall capacity to remarry an alien
spouse:
R1: All marriage solemnized abroad is
VALID provided that: (This paragraph presupposes

CHAPTER 2: MARRIAGE
EXEMPTED FROM LICENSE
REQUIREMENTS
1. Marriage in Articulo Mortis Art. 27;
2. Marriage in a remote place Art. 28;

Page 14 of 27

3. Marriage among muslims and ethnical communities

Art. 33;

thereof: PROVIDED in accordance with

their customs, rites or practices

4. Ratification of marital cohabitation Art. 34

E: The marriage can be solemnized w/o

necessity of license.
Art. 27 Marriage in Articulo Mortis;
Effect thereof: is where e/b of the
contracting parties is at the point of
death.

Art. 34 Ratification of marital

cohabitation; Requisite thereof: No
license shall be necessary when

1. The marriage can be solemnized w/o

necessity of license;

1. A man and woman lived together as

husband and wife for five (5) years;

2. Marriage remains valid even if the

ailing party subsequently survives.

2. The marriage must have NO legal

impediment to marry each other; No legal

Art. 28 Marriage in a remote place;

Effect thereof: where residence of
either party is located where there is no
means of transportation
E: The marriage can be solemnized w/o
necessity of license.
Art. 29 AFFIDAVIT of Marriage in
Articulo mortis or in a remote place:
Solemnizing officer shall execute an
affidavit before the LCR of the facts
abovementioned.
Art. 30 Duty of the solemnizing
officer to FURNISH A COPY to the
LCR: within 15 days after the marriage
1. Affidavit of the facts abovementioned;
2. Marriage contract.

impediment to marry must be present AT THE TIME OF THE

MARRIAGE. (Manzano v. Sanchez)

3. The five (5) years common law

cohabitation period must have NO
legal impediment to marry each other.
(Ninal v. Badayog)
The 5 years should be the years immediately before
the day of marriage and it should be a period of cohabitation
characterized by EXCLUSIVITY (meaning no 3rd party is
involved within that year) and CONTINUITY that is unbroken.
In this case, since his marriage at the time of the cohabitation
is subsisting, as a consequence the subsequent marriage was
void in the absence of a marriage license. (Ibid.)
The defect of the conditions to be complied under
Article 34 on ratification of marital cohabitation renders the
marriage void there being an absence of marriage license.
(See Carino v. Carino)

4. Contracting parties execute an

affidavit of the foregoing cohabitation;
5. Solemnizing officer under
ascertain their qualification.

CHAPTER 2: VOID AND

VOIDABLE MARRIAGE

Art. 31 WHEN does Ship Captain or

Chief Pilot solemnized marriage: as
between passengers and crew members
1. (In Articulo mortis )While the ship is at
sea or plane in flight;

As
to
nature

the

2. During Stop overs at ports of call

Art. 32 When does a Military
commander solemnized marriage: as
between members of the AFP or civilians
1. In Articulo mortis, within the zone of
military operation
Art. 33 Marriage among muslims and
ethnical
communities;
Effect

oath

As to
susceptibility
of validation

As to the
effect on
property

Page 15 of 27

VOID
MARRIAGE
INEXISTENT
from the time
of
performance
CANNOT be
validated

No community
property ONLY
COOWNERSHIP
Art. 147

VOIDABLE
MARRIAGE
VALID
UNTIL
ANNULED by a
competent
court
VALIDATED
either by free
and voluntary
cohabitation
OR
prescription
ABSCOM exist
UNLESS
another
system
is
agreed upon in
marriage

As to the
effect on
children

As how
marriage
maybe
impugned

R: Children are
illegit Art.
165
ER: Art. 43

BOTH
collaterally or
directly
But for
purpose of
remarriage,
there must be
JUDICIAL
DECLARATION
OF NULLITY
Art 40
HENCE, it can
be impugned
ANYTIME
(Ninal V.
Badayog)

settlement
Children
are
LEGIT provided
conceived
before
a
decree
of
annulment
ONLY directly.
There must be
a decree of
annulment

HENCE, it can
only be
impugned
DURING THE
LIFETIME OF
E/B
CONTRACTING
PARTIES

(NOT an exclusive

list)

1. Contracting parties are below 18 y/o;

2. ABSENCE of authority
solemnizing officer;

of

the

ER: (Still valid) even if the officer is

NOT
authorized
BUT
the
contracting parties believed in
good faith (refers to after reasonable inquiry or
investigation) in his authority.
3. ABSENCE of marriage
EXCEPT those exempt by law.
4.
Bigamous/Polygamous
EXCEPT voidable bigamous
under Art. 41;

PROPERTY REGISTRIES RELATED ISSUES

Art. 36 VOID marriages by reason of

psychological incapacity: Involves a

DEFINITION: refers to a serious psychological

illness afflicting a party even before the
celebration of marriage. It is a malady so
grave and so permanent as to deprive one of the
awareness of the duties and responsibilities of
the matrimonial bond one is about to assume.
(Perez-Ferraris v. Ferraris)
Refusal of the spouse to have sex with his wife
constitutes PI. (Chi ming tsoi v. CA)
Spouse diagnosed and proven as a PATHOLOGICAL
LIAR constitutes PI. (Antonio v. Reyes)
EVEN THE PETITIONER WHO ARE SUFFERING PI is
allowed to file an action to declare nullity of marriage. (Halili v.
Santos-Halili)

PSYCHOLOGICAL
CHARACTERIZED BY:

IS

2. JURIDICAL ANTECEDENCE whereby there must

be a history of psychological incapacity of the
party antedating the marriage although the
overt manifestation may emerge only after the
marriage;
R: It must be alleged and proven that the
root cause of PI is:

marriage
marriage

COMPLIANCE OF RECORDING IN CIVIL REGISTRIES RELATED

INAPACITY

1. GRAVITY whereby psychological incapacity

must be grave or serious such that the party
would be incapable of carrying out the ordinary
duties required in a marriage;

I.

6. Void subsequent marriage by reason

of non-compliance of the Art. 53

OTHER VOID MARRIAGES:

9. Void subsequent marriage by reason of noncompliance with Art. 52 COMPLIANCE OF RECORDING IN

license

5. Marriage contracted through mistaken

identity;

ISSUES;

8. VOID marriage by reason of psychological

incapacity Art. 36

question of valid consent_ NOT a species of vices of consent

under insanity.

** Please see
comments on Art.
41, SSS v. Jarque

Art. 35 VOID MARRIAGES:

7. ABSENCE of essential and formal requisite.

(Art. 2; Art. 3);

II.
III.
IV.

Medically
and
clinically
identified;
Alleged in the complaint;
Sufficiently proven by experts;
Clearly
explained
in
the
decision.

3. INCURABILITY or even if otherwise, the cure

would be beyond the means of the party
involved.
(Santos v.CA)
ESSENTIAL
MARITAL
OBLIGATIONS
refers to those embraced in Article 68 to 71 as
regards husband and wife as well as Articles
220,221 and 225 as regards to parents and their
children under the Family Code.

Page 16 of 27

LIMITATION: only within the 4th

civil degree

Husband and wife must (1) live

together (2) observe mutual respect and fidelity
(3) render mutual help and support Art. 68
MATTERS OF CIVIL PROCEDURE: An action for
nullity of marriage or legal separation cannot be a
subject of summary procedure. (Macias v. Macias)
Under Section 3(e) of Rule 9 CivPro, IF
DEFENDING PARTY FAILED TO ANSWER,
1. The court shall order the prosecuting
attorney to investigate whether collusion
between the parties exist;
2. If NO collusion, the State shall intervene
to see to it that evidences are not
fabricated.

2. STEP-PARTENS and STEP-CHILDREN;

as

between step-bro and sis, allowed

3. PARENTS-IN-LAW and CHILDREN-INLAW; as between Kin-in-laws, they are allowed

4. ADOPTER and ADOPTEE;
5. SS of ADOPTER and ADOPTEE;
6. SS of ADOPTEE and ADOPTER;
7. ADOPTEE and legit child of ADOPTER;
Illegit child of adopter allowed

EVIDENTIARY MATTERS:
1.

There is NO REQUIREMENT that the

defendant/respondent spouse should be
personally examined by a physician or
psychologist as a condition essential for
the declaration of nullity of marriage by
reason of PI. (Rep v. CA and Molina _
Marcos v. Marcos)
2. TOTALITY OF THE EVIDENCE RULE
requires that physical manifestation
indicative of PI should be alleged and
proven. Hence, expert opinion is not
necessary. (Zamora v. CA citing Section 2
of AM No. 02-11-10-SC)
R: Although Marriage under Article 36 is void, IT
STILL PRODUCES LEGAL EFFECTS such as but not
limited to:

8. ADOPTEES of the same Adopter;

9. ONE who with the intention to marry
the OTHER killed the latters spouse. This
requires final judgment for that matter.

Art. 39 The Action/Defense for the

declaration of absolute nullity of
marriage are IMPRESCRIPTIBLE.
Art. 40 Requisite for subsequent
marriage or remarriage: parties to a
marriage are not permitted to judge for themselves its nullity.
Only competent court has jurisdiction to declare it void.

1. INVOCATION of absolute nullity of a

previous marriage; and

Children
conceived
before
final
judgment thereof is considered LEGIT
Art. 54
II. Incurring criminal liability of bigamy
even if a declaration of nullity
subsequently obtained. (Tenebrio v.
CA)

2. FINAL JUDGMENT declaring previous

marriage void. The decree shall be the best evidence

Art. 37 VOID marriages for being

incestuous: Marriage between

If there is no judicial declaration of nullity of previous

marriage, the TWO MARRIAGES WILL BE IPSO FACTO VOID.
The property regime of the 1st marriage under cohabitation
like the absence of marriage license will be governed by
Article 148 while the 2nd marriage which is void will be
governed by Article 147 of the Family Code. (Carino v. Carino)

I.

1. Ascendants and Descendants of any

degree; (whether legit or illegit, referring to the DIRECT
LINE)

2. Brothers and Sisters whether full/half

blood.
Art. 38 VOID marriages by reason of
public policy: Those between (EXLUSIVE LIST.
Thus those not classified herein are allowed) to prevent weak
offspring.

1. COLLATERAL
legit/illegit.

RELATIVES

whether

to prove nullity and will serve as a notice to 3 rd persons in

relation to their properties.
Contracting a subsequent marriage with another
woman is considered bigamous without judicial declaration of
nullity of previous marriage. (Terre v. Terre)

Art. 41 VOID marriages by reason of

subsisting previous marriage (VOID
BIGAMOUS MARRIAGE); EXCEPTION thereof
Declaration of presumptive death
for purpose of remarriage (VOIDABLE
BIGAMOUS MARRIAGE):
UNLESS before the
celebration of
a subsequent marriage
there is (Summary procedure)
R: Determine the date of marriage since
contradistinguish to the CIVIL CODE, the law that

Page 17 of 27

time does not require declaration of presumptive

death. (Armas v. Calisterio _ SSS v. Jarque)

A.

(DECLARATION OF ORDINARY PRESUMPTIVE DEATH)

WHEREBY

1. Prior spouse have been ABSENT

for four (4) years;
2. Present spouse had a wellfounded belief that the absent
spouse is already dead.
Well-founded belief requires that the
petitioner must prove reasonable diligent search
towards the absent spouse. The fact that petitioner
never bothers to get help from the police or other
authorities in London belies reasonable diligent
search on his part.

B.

(DECLARATION
DEATH)

OF

EXTRAORDINARY

through:

(HENCE THIS WILL BE THE EFFECT UNDER THE

FAMILY CODE unlike SSS v. Jarque)

1. A sworn statement to the civil registry

of the residence of the parties to the
subsequent marriage
2. at the instance of any interested
party.
Art. 43 Additional effect of the
reappearance by the absent spouse
ON
CHILDREN
and
PROPERTY
REGIME: presupposes a recording already
1. Children of the subsequent marriage
shall be considered LEGITIMATE;

PRESUMPTIVE

1. Prior spouse have been ABSENT

for two (2) years;
2. And the absent spouses
disappearance involved a danger
of death under Art. 391.

Q: provided they are conceived

BEFORE termination hereof.
2.
Property
relations
of
subsequent marriage DISSOLVED
LIQUIDATED.

R: if marriage contracted in bad

faith, his/her share FORFEITED to

a. WHEN A PERSON IS on board a vessel or

aircraft which is missing
b. Armed Force who is active in war and has
been missing
c. danger of death under circumstances and
has been missing.

1st Common children;(In

2nd Children of guilty spouse;

3rd Innocent spouse.
3. Donation by reason of marriage
remains VALID;
ER: DONATIONS REVOKED BY
OPERATION OF LAW, if doneespouse
who
contracted
the
marriage is in bad faith

(1) presumption of death continues in spite of the

spouses physical reappearance,
(2) and by fiction of law, he/she must still be
regarded as legally absentee until the subsequent
marriage is terminated as provided by law.
(3) IN THIS CASE, the subsequent marriage being
terminated through death (NOT by affidavit of
reappearance or judicial decree) of the subsequent
spouse, dissolution of a valid marriage shall arise.
THE MARRIAGE CANNOT BE IMPEACHED
AND IS MADE GOOD AB INITIO (g/f or b/f of one
spouse cannot be raised) since the marriage is
annullable or voidable it only be assailed
during the lifetime of the contracting parties.
(SSS v. Jarque)

Art. 42 The effect of the RECORDING

(the operative fact) of reappearance by the
absent spouse: Shall AUTOMATICALLY
TERMINATE THE SUBSEQUENT MARRIAGE

default

and son on . . . )

R: without prejudice to the effect

reappearance of the absent spouse.
EFFECT OF REAPPEARANCE UNDER THE CIVIL
CODE: Since the 2nd marriage has been contracted
because of the presumption of death of either
spouse,

the
and

4. Insurance REVOCABLE by innocent

spouse even if irrevocable;
Q: provided beneficiary-spouse
who contracted the marriage is in
bad faith
5.
DISQUALIFICATION
testate/intestate;

to

inherit

Q: provided the spouse contracted

the marriage is in bad faith
Art. 44 Effect of BOTH contracting
parties contracted the subsequent
marriage in bad faith: they knew that the

Page 18 of 27

absent spouse is alive when they entered into the subsequent

marriage.

Consent of either party is VITIATED

1. Marriage shall be VOID AB INITIO;

ER: (RATIFIED) after vitiation

disappeared or ceased, such
party freely cohabited with
the other and lived together
as husband and wife.

2. ALL donation revoked by operation of

law;
3. ALL testamentary dispositions
between spouses revoke by operation of
law.
Art. 45 Grounds for ANNULMENT
existing at the time of marriage: A
voidable marriage is valid until annulled. However, it will
remain valid especially if ratified by free and voluntary
cohabitation.

1.

force,

intimidation or undue influence

A Void subsequent marriage cannot be ratified

because the fact remains that the absent spouse is still alive
regardless of the vitiated consent

5.

IMPOTENCY refers to the lack of power to copulate.

HENCE THERE IS NO RATIFICATION HERE.

INCURABLE PHYSICAL INCAPACITY

consummate the marriage

to

LACK OF PARENTAL CONSENT

WHO CAN FILE: Only the potent spouse can file the
action for annulment.

Q1: One of them is within 18-21

years of age; and
Q2: marriage was solemnized
without the consent of the
parents or guardian.

DOCTRINE OF TRIENNIAL COHABITATION: refers

to the presumption of impotency when the wife
still remains a virgin after living together with the
husband for 3 years.

6. INCURABLE STD of the party

HENCE THERE

IS NO RATIFICATION HERE.

ER: (RATIFIED) after attaining

the age of 21, such party
freely cohabited with the
other and lived together as
husband and wife. (FREE AND
VOLUNTARY COHABITATION)

2.

INSANITY OF ONE PARTY

Either of the party was of UNSOUND

MIND
ER: (RATIFIED) after coming into
reason, such party freely
cohabited with the other and
lived together as husband
and wife.
3.

FRAUD

Consent of either party

through FRAUD referring to an

is

R: STD whether concealed or not is a ground for

annulment either under infliction thereof (Art. 45) or
under fraud (Art.46).

ANNULMENT
As to the
reckoning
point of defect
As to when
causes thereof
arise

With respect to
the marriage
bond
In the view
point of
conflict of laws

obtained

exclusive list under

Defective
at
the beginning
of
the
marriage
Any
of
the
grounds must
exist AT THE
TIME OF THE
MARRIAGE
DISSOLVES the
marriage
The
grounds
herein
are
those given in
lex
loci
celebrationis

LEGAL
SEPARATION
NO defect at
the beginning
of
the
marriage
Any
of
the
grounds arises
AFTER
THE
MARRIAGE
CELEBRATION
Marriage bond
REMAINS
The grounds
herein are
those given in
National Law
or Nationality
theory

Article 46

ER: (RATIFIED) after having

knowledge
thereof,
such
party freely cohabited with
the other and lived together
as husband and wife.
4.

FORCE, INTIMIDATION OR UNDUE INFLUENCE

Art.
46
Exclusive grounds for
consent of marriage obtained thru
FRAUD:
1.
Non-disclosure
of
PREVIOUS
CONVICTION of final judgment of crime
involving moral turpitude;

Page 19 of 27

2. Concealment of a wife of the fact that

she is PREGNANT WITH ANOTHER MAN;
3. Concealment of STD regardless of any
nature;
4. Concealment (a) drug addiction (b)
habitual
alcoholism
(c)
Homosexuality/lesbianism
Art. 47 INTERESTED PARTY allowed
to file Annulment; PRESCRIPTIVE
PERIOD hereof:
GROUND
S

Lack of
parental
consent

INTERESTED
PARTY
ALLOWED TO
FILE
(a) Party under
age; or

PRESCRIPTIV
E PERIOD

Five (5)
years from
attainment
of 21 y/o
(a)

(b) before
child
an who did not
reaches 21
give
the y/o
consent
(b)
Parents/Guardi

**
capable
of
ratificati
on

Insanity
of one
party

**
capable
of

(A) the sane

spouse who had
no knowledge
thereof;
or
(b)
relative/guardi
an having legal
charge thereof;
or
(c) insane
spouse

ratificati
on

Fraud

Injured party

**
capable
of

Any time
during the
lifetime of
the
contracting
parties

intimidatio

Injured party

from the
cessation of
the cause

undue
influence
**
INCAPABL
E of
ratification
But
prescribe
s

Impotenc
y

Potent party

Within five
(5) years
after
marriage

healthy party

Within five
(5) years
after
marriage

**
INCAPABL
E of
ratification
But
prescribe
s

STD
**
INCAPABL
E of
ratification
But
prescribe
s

Art. 48 Duty of the STATE

INTERVENE; Purpose thereof: in
cases
of
(1)
annulment
or
declaration of nullity of marriage,
court order,

TO
ALL
(2)
by

DUTY OF PROSECUTING ATTY:

During lucid
interval AND
lifetime of the
contracting
parties

Within five
(5) years
from the
discovery of
fraud

ratificati
on

Force,

n or

Within five
(5) years

1. APPEAR in behalf of the State;

2. PREVENT COLLUSION between the
parties;
3. Take care that that EVIDENCE IS NOT
FABRICATED/SUPPRESSED.
DUTY OF THE JUDGE: Judgment alone
shall NOT be based upon stipulation of
facts/confession of judgment.
CIVPRO: There is NO default action for annulment of
marriage or legal separation. (Ancheta v. Ancheta citing
Section 3 par. E of ROC 9)

Page 20 of 27

Art. 49 When the Court orders for

SUPPORT, CUSTODY and VISITATION
RIGHTS during pendency of the
action: (Q) in the ABSENCE of adequate
provisions in a written agreement
between the spouses
1. Support of the (i) spouses and (ii)
their common children;
2. Custody of their common children;

a.k.a. Best interest of the

Child policy

1. Paramount consideration to moral and

material welfare the children;
2. Choice of their children to whom they
wish to remain.
R: Children under seven (7) y/o shall NOT
be separated from the mother UNLESS
court finds compelling reason to order
otherwise. Art 213 2nd par.

Art.
50
Effect
Annulment
OR
Declaration of nullity of marriage ON
PROPERTY REGIME; Contents of Final
judgment
thereof;
Procedural
requirements thereof:
Effect Annulment OR Declaration of
nullity of marriage ON PROPERTY
REGIME are those provided under par.
(2)(3)(4)(5) of Article 43 and Article 44
2. Property relations of the
marriage
DISSOLVED
and
LIQUIDATED.
R: if marriage contracted in
bad
faith,
his/her
share
FORFEITED to
1st Common children;(In

default

and son on . . . )

2nd Children of guilty spouse;

3rd Innocent spouse.
3. Donation by reason
marriage remains VALID;

of

ER: DONATIONS REVOKED BY

OPERATION OF LAW, if donee-

the

4. Insurance REVOCABLE by
innocent
spouse
even
if
irrevocable;
Q:
provided
beneficiaryspouse who contracted the
marriage is in bad faith
5. DISQUALIFICATION to inherit
testate/intestate;

3. Visitation rights of other parents.

COURTS POLICY:

spouse who contracted

marriage is in bad faith

Q: provided the spouse

contracted the marriage is in
bad faith
IF BOTH contracting parties
are in bad faith;
1. Marriage shall be VOID AB
INITIO;
2. ALL donation revoked by
operation of law;
3.
ALL
testamentary
dispositions between spouses
revoke by operation of law.
Contents of Final judgment in
Annulment OR Declaration of nullity
of marriage: UNLESS adjudicated in
previous judicial proceeding.
1.
LIQUIDATION,
PARTITION
and
DISTRIBUTION of the properties of the
spouse;
2. CUSTODY and
common children;

SUPPORT

of

their

3. DELIVERY OF PRESUMPTIVE LEGITIME.

Procedural
requirements
in
Annulment OR Declaration of nullity
of marriage:
1. Creditors of the spouses shall be
NOTIFIED;
2. In partition, conjugal dwelling
adjudicated in accordance with the
provisions of Article 102 and 129 (refers to
property relations between husband and wife) 1st to the
spouse whom the MAJORITY OF CHILD CHOOSE TO REMAIN 2nd
if no majority, COURT SHALL DECIDE following the best
interest of the child policy.

Page 21 of 27

Art. 51 EFFECT OF PARTITION in the

annulment and declaration of nullity
of marriage: (Unless there is a mutual agreement

2. Children under Article 36 who was

CONCEIVED AND BORN before final
judgment thereof; HENCE, THIS IS THE

approved by the court already)

EXCEPTION TO THE RULE

1. The value of PRESUMPTIVE LEGITIME

DELIVERED to their common children,
computed as of the date of final
judgment;

3. Children of the subsequent marriage

AFTER the spouse complied with
recording requirement set forth in
Article 53. HENCE, THIS IS THE EXCEPTION TO THE
RULE

2. Children thru their guardian/trustee

may
ask
for
ENFORCEMENT
OF
JUDGMENT; These presupposes that the presumptive

legitime was made BUT NOT ORDERED IN COURT.

3. Delivery w/o prejudice to their

ULTIMATE
SUCCESSIONAL
RIGHTS
accruing upon the parents death;
4. The value receive will be considered
as ADVANCE TO THEIR LEGITME.
Art. 52 Requisite for annulment and
declaration of nullity of marriage to
AFFECT 3rd PERSONS: By RECORDING
to the appropriate civil registries or
registries of property the following
1. JUDGMENT of annulment
absolute nullity of marriage;

or

of

2. PARTITION and DISTRIBUTION of the

properties of the spouses;
3. Delivery of presumptive legitime
Art. 53 Requisite to contract a valid
subsequent marriage: Compliance of
the
recording
in
the
appropriate
civil/property registries otherwise null
and void.
Art.
54
Who
are
considered
legitimate under annulment and
declaration of nullity of marriage:
R: Children of marriages that are
JUDICIALLY DECLARED NULL AND VOID are
ILLEGIT. Unless otherwise provided by law
(Art. 165)

1. Children of the subsequent marriage

CONCEIVED
AND
BORN
before
termination thereof, whether the
spouse is in good faith or bad faith;

This presupposes a VOIDABLE MARRIAGES. That is

why children are considered legitimate because the
marriage is valid until annulled

Whether the subsequent marriage turns out to be

void still legitimate the children is considered
legitimate. (what matters is the compliance thereof)

TITLE II
LEGAL SEPARATION
Art. 55 Grounds GRANTING for Legal
Separation: Acts against the [petitionerspouse and/or a child] as the case
maybe, such as: it is only a separation from bed and
board but the parties remains to be married.

1. Repeated physical violence or abusive

conduct;
2. Compulsion to change religious or
political affiliation;
3. Attempt to corrupt or induce
engagement
in
prostitution
or
connivance of such;
4. Final judgment sentencing respondent
to imprisonment for more than six (6)
years;
5.
Drug
addiction
and
alcoholism of respondent;
6. Lesbianism
respondent

or

Habitual

Homosexuality

7.
Subsequent
bigamous
contracted by respondent;

of

marriage

8. Sexual infidelity or perversion;

9. Attempt by respondent against the life
of petitioner;
10. Abandonment without
cause of respondent.

justifiable

RA 9262 VAWC refers to any act against

woman with whom the person has a relationship
or has common child with or against her child,
which results in or results likely in physical,

Page 22 of 27

sexual, psychological
economic abuse.

harm

or

suffering,

or

the offense

RELIEF AVAILABLE:
1. The acts punishable are listed
under Sec. 5 which will be
punishable
for
imprisonment
including fines under Sec. 6
2. Temporary Protection Order
3. Permanent Protection Order
URGENCY OF THE PROCEEDING: In legal
separation, where there is violence specified
under this act, the court shall proceed herein
ASAP. (Sec. 19)
VAWC AS A PUBLIC CRIME: it can be
prosecuted de officio upon filing a protection
order/complaint who has personal knowledge of
the offense committed. (See Sec. 9 and 19)

As to what is
suspended

As to
susceptibility
of agreement

As the
presence of
implied
institution of
action

As
effectivity

LEGAL
SEPARATION
common life
of the
spouses is
suspended
Cannot be
granted on
mere
agreement of
the parties

Legal
separation
always
involves
separation of
property

to

As to property
relations

LEGAL
SEPARATION
Effected only
be decree of
court
Legal
separation
dissolves the
property
regime
whereby the
guilty spouse
cannot inherit
to the
innocent
spouse

Art. 56 DEFENSES
Legal Separation:

1. CONDONATION of the offense by the

aggrieved party; it comes AFTER the commission of

SEPARATION
OF PROPERTY
Property
relations
of
the spouses
is suspended
Can be
effected by
mere
agreement of
the spouses
subject to
court
approval. (Art.
134 and 136)
There can be
Separation of
property
without legal
separation

SEPARATION
DE FACTO
Separation at
any time
without court
order
In separation
de facto, the
property
relations
remains
intact
whereby guilty
spouse can
still inherit
unless
disinherited

denying

2. CONSENT of its commission was given

by the aggrieved party; it comes BEFORE the
commission of the offense

3. CONNIVANCE of both parties in its

commission;
4. (MUTUAL GUILT) Both parties have given
grounds for Legal Separation; P: A person must
come to court with clean hands
Abandonment raised by the respondent against
complainant refers those made without justifiable reason. As
in this case, the abandonment was made due to respondents
abusive conduct. (Ong v. Ong)

5. COLLUSION between the parties to

obtain the decree of legal separation;
6. Action barred by PRESCRIPTION.

Referring

to Article 57

Art. 57 Prescribe period to file

Legal Separation: Action shall be
filed WITHIN FIVE (5) YEARS from cause
of action accrues.

Art. 58 When should TRIAL of

Legal Separation commence:
WITHIN SIX (6) MONTHS from filing
thereof. (A.k.a. the COOLING OFF PERIOD intended to give
the spouses a chance for reconciliation)

The Court must still order the SUPPORT, CUSTODY

and VISITATION RIGHTS during cooling off period

ER: (NO cooling of period) In legal separation, where there is

violence specified under this act, the court shall proceed
herein ASAP. (Sec. 19 of RA 9262 VAWC)

Art. 59 DUTY OF THE COURT

before issuing a Decree of
Legal Separation:
1. Take steps for reconciliation of the
spouses.
2. Despite efforts, that reconciliation is
highly improbable. Referring to the Cooling off period

Art. 60 Duty of the STATE TO

INTERVENE; Purpose thereof: In legal
separation
DUTY OF PROSECUTING ATTY:

Page 23 of 27

R: Children under seven (7) y/o

shall NOT be separated from the
mother
UNLESS
court
finds
compelling
reason
to
order
otherwise. Art 213 2nd par.

1. PREVENT COLLUSION between the

parties;
2. Take care that that EVIDENCE IS NOT
FABRICATED/SUPPRESSED.
DUTY OF THE JUDGE: Judgment alone
shall NOT be based upon stipulation of
facts/confession of judgment.
CIVPRO: There is NO default action for annulment of
marriage or legal separation. (Ancheta v. Ancheta citing
Section 3 par. E of ROC 9)

Art. 61 EFFECT OF FILING a petition

for Legal Separation: Upon filing
thereof:

1. Spouses entitled to LIVE SEPARATELY;

Art. 63 EFFECT OF THE DECREE of

Legal separation:
1. Spouses entitled to LIVE SEPARATELY
but the marriage bond shall not be
severed;
The

2. PROPETY RELATIONS DISSOLVED AND

LIQUIDATED (Upon issuance hereof shall be
AUTOMATIC)

I. Offending spouse shall have NO

RIGHT TO ANY SHARE of the net
profits earned

2. The Court to DESIGNATE AN

ADMINISTRATOR of the AbsCom or ConPa
property UNLESS there is a written
agreement between them;

II. Forfeiture thereof in accordance

with Article 43 (2)

3. The Designated administrator shall

have POWERS AND DUTIES AS THAT OF A
GUARDIAN.

1st Common children;(In default

and son on . . . )

Art.
62
What
happens
during
pendency of Legal separation: The
provisions of article 49 applies (R: The
action for legal separation is PURELY A PERSONAL
ACTION. Hence the death of one spouse
terminates the actions and therefore it is
dismissed.)
The Court orders for SUPPORT,
CUSTODY
and
VISITATION
RIGHTS during pendency of the
action: (Q) in the ABSENCE of
adequate provisions in a written
agreement between the spouses
1. Support of the (i) spouses and
(ii) their common children;
2. Custody
children;

of

their

common

3. Visitation rights of other parents.

COURTS POLICY: a.k.a. Best
interest of the Child policy

wife cannot drop the surname of the husband

because they are still married.

2nd Children of guilty spouse;

3rd Innocent spouse.

3. CUSTODY OF MINOR
awarded to innocent spouse

CHILDREN

R: Children under seven (7) y/o

shall NOT be separated from the
mother
UNLESS
court
finds
compelling
reason
to
order
otherwise. Art 213 2nd par.

4.
DISQUALIFICATION
TESTATE/INTESTATE by
spouse.

TO
INHERIT
the offending

Art. 64 After legal separation the

innocent spouse may revoke the
donations and insurance made:
Prescription hereof:
1. REVOKE THE DONATIONS infavor of
the offending spouse

1. Paramount consideration to
moral and material welfare the
children;

REVOCATION
TAKES
EFFECT
UPON:
RECORDING
in
the
registries of property where the
properties are located;

2. Choice of their children to whom

they wish to remain.

Page 24 of 27

2. REVOKE THE DESIGANTION AS

BENEFICIARY of offending spouse even if
irrevocable;

R: Creditors NOT LISTED or

NOTIFIED
shall
not
be
prejudiced

SYSTEM OF ABSOLUTE
COMMUNITY

REVOCATION
TAKES
EFFECT
UPON: written NOTIFICATION to
the insured
PRESCRIPTIVE
PERIOD:
revocation
must be brought within five (5) years
from the decree of legal separation
became final.
Art. 65 Procedures if there is
RECONCILIATION in legal separation:
A corresponding JOINT MANIFESTATION
under oath filed in the court in the same
proceeding (Hence applicable even if PENDING or THERE
IS A DECREE OF LEGAL SEPARATION)

Art. 66 Effect of reconciliation in

legal separation:

Section
1:
General
Provision of AbsCom
Art.
88
When
AbsCom
commence;
Prohibition
to
stipulate
as
to
the
commencement thereof Void:
(R1) WHEN: The AbsCom of property
between spouses shall commence at the
precise moment that the marriage is
celebrated;

1.
If
pending,
Legal
separation
proceeding shall be TERMINATED at
whatever stage;
2. If there is a decree,

R: AbsCom property regime shall govern

towards any spouses in the absence of
Marriage Settlement.

(R2)PROHIBITION: Any stipulation for

the commencement of AbsCom at any
other time shall be VOID.

I. it shall be SET ASIDE;

II. Separation of property and
forfeiture shall SUBSIST unless
spouses agreed to revived their
former property regime;
DUTY OF THE COURT TO ORDER: The
foregoing shall be RECORDED in the
proper civil registries
Art. 66 Procedures if there is
REVIVAL OF PROPERTY REGIME in
legal separation:

Art. 89 Instance when there is

waiver of rights with respect
AbsCom properties; Requisites
thereof to be valid; Creditors
Remedy thereof:
R1: Waiver of rights, interest, shares
and effects of the AbsCom properties
during marriage CAN ONLY BE MADE IN
CASE OF JUDICIAL SEPARATION OF
PROPERTY

1. It shall be executed under oath

REQUISITES:

2. It shall specify
I.
PROPERTIES
TO
CONTRIBUTED
anew
to
restored regime;

BE
the

II. PROPERTIES TO BE RETAINED as

separated properties
III. List of all their known
CREDITORS their addresses and
amount owed
Page 25 of 27

1.
Only
upon
(a)
Judicial
Separation of property ,(b) after
the marriage has been dissolve ,(c)
marriage annulled or (d) Legal
Separation;
2. That the waiver shall appear in a
public instrument and;
3. shall be recorded in accordance
with Art.77 (i) In writing; (ii) signed by

the parties; (iii) Registered in Local Civil

Registry where the marriage contracted
and (iv) Recorded in the Proper Registries
of property

R2: The remedy of the Creditors who

made such waiver may Petition the court
to Rescind the waiver to the extent of
their credits

Art.
90
Co-ownership
suppletory to AbsCom refers to
all matters not provided for in the
Provisions under AbsCom property

Section 2: What
Constitutes Community
Property
Art. 91 Community
constitutes:

property

ER: UNLESS,
(a) law provides otherwise or; (Art.
92 Properties Excluded in the AbsCom
property)

in

the

Registration is NOT a sufficient proof to overcome the

presumption of Community properties because Registration is
not one of the /modes of acquiring ownership but merely
confirms ownership. (Torrela v. Torrela)

Art.
96
ABSCOM;
ADMINISTRATION
AND
ENJOYMENT THEREOF:
R1: Administration and enjoyment of
community property shall belong to both
spouse.
ER: The Husband's decision shall
prevail in case of disagreement.

R: ALL THE PROPERT OWNED by the

spouses at the time of celebration of the
marriage or acquired thereafter

(b) provided
settlement

ER: UNLESS proven that it is one

of those EXCLUDED therefrom.

REMEDY: Court Action by the Wife

within 5 years from the date of the
contract.
R2: Administration shall be assume by
the other spouse PROVIDED that one
spouse is incapacitated.
R3: Disposition and encumbrance of
community property shall be (A) with the
authority of the court or (B) with the
consent of the other spouse.
EFFECT:

Marriage

1. Disposition and encumbrance

shall be VOID in the Absence thereof;

Art. 92 Properties Excluded in

the Community property:

2. The transaction shall be

construed as a continuing offer on the
consenting spouse;

1. Property acquired DURING the

marriage by GRATUITOUS TITLE as well
as the fruit and income thereof UNLESS
there is an express provision that it shall
form part the community property;
2. Personal or Exclusive property EXCEPT
jewelry
3. Property acquired BEFORE the
marriage as well as the fruit and income
thereof

Art.
93
Presumption
Community properties:

of

R: Property acquired DURING marriage is

presumed Community properties.

3.
The transaction shall be
perfected upon the acceptance of
the other spouse or authorization in
the court.
(For Article 40)
A void marriage does not require a judicial
decree to restore the parties to their original
rights BUT for good order and expediency court of
competent jurisdiction should declare and decree
the nullity of marriage. (Nina v. Badayog)
(For article 47)

How attacked

Page 26 of 27

VOID
MARRAIGE
BOTH
collaterally

or

VOIDABLE
MARRAIGE
ONLY
direct
attack

Who can file

directly
But for
purpose of
remarriage,
there must be
judicial
declaration of
nullity Art 40
Any
proper
party
interested

(Nina v.
Badayog)

Contracting
parties
It can only be

Page 27 of 27

assailed
during
the
LIFETIME
of
both
contracting
parties.