Persons and Family Relations Reviewer 1

Civil Law Examination Reviewer
Persons and Family Relations Reference: Elmer T. Rabuya. The Law

on Persons and Family Relations
Republic Act No. 386 ∙ If the law does not provide for its effectivity or is silent,
June 18, 1949 the law shall take effects 15 days following the
The Civil Code of the Philippines completion of their publication
AN ACT TO ORDAIN AND INSTITUTE THE CIVIL ∙ Publication must be in the Official Gazette or in a
CODE OF THE PHILIPPINES newspaper of general circulation (must have a bona fide
PRELIMINARY TITLE subscriber base, published at regular intervals, and
published for dissemination of local news and general
CHAPTER I information)
EFFECT AND APPLICATION OF LAWS ∙ 15 days after its publication- effectivity is on the 15th
day after such publication
Art. 1. This Act shall be known as the “Civil Code of the
Philippines.” (n) ∙ 15 days following it’s publication- effectivity shall be
on the 16th day
∙ Code is a collection of laws of the same kind
∙ Publication is mandatory, even if the law provides for
∙ Civil Code is a collection of laws that regulate the it’s own effectivity and it must be published in full
relations of the members of society, with respect to their
∙ ‘Unless it is otherwise provided’ refers to effectivity
rights, obligations, with reference to persons, things and
date
civil acts.
∙ The first Civil Code of the Philippines was the Civil ∙ 15 day period may be reduced or increased
Code of Spain of 1889 by Royal Decree on July 31, ∙ PDs, EOs, Administrative Rules and Regulations
1889, which became effective on December 1, 1889. It (whose purpose is to enforce or implement existing
was followed by R.A. No. 386 on June 18, 1889, but laws pursuant to a valid degulation). Monetary Board
does not cover all our civil laws which can be found in Circulars are included in laws that must be published.
other laws made by legislation
∙ The sources of the Civil Code include: Art. 3. Ignorance of the law excuses no one from compliance
∙ The Spanish Civil Code therewith. (2)
∙ Codes, Laws and Judicial decisions as well as other ∙ Everyone is presumed to know the laws due to the
laws made by jurists of other countries publication
∙ Doctrine laid down by the Supreme Court ∙ Legal maxim ‘ignoratia legis non excusat’
∙ Filipino Customs and Traditions ∙ Covers Philippine Laws, and is limited to mandatory
∙ Philippine Statutes and prohibitive laws
∙ Code Commission ∙ Not applicable to foreign laws, and if a foreign law is
∙ The Civil Code contains 2270 articles divided into 4 not properly pleaded and proven, it is presumed that
such law is the same as our law (doctrine of procedural
books (I-Persons; II- Property, Ownership and it’s
presumption).
Modifications; III- Different Modes of Acquiring
Ownership; IV- Obligations and Contracts). However, ∙ However, ignorance of the fact can excuse someone
the Family Code repeals Articles 52-104, 311-355, 397- from the legal consequences of his conduct. In specific
406 of Book I of the Civil Code instances, mistake as to difficult legal questions has
∙ The date of effectivity of the Civil Code was one year been given the same effect as mistake of fact
after the Official Gazette after publishing the Code for
circulation, the said Codebeing released August 30, Art. 4. Laws shall have no retroactive effect, unless the
1949. contrary is provided. (3)
∙
Art. 2. Laws shall take effect after fifteen days following the ∙ Unless provided for, laws shall have only and be
completion of their publication in the Official Gazette, or in a construed as having only prospective effect (lex
newspaper of General Circulation, unless it is otherwise prospicit, non respicit). Otherwise, it may cause an
provided. This Code shall take effect one year after such arbitrary exercise of legislative power
publication. (amended by E.O. 200) ∙ Retroactive means that it shall affect transactions before
the law became operative
∙ Laws that shall have retroactive effect are the following
1
∙ Laws that provide for its own effectivity (with the ∙ Political rights are those that refer to the participation of
exception of the following laws) individuals in the government of the state. Civil rights
∙ Ex post facto laws (makes a previous act criminal even include those not covered by political rights and are
classified into rights of personality (or human rights)
though it was not during the time it was committed)
and family rights which may not be waived, and
∙ When the law impairs the obligations of contracts (only patrimonial rights which may be waived,
laws existing at the time that the contract is executed is
∙ The requisites of a valid waiver are: 1) must have a
applicable thereto)
right that he renounces, 2) must have the capacity to
∙ Exercise of Police Power to regulate or govern certain make the renunciation, 3) renunciation must be made in
activities or contracts is an exception to this rule. a clear and unequivocal manner
∙ Penal laws favorable to the accused (as long as it is not
a habitual delinquent)
Art. 7. Laws are repealed only by subsequent ones, and their
∙ Law is procedural or remedial laws(those that do not violation or non-observance shall not be excused by disuse,
take away or create new vested rights) or custom or practice to the contrary.
∙ Curative Laws (cures defects of a prior law or validates When the courts declared a law to be inconsistent with the
legal proceedings. Instruments or acts of public Constitution, the former shall be void and the latter shall
authorities which would be void for want of conformity govern.
with existing legal requirements)
Administrative or executive acts, orders and regulations
∙ When the Law creates new substantive rights (as long shall be valid only when they are not contrary to the laws or
as they are not prejudiced with another acquired right of the Constitution. (5a)
the same origin)
∙ ∙ Express repeals are those contained in a particular
Art. 5. Acts executed against the provisions of mandatory or provision of a subsequent law while implied repeals are
prohibitory laws shall be void, except when the law itself those that are incompatible with a earlier law and there
authorizes their validity. (4a) is no express repeal
∙ Implied repeals are not favored because it relies on the
∙ Mandatory- commands something, Prohibitory- presumption because that the earlier and subsequent
commands that something should not be done, laws are incompatible, there is an intent to repeal the
Permissive or directory- directs that something should earlier law. All doubts must be resolved against any
be tolerated or respected implied repeal and that all efforts should be exerted to
∙ Exceptions to this rule are: harmonize and give effect to all laws on the subject
∙ When the law makes valid something that generally ∙ The requisites of an implied repeal are: 1) the laws
should have been void cover the same subject matter, 2) the latter is repugnant
to the earlier (irreconcilable inconsistency and
∙ When the law makes the act valid, but punishes the
incompatibility)
violator
∙ When there is conflict between special statute and
∙ When the law merely makes an act voidable
general laws, the special statute should prevail because
∙ When the law declares the act void, but recognizes the it makes it legislative intent clearer than the general
legal effects arising from it law, and shall be taken as an exception to the general
law in the absence of special circumstances forcing a
contrary conclusion
Art. 6. Rights may be waived, unless the waiver is contrary
∙ If the general law is enacted before the special law, the
to law, public order, public policy, morals, or good customs,
or prejudicial to a third person with a right recognized by latter is considered to be the exception to the general
law. (4a) law. If the special law is enacted before the general law,
the special law remains unless there is an express
∙ Rights have 3 elements: the subject (can be active- declaration to the contrary, there is clear, necessary and
those who are entitled to demand the enforcement of irreconcilable conflict, and that the general law covers
the right; can be passive- those who are duty bound to the whole subject and is clearly intended to replace the
suffer its enforcemcent) who are for persons for rights special law on that matter
which exist for persons only, the object which are ∙ When a law is expressly repealed, it shall be repealed
services or things; and the efficient clause which is the and shall not be revived unless expressly so provided.
fact that gives rise to legal relation. When a law is implied to be repealed, it shall be
2
repealed and shall be thereby be revived unless the Art. 12. A custom must be proved as a fact, according to the
repealing law provides otherwise rules of evidence. (n)
∙ If laws, administrate acts, orders and regulations are ∙ The requisites for the application of customs include:
inconsistent with the Constitution, they shall be
considered as unconstitutional and invalid by the ∙ Plurality of acts, or various resolutions of a judicial
Supreme Court. The former shall be void and the latter question raised repeatedly in life
shall govern ∙ Uniformity, or identity of facts or various solutions to
the judicial question
Art. 8. Judicial decisions applying or interpreting the laws ∙ General practice by a great mass of the social group
or the Constitution shall form a part of the legal system of ∙ Continued performance of these acts for a long period
the Philippines. (n) of time
∙ The Judicial department cannot enact laws since that is ∙ General conviction that such practice corresponds to a
the duty of the legislative department. Judicial decisions juridical necessity or is obligatory
of the SC form part of the legal system, but they are not ∙ The practice must not be contrary to public policy,
laws. morals or order
∙ The doctrine of stare decisis means that once the SC has
laid down a law applicable to a certain set of facts in the
Art. 13. When the laws speak of years, months, days or
case, it shall adhere to that fact and apply it to all future
nights, it shall be understood that years are of three hundred
cases that present the same set of facts.
sixty-five days each; months, of thirty days; days, of twenty-
four hours; and nights from sunset to sunrise.
Art. 9. No judge or court shall decline to render judgment If months are designated by their name, they shall be
by reason of the silence, obscurity or insufficiency of the computed by the number of days which they respectively
laws. (6) have.
∙ If there is no law that punishes an act, the judge shall In computing a period, the first day shall be excluded, and
dismiss the case as per nullum crimen, nullum poena the last day included. (7a)
sine lege.
∙ Under the Old Civil Code and current Civil Cod, if the
∙ In an ordinary contract, the agreement of the parties
shall prevail
law is silent, obscure or insufficient, the judge shall
apply the customs of the place, or the general principles ∙ If it refers to the period prescribed by the rules of Court,
of the law in default thereof and the last day falls on a Saturday, Sunday or legal
holiday in the place where the Court is located, the last
day shall be moved to the next working day.
Art. 10. In case of doubt in the interpretation or application
of laws, it is presumed that the lawmaking body intended
right and justice to prevail. (n) Art. 14. Penal laws and those of public security and safety
shall be obligatory upon all who live or sojourn in the
∙ Follows the legal maxim dura lex, sex led meaning that Philippine territory, subject to the principles of public
the law may be harsh and unjust but that is what is international law and to treaty stipulations. (8a)
stated or intended by the law
∙ “Justice outside legality” applies only in cases of
∙ Embodies one of the principles of Criminal Law-
Generality
absence of statutory or judicial rules of procedure
∙ Exceptions to such rules are the following:
∙ Treaty Stipulations
Art. 11. Customs which are contrary to law, public order or
public policy shall not be countenanced. (n) ∙ Laws of Preferential Application
∙ Principles of Public International Law
∙ Customs are rules of conduct that are formed by
repetition of acts, uniformly observed as a social rule,
and legally binding and obligatory Art. 15. Laws relating to family rights and duties, or to the
status, condition and legal capacity of persons are binding
3
upon citizens of the Philippines, even though living abroad. ∙ Under lex loci celebrationis, the forms and solemnities
(9a) of wills, contracts, and other public instruments are
∙ Divorce between Filipinos is not valid even if obtained governed under the country to which they are executed
abroad ∙ The intrinsic validity of the contract is governed by the
∙ Divorce obtained by foreigners in their country may be proper law of the contract (lex contractusi) which may
either be the law of the place voluntary agreed upon by
recognized by our country provided that they are valid
them (lex loci voluntaris) or the law of the place
under their national law
intended expressly or impliedly (lex loci intentionis)
∙ When a foreigner obtains a valid divorce abroad, he is
∙ The intrinsic validity of a will shall be governed by the
no longer is the spouse of the Filipino and therefore
national law of the decedent
losses the standing to sue for adultery
∙ Under Art 26 of the FC, the foreign spouse can remarry
if he/she obtains a valid divorce, and the Filipino Art. 18. In matters which are governed by the Code of
Spouse can remarry as well if they are capacitated to do Commerce and special laws, their deficiency shall be
so. supplied by the provisions of this Code. (16a)
∙ If there is no deficiency in abovementioned laws, then

Art. 16. Real property as well as personal property is the provisions of the Civil Code cannot apply.
subject to the law of the country where it is stipulated.
However, intestate and testamentary successions, both with CHAPTER 2
respect to the order of succession and to the amount of HUMAN RELATIONS (n)
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, Art. 19. Every person must, in the exercise of his rights and
whatever may be the nature of the property and regardless in the performance of his duties, act with justice, give
of the country wherein said property may be found. (10a) everyone his due, and observe honesty and good faith.
∙ Under the principle of lex rei sitae, even if the real and ∙ The damage resulting from the legitimate and valid
personal properties are involved in the matter of testate exercise of one’s rights and performance of one’s duties
and intestate succession of a decedent, what shall is a loss without injury based on the legal maxim
govern is the national law of the decedent in relation to damnum absque injuria.
the order of succession, amount of successional rights, ∙ The elements of abuse of rights are:
and intristie validity of the will. The national law of the
decedent also governs tha capacity to succeed as well. ∙ There is a legal right or duty
∙ The Renvoi doctrine refers to the issue when there is ∙ Which was exercised in bad faith
doubt to whether a reference to a foreign law is a ∙ For the sole intent in prejudicing or injuring anothers
reference to the internal law of the said foreign law, or a
reference to the foreign law as a whole including its
conflict rules Art. 20. Every person who, contrary to law, wilfully or
negligently causes damage to another, shall indemnify the
latter for the same.
Art. 17. The forms and solemnities of contracts, wills, and
other public instruments shall be governed by the laws of the ∙ Indemnity shall be granted to the injured party if a
country in which they are executed. person abuses his rights or acts in contrary to law
When the acts referred to are executed before the diplomatic
or consular officials of the Republic of the Philippines in a Art. 21. Any person who wilfully causes loss or injury to
foreign country, the solemnities established by Philippine another in a manner that is contrary to morals, good
laws shall be observed in their execution. customs or public policy shall compensate the latter for the
Prohibitive laws concerning persons, their acts or property, damage.
and those which have, for their object, public order, public
policy and good customs shall not be rendered ineffective by ∙ The requisites for acts contra bonus mores are:
laws or judgments promulgated, or by determinations or ∙ There is an act which is legal
conventions agreed upon in a foreign country. (11a)
4
∙ But contrary to morals, good customs, public order and the defendant, the latter shall be liable for indemnity if
through the act or event he was benefited.
policy
∙ Done with intent to injure ∙ Even if an event or act causes loss or injury to another
∙ Mere breach of promise to marry is not a ground for party is accidental or fortuitous, the party who benefited
compensation, except under the following from such act will still be held liable under this article
circumstances
∙ There is deceit or fraud Art. 24. In all contractual, property or other relations, when
∙ Expenses have actually been occurred one of the parties is at a disadvantage on account of his
moral dependence, ignorance, indigence, mental weakness,
∙ When the women has been forcibly abducted and raped tender age or other handicap, the courts must be vigilant for
∙ An action for damages arising from malicious his protection.
prosecution is anchored upon Art. 21, 2217 and 2219
(8). However, the requisites must be satisfied to show ∙ The Courts must be vigilant on the protection of the
there is malicious prosecution rights of the disadvantaged from the unscrupulous or
those who use undue influence in entering into
∙ The fact of the prosecution and the further fact that the contracts
defendant himself was the prosecution, and that the
action was finally terminated with acquittal
∙ In bringing the action, the prosecutor acted without Art. 25. Thoughtless extravagance in expenses for pleasure
probable cause or display during a period of acute public want or emergency
may be stopped by order of the courts at the instance of any
∙ The prosecutor was impelled or actualled with legal government or private charitable institution.
malice that is sinister or improper malice
∙ The following requisites must be present:
Art. 22. Every person who through an act of performance by ∙ There is an acute public want or emergency
another, or any other means, acquires or comes into ∙ The party seeking to stop such extravagance must be a
possession of something at the expense of the latter without government or charitable institution
just or legal ground, shall return the same to him.
∙ Accion in rem verso refers to the action for recovery of Art. 26. Every person shall respect the dignity, personality,
what has been paid or delivered without just cause or privacy and peace of mind of his neighbors and other
legal ground. persons. The following and similar acts, though they may not
∙ It is different from solutio indebti in that it refers to constitute a criminal offense, shall produce a cause of action
something has been received when they have no right to for damages, prevention and other relief:
demand it or when the unduly delivered by mistake, (1) Prying into the privacy of another’s residence:
they are obliged to return it. It is only applied when: (2) Meddling with or disturbing the private life or family
∙ Payment is made when there is no binding relation relations of another;
between payor and the person who received the (3) Intriguing to cause another to be alienated from his
payment friends;
(4) Vexing or humiliating another on account of his
∙ Payment is made through mistake and not liberality religious beliefs, lowly station in life, place of birth,
∙ The requisites for accion in rem verso are physical defect, or other personal condition.
∙ Defendant has been enriched ∙ The Philosophy behind this article is that human
personality must be exalted and that the rights of
∙ Plaintiff has suffered a loss or injury
persons must be amply protected and that damages are
∙ Enrichment of Defenadant is without just or legal provided for violating a person’s privacy, dignity,
ground personality and peace of mind
∙ Plaintiff has no other action based on contact, quasi- ∙ The acts enumerated in this article are not exclusive and
contract, criminal or quasi-delict do not preclude similar acts such as damaging a persons
dignity from acts such as profane, insulting, scandalous,
abusive or humiliating language
Art. 23. Even when an act or event causing damage to
another’s property was not due to the fault or negligence of
5
Art. 27. Any person suffering material or moral loss because ∙ The extinction of criminal action does not carry with it
a public servant or employee refuses or neglects, without just the extinction of civil action. Civil action based on
cause, to perform his official duty may file an action for delict may be extinguished if there is a finding in the
damages and other relief against he latter, without prejudice judgment of the criminal action that the act or
to any disciplinary administrative action that may be taken. omission from which civil liability may arise did not
∙ This article is limited to refusal or neglect to perform exist
official duties ∙ Acquittal based on reasonable doubt extinguishes civil
∙ Requisites of action under Article 27 are: damages only when there is a declaration from the acts
that the act or omission from which civil liability might
∙ Defendant must be a public official charged with the arise did not exist
performance of his official duties ∙ There are two liabilities based on article 29, one is on
∙ There is a violation of official duty in favor of an social order and one is on private rights
individual ∙ Article 29 presupposes that:
∙ There is willfulness or negligence in he violation of
∙ Private offended party opted to collect civil damages on
such official duty
the basis of the others criminal liability arising from
∙ There be an injury to an individual their offence under Article 100 RPC
∙ They have opted to institute civil action , expressly or
Art. 28. Unfair competition in agricultural, commercial or impliedly within he criminal action
industrial enterprises or in labor through the use of force, ∙ Accused was acquitted in criminal action based on
intimidation, deceit, machination or any other unjust, reasonable doubt as to their guilt.
oppressive or highhanded method shall give rise to a right of ∙ The ground for acquittal was clearly declared or
action by the person who thereby suffers damage.
inferred from the judgment of the court
∙ Unfair competition refers to the employment of
deception or any other means against good faith to pass If in a criminal case the judgment of acquittal is based upon
of goods he has manufactured or which he deals for reasonable doubt, the court shall so declare. In the absence
those of one who has established such goodwill. of any declaration to that effect, it may be inferred from the
Examples are the following: text of the decision whether or not the acquittal is due to that
∙ Giving their goods, the general appearance of another ground.
manufacturer or seller’s goods
Art. 30. When a separate civil action is brought to demand
∙ Induces the false belief that they are offering the goods civil liability arising from a criminal offense, and no criminal
that re offered by another manufacturer or seller proceedings are instituted during the pendency of the civil
∙ Making any false statement in the course of trade that is case, a preponderance of evidence shall likewise be sufficient
contrary to good faith of nature to discredit the goods to prove the act complained of.
of another, business or services of another
∙ Civil action is deemed to have been instituted within
the criminal action unless such party has waived the
Art. 29. When the accused in a criminal prosecution is civil action, reserves the right to institute such civil
acquitted on the ground that his guilt has not been proved action separately or prior to the criminal action
beyond reasonable doubt, a civil action for damages for the ∙ If civil action is instituted prior to civil action, the
same act or omission may be instituted. Such action requires former shall be suspended in whatever stage it may be
only a preponderance of evidence. Upon motion of the until final judgment for criminal action is rendered
defendant, the court may require the plaintiff to file a bond
to answer for damages in case the complaint should be found
∙ When civil action is instituted but there is no criminal
to be malicious. action, a preponderance of evidence shall be sufficient
to prove the act complained of.
∙ Delict or crime is a source of obligations. Every person
who is criminally liable for a felony is also civilly
Art. 31. When the civil action is based on an obligation not
liable, based on the fact that he offends two parties: 1)
arising from the act or omission complained of as a felony,
the state whose law he violated; 2) the individual
such civil action may proceed independently of the criminal
member of that society through the same punishable act
proceedings and regardless of the result of the latter.
or omission
6
∙ Article 31 does not provide for any independent civil or reward to make such confession, except when the
person confessing becomes a State witness;
action but an independent civil action based upon the
(18) Freedom from excessive fines, or cruel and unusual
same criminal act is provided for based on Articles 32-
punishment, unless the same is imposed or inflicted in
34
accordance with a statute which has not been
∙ A quasi-delict or culpa aquiliana (covers negligent and judicially declared unconstitutional; and
voluntary acts) is a separate legal institution under the (19) Freedom of access to the courts.
Civil Code. There, acquittal or conviction in the In any of the cases referred to in this article, whether or not
criminal case is irrelevant in the civil case. Acquittal on the defendant’s act or omission constitutes a criminal
the criminal case does not extinguish civil liability offense, the aggrieved party has a right to commence an
under quasi-delict, which also covers acts which are entirely separate and distinct civil action for damages, and
criminal in character, both intentional and voluntary, or for other relief. Such civil action shall proceed independently
negligent. of any criminal prosecution (if the latter be instituted), and
∙ The same negligent act causing damages may produce a mat be proved by a preponderance of evidence.
civil liability arising from a crime under Art. 100 RPC
or may create an action for quasi-delict or culpa extra- The indemnity shall include moral damages. Exemplary
contractual under Art. 2174 to 2194 NCC. 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
Art. 32. Any public officer or employee, or any private Penal Code or other penal statute.
individual, who directly or indirectly obstructs, defeats,
violates or in any manner impedes or impairs any of the ∙ Reasons for the provision are:
following rights and liberties of another person shall be
∙ Threat to freedom arises from abuse of power of
liable to the latter for damages:
government officials and peace officers
(1) Freedom of religion; ∙ Even when prosecuting attorney filed a criminal action,
(2) Freedom of speech;
the requirment of proof beyone reasonable doubt
(3) Freedom to write for the press or to maintain a
prevented the appropriate punishment
periodical publication;
(4) Freedom from arbitrary or illegal detention; ∙ Direct and open violations of RPC are not as frequent
(5) Freedom of suffrage; as the subtle, indirect, and clever ways which do not
(6) The right against deprivation of property without due come within pale of the RPC
process of law; ∙ Good faith is not a defense under Art. 32
(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; Art. 33. In cases of defamation, fraud, and physical injuries a
(9) The right to be secure in one’s person, house, papers, civil action for damages, entirely separate and distinct from
and effects against unreasonable searches and the criminal action, may be brought by the injured party.
seizures; Such civil action shall proceed independently of the criminal
(10) The liberty of abode and of changing the same; prosecution, and shall require only a preponderance of
(11) The privacy of communication and correspondence; evidence.
(12) The right to become a member of associations or
societies for purposes not contrary to law; ∙ Civil action for damages allowed to be instituted is ex
(13) The right to take part in a peaceable assembly to delicto.
petition the government for redress of grievances;
∙ Physical injuries not only those in the RPC and also
(14) The right to be free from involuntary servitude in
frustrated, attempted and consummated homicide
any form;
(15) The right of the accused against excessive bail; ∙ Criminal negligence is included under Article 33, civil
(16) The right of the accused to be heard by himself and action may proceed independently even if the crime
counsel, to be informed of the nature and cause of the charged is reckless imprudence
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 Art. 34. When a member of a city or municipal police force
witness in his behalf; refuses or fails to render aid or protection to any person in
(17) Freedom from being compelled to be a witness case of danger to life or property, such peace officer shall be
against one’s self, or from being forced to confess primarily liable for damages, and the city or municipality
guilt, or from being induced by a promise of immunity shall be subsidiarily responsible therefor. The civil action
7
herein recognized shall be independent of any criminal BOOK I:PERSONS
proceedings, and a preponderance of evidence shall suffice to
support such action. Title I. - CIVIL PERSONALITY
Art. 35. When a person, claiming to be injured by a criminal CHAPTER 1
offense, charges another with the same, for which no GENERAL PROVISIONS
independent civil action is granted in this Code or any
special law, but the justice of the peace finds no reasonable Art. 37. Juridical capacity, which is the fitness to be the
grounds to believe that a crime has been committed, or the subject of legal relations, is inherent in every natural person
prosecuting attorney refuses or fails to institute criminal and is lost only through death. Capacity to act, which is the
proceedings, the complaint may bring a civil action for power to do acts with legal effect, is acquired and may be
damages against the alleged offender. Such civil action may lost. (n)
be supported by a preponderance of evidence. Upon the
defendant’s motion, the court may require the plaintiff to file ∙ A person any being susceptible to rights and
a bond to indemnify the defendant in case the complaint obligations. Personality is the aptitude to be subject,
should be found to be malicious. active or passive, of judicial relations
If during the pendency of the civil action, an information

∙ Natural persons are human beings while juridical
should be presented by the prosecuting attorney, the civil persons are artificial beings susceptible of rights and
action shall be suspended until the termination of the obligations or being the subject of legal relations
criminal proceedings. ∙ Juridical capacity is static condition, indivisible, it is
enough that the person exists, lost only in death, cannot
Art. 36. Pre-judicial questions which must be decided before
be limited or restricted
any criminal prosecution may be instituted or may proceed,
shall be governed by rules of court which the Supreme Court ∙ Capacity to act is a dynamic condition, does not exist in
shall promulgate and which shall not be in conflict with the all men or is the same extent, intelligence and volition
provisions of this Code. is required and does not exist in the same extent in all
men, may be lost, limited and restricted through certain
∙ A prejudicial question is a one that arises during a case, means and circumstances,
and that the resolution of such question is a logical
antecedent to the resolution of the case
Art. 38. Minority, insanity or imbecility, the state of being a
∙ It comes into play when a civil and criminal action both
deaf-mute, prodigality and civil interdiction are mere
come into play and that in the former an issue exists restrictions on capacity to act, and do not exempt the
which must be preemptively resolved before the incapacitated person from certain obligations, as when the
criminal proceeding may continue latter arise from his acts or from property relations, such as
∙ The elements are: easements. (32a)
∙ Previously instituted civil action involves an issue that Art. 39. The following circumstances, among others, modify
is similarly or intimately related to the subsequent civil or limit capacity to act: age, insanity, imbecility, the state of
action being a deaf-mute, penalty, prodigality, family relations,
∙ Resolution of such issue determines whether or not the alienage, absence, insolvency and trusteeship. The
criminal action can proceed consequences of these circumstances are governed in this
Code, other codes, the Rules of Court, and in special laws.
∙ A petition for the suspension of criminal action based Capacity to act is not limited on account of religious belief or
on the pendency of a prejudicial question may be filed political opinion.
in the office of the prosecutor or the court conducting
he preliminary investigation. When the criminala action A married woman, twenty-one years of age or over, is
has been filed, the petition to suspend may be filed at qualified for all acts of civil life, except in cases specified by
any time before prosecution rests. The rule only law. (n)
authorizes suspension and not dismissal.
∙ Incapacities are restrictions or limitations on capacity to
∙ Administrative case does not constitute a prejudicial act. They are however not exempted from certain
question to a criminal action obligations.
∙ Criminal prosecution does not constitute a prejudicial ∙ The following cannot give their consent in a contract:
question to a administrative proceeding for the
disbarment or suspension of a lawyer ∙ Unemancipated minor
∙ Deaf-mute who do know how to write
8
∙ Insane or demented persons ∙ Complete delivery means the cutting of the umbilical
∙ A contract entered into by a minor without the consent cord
of a parent or guardian, is voidable (if one of the parties ∙ Personality of a conceived child has two characteristics
is a minor, but can be ratified by the parents or guardian ∙ It is essentially limited, for the purposes favorable to
of the minor) or unenforceable (if both parties are the child
minors, ratification of the parents of guardian one of the
parties makes the contract voidable) ∙ It is provisional or conditional, such that if the child is
not born alive, it is deemed to have never been existed
∙ A contract can be annulled upon reaching age of
majority by a minor if such only engaged in passive ∙ The rights of an unborn child include the following
misrepresentation of age, while active ∙ Right to receive support from progenitors, even if such
misrepresentation removes the capacity to annul the child is en ventre de sa mere
contract
∙ It may receive donations as prescribed under Art. 742
∙ Insanity refers to someone whose mental faculties are NCC
impaired while an imbecile is someone who is of
advanced age while still having the mental capacity of ∙ It may not be ignored by the parent in his testament
a 2 to 7 year old. Imbecile is exempted from all cases
of criminal liability and cannot give consent in a Art. 42. Civil personality is extinguished by death.
contract while insane is not exempt acted during lucid The effect of death upon the rights and obligations of the
interval (only insanity preventing a person from deceased is determined by law, by contract and by will. (32a)
knowing the character of the act that he is performing).
Art. 43. If there is a doubt, as between two or more persons
∙ Civil Interdiction is an accessory penalty imposed upon who are called to succeed each other, as to which of them
those who are sentenced penalty not lower than died first, whoever alleges the death of one prior to the other,
reclusion temporal. It produces the following effects shall prove the same; in the absence of proof, it is presumed
∙ Deprivation of rights of parental authority or that they died at the same time and there shall be no
guardianship transmission of rights from one to the other. (33)
∙ Deprivation of marital authority ∙ Not applicable when there is no question of succession
∙ Deprivation of right to manage property ∙ Rules on succession
∙ Deprivation of the right to dispose his property by any ∙ If both are <15, the older is deemed to have survived
act or conveyance inter vivos
∙ If both are >60, the younger is deemed to have survived
∙ In prodigality, once an individual is under guardianship,
his capacity to act becomes restricted since he can only
∙ If one is <15 and the other >60, the former is deemed to
enter a contract through the guardian have survived
∙ If both are >15 and <60, and different sezes, the male is
deemed to have survived. If same sex, the older is
CHAPTER 2 deemed to have survived
NATURAL PERSONS
∙ If one is <15 or >60, and the other in between those
ages, the latter is deemed to have survived
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 CHAPTER 3
specified in the following article. (29a) JURIDICAL PERSONS
∙ Unless a being is born it is not considered a person Art. 44. The following are juridical persons:
(1) The State and its political subdivisions;
Art. 41. For civil purposes, the fetus is considered born if it is (2) Other corporations, institutions and entities for public
alive at the time it is completely delivered from the mother’s interest or purpose, created by law; their personality
womb. However, if the fetus had an intra-uterine life of less begins as soon as they have been constituted according
than seven months, it is not deemed born if it dies within to law;
twenty-four hours after its complete delivery from the (3) Corporations, partnerships and associations for
maternal womb. (30a) private interest or purpose to which the law grants a
9
juridical personality, separate and distinct from that Article 1. Marriage is a special contract of permanent union
of each shareholder, partner or member. (35a) between a man and a woman entered into in accordance with
Art. 45. Juridical persons mentioned in Nos. 1 and 2 of the law for the establishment of conjugal and family life. It is the
preceding article are governed by the laws creating or foundation of the family and an inviolable social institution
recognizing them. whose nature, consequences, and incidents are governed by
law and not subject to stipulation, except that marriage
Private corporations are regulated by laws of general settlements may fix the property relations during the
application on the subject. marriage within the limits provided by this Code. (52a)
Partnerships and associations for private interest or purpose
are governed by the provisions of this Code concerning
∙ Marriage is different from an ordinary contract based
partnerships. (36 and 37a) on the following distinctions:
∙ It cannot be revoked, dissolved, or otherwise
Art. 46. Juridical persons may acquire and possess property
terminated by the parties, but only by the sovereign
of all kinds, as well as incur obligations and bring civil or
power of the state
criminal actions, in conformity with the laws and regulations
of their organization. (38a) ∙ The nature, consequences and incidents of marriage are
governed by law and not subject to agreement,
Art. 47. Upon the dissolution of corporations, institutions
and other entities for public interest or purpose mentioned in ∙ Only two persons of different sex may enter into a
No. 2 of Article 44, their property and other assets shall be contract of marriage, and but only one such contract
disposed of in pursuance of law or the charter creating them. may exist at the same time
If nothing has been specified on this point, the property and ∙ Marriage is not just a contract but a social institution
other assets shall be applied to similar purposes for the
benefit of the region, province, city or municipality which ∙ Marriage is a permanent union between a man and a
during the existence of the institution derived the principal woman, it may only be dissolved by law (as in
benefits from the same. (39a) annulment or declaration of nullity) or by death of
either party.
∙ Marriage is not only a civil contract, but a new relation,
∙ Juridical persons are artificial beings to which the law an institution whose maintenance of which the public is
grants a personality distinct and separate from the deeply interested
personality of its individual members. ∙ Best documentary evidence of marriage is a marriage
∙ Sole proprietorship does not have a juridical personality contract. Failure to present it however does not prove
because its personality is the personality of its owner that no marriage took place. Testimony by one of the
parties or one of the witnesses, or the solemnizing
∙ A corporation is deemed to have a juridical capacity if officer as eyewitness to the marriage is held to be
its formed under the Corporation Code, and is deemed admissible as proof of the fact of marriage
incorporated from the date it receives its certificate of
Incorporation under its official seal from the SEC ∙ Testimony of witness to the marriage, the partners’
public and open cohabitation as husband and wife after
∙ Partnership are juridical persons provided that they the alleged wedlock, the birth and baptismal certificate
fulfill the following requisites of the children born during such union, and mention of
∙ Two or more persons who bind themselves to contribute the nuptial in the subsequent documents may be
money, property or industry to a common fund presented as proof of such marriage.
∙ Intention on part of the partners to divide the profits ∙ The law favors the validity of the marriage
among themselves ∙
Art. 2. No marriage shall be valid, unless these essential
EXECUTIVE ORDER NO. 209 requisites are present:
THE FAMILY CODE OF THE PHILIPPINES (1) Legal capacity of the contracting parties who must be
July 6, 1987 a male and a female; and
(2) Consent freely given in the presence of the
TITLE I solemnizing officer. (53a)
MARRIAGE Art. 3. The formal requisites of marriage are:

(1) Authority of the solemnizing officer;
Chapter 1. Requisites of Marriage
10
(2) A valid marriage license except in the cases provided ∙ Any consul-general, consul or vice-consul in limited
for in Chapter 2 of this Title; and cases
(3) A marriage ceremony which takes place with the
appearance of the contracting parties before the ∙ Mayors
solemnizing officer and their personal declaration that ∙ Valid Marriage License
they take each other as husband and wife in the
presence of not less than two witnesses of legal age. ∙ Absence of valid marriage license renders the marriage
(53a, 55a) void ab intio
∙ Marriage celebrated 120 days after issuance of license
∙ Legal capacity refers to the following requirements: is void ab initio
∙ Age Requirement ∙ The exceptions where a valid marriage license may be
dispensed are the following:
∙ Must be 18 and above, below 18 marriage is void ab
initio ∙ In cases of articulo mortis
∙ >18 and <21, Article 14 adds requirement of parental ∙ When the parties are located in remote place where
consent, lack of consent means marriage is voidable there are no means of transport available to obtain a
valid marriage license
∙ The age requirement must be complied on the date of
marriage celebration, ∙ Marriage among Muslims and ethnic groups provided
they are solemnized in accordance with the customs,
∙ Sex of the contracting parties rights and practices
∙ Must be between a man and a woman ∙ Marriage Ceremony
∙ Absence of Legal Impediments based on Article 37 and ∙ Solemnization of the marriage comprehends both
38 FC parties personal appearance before the person
∙ Consent authorized to solemnize the marriage
∙ This must be mutual ∙ Common-law marriages and marriage by proxy are not
recognized in the Philippines
∙ Manifestation of consent is made only by both parties
appearing before the solemnizing officer and their
personal declaration to take each other as husband and Art. 4. The absence of any of the essential or formal
wife in the presence of at least 2 witnesses requisites shall render the marriage void ab initio, except as
stated in Article 35 (2).
∙ Bogus or simulated marriage is void ab initio
A defect in any of the essential requisites shall not affect the
∙ Under Art. 41, the subsequent marriage is void ab initio
validity of the marriage but the party or parties responsible
if both parties acted in bad faith for the irregularity shall be civilly, criminally and
∙ Consent must be free and voluntary, otherwise the administratively liable. (n)
marriage is voidable
Art. 5. Any male or female of the age of eighteen years or
∙ Authority of Solemnizing Office upwards not under any of the impediments mentioned in
∙ If the solemnizing officer is not authorized, the Articles 37 and 38, may contract marriage. (54a)
marriage is void ab initio unless either or both parties Art. 6. No prescribed form or religious rite for the
believed in good faith that the officer had the authority solemnization of the marriage is required. It shall be
to solemnize the marriage necessary, however, for the contracting parties to appear
∙ The following has the authority to solemnize marriage personally before the solemnizing officer and declare in the
presence of not less than two witnesses of legal age that they
∙ Any incumbent member of the judiciary within their take each other as husband and wife. This declaration shall
court’s jurisdiction; be contained in the marriage certificate which shall be signed
∙ Any priest, rabbi, imam, or minister of any church or by the contracting parties and their witnesses and attested by
religious sect duly authorized by his church or religious the solemnizing officer.
sect In case of a marriage in articulo mortis, when the party at
∙ Any ship captain or airplane chief only in the case of the point of death is unable to sign the marriage certificate, it
articulo mortis shall be sufficient for one of the witnesses to the marriage to
∙ Any military commander of a unit to which a chaplain write the name of said party, which fact shall be attested by
the solemnizing officer. (55a)
is assigned, in cases of articulo mortis;
11
Art. 7. Marriage may be solemnized by: (7) Degree of relationship of the contracting parties;
(1) Any incumbent member of the judiciary within the (8) Full name, residence and citizenship of the
court’s jurisdiction; father;
(2) Any priest, rabbi, imam, or minister of any church or
religious sect duly authorized by his church or (9) Full name, residence and citizenship of the mother; and
religious sect and registered with the civil registrar (10) Full name, residence and citizenship of the guardian
general, acting within the limits of the written or person having charge, in case the contracting party
authority granted by his church or religious sect and has neither father nor mother and is under the age of
provided that at least one of the contracting parties twenty-one years.
belongs to the solemnizing officer’s church or religious
The applicants, their parents or guardians shall not be
sect;
required to exhibit their residence certificates in any
(3) Any ship captain or airplane chief only in the case
formality in connection with the securing of the marriage
mentioned in Article 31;
license. (59a)
Art. 12. The local civil registrar, upon receiving such
(4) Any military commander of a unit to which a application, shall require the presentation of the original
chaplain is assigned, in the absence of the latter, during a birth certificates or, in default thereof, the baptismal
military operation, likewise only in the cases mentioned certificates of the contracting parties or copies of such
in Article 32; documents duly attested by the persons having custody of the
originals. These certificates or certified copies of the
(5) Any consul-general, consul or vice-consul in the case
documents by this Article need not be sworn to and shall be
provided in Article 10. (56a)
exempt from the documentary stamp tax. The signature and
Article. 8. The marriage shall be solemnized publicly in the official title of the person issuing the certificate shall be
chambers of the judge or in open court, in the church, chapel sufficient proof of its authenticity.
or temple, or in the office the consul-general, consul or vice-
If either of the contracting parties is unable to produce his
consul, as the case may be, and not elsewhere, except in cases
birth or baptismal certificate or a certified copy of either
of marriages contracted on the point of death or in remote
because of the destruction or loss of the original or if it is
places in accordance with Article 29 of this Code, or where
shown by an affidavit of such party or of any other person
both of the parties request the solemnizing officer in writing
that such birth or baptismal certificate has not yet been
in which case the marriage may be solemnized at a house or
received though the same has been required of the person
place designated by them in a sworn statement to that effect.
having custody thereof at least fifteen days prior to the date
(57a)
of the application, such party may furnish in lieu thereof his
Art. 9. A marriage license shall be issued by the local civil current residence certificate or an instrument drawn up and
registrar of the city or municipality where either contracting sworn to before the local civil registrar concerned or any
party habitually resides, except in marriages where no public official authorized to administer oaths. Such
license is required in accordance with Chapter 2 of this Title. instrument shall contain the sworn declaration of two
(58a) witnesses of lawful age, setting forth the full name, residence
and citizenship of such contracting party and of his or her
Art. 10. Marriages between Filipino citizens abroad may be
parents, if known, and the place and date of birth of such
solemnized by a consul-general, consul or vice-consul of the
party. The nearest of kin of the contracting parties shall be
Republic of the Philippines. The issuance of the marriage
preferred as witnesses, or, in their default, persons of good
license and the duties of the local civil registrar and of the
reputation in the province or the locality.
solemnizing officer with regard to the celebration of
marriage shall be performed by said consular official. (75a) The presentation of birth or baptismal certificate shall not be
required if the parents of the contracting parties appear
Art. 11. Where a marriage license is required, each of the
personally before the local civil registrar concerned and
contracting parties shall file separately a sworn application
swear to the correctness of the lawful age of said parties, as
for such license with the proper local civil registrar which
stated in the application, or when the local civil registrar
shall specify the following:
shall, by merely looking at the applicants upon their
(1) Full name of the contracting party; personally appearing before him, be convinced that either or
(2) Place of birth; both of them have the required age. (60a)
(3) Age and date of birth;
Art. 13. In case either of the contracting parties has been
(4) Civil status;
previously married, the applicant shall be required to
(5) If previously married, how, when and where the
furnish, instead of the birth or baptismal certificate required
previous marriage was dissolved or annulled;
in the last preceding article, the death certificate of the
(6) Present residence and citizenship; deceased spouse or the judicial decree of the absolute
12
divorce, or the judicial decree of annulment or declaration of applications. The notice shall be posted for ten consecutive
nullity of his or her previous marriage. days on a bulletin board outside the office of the local civil
registrar located in a conspicuous place within the building
In case the death certificate cannot be secured, the party
and accessible to the general public. This notice shall request
shall make an affidavit setting forth this circumstance and
all persons having knowledge of any impediment to the
his or her actual civil status and the name and date of death
marriage to advise the local civil registrar thereof. The
of the deceased spouse. (61a)
marriage license shall be issued after the completion of the
Art. 14. In case either or both of the contracting parties, not period of publication. (63a)
having been emancipated by a previous marriage, are
Art. 18. In case of any impediment known to the local civil
between the ages of eighteen and twenty-one, they shall, in
registrar or brought to his attention, he shall note down the
addition to the requirements of the preceding articles, exhibit
particulars thereof and his findings thereon in the
to the local civil registrar, the consent to their marriage of
application for marriage license, but shall nonetheless issue
their father, mother, surviving parent or guardian, or
said license after the completion of the period of publication,
persons having legal charge of them, in the order mentioned.
unless ordered otherwise by a competent court at his own
Such consent shall be manifested in writing by the interested
instance or that of any interest party. No filing fee shall be
party, who personally appears before the proper local civil
charged for the petition nor a corresponding bond required
registrar, or in the form of an affidavit made in the presence
for the issuances of the order. (64a)
of two witnesses and attested before any official authorized
by law to administer oaths. The personal manifestation shall Art. 19. The local civil registrar shall require the payment of
be recorded in both applications for marriage license, and the fees prescribed by law or regulations before the issuance
the affidavit, if one is executed instead, shall be attached to of the marriage license. No other sum shall be collected in the
said applications. (61a) 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
Art. 15. Any contracting party between the age of twenty-one
parties, that is those who have no visible means of income or
and twenty-five shall be obliged to ask their parents or
whose income is insufficient for their subsistence a fact
guardian for advice upon the intended marriage. If they do
established by their affidavit, or by their oath before the
not obtain such advice, or if it be unfavorable, the marriage
local civil registrar. (65a)
license shall not be issued till after three months following
the completion of the publication of the application therefor. Art. 20. The license shall be valid in any part of the
A sworn statement by the contracting parties to the effect Philippines for a period of one hundred twenty days from the
that such advice has been sought, together with the written date of issue, and shall be deemed automatically canceled at
advice given, if any, shall be attached to the application for the expiration of the said period if the contracting parties
marriage license. Should the parents or guardian refuse to have not made use of it. The expiry date shall be stamped in
give any advice, this fact shall be stated in the sworn bold characters on the face of every license issued. (65a)
statement. (62a)
Art. 21. When either or both of the contracting parties are
Art. 16. In the cases where parental consent or parental citizens of a foreign country, it shall be necessary for them
advice is needed, the party or parties concerned shall, in before a marriage license can be obtained, to submit a
addition to the requirements of the preceding articles, attach certificate of legal capacity to contract marriage, issued by
a certificate issued by a priest, imam or minister authorized their respective diplomatic or consular officials.
to solemnize marriage under Article 7 of this Code or a
Stateless persons or refugees from other countries shall, in
marriage counselor duly accredited by the proper
lieu of the certificate of legal capacity herein required,
government agency to the effect that the contracting parties
submit an affidavit stating the circumstances showing such
have undergone marriage counseling. Failure to attach said
capacity to contract marriage. (66a)
certificates of marriage counseling shall suspend the issuance
of the marriage license for a period of three months from the Art. 22. The marriage certificate, in which the parties shall
completion of the publication of the application. Issuance of declare that they take each other as husband and wife, shall
the marriage license within the prohibited period shall also state:
subject the issuing officer to administrative sanctions but
(1) The full name, sex and age of each contracting
shall not affect the validity of the marriage.
party;
Should only one of the contracting parties need parental (2) Their citizenship, religion and habitual
consent or parental advice, the other party must be present residence;
at the counseling referred to in the preceding paragraph. (n) (3) The date and precise time of the celebration of
the marriage;
Art. 17. The local civil registrar shall prepare a notice which
(4) That the proper marriage license has been issued
shall contain the full names and residences of the applicants
according to law, except in marriage provided for in
for a marriage license and other data given in the
Chapter 2 of this Title;
13
(5) That either or both of the contracting parties have ∙ There is a mistake in the identity of the party by the
secured the parental consent in appropriate cases; other party
(6) That either or both of the contracting parties have ∙ One of the parties in a subsequent marriage is a party to
complied with the legal requirement regarding parental a prior marriage but did not comply with article 52
advice in appropriate cases; and
∙ One of the parties to the marriage is psychologically
(7) That the parties have entered into marriage incapacitated
settlement, if any, attaching a copy thereof. (67a)
∙ Incestuous marriage
Art. 23. It shall be the duty of the person solemnizing the
marriage to furnish either of the contracting parties the
∙ Marriage void by public policy
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 Chapter 2. Marriages Exempted from License Requirement
the local civil registrar of the place where the marriage was
solemnized. Proper receipts shall be issued by the local civil Art. 27. In case either or both of the contracting parties are
registrar to the solemnizing officer transmitting copies of the at the point of death, the marriage may be solemnized
marriage certificate. The solemnizing officer shall retain in without necessity of a marriage license and shall remain
his file the quadruplicate copy of the marriage certificate, valid even if the ailing party subsequently survives. (72a)
the copy of the marriage certificate, the original of the
marriage license and, in proper cases, the affidavit of the Art. 28. If the residence of either party is so located that
contracting party regarding the solemnization of the there is no means of transportation to enable such party to
marriage in place other than those mentioned in Article 8. appear personally before the local civil registrar, the
(68a) marriage may be solemnized without necessity of a marriage
license. (72a)
Art. 24. It shall be the duty of the local civil registrar to
prepare the documents required by this Title, and to Art. 29. In the cases provided for in the two preceding
administer oaths to all interested parties without any charge articles, the solemnizing officer shall state in an affidavit
in both cases. The documents and affidavits filed in executed before the local civil registrar or any other person
connection with applications for marriage licenses shall be legally authorized to administer oaths that the marriage was
exempt from documentary stamp tax. (n) performed in articulo mortis or that the residence of either
party, specifying the barrio or barangay, is so located that
Art. 25. The local civil registrar concerned shall enter all there is no means of transportation to enable such party to
applications for marriage licenses filed with him in a registry appear personally before the local civil registrar and that the
book strictly in the order in which the same are received. He officer took the necessary steps to ascertain the ages and
shall record in said book the names of the applicants, the relationship of the contracting parties and the absence of
date on which the marriage license was issued, and such legal impediment to the marriage. (72a)
other data as may be necessary. (n)
Art. 30. The original of the affidavit required in the last
Art. 26. All marriages solemnized outside the Philippines, in preceding article, together with the legible copy of the
accordance with the laws in force in the country where they marriage contract, shall be sent by the person solemnizing
were solemnized, and valid there as such, shall also be valid the marriage to the local civil registrar of the municipality
in this country, except those prohibited under Articles 35 (1), where it was performed within the period of thirty days after
(4), (5) and (6), 3637 and 38. (17a) the performance of the marriage. (75a)
Where a marriage between a Filipino citizen and a foreigner Art. 31. A marriage in articulo mortis between passengers or
is validly celebrated and a divorce is thereafter validly crew members may also be solemnized by a ship captain or
obtained abroad by the alien spouse capacitating him or her by an airplane pilot not only while the ship is at sea or the
to remarry, the Filipino spouse shall have capacity to plane is in flight, but also during stopovers at ports of call.
remarry under Philippine law. (As amended by Executive (74a)
Order 227)
Art. 32. A military commander of a unit, who is a
∙ Under paragraph 1, the following marriages are commissioned officer, shall likewise have authority to
prohibited and void ab initio even if they are allowed in solemnize marriages in articulo mortis between persons
the country where the marriage is celebrated within the zone of military operation, whether members of
∙ Both are Filipino and either or both parties is under 18 the armed forces or civilians. (74a)
∙ If one of parties is Filipino and is under 18 Art. 33. Marriages among Muslims or among members of
the ethnic cultural communities may be performed validly
∙ Marriage is bigamous or polygamous
14
without the necessity of marriage license, provided they are our country, under the conditions for marriage
solemnized in accordance with their customs, rites or prescribed by those countries. Article 35 are not
practices. (78a) exclusive to those conditions mentioned.
Art. 34. No license shall be necessary for the marriage of a
Art. 36. A marriage contracted by any party who, at the time
man and a woman who have lived together as husband and
of the celebration, was psychologically incapacitated to
wife for at least five years and without any legal impediment
comply with the essential marital obligations of marriage,
to marry each other. The contracting parties shall state the
shall likewise be void even if such incapacity becomes
foregoing facts in an affidavit before any person authorized
manifest only after its solemnization. (As amended by
by law to administer oaths. The solemnizing officer shall also
Executive Order 227)
state under oath that he ascertained the qualifications of the
contracting parties are found no legal impediment to the Psychological Incapacity- There is no exact definition, however
marriage. (76a) usually means a constant, protacted and senseless refusal to
perfom the essential marital obligations by either or both parties,
Chapter 3. Void and Voidable Marriages even if they are capable (Chi Ming Tsoi vs CA, 266 SCRA 234
(1997)).
Art. 35. The following marriages shall be void from the Elements of Psychological Incapacity:
beginning: 1. Mental Disposition
(1) Those contracted by any party below eighteen years of 2. Applies to the person maritally contracted to another
age even with the consent of parents or guardians; 3. Marriage entered into with volition
(2) Those solemnized by any person not legally 4. Failure to perform or comply the essential marital obligations
authorized to perform marriages unless such 5. Such failure is chronic
marriages were contracted with either or both parties 6. Cause is serious and that there is juridical antecedence
believing in good faith that the solemnizing officer had 7. Incapacity results in failure in the marriage
the legal authority to do so;
(3) Those solemnized without license, except those Characteristics:
covered the preceding Chapter; 1. Gravity- severe enough to cause incapacity to comply with
(4) Those bigamous or polygamous marriages not failing essential marital obligations
under Article 41; 2. Juridical antecedence- incapacity must have existed before
∙ marriage contracted by a person whose spouse as marriage celebration, even if symptoms manifested after the
been absent for 4 years (ordinary) or 2 years ceremony
(extraordinary absence), where such person has a aell 3. Incurability- cure is not possible or beyond the means
founded belief that his/her absent spouse is already available to the parties
dead, and after the absent spouse s judicially declared
to be presumed dead. Jurisprudential Guidelines (Republic vs. CA and Molina, 26
(5) Those contracted through mistake of one contracting SCRA 198 (1997)):
party as to the identity of the other; and 1. Burden of proof to show incapacity belongs to the plaintiff.
(6) Those subsequent marriages that are void under 2. Root cause of psychological incapacity must be:
Article 53. a. medically or clinically identified
∙ provides that a person whose marriage has been b. alleged in the complaint
annulled may remarry as long as he complies with c. sufficiently proved by experts
Art 52 which requires that after the marriage is d. clearly explained in decision
annulled, the properties of the spouses must e 3. Such incapacity must be proven to be existing at the time of
partitioned and distributed and the presumptive the celebration of marriage.
legitimes of the children be distributed. Furthermore, 4. Such incapacity must be proven to be medically or clinically
the judgement of annulment or absolute nullity, the permanent or incurable.
partition and distribution of the spouses’ properties, 5. Such illness must be grave enough to bring about the
and the delivery of the children’s presumptive disability of the said party to perform the essential
legitimes must be recorded and in the appropriate obligations of marriage
civil registry and registries of property. Failure to 6. essential obligations of marriage must be those embraced by
comply with these requisites will make the Art. 68-71, 220, 221 and 225 FC.
subsequent marriage void ab initio. 7. Interpretations give by the National Appellate Matrimonial
Tribunal of he Catholic Church in the Philippines, while not
• Conditions mentioned in Art 35 apply even if marriage
controlling or decisive, should be given great respect by our
is solemnized outside the territorial jurisdiction of
courts.
15
8. The Trial Court must order the prosecuting attorney or fiscal ∙ scandalous and due to custom that parents-in-law treat
and the Solicitor General to appear as counsel for the state. their children in-law as their real children
Essential Marital Obligations- must be those embraced in Aricle ∙ (4) Between the adopting parent and the adopted child;
68 to 71 FC as regards to husband and wife and 220, 221 and ∙ adopted children are considered to be legitimate
225 for parents and children, children
• burden of proof to show nullity of marriage belongs to the ∙ (5) Between the surviving spouse of the adopting parent
plaintiff. and the adopted child;
• there shall be no awards of Moral Damages for ∙ relationship is more then between adopting parent and
Psychological Incapacity adopted child
Divorce vs. Legal Separation (6) Between the surviving spouse of the adopted child and
the adopter;
Divorce ∙ relationship is more than just between adopting parent
• cuts the marital bond between spouses and adopting child
• all the requisites for marriage are present
(7) Between an adopted child and a legitimate child of the
• reasons for the termination of the marital bond happen only adopter;
after the celebration of the marriage
(8) Between adopted children of the same adopter; and
Legal Separation
∙ they are considered to be legitimate siblings (par. 7 and
• all the requisites for marriage are present 8)
• reasons for the termination of the marital bond happen only
(9) Between parties where one, with the intention to marry
after the celebration of the marriage
the other, killed that other person’s spouse, or his or her own
• the marital bond is not severed between the spouses. spouse. (82
Art. 39. The action or defense for the declaration of absolute
nullity of a marriage shall not prescribe. (As amended by
Art. 37. Marriages between the following are incestuous and
Executive Order 227 and Republic Act No. 8533)
void from the beginning, whether relationship between the
parties be legitimate or illegitimate: • The phrase “However, in case of marriage celebrated before
(1) Between ascendants and descendants of any degree; the effectivity of this Code and falling under Article 36,
and such action or defense shall prescribe in ten years after this
(2) Between brothers and sisters, whether of the full or Code shall taken effect” has been deleted by Republic Act
half blood. (81a) No. 8533 [Approved February 23, 1998]).
∙ Full blood- same father and mother Art. 40. The absolute nullity of a previous marriage may be
invoked for purposes of remarriage on the basis solely of a
∙ Half blood- have the same mother but different father final judgment declaring such previous marriage void. (n)
or vice versa
∙ Nullity of the previous marriage must be sought for the
Art. 38. The following marriages shall be void from the purposes of remarriage is the sole basis for the freedom
beginning for reasons of public policy: of legal impediments of the previous marriage is the
final judgment declaring the previous marriage void.
(1) Between collateral blood relatives whether legitimate or Other than for remarriage, there is no need for judicial
illegitimate, up to the fourth civil degree; action to declare a marriage an absolute nullity.
∙ Collateral line is a series of degrees among persons who ∙ A marriage contracted without the final judgement
are not descendants or ascendants declaring nullity of the previous marriage shall be void
ab initio
∙ ascent is made to the common ancestor
∙ Applies to cases where previous marriage is void and
∙ (2) Between step-parents and step-children; one of the parties contracted a subsequent marriage.
∙ void due to being relatives by affinity ∙ Applies to remarriages during the effectivity of the
∙ (3) Between parents-in-law and children-in-law; Family Code, regardless of the date of the first marriage
16
∙ ∙ The mere reappearance of the absent spouse does not
Art. 41. A marriage contracted by any person during terminate the subsequent marriage. Only after the
subsistence of a previous marriage shall be null and void, recording of the affidavit of reappearance (can be filed
unless before the celebration of the subsequent marriage, the by anyone who is interested) by the Civil Registrar can
prior spouse had been absent for four consecutive years and the subsequent marriage be terminated automatically
the spouse present has a well-founded belief that the absent ∙ Affidavit must state the facts surrounding the
spouse was already dead. In case of disappearance where reappearance of the absentee spouse and it must be
there is danger of death under the circumstances set forth in recorded by the Local Civil Registrar where the spouse
the provisions of Article 391 of the Civil Code, an absence of resides
only two years shall be sufficient.
For the purpose of contracting the subsequent marriage
under the preceding paragraph the spouse present must Art. 43. The termination of the subsequent marriage
institute a summary proceeding as provided in this Code for referred to in the preceding Article shall produce the
the declaration of presumptive death of the absentee, without following effects:
prejudice to the effect of reappearance of the absent spouse. (1) The children of the subsequent marriage conceived
(83a) prior to its termination shall be considered legitimate;
General rule- any person who contracts a second or subsequent ∙ Custody and support of such children may be subject to
marriage before the former marriage has been legally dissolved the agreement between the spouses of the subsequent
or before the absent spouse has been declared as presumed dead marriage, or by a court in proper proceeding in case of
by means of a judgement rendered in the proper proceedings is dispute
guilty of bigamy (2) The absolute community of property or the conjugal
Exceptions are the conditions for the validity of a subsequent partnership, as the case may be, shall be dissolved and
bigamous marriage under Article 41: liquidated, but if either spouse contracted said
marriage in bad faith, his or her share of the net
1. Prior spouse of the contracting party must be absent for at profits of the community property or conjugal
least 4 years or, when there is danger of death during the partnership property shall be forfeited in favor of the
disappearance of the said spouse, 2 years. common children or, if there are none, the children of
2. The present spouse had a well-founded belief that the absent the guilty spouse by a previous marriage or in default
spouse is already dead of children, the innocent spouse;
3. There is a judicial declaration of the presumptive death of the (3) Donations by reason of marriage shall remain valid,
absent spouse for the purpose of the spouse present can except that if the donee contracted the marriage in
institute a summary proceding in court to ask for that bad faith, such donations made to said donee are
declaration. (under the Family Code, otherwise the revoked by operation of law;
subsequent marriage will be deemed void ab initio). (4) The innocent spouse may revoke the designation of the
∙ After obtaining the judicial declaration of the other spouse who acted in bad faith as beneficiary in
presumptive death of the absent spouse, the absentee any insurance policy, even if such designation be
spouse shall be presumed dead and the present spouse stipulated as irrevocable; and
may contract a subsequent marriage (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. 42. The subsequent marriage referred to in the
preceding Article shall be automatically terminated by the Art. 44. If both spouses of the subsequent marriage acted in
recording of the affidavit of reappearance of the absent bad faith, said marriage shall be void ab initio and all
spouse, unless there is a judgment annulling the previous donations by reason of marriage and testamentary
marriage or declaring it void ab initio. dispositions made by one in favor of the other are revoked by
operation of law. (n)
A sworn statement of the fact and circumstances of
reappearance shall be recorded in the civil registry of the Art. 45. A marriage may be annulled for any of the following
residence of the parties to the subsequent marriage at the causes, existing at the time of the marriage:
instance of any interested person, with due notice to the
spouses of the subsequent marriage and without prejudice to ∙ Voidable marriages are those that have defects in the
the fact of reappearance being judicially determined in case essential requisite. Such marriage will remain valid and
such fact is disputed. (n) produces valid civil effecs until it is set aside for final
judgement by a competent court in an action for
annulment.
17
∙ Annulment is the judicial or legal process of ∙ prescriptive period is: for (1) before the party (from
invalidating a voidable marriage. whom no parental consent was given) reaches 21; for
∙ Characteristics of voidable marriage (2) is five years after reaching 21
∙ valid until otherwise declared by court ∙ It is subject to ratification. In this case if the party
whose parent did not give consent, after reaching 21,
∙ defect which serves as ground for annulment must be freely cohabits with the other as husband and wife
present during the celebration of the marriage (2) That either party was of unsound mind, unless such
∙ cannot be assailed collaterally except by direct party after coming to reason, freely cohabited with the
proceeding other as husband and wife;
∙ can only be assailed during the lifetime of either party ∙ Mental incapacity must be related specifically to the
contract of marriage, the party at the time of marriage
∙ only parties to the marriage can assail it was capable of understanding the nature and
∙ action for annulment is subject to prescription consequences of the marriage, and the insanity must
have existed at the time of the marriage
∙ defect is subject to ratification except for ground in par.
5 and 6 of Art. 45 ∙ Sanity is presumed in absence of proof for insanity. The
burden of proof rests upon the party alleging insanity
∙ prescription period- period of time allowed to file
and seeks to avoid an act on account of it, and there
action for annulment must be a preponderance of evidence.
∙ Ratifiation is the act or virtue of which efficacy is given ∙ The people who may file for annulment are (1) any
to a contract which suffers from the vice of curable relative or guardian or person having legal charge over
nullity. Ratification extinguishes the action to annul a the insane and (2) the insane spouse during the period
voidable contract of lucidity or regained sanity
∙ For ratification to be effective it must satisfy the ∙ Prescription period- before the death of either party
following requisites:
∙ It can be ratified only by the insane person during a
∙ Contract is tainted with a vice that is susceptible to
lucid interval by freely cohabiting with the other spouse
being cured as husband and wife
∙ Ratification is effected by the person who is entitled to (3) That the consent of either party was obtained by
do it under law fraud, unless such party afterwards, with full
∙ Effected with the knowledge of the vice or defect of the knowledge of the facts constituting the fraud, freely
cohabited with the other as husband and wife;
contract
∙ Cause of the nullity or defect should have already
∙ Fraud- refers to the non-disclosure of or concealment of
some facts deemed material to marital obligation
disappeared
(1) That the party in whose behalf it is sought to have the ∙ The following constituted fraud (and the grounds for
marriage annulled was eighteen years of age or over annulment):
but below twenty-one, and the marriage was ∙ Non-disclosure of previous conviction
solemnized without the consent of the parents,
guardian or person having substitute parental ∙ There must be conviction by final judgement
authority over the party, in that order, unless after ∙ Crime must involve moral turpitude (contrary to justice,
attaining the age of twenty-one, such party freely honesty, modesty and good morals)
cohabited with the other and both lived together as
husband and wife; ∙ Concealment of pregnancy
∙ parental consent is required to be given by ‘father, ∙ Concealment of such fact during the time of the
mother, surviving parent or guardian or persons with marriage ceremony
legal charge’ ∙ Bride not aware she was pregnant or groom was aware
∙ action for annulment may be filed by (1) contracting she was pregnant is not fraud
party whose parental consent is required (only in cases ∙ Concealment of sexually transmitted diseases
where said party which has not reached 21) or (2) by
∙ If it is incurable
the party whose parent did not give consent (only in
cases where said party has already reached 21) ∙ Curable but concealed by the afflicted party during the
time of the marriage
18
∙ Party afflicted was not aware that they has STD, no ∙ Barrenness or sterility (inability to procreate),
fraud impotence (physical inability o perform sexual
∙ Concealment of Drug Addiction, Habitual Alcoholism, intercourse), sexual frigidity or weakness, are not
grounds for annulment
Homosexuality or Lesbianism
∙ If not concealed, no fraud exists ∙ Potency is presumed and the burden of proof to prove
impotence rests upon the party alleging the existence of
∙ Not a ground for legal separation in the case of the such condition
latter since causes or grounds must exist after the
∙ The following are the requisites in order that such
marriage.
incapacity be a ground for annulment:
∙ Condonation of these acts is a defense for legal
∙ Incapacity existed at the time of the marriage
separation
celebration
∙ Only the injured party can file for annulment
∙ Continues up to the time of filing for annulment
∙ Prescriptive period is five years after discovery of the
∙ Appears to be incurable
fraud
∙ It can be ratified only by the injured party by freely ∙ Must be unknown to the other party
cohabiting with the other spouse as husband and wife ∙ Only the injured party may file for annulment
after gaining full knowledge of the facts concerning the ∙ Prescription period must be five years after the
fraud celebration of marriage
(4) That the consent of either party was obtained by
force, intimidation or undue influence, unless the same ∙ It cannot be ratified due to the complete failure of the
having disappeared or ceased, such party thereafter consideration of the contract of marriage (gratification
freely cohabited with the other as husband and wife; of sexual desire)
(6) That either party was afflicted with a sexually-
∙ There is violence when serious and irresistible force
transmissible disease found to be serious and appears
was used in order to obtain consent. There is to be incurable. (85a)
intimidation when one of the parties was compelled by
reasonable and well grounded fear against his person or ∙ The grounds is not the concealment but the existed of
property or his spouse’s, descendants’ and ascendants’ the STD that is serious and incurable, and the other
person or property to obtain consent. party was not aware of the existence of such disease
∙ Requisites by which duress (force and intimidation) ∙ The requisites for the validity of the grounds for
may vitiate consent and render the contract voidable: annulment:
∙ It must be the determining cause of the contract ∙ STD must have existed at the time of the marriage
celebration
∙ It must be unjust
∙ It is found to be serious
∙ It must be serious or grave
∙ It is appears to be incurable
∙ It must produced reasonable and well-grounded fear
that the person from whom such fear came has the ∙ It must be unknown to the other party at the time of the
necessary means to inflict threatened injury marriage
∙ Action for annulment may be filed by injured party or ∙ The party who is not afflicted with the STD and not
the party that was subject to duress. aware of its existence is the only one allowed to file for
annulment
∙ Prescriptive period- five years from the time force was
used ∙ Prescriptive period is five years after the celebration of
the marriage
∙ It can be ratified only by the injured party by freely
cohabiting with the guilty spouse as husband and wife ∙ It cannot be ratified but action for annulment can be
(5) That either party was physically incapable of barred by prescription
consummating the marriage with the other, and such
incapacity continues and appears to be incurable; or Art. 46. Any of the following circumstances shall constitute
∙ Physical incapacity for marriage imports total want of fraud referred to in Number 3 of the preceding Article:
power for copulation and only necessary incident (1) Non-disclosure of a previous conviction by final
thereto the ability for procreation. Copulate means the judgment of the other party of a crime involving
act of gratification of sexual desire by means of the moral turpitude;
union of two biological organs
19
(2) Concealment by the wife of the fact that at the time of provided to in Title IX. It shall also provide for appropriate
the marriage, she was pregnant by a man other than visitation rights of the other parent. (n)
her husband;
(3) Concealment of sexually transmissible disease, ∙ The procedure governing the declaration of absolute
regardless of its nature, existing at the time of the nullity of void marriages or annulment of marriages is
marriage; or now governed by A.M 02-11-10-SC and 02-11-12-SC
(4) Concealment of drug addiction, habitual alcoholism ∙ Family courts have exclusive Jurisdiction to hear and
or homosexuality or lesbianism existing at the time of decide complaints for annulment and declaration of
the marriage. nullity of marriage
No other misrepresentation or deceit as to character, health,
rank, fortune or chastity shall constitute such fraud as will ∙ Venue for petition must be the Family Court where the
give grounds for action for the annulment of marriage. (86a) petitioner or respondent has been residing for at least 6
months prior to the date of filing, or where he may be
Art. 47. The action for annulment of marriage must be filed found in the Philippines if party is a foreigner
by the following persons and within the periods indicated
herein:
∙ The Contents and form of the petition
∙ Petition shall contain complete facts constituting course
(1) For causes mentioned in number 1 of Article 45 by the
of action. In cases of Art 36, petitioner must specifically
party whose parent or guardian did not give his or her
allege the complete facts showing that either or both
consent, within five years after attaining the age of
parties were psychologically incapacitated from
twenty-one, or by the parent or guardian or person
performing the essential obligations of marriage at the
having legal charge of the minor, at any time before
time of the marriage celebration.
such party has reached the age of twenty-one;
(2) For causes mentioned in number 2 of Article 45, by ∙ Must contain the names and ages of the common
the same spouse, who had no knowledge of the other’s children of the parties and the regime governing their
insanity; or by any relative or guardian or person property relations. If there is no adequate agreement
having legal charge of the insane, at any time before between the parties, the petitioner may apply for a
the death of either party, or by the insane spouse provisional order for spousal support, custody and
during a lucid interval or after regaining sanity; support of common children, visitation rights,
(3) For causes mentioned in number 3 of Article 45, by administration of common or conjugal property and
the injured party, within five years after the discovery oher matters requiring urgent attention
of the fraud; ∙ Petition must be verified (be signed personally by
(4) For causes mentioned in number 4 of Article 45, by petitioner) and accompanied by a certification against
the injured party, within five years from the time the forum shopping (can be authenticated by a consul
force, intimidation or undue influence disappeared or general, vice-consul, consul or consular agent if the
ceased; petitioner is in another country
(5) For causes mentioned in number 5 and 6 of Article 45,
by the injured party, within five years after the ∙ Shall be filed in 6 copies, where a copy shall be served
marriage. (87a) to the OSG, Office of the City or Provincial Prosecutor,
within five days from the date of filing and and submit
Art. 48. In all cases of annulment or declaration of absolute to the court proof of such service within the same
nullity of marriage, the Court shall order the prosecuting period. Failure to comply with this may be a ground for
attorney or fiscal assigned to it to appear on behalf of the the dismissal of the petition
State to take steps to prevent collusion between the parties ∙ The service of summons shall be governed by Rule 14
and to take care that evidence is not fabricated or of the Rules of Court. If the respondent cannot be
suppressed. located, the service of summons shall be served to him
In the cases referred to in the preceding paragraph, no via publication of once a week for 2 weeks of the
judgment shall be based upon a stipulation of facts or summons in a newspaper of general circulation in the
confession of judgment. (88a) Philippines, a copy shall also be sent to the last known
address of the petitioner via registered mail or means
Art. 49. During the pendency of the action and in the absence deemed fit by the Court.
of adequate provisions in a written agreement between the
spouses, the Court shall provide for the support of the ∙ The contents of the newspaper publication shall be: 1)
spouses and the custody and support of their common title of the case, 2) docket number, 3) nature of the
children. The Court shall give paramount consideration to petition, 4) principal grounds for the petition and reliefs
the moral and material welfare of said children and their prayed for, 5) a directive for the respondent to answer
choice of the parent with whom they wish to remain as within 30 days from the last issue of publication
20
∙ When no answer is filed or the answer does not tender ∙ Failure to comply with Art 50 and 51 shall render the
an issue, the court shall order the public prosecutor to subsequent marriage null and void
investigate whether collusion exists between the parties, ∙ Decree shall be issued after compliance with the
and shall submit such report (noting if there is collusion following requisites
or none) within one month following the receipt of such
order and shall furnish copies for the parties and their ∙ Registration of entry of judgment in the Local Civil
counsel. Registry where the marriage was recorded and the Fam.
Court granting the petition
∙ The parties shall file their comments on the finding
collusion within 10 days from receipt of report. The ∙ Registration of approved partition and distribution of
court shall set the report for hearing and shall dismiss properties of the spouses in the Registry of Deeds
the petition if it is found that there was collusion where property is located
∙ If there is no collusion, then the court shall set the case ∙ Delivery of Childrens presumptive legitimes in cash,
for pre-trial. It shall be the duty of the Public Prosecutor property or sound securities
to appear on behalf of the State on the pre-trial. ∙ The court shall quote in the decree the dispositive
∙ If petitioner fails to appear during the pre-trial, the case portion of the judgment entered and attach the decree of
shall be dismissed unless his counsel or representative approved partition of property
appears and provides a valid excuse for the petitioner’s ∙ The court shall order the LCR to issue new birth
absence. If the respondent files his answer but fails to certificates indicating the new status of the children,
appear, the pre-trial shall continue and the prosecutor except in cases of Art. 36 an 53
shall investigate the non-appearance of the respondent
∙ The prevailing party shall cause the registration of the
∙ The court shall not allows compromise on prohibited Decree in the Local Civil Registry where the marriage
matters such as: 1) civil status of persons, 2) The was recorded and the Fam. Court granting the petition,
validity of the marriage or of a legal separation, 3) any and in the NSO. They shall report compliance within 30
ground for legal separation, 4) future support, days from the receip of the copy of the decree. Failure
5)jurisdiction of courts, and 6) future legitimes to register the decree shall render the subsequent
∙ If the court grants the petition, it shall declare the marriage null and void
decree of absolute nullity or annulment be issued only ∙ If the party dies before entry of judgment, the court
after compliance of Art. 50 and 51. The parties shall have the case closed and terminated, without
including the OSG and the public prosecutor shall be prejudice to the settlement of the estate in proper
served copies of decision personally or by registered proceedings in regular courts. Void marriages can still
mail. If respondent summoned via newspaper did not be assailed after the death of either party/ If the party
appear, the dispositive part of the decision shall be dies after the entry of judgment, the judgment shall be
published once in a newspaper of gen. circ. binding upon the parties and their successors in the
∙ Decision becomes final and executory upon 15 days interest in the settlement of the estate in a regular court
from the notice to the parties. Entry of judgment shall ∙ Upon receipt of a verified petition, the court may issue
be made if there is no motion for reconsideration or provisional remedies or protection order with or
new trial, or appeal is filed by any of the parties, the without hearings, and may be enforced immediately
pub. pros, OSG. The Court shall issue the with or without a bond for a period of time the court
corresponding decree if the parties have no property. If deems necessary
they have, then the rules of Liquidation, Partition and
Distribution of Properties shall be observed. Entry of ∙ In determining spousal support, the courts may be
Judgment shall be made in the Local Civil Registry guided by:
where the marriage was recorded and the Fam. Court ∙ In absence of written agreement, the support shall be
granting the petition. provided from the property of absolute community or
∙ No appeal shall be made unless the parties, the pub. conjugal relationship
pros, OSG has filed a motion for reconsideration within ∙ Based on the standard of living of either parties, the
15 days from notice of judgment. Appeal shall be made court may award support in such amount of time and
by filing of a notice of Appeal within 15 days amount as deemed fit
∙ Upon receipt of petition, the Family Court shall proceed ∙ Or based on the following factors:
with the Liquidation, Partition and Distribution of
Properties, including custody, common children support
∙ Custodian of child and not able to seek employment
and deliverance of presumptive legitimes pursuant to ∙ Time for education and training for spouse to seek
Art 50 and 51. employment
21
∙ Duration of marriage ∙ Oldest brother or sister over 21 years of age, unless
∙ Comparative resources and earning capacity of the unfit or disqualified
spouses ∙ To any other person deemed by the court suitable to
∙ Needs and obligations of each spouse provide proper care and guidance
∙ Contribution of each spouse to the marriage, including ∙ Visitation Rights

services rendered ∙ May be awarded to the parent who was not awarded
∙ Age and health of spouses provisional custody unless court declares it unfit or
disqualified by the court
∙ Physical and emotional conditions of each spouse
∙ Hold Departure Order
∙ Any other factor deemed by the court to be just and
∙ Psnding resolution, no child may be brought out of the
equitable
country without prior order from the court, and may
∙ The Family Court may direct the deduction of issue under moto proprio or under application of oath
provisional support from the salary of the spouse. ex-parte a hold departure order address to
∙ Child Support shall be provided from the property of BImmigDeport of DoJ, directing not to allow the
absolute community or conjugal relationship or based departure of the child without permission of court. Such
on the following factors” order shall be furnished to BID and DFA within 24
hours from issuance using the fastest means available
∙ Financial resources of the parents and of the child
∙ Shall contain:
∙ Physical, emotional health, and special needs and
aptitudes of the child ∙ the name, place of birth, and last place of residence of
person against whom the hold departure order is issued,
∙ Standard of living the child is accustomed to
∙ complete title and docket number of the case in which
∙ Non-monetary contributions that the parent will make the hold departure order was issued
toward the care and well being of the child
∙ specific nature of the case
∙ Child Custody hall be based on what the court deems fit
taking into consideration the health, best interests and ∙ date of hold departure order
well being of the child. Or it may be based on ∙ If availablee a recent photograph of the person
∙ Agreement between the parties, ∙ The court can recall the order moto proprio or upon
∙ Desire and ability of the parent to foster a loving and verification of any of the parties after summary hearing,
open relationship between parent and child subject to conditions for the best interest of the child
∙ Child’s health, saferty and welfare, ∙ Order of Protection
∙ History of child and spousal abuse ∙ May be issued against any person by the Court
∙ Nature and frequency of contact between both parties ∙ Administration of Common Property
∙ Habitual use of alcohol or regulated substances ∙ If a spouse without just cause abandons the other or
fails to comply with the obligations to his/her family,
∙ Marital misconduct the court may, upon the application of the aggrieved
∙ Most suitable physical, emotional, spiritual party, to issue a provisional order appointing the
psychological or educational environment applicant or a third person as a receiver or sole
administrator of the common property subject to the
∙ Preference of child if over 7 years of age and has
precautionary conditions it may impose
sufficient discernment, unless chosen parent is unfit
Art. 50. The effects provided for by paragraphs (2), (3), (4)
∙ Provisional custody may be awarded to:
and (5) of Article 43 and by Article 44 shall also apply in the
∙ Both parents jointly proper cases to marriages which are declared ab initio or
∙ Either parent taking into consideration under foregoing annulled by final judgment under Articles 40 and 45.
paragraph, especially choice of child if over 7 years of The final judgment in such cases shall provide for the
age and has sufficient discernment, unless chosen liquidation, partition and distribution of the properties of the
parent is unfit spouses, the custody and support of the common children,
∙ Surviving grandparent, or preference of child if over 7 and the delivery of third presumptive legitimes, unless such
matters had been adjudicated in previous judicial
years of age and has sufficient discernment, unless
proceedings.
chosen grandparent is unfit
22
All creditors of the spouses as well as of the absolute ∙ On the matter of right to inherit, if marriage is declared
community or the conjugal partnership shall be notified of void, the parties have no right to be the legal heir to
the proceedings for liquidation. In the partition, the conjugal each other except when they are collateral blood
dwelling and the lot on which it is situated, shall be relatives within the 5th civil degree. However, if
adjudicated in accordance with the provisions of Articles 102 marriage is declared void under Art. 40, then the
and 129. provisions of Art. 43, par. 5 apply. If spouse contracted
∙ The General rule is that if the marriage is void ab initio, marriage in bad faith, then he/she shall be disqualified
from inheriting from the innocent spouse by testate and
then it is ipso facto void without need for any judicial
intestate succession. If marriage is void under Art 44,
declaration (needed only in cases for remarriage)
testamentary dispositions are revoked under operation
∙ Judicial declaration of nullity of marriage retroacts to of law.
the date of the marriage celebration insofar as the Art. 51. In said partition, the value of the presumptive
vindicum between the spouses. legitimes of all common children, computed as of the date of
the final judgment of the trial court, shall be delivered in
∙ Children born outside a valid marriage are illegitimate, cash, property or sound securities, unless the parties, by
unless the law itself gives them legitimate status as in mutual agreement judicially approved, had already provided
cases of Art 36 and 53 which gives the children for such matters.
legitimate status. Article 54 also provides exception to
children born under Article 36. They shall be under the The children or their guardian or the trustee of their
parental authority of their mother, even if the father property may ask for the enforcement of the judgment.
admits paternity. The delivery of the presumptive legitimes herein prescribed
shall in no way prejudice the ultimate successional rights of
∙ One of the effects of the declaration of nullity of the children accruing upon the death of either of both of the
marriage is the separation of the property of the spouses parents; but the value of the properties already received
according to the applicable property regime. In a void under the decree of annulment or absolute nullity shall be
marriage, the property relation of either parties during considered as advances on their legitime. (n)
the period of cohabitation is governed by the provisions
under 137 and 138, as the case may be. In the ∙ Decree for declaration of absolute nullity or annulment
liquidation and partition of the property owned in of marriage shall not be issued unless these
common by the parties in a void marriage, the requirements following are complied with. Failure to
provisions on co-ownership under the NCC applies, not comply with these requirements shall render the
Art. 50-52 in relation to 102 and 129 FC. Article 50 subsequent marriage null and void, partition and
makes explicit terms to the applicability of provisions distribution of the properties of marriage shall not affect
under Art. 43 par. 2 to avoid marriages under Art. 40. third persons
∙ For donations propter nuptias, if the marriage is o Registration of the entry of judgement granting
declared judicially void ab initio, the donor may revoke the petition for declaration of absolute nullity
the donation. However, if the donation was made in the or annulment of marriage in the Civil Registrar
marriage settlement, then the same shall be void if the where the Family Court is located
marriage is declared voud ab initio. If the marriage is o Registration of the approved petition and
declared void under Art. 40 (declaration of
distribution of the properties of the spouses., in
nullitysubsequent marriage contracted by a spouse of a
the proper Registry of Deeds where the
prior valid marriage before the latter is declared
properties are located.
judicially void), then the provisions under Art. 43 par. 2
apply on this case. If the marriage is void under Art. 44 o Delivery of the children’s presumptive
(both spouses acted in bad faith), then all the donations legitimes in cash, property or sound securities/
shall be revoked by operation of law.
∙ Under the Insurance Code, the beneficiary designated

cannot be changed if the policy declares it as
irrevocable. However, if marriage is declared void
under Art. 40, then the provisions of Art. 43, par. 3
apply, hence the insured can revoke the rights of the
beneficiary even if it is irrevocable.
23
∙ After the forementioned requirements have been • same is true if physical violence is in the form of an
attempt on the life of the petitioner
complied, the prevailing party shall be entitled to issue
- psychological, sexual and repeated verbal abuse also fall
a Decree for declaration of absolute nullity or
under grossly abuse conduct
annulment of marriage. He/she is required however to
- sexual violence are acts which are sexual in nature,
cause the registration of the Decree in the Local Civil
committed against the women or children
Registrar where the marriage was celebrated, where the
(2) Physical violence or moral pressure to compel the
Family Court is located, and on the National Census
petitioner to change religious or political affiliation;
and Statistics Office. The registered decree shall be the
• must be directed against the petitioner
best proof for the declaration of absolute nullity or
(3) Attempt of respondent to corrupt or induce the
annulment of marriage.
petitioner, a common child, or a child of the petitioner,
∙ If the children were born before the judgement becomes to engage in prostitution, or connivance in such
final and executory, declaring the marriage null and corruption or inducement;
void, they are legitimate. Children born of void (4) Final judgment sentencing the respondent to
marriages are illegitimate except in Article 53 and 36, imprisonment of more than six years, even if
where they are considered legitimate. The Family Court pardoned;
shall order the Local Civil Registrar to issue an (5) Drug addiction or habitual alcoholism of the
amended birth certificate showing the new status of the respondent;
children, except as mentioned in Art. 53 and 36. • must not be concealed and must have existed after the
celebration of the marriage
Art. 52. The judgment of annulment or of absolute nullity of (6) Lesbianism or homosexuality of the respondent;
the marriage, the partition and distribution of the properties • must not be concealed and must have existed after the
of the spouses and the delivery of the children’s presumptive celebration of the marriage
legitimes shall be recorded in the appropriate civil registry (7) Contracting by the respondent of a subsequent
and registries of property; otherwise, the same shall not bigamous marriage, whether in the Philippines or
affect third persons. (n) abroad;
Art. 53. Either of the former spouses may marry again after • remedy of the spouse in the prior marriage
compliance with the requirements of the immediately (8) Sexual infidelity or perversion;
preceding Article; otherwise, the subsequent marriage shall • must be in the form of adultery (wife) or concubinage
be null and void. (husband)
• under Civil Code concubinage must either 1) keep the
Art. 54. Children conceived or born before the judgment of mistress in the conjugal dwelling, 2) have sexual
annulment or absolute nullity of the marriage under Article intercourse, under scandalous circumstances, with a
36 has become final and executory shall be considered woman who is not his wife, 3) cohabit with her under any
legitimate. Children conceived or born of the subsequent place. Adultery in this case only a single act of sexual
marriage under Article 53 shall likewise be legitimate. intercourse by a wife with another man not her husband.
However Article 55, Sec 8 now allows for legal
TITLE II separation solely on a single act of sexual intercourse by
either spouse as sexual infidelity
LEGAL SEPARATION • perversion unusual or abnormal sexual practices which
Legal Separation- legal remedy available to parties in a valid but may be offensive to the feelings or decency of either
failed marriage for the purpose of obtaining a decree from the husband or wife. Usage of physical force, harm or
court entitling them to certain reliefs such as living separately intimidation against the wife also falls or constitutes a
from each other. crime under R.A. 9262
(9) Attempt by the respondent against the life of the
Legal Separation does not sever the marriage bond unlike
petitioner; or
annulment and divorce, the reasons for separation happen after
• required is the intent to kill
the marriage like that of divorce. In annulment, the reasons exist
(10) Abandonment of petitioner by respondent without
during the celebration of the marriage
justifiable cause for more than one year.
• voluntary separating from one another with no intent of
returning to live together as husband and wife, and must
Art. 55. A petition for legal separation may be filed on any of
be 1) under unjustifiable cause, 2) must be for more than
the following grounds:
1 year
(1) Repeated physical violence or grossly abusive conduct
directed against the petitioner, a common child, or a
child of the petitioner;
24
For purposes of this Article, the term “child” shall include a Art. 60. No decree of legal separation shall be based upon a
child by nature or by adoption. (9a) stipulation of facts or a confession of judgment.
In any case, the Court shall order the prosecuting attorney
Art. 56. The petition for legal separation shall be denied on
or fiscal assigned to it to take steps to prevent collusion
any of the following grounds:
between the parties and to take care that the evidence is not
(1) Where the aggrieved party has condoned the offense fabricated or suppressed. (101a)
or act complained of;
• conditional forgiveness or remission of one spouse of ∙ based on the fact of that the institution of marriage is
the matrimonial spouse of the other sacred and that marriage is more than a mere contract
• cohabitation as husband and wife, after the commission between parties
of the offense, with knowledge or belief on the part of
injured party, will amount to conclusive evidence to
∙ Confession of judgement takes place when the
cohabition defendant appears in court and confesses the right of
(2) Where the aggrieved party has consented to the the plaintiff to judgement or files a pleading expressly
commission of the offense or act complained of; agreeing to the plaintiff’s demand
• agreement or conformity of one party to the ∙ When no answer is filed by the respondent in a legal
commission of the act which would be a ground for legal separation case, the prosecuting attorney shall take
separation steps to prevent collusion between parties, and to see to
(3) Where there is connivance between the parties in the it that the evidence is not fabricated or suppressed,
commission of the offense or act constituting the which must be done within one month following the
ground for legal separation; receipt of such order and shall furnish copies for the
• agreement of both parties to the commission of the act parties and their counsel. The parties shall file their
which would be a ground for legal separation comments on the finding collusion within 10 days from
• must be in the act of mind before the commission of the receipt of report. The court shall set the report for
marital offense hearing and shall dismiss the petition if it is found that
(4) Where both parties have given ground for legal there was collusion. If there is no collusion, then the
separation; court shall set the case for pre-trial. It shall be the duty
• the petition for legal separation must be dismissed of the Public Prosecutor to appear on behalf of the State
on the pre-trial.
(5) Where there is collusion between the parties to obtain
decree of legal separation; or
• agreement between husband and wife to commit, or to Art. 61. After the filing of the petition for legal separation,
be represented in court to have committed, for the the spouses shall be entitled to live separately from each
purpose of obtaining of a divorce or legal separation other.
(6) Where the action is barred by prescription. (100a) The court, in the absence of a written agreement between the
• within five years from the time of the occurance of the spouses, shall designate either of them or a third person to
cause, otherwise prescription is barred administer the absolute community or conjugal partnership
property. The administrator appointed by the court shall
Death shall cause the case to be closed and terminated have the same powers and duties as those of a guardian
without prejudice to the settlement of the estate proper under the Rules of Court. (104a)
proceedings in the regular courts.
Art. 57. An action for legal separation shall be filed within Art. 62. During the pendency of the action for legal
five years from the time of the occurrence of the cause. (102) separation, the provisions of Article 49 shall likewise apply to
the support of the spouses and the custody and support of
Art. 58. An action for legal separation shall in no case be the common children. (105a)
tried before six months shall have elapsed since the filing of
the petition. (103) ∙ The Court the court may issue provisional remedies or
protection order with or without hearings, and may be
∙ refers to the cooling period in order for the court to take enforced immediately with or without a bond for a
steps to have the parties reconcile. The court shall period of time the court deems necessary, similar to
remain passive and is precluded from hearing the suit what is mentioned in Article 49.
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. (n)
25
Art. 63. The decree of legal separation shall have the with the court in the same proceeding for legal separation.
following effects: (n)
(1) The spouses shall be entitled to live separately from
each other, but the marriage bonds shall not be ∙ While proceeding is pending, proceeding is terminated
severed; ∙ After granting petition but before issuance, the court
(2) The absolute community or the conjugal partnership shall immediately issue a decree of Reconciliation
shall be dissolved and liquidated but the offending declaring the proceeding set aside and specifying the
spouse shall have no right to any share of the net revival of the previous property regime
profits earned by the absolute community or the
∙ Spouses are entitled to join custody of children
conjugal partnership, which shall be forfeited in
accordance with the provisions of Article 43(2); ∙ Spouses are entitled to inherit by intestate
(3) The custody of the minor children shall be awarded to ∙ Provisions in the will favoring the innocent spouse shall
the innocent spouse, subject to the provisions of be revived automatically
Article 213 of this Code; and
∙ Revocation of donation shall not be set aside
∙ Shall be the parent designated by the Court, based on
all the relevant considerations, especially the child’s ∙ Separation of property and any forfeiture in favor of the
choices when >7 y.o., unless chosen parent is unfit guilty pouse already effected shall subsist unless parties
agree to revive their old property regime
∙ No child under 7 y.o. shall be separated from the
mother unless he court finds a compelling reason for
such Art. 66. The reconciliation referred to in the preceding
Articles shall have the following consequences:
(4) The offending spouse shall be disqualified from (1) The legal separation proceedings, if still pending, shall
inheriting from the innocent spouse by intestate thereby be terminated at whatever stage; and
succession. Moreover, provisions in favor of the (2) The final decree of legal separation shall be set aside,
offending spouse made in the will of the innocent but the separation of property and any forfeiture of
spouse shall be revoked by operation of law. (106a) the share of the guilty spouse already effected shall
∙ Does not affect validity of donations propter nuptias by subsist, unless the spouses agree to revive their former
innocent spouse in favor of the offender spouse property regime.
∙ Mutual support between spouses ceases upon finality of The court’s order containing the foregoing shall be recorded
decree for legal separation. The court may however in the proper civil registries. (108a)
order the guilty spouse to provide support for the
innocent spouse. Art. 67. The agreement to revive the former property regime
referred to in the preceding Article shall be executed under
∙ Surname will remain the same oath and shall specify:
(1) The properties to be contributed anew to the restored
Art. 64. After the finality of the decree of legal separation, regime;
the innocent spouse may revoke the donations made by him (2) Those to be retained as separated properties of each
or by her in favor of the offending spouse, as well as the spouse; and
designation of the latter as beneficiary in any insurance (3) The names of all their known creditors, their
policy, even if such designation be stipulated as irrevocable. addresses and the amounts owing to each.
The revocation of the donations shall be recorded in the The agreement of revival and the motion for its approval
registries of property in the places where the properties are shall be filed with the court in the same proceeding for legal
located. Alienations, liens and encumbrances registered in separation, with copies of both furnished to the creditors
good faith before the recording of the complaint for named therein. After due hearing, the court shall, in its
revocation in the registries of property shall be respected. order, take measure to protect the interest of creditors and
The revocation of or change in the designation of the such order shall be recorded in the proper registries of
insurance beneficiary shall take effect upon written properties.
notification thereof to the insured.
The recording of the ordering in the registries of property
The action to revoke the donation under this Article must be shall not prejudice any creditor not listed or not notified,
brought within five years from the time the decree of legal unless the debtor-spouse has sufficient separate properties to
separation become final. (107a) satisfy the creditor’s claim. (195a, 108a)
Art. 65. If the spouses should reconcile, a corresponding joint
manifestation under oath duly signed by them shall be filed
26
TITLE III Art. 72. When one of the spouses neglects his or her duties to
the conjugal union or commits acts which tend to bring
RIGHTS AND OBLIGATIONS BETWEEN HUSBAND danger, dishonor or injury to the other or to the family, the
AND WIFE aggrieved party may apply to the court for relief. (116a)
Art. 68. The husband and wife are obliged to live together,
observe mutual love, respect and fidelity, and render mutual
∙ When spouse leaves conjugal dwelling:
help and support. (109a) ∙ Our laws have no provision to compel the wife to live
with the husband. However the husband may avail of
∙ Cohabitation or living together as husband and wife is a the option under Article 198 FC. As such, the husband
basic ground rule for marriage. It is the public can cut the support of his wife if she refuses to live with
assumption that they live together as husband and wife him without just cause and without any moral or legal
∙ It also includes the right to sexual intimacy from the obstacle
other spouse, as one of the essential marital obligations ∙ If there is no intent to return, then the remaining spouse
is the procreation of children through sexual may petition the court for receivership wherein there
cooperation. If they are legally separated, the husband will be judicial separation of property or the remaining
can be sued for rape if he attempts to make his wife spouse shall be the sole administrator of the conjugal
submit to him property
∙ When spouse commits acts of sexual infidelity
Art. 69. The husband and wife shall fix the family domicile. ∙ May be a ground for legal separation, as well as
In case of disagreement, the court shall decide. grounds for criminal liability of concubinage or
The court may exempt one spouse from living with the other adultery. The aggrieved spouse may also ask the court
if the latter should live abroad or there are other valid and for injunction to stop the other spouse from further
compelling reasons for the exemption. However, such disposition of property aside from judicial separation of
exemption shall not apply if the same is not compatible with property or the remaining spouse shall be the sole
the solidarity of the family. (110a) administrator of the conjugal property (in cases where a
philandering spouse squanders the family property)
∙ The spouse who refuses to live with the other without ∙ When spouse sells conjugal or community property
just cause is not entitled to separate maintenance or without the other’s consent
support
∙ The aggrieved spouse may also ask the court for
injunction to stop the other spouse from further
Art. 70. The spouses are jointly responsible for the support of disposition of property without the other’s consent
the family. The expenses for such support and other conjugal aside from receivership for the judicial separation of
obligations shall be paid from the community property and, property or for the remaining spouse to be the sole
in the absence thereof, from the income or fruits of their administrator of the conjugal property
separate properties. In case of insufficiency or absence of ∙ When spouse commits violation of R.A. 9262
said income or fruits, such obligations shall be satisfied from
the separate properties. (111a)
∙ The wife may obtain protection orders from the
barangay or the court to prevent further violent acts
∙ Expenses of the family are chargeable with the against her, her children and to provide other reliefs
following: under Article 8 of RA. 9262 or the “Anti-Violence
against Women and Their Children Act of 2004”
∙ community property and, in the absence thereof,
∙ the income or fruits of their separate properties
Art. 73. Either spouse may exercise any legitimate
∙ the separate properties of the spouses profession, occupation, business or activity without the
∙ Expenses of the family are to be managed by both consent of the other. The latter may object only on valid,
husband and wife based on the FC serious, and moral grounds.
In case of disagreement, the court shall decide whether or

Art. 71. The management of the household shall be the right not:
and the duty of both spouses. The expenses for such (1) The objection is proper; and
management shall be paid in accordance with the provisions
of Article 70. (115a) (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
27
against the separate property of the spouse who has not Art. 76. In order that any modification in the marriage
obtained consent. settlements may be valid, it must be made before the
celebration of the marriage, subject to the provisions of
The foregoing provisions shall not prejudice the rights of
Articles 66, 67, 128, 135 and 136. (121)
creditors who acted in good faith. (117a)
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)
TITLE IV Art. 78. A minor who according to law may contract
marriage may also execute his or her marriage settlements,
PROPERTY RELATIONS BETWEEN HUSBAND AND but they shall be valid only if the persons designated in
WIFE Article 14 to give consent to the marriage are made parties to
the agreement, subject to the provisions of Title IX of this
Chapter 1. General Provisions Code. (120a)
Art. 79. For the validity of any marriage settlement executed
Art. 74. The property relationship between husband and wife by a person upon whom a sentence of civil interdiction has
shall be governed in the following order: been pronounced or who is subject to any other disability, it
shall be indispensable for the guardian appointed by a
(1) By marriage settlements executed before the
competent court to be made a party thereto. (123a)
marriage;
(2) By the provisions of this Code; and ∙ A marriage settlement or ante nuptial contract is a
(3) By the local custom. (118)
contract which is entered into before, but in
consideration and contemplation of marriage, where the
∙ The law allows the spouses to fix their property property relations of marriage are fixed and determined.
relations during the marriage through a device known ∙ The marriage settlement itself or its modifications
as marriage settlement subject only to the condition that
thereto must be made prior to the celebration of
whatever settlement they may have must be within the
marriage. It is however possible for the parties to
limits provided by this Code.
modify their agreement in their settlement by resorting
∙ In the absence of a marriage settlement or when the to complete separation of property pursuant to the
property regime agreed upon by the spouses in their provisions of Art. 135 or 136 FC. Also, if one of the
marriage settlement is void, the provisions in the parties to the marriage is suffering from civil
Family Code shall govern the property relations interdiction or any incapacity to give consent, it is
between the spouses. indispensable for the guardian appointed by a
∙ The future spouses may agree upon the regime of component court to be made a part of party thereto,
absolute property, conjugal partnership of gains, otherwise the settlement is void
complete separation of property, or any other regime ∙ The law requires that the settlements and any
that is not contrary to law, customs, public order and modifications to be made be done in writing. Prior to
public policy. the FC, marriage settlements were governed by Art. 122
∙ Prior to the Family code, the system of relative NCC. Notwithstanding express provisions in the
community or conjugal property governs in absence of present article, the marriage settlements and its
a marriage settlement. Now, the system of absolute modifications shall be governed by Statute of Frauds
community or conjugal property governs in absence of under Art.1403, par 2 sub-par C: “Any agreement made
a marriage settlement or if the settlement is void. in the consideration of the marriage, other than a mutual
promise to marry.
Art. 75. The future spouses may, in the marriage settlements, ∙ A contract that infringes the Statute of Frauds is not
agree upon the regime of absolute community, conjugal void but unenforceable, it must be ratified. An oral
partnership of gains, complete separation of property, or any marriage contract is unenforceable since its existence
other regime. In the absence of a marriage settlement, or cannot be proven without a written agreement.
when the regime agreed upon is void, the system of absolute ∙ For a marriage settlement to affect third persons, it is
community of property as established in this Code shall necessary that it be in writing and registered in the local
govern. (119a) civil registry and proper registries of property.
28
∙ The celebration of marriage is a condition sine qua non
Art. 80. In the absence of a contrary stipulation in a for the validity of the marriage settlement.
marriage settlement, the property relations of the spouses ∙ In donations propter nuptias, the fact that the marriage
shall be governed by Philippine laws, regardless of the place did not take place does not render the donation void,
of the celebration of the marriage and their residence. except if the donation is contained in the marriage
settlement itself, it only gives rise to the cause to revoke
This rule shall not apply:
to which if not revoked shall remain valid
(1) Where both spouses are aliens; ∙ The rule does not apply to any provision where the its
(2) With respect to the extrinsic validity of contracts
validity does not depend on the celebration of the
affecting property not situated in the Philippines and
marriage.
executed in the country where the property is located;
and
Chapter 2. Donations by Reason of Marriage
(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 Art. 82. Donations by reason of marriage are those which are
different formalities for its extrinsic validity. (124a) made before its celebration, in consideration of the same,
and in favor of one or both of the future spouses. (126)
∙ This rule shall not apply in these cases:
o If there is contrary stipulation in the marriage ∙ Donations propter nuptias are those made before the
settlement celebration of marriage, in consideration of the same
and in favor of one or both spouses
o With respect to the extrinsic validity of
contracts affecting property not situated in the ∙ The following requisites are required before a donation
Philippines and executed in the country where can be considered as donation propter nuptias:
the property is located; and o Must be made before the celebration of the
o With respect to the extrinsic validity of marriage
contracts entered into in the Philippines but o Must be made in the consideration of the
affecting property situated in a foreign country marriage
whose laws require different formalities for its o Must be in favor of one or both spouses
extrinsic validity.
∙ The marriage is a consideration but not necessary to
∙ The future spouses are free to stipulate in their give birth to the obligation (Art. 86 par 1 FC). This
settlement what laws shall govern their property donation would remain valid if the proper action were
relations especially if they are residents in a foreign not instituted or not instituted before the lapse of the
country. However, that with respect to the mandatory statutory period for prescription
provisions of the FC, that shall govern since the
freedom of the spouses to stipulate must be gone within
the limits provided by the FC Art. 83. These donations are governed by the rules on
∙ Philippine laws shall not apply to contracts in relations ordinary donations established in Title III of Book III of the
properties not located in the Philippines, Following Civil Code, insofar as they are not modified by the following
Art. 16 NCC, the issues relating property, whether articles. (127a)
personal or real, shall be governed by the law where
∙ Under the Civil Code, the donations propter nuptias
such property is located.
were governed under the Statute of Frauds under Art.
∙ Above provisions also apply if one of the parties in the 122 NCC. Under the Family Code, the same’s formal
marriage is a Filipino citizen. requirements must follow Articles 748 and 749 NCC,
otherwise such donations shall be void.
Art. 81. Everything stipulated in the settlements or contracts ∙ If what is donated is personal property has a value that
referred to in the preceding articles in consideration of a exceeds than 5,000 pesos, the law requires that such
future marriage, including donations between the acceptable also be in writing, otherwise the donation is
prospective spouses made therein, shall be rendered void if void. If donations are real property, the law requires
the marriage does not take place. However, stipulations that that the acceptance must be in a public instrument and
do not depend upon the celebration of the marriages shall be if it is made in a separate instrument, there is an
valid. (125a) additional requirement that the donor be notified in an
authentic form and this step should be noted in both
instruments, otherwise the donations shall be void
29
entitled to the excess since he is now owner of the
property
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 Art. 86. A donation by reason of marriage may be revoked
of their present property. Any excess shall be considered by the donor in the following cases:
void.
(1) If the marriage is not celebrated or judicially declared
Donations of future property shall be governed by the void ab initio except donations made in the marriage
provisions on testamentary succession and the formalities of settlements, which shall be governed by Article 81;
wills. (130a) ∙ Donations propter nuptias are valid except if made in
∙ Donations propter nuptias must be made by either or the marriage settlement
both of the spouses, ∙ Non-celebration of the marriage only gives grounds for
∙ If the donation is to be made by one of the future revocation of such donations
spouses in favor of the other in a marriage settlement,
such donation must not exceed one fifth of the present (2) When the marriage takes place without the consent of
property of the donor, if the property regime agreed the parents or guardian, as required by law;
upon in the marriage settlement is other than absolute (3) When the marriage is annulled, and the donee acted
community. The excess shall be void. If it is absolute in bad faith;
community, then there is no limitation. The reason is (4) Upon legal separation, the donee being the guilty
that in absolute community, both spouses are co-owners spouse;
of all the property at the time of the marriage or (5) If it is with a resolutory condition and the condition is
thereafter, unless otherwise provided in Art. 92 or in the complied with;
marriage settlement. (6) When the donee has committed an act of ingratitude
as specified by the provisions of the Civil Code on
∙ In the situation where he future spouses agreed upon a
donations in general. (132a)
regime other than absolute community but the donation
propter nuptias by one spouse in favor of the other is ∙ If marriage is judicially declared void ab initio,
not contained in the marriage settlement, the one fifth donations shall remain valid but such grounds gives rise
rules shall apply as long as the regime is not absolute for revocation. If it is declared void ab initio under Art.
community. The reason based on the policy that no 40 FC, then such donations is revoked under operation
spouse should be allowed to take advantage of the love of law (due to Art. 50 making Art. 43 and 44 applicable
and feelings of the other to acquire property from the for marriages void under Art. 40)
latter ∙ If marriage is annulled, the donee in bad faith gives
∙ Donations propter nuptias for future property are not grounds for the donor to revoke the donation. To give
prohibited, however they will be governed by rise to a cause for revocation, the rule is that voidable
provisions on testamentary succession and formalities marriage must be annulled.
of wills which are effective after the death of the ∙ If there is legal separation, the innocent spouse has the
spouse. right to revoke donation.
∙ If a donation is subject to a resolutory condition and the
Art. 85. Donations by reason of marriage of property subject condition is fulfilled, the donor acquires a right to
to encumbrances shall be valid. In case of foreclosure of the revoke the donation
encumbrance and the property is sold for less than the total ∙ Donations are revocable by reason of ingratitude based
amount of the obligation secured, the donee shall not be on presumed will of the donor as a penalty for failing to
liable for the deficiency. If the property is sold for more than observe the moral imperatives that devolve upon him
the total amount of said obligation, the donee shall be by virtue of benefit received from donation. Such acts
entitled to the excess. (131a) are those referred in Art. 765 NCC (Offense against the
person, the honor or property of the donor, or of his
∙ Donations propter nuptias are subject to encumbrance wife, children under his parental authority; donor
since it does not divest the ownership of the property imputes to the donor criminal offense of moral
donated. In case of foreclosure, if the proceeds of the turpitude, even though he should prove it unless crime
sale of property are not sufficient. The donee is not is against the donee, his wife or children under his
liable to the donor’s creditor sice the donee is not the parental authority; unduly refusal of the donee to
debtor. If the proceeds are in excess, the donee is support the donor even though he is legally and morally
bound to do so)
30
∙ Except those under Art, 86(4) and 64, the FC does not rescind the waiver to the extent of the amount sufficient to
cover the amount of their credits. (146a)
give a prescription period for actions to revoke
donations. Under Art. 64, the innocent spouse may Art. 90. The provisions on co-ownership shall apply to the
revoke the donations made by him in favor of the absolute community of property between the spouses in all
offending spouse after the finality of the declaration of matters not provided for in this Chapter. (n)
legal separation, where it must be within 5 years after
the decree is final. For acts of ingratitude under Art. 86 ∙ In absolute community, the spouses are considered co-
(6), the period is one year for revocation of donations owners of all property brought into and acquired
and donations p.n. during the marriage which are not excluded from the
community by either provision of the FC or by the
Art. 87. Every donation or grant of gratuitous advantage, marriage settlement. This regime governs in the
direct or indirect, between the spouses during the marriage following circumstances:
shall be void, except moderate gifts which the spouses may ∙ If the regime in the settlement is absolute community,
give each other on the occasion of any family rejoicing. The then the provisions of the settlement shall govern the
prohibition shall also apply to persons living together as property relations between spouses as long as they do
husband and wife without a valid marriage. (133a) not violate mandatory provisions of the FC and are not
contrary to public morals and policy. In all matters
∙ Donating to each other is prohibited during the outside the FC, the provisions under Art. 484 to 501
marriage. However, such rule is not absolute as it shall also apply.
recognizes the validity of moderate gifts during family
rejoicing.
∙ If the regime in the settlement applies to the spouses by
default and persuant to provisions of Art. 75, then the
∙ Husband and wife are prohibited from selling property provisions on the FC regarding absolute community
to each other, such sale is deemed void, except under shall govern and the provisions of the NCC on co-
Art. 1490 NCC under the following conditions (due to ownership shall apply in a supplementary manner.
the remoteness of danger of fraud in contracts of sale
that may be celebrated between husband and wife):
∙ Whether A.C of property is agreed upon in the
o When a separation of property was agreed settlement or by default, it shall apply automatically the
precise moment the marriage is celebrated. Any
upon in the marriage settlements
agreement that this regime shall commence at any other
o Where there has been a judicial separation of time is void
property under Art. 135 and 136 FC
∙ In Abalos vs. Macatangay Jr, the court explained the
∙ Such exceptions do not apply in the prohibition nature of interest of each spouse in the conjugal
between spouses from donating to each other under Art. partnership prior to liquidation.
87 unless their regime is complete separation of o The interest of each spouse is limited to the net
property or otherwise.
remainder or remanente liquid (haber
∙ The spouses are prohibited from leasing each other ganancial) resulting from the liquidation of the
parcels of land as stated in Art. 1646 NCC. affairs of the partnership after its dissolution.
Thus the right of the spouse to one-half of the
Chapter 3. System of Absolute Community conjugal assets does not vest until the
dissolution and liquidation of the conjugal
Section 1. General Provisions partnership, or after the dissolution of the
Art. 88. The absolute community of property between marriage, it is finally determined that there are
spouses shall commence at the precise moment that the net assets left (after settlement of conjugal
marriage is celebrated. Any stipulation, express or implied, obligations) which can be divided between
for the commencement of the community regime at any other spouses or their respective heirs.
time shall be void. (145a) ∙ The same principle may likewise apply in regime of
Art. 89. No waiver of rights, shares and effects of the absolute community with respect to the share of each
absolute community of property during the marriage can be spouse in the community prior to dissolution and
made except in case of judicial separation of property. liquidation.
∙ The right of each spouse to the remaining assets of the
When the waiver takes place upon a judicial separation of
community already ripens to a title after payment of
property, or after the marriage has been dissolved or
obligation and thus subject to valid renunciation. Such
annulled, the same shall appear in a public instrument and
waiver of interest of share in the AC of property after
shall be recorded as provided in Article 77. The creditors of
dissolution of marriage or its annulment or in the case
the spouse who made such waiver may petition the court to
31
of judicial declaration of property, as required by the ∙ In absolute community, all properties of the spouses are
Code, must be in a public instrument and recorded in included in the community property. In this case, it is
the LCR where the marriage contract is recorded and in submitted as a rule that the proof of acquisition must
the proper registries of property. This is so as to protect not be considered a condition sine qua non for the
the interests of third persons who may be prejudiced by operation in presumption of in favor of absolute
such waiver community.
Section 2. What Constitutes Community Property ∙ The separate and exclusive properties are those which
are not included in the absolute community over which
Art. 91. Unless otherwise provided in this Chapter or in the
the spouse-owner retain ownership, possession,
marriage settlements, the community property shall consist
administration and enjoyment. The following are
of all the property owned by the spouses at the time of the
considered as separate and exclusive:
celebration of the marriage or acquired thereafter. (197a)
o Properties acquired by either spouse before the
∙ The spouses may agree to exclude from their marriage which have been excluded from the
community property those properties they have at the absolute community in the marriage settlement
time of their marriage celebration and include only o Property acquired during the marriage through
properties they acquire after the marriage. The fruits gratuitous title by either spouse, and its fruits
and income of these properties shall be included in the and income, unless provided by donor, testator
community property if there is a lack of agreement that or grantor that they shall be part of the
is stipulated in their marriage settlement. community property
o Property for personal and exclusive use by
either spouse, except jewelry that shall form
Art. 92. The following shall be excluded from the community part of community.
property: o Property acquired before the marriage by the
(1) Property acquired during the marriage by gratuitous spouse through a legitimate descendants by a
title by either spouse, and the fruits as well as the former marriage and fruits and income of such
income thereof, if any, unless it is expressly provided property
by the donor, testator or grantor that they shall form ∙ All properties acquired during the marriage belong to
part of the community property; the community property except:
(2) Property for personal and exclusive use of either
o They must be acquired during the marriage
spouse. However, jewelry shall form part of the
community property; o They must be acquired by either spouse
(3) Property acquired before the marriage by either o Donor, testator or grantor expressly provides
spouse who has legitimate descendants by a former that they shall form part of the community of
marriage, and the fruits as well as the income, if any, property.
of such property. (201a) ∙ For properties acquired through gratuitous title to be
considered as separate and exclusive, the following
Art. 93. Property acquired during the marriage is presumed requisites are required:
to belong to the community, unless it is proved that it is one
of those excluded therefrom. (160) ∙ Par. 1 of Art 92 excludes property acquired through
gratuitous title excluded from absolute community only
∙ Presumption in favor of community property should not if acquisition is made by either spouse. Such property
only include the properties acquired during the shall be governed by Art. 113 NCC if it is conjugal and
marriage. By the nature of this regime, which consists by Art. 753 if it is conjugal. The fruits shall remain
of all properties of the spouses, which acquired before separate
or during the marriage, the presumption in favor of the ∙ Only properties acquired during the subsequent
community must relate to all properties and not just marriage shall be included in the community property.
those acquired after the marriage. Properties acquired from a legitimate descendant by a
∙ In conjugal partnership to be presumed operating in prior marriage are excluded and cannot be included in
favor of conjugality under Art. 116 FC, it must be absolute community by marriage settlement due to the
necessary that the party invoking this presumption must limits set forth by the Family Code
prove such property in controversy was acquired during ∙ Proceeds of separate property of either spouse that is
marriage. Proof of acquisition during the coverture is a sold or exchanged for another shall be part of the
condition sine qua non for the operation of the community property following Art. 91 if the property is
presumption in favor of the conjugal partnership excluded by marriage settlement and in the absence of
32
any agreement. However, if the properties are separate ∙ Includes either spouse and their common legitimate
by reason of mandatory provisions of law especially children
under Art. 92, the proceeds shall remain separate from (7) Ante-nuptial debts of either spouse insofar as they
the community property. have redounded to the benefit of the family;
∙ The absolute community shall be liable only if it can
be proven that such debt has redounded to the
Section 3. Charges and Obligations of the Absolute
benefit of the family. And the burden of proving that
Community
such debt has redounded to the family’s benefit lies
Art. 94. The absolute community of property shall be liable with the creditor claiming such
for: (8) The value of what is donated or promised by both
(1) The support of the spouses, their common children, spouses in favor of their common legitimate children
and legitimate children of either spouse; however, the for the exclusive purpose of commencing or
support of illegitimate children shall be governed by completing a professional or vocational course or
the provisions of this Code on Support; other activity for self-improvement;
(9) Ante-nuptial debts of either spouse other than those
∙ Support of illegitimate children of either spouse falling under paragraph (7) of this Article, the support
shall come from the exclusive property of the of illegitimate children of either spouse, and liabilities
illegitimate-parent spouse, and in case of incurred by either spouse by reason of a crime or a
insufficiency or absence of exclusive property, shall quasi-delict, in case of absence or insufficiency of the
be taken from the community property and will be exclusive property of the debtor-spouse, the payment
considered as advances to be deducted from the of which shall be considered as advances to be
share of each parent upon liquidation of the absolute deducted from the share of the debtor-spouse upon
community liquidation of the community; and
(2) All debts and obligations contracted during the (10) Expenses of litigation between the spouses unless the
marriage by the designated administrator-spouse for suit is found to be groundless.
the benefit of the community, or by both spouses, or
by one spouse with the consent of the other; If the community property is insufficient to cover the
∙ The absolute community shall be liable for the foregoing liabilities, except those falling under paragraph (9),
following debts and obligations contracted during the spouses shall be solidarily liable for the unpaid balance
the marriage: with their separate properties. (161a, 162a, 163a, 202a-205a)
o Designated administrator-spouse for the
benefit of the community
o Both spouses Art. 95. Whatever may be lost during the marriage in any
game of chance, betting, sweepstakes, or any other kind of
o Either spouse with the consent of the other gambling, whether permitted or prohibited by law, shall be
o Either spouse without the consent of the borne by the loser and shall not be charged to the
other to the extent that the family may have community but any winnings therefrom shall form part of
benefited, the community property. (164a)
(3) Debts and obligations contracted by either spouse
without the consent of the other to the extent that the ∙ The following are obligations are chargeable to the
family may have been benefited; exclusive properties of the debtor-spouse:
(4) All taxes, liens, charges and expenses, including major o Support of illegitimate children
or minor repairs, upon the community property; o Debts contracted by designator
∙ For taxes and expenses incurred during the marriage administrator-spouse during the marriage
for the preservation of the property of a separate that did not benefit the community
property of the spouse (not improvements and o Ante nuptial debts of either spouse that did
embellishments, even if used by the family), the not redound to the benefit of the family
same shall be charged if such separate property has o Debts contracted during the marriage by
been used by the family
either spouse without the consent of the
(5) All taxes and expenses for mere preservation made
other that did not redound to the benefit of
during marriage upon the separate property of either
the family
spouse used by the family;
(6) Expenses to enable either spouse to commence or
o Taxes and expenses incurred for the
complete a professional or vocational course, or other preservation of the of a separate property
activity for self-improvement; of either spouse which is not being used by
the family
33
o Civil liability of either spouse arising from consent of the other spouse or the authority of the
crime or quasi-delict court, without which disposition or encumbrance
o Expenses of litigation between spouses, if shall be void. The same rule applies even if
suit is found to be groundless disposition is made by administrator spouse because
o Losses during the marriage in any game of sole power of administration does not include
disposition or encumbrance without the authority of
chance, betting, sweepstakes, or any kind
court or written consent of the other spouse.
of gambling
∙ Neither spouse can dispose of their respective
interest in the community property by way of
Section 4. Ownership, Administrative, disposition inter vivos. The rule under Art. 393 NCC
Enjoyment and Disposition of the Community Property does not find application in this case for the interest
of either spouse in the community assets is inchoate
Art. 96. The administration and enjoyment of the community which constitutes neither a legal nor an equitable
property shall belong to both spouses jointly. In case of estate, and does not ripen until it appears that there
disagreement, the husband’s decision shall prevail, subject to are assets in the community as a result of the
recourse to the court by the wife for proper remedy, which liquidation and settlement
must be availed of within five years from the date of the Art. 97. Either spouse may dispose by will of his or her
contract implementing such decision. interest in the community property. (n)
In the event that one spouse is incapacitated or otherwise ∙ Such disposition shall take effect upon the death of
unable to participate in the administration of the common the spouse when in such case, the community
properties, the other spouse may assume sole powers of property is terminated
administration. These powers do not include disposition or Art. 98. Neither spouse may donate any community property
encumbrance without authority of the court or the written without the consent of the other. However, either spouse may,
consent of the other spouse. In the absence of such authority without the consent of the other, make moderate donations
or consent, the disposition or encumbrance shall be void. from the community property for charity or on occasions of
However, the transaction shall be construed as a continuing family rejoicing or family distress. (n)
offer on the part of the consenting spouse and the third
person, and may be perfected as a binding contract upon the
acceptance by the other spouse or authorization by the court
before the offer is withdrawn by either or both offerors. Section 5. Dissolution of Absolute Community Regime
(206a) Art. 99. The absolute community terminates:
∙ In the following situations, one of the spouses may (1) Upon the death of either spouse;
assume sole powers of administration of the (2) When there is a decree of legal separation;
common property (3) When the marriage is annulled or declared void; or
o One spouse is incapacitated or otherwise (4) In case of judicial separation of property during the
marriage under Articles 134 to 138. (175a)
incapable in participating in the
administration, the other spouse may ∙ Complete separation of property is the only one of
assume sole powers without the need for the three (ACP, CPG, CSP) allowed to commence
consent or approval. during the marriage. The Code allows only a shift to
o During the pendency of a legal separation CSP during marriage as either an incident of the
case, the court hearing the case may decree of legal separation, or pursuant to a petition
designate either spouse as the sole for judicial separation under Art. 135 or 136
administrator of the absolute community
where said administrator shall have the Art. 100. The separation in fact between husband and wife
same powers as those of a guardian under shall not affect the regime of absolute community except
the Rules of Court that:
o If either spouse abandons the other without (1) The spouse who leaves the conjugal home or refuses to
just cause or fails to comply with his or her live therein, without just cause, shall not have the
obligations to the family, the aggrieved right to be supported;
spouse may petition the court for authority (2) When the consent of one spouse to any transaction of
to be the sole administrator of the the other is required by law, judicial authorization
community shall be obtained in a summary proceeding;
∙ Alienation (transfer of property from one person to (3) In the absence of sufficient community property, the
another) of community property must have written separate property of both spouses shall be solidarily
34
liable for the support of the family. The spouse present o The aggrieved spouse may petition the
shall, upon proper petition in a summary proceeding, court for legal separation if such
be given judicial authority to administer or encumber abandonment lasts for more than 1 year.
any specific separate property of the other spouse and
use the fruits or proceeds thereof to satisfy the latter’s
share. (178a) Section 6. Liquidation of the Absolute Community
Assets and Liabilities
∙ Separation de facto refers to situation where spouses
simply separate without the benefit of a decree of
legal separation. Art. 102. Upon dissolution of the absolute community
o They retain their right to consortium regime, the following procedure shall apply:
because under the eyes of the law they are (1) An inventory shall be prepared, listing separately all
not entitled to live separately the properties of the absolute community and the
o It does not affect the regimes of ACP or exclusive properties of each spouse.
CPG (2) The debts and obligations of the absolute community
o The spouses continue to be the legal heir of shall be paid out of its assets. In case of insufficiency
each other via intestate succession of said assets, the spouses shall be solidarily liable for
o There is neither guilty nor innocent spouse the unpaid balance with their separate properties in
accordance with the provisions of the second
∙ Judicial authorization may be obtained in a paragraph of Article 94.
summary proceeding when the consent of one (3) Whatever remains of the exclusive properties of the
spouse to any transaction of the other is required by spouses shall thereafter be delivered to each of them.
law. ACP or CPG shall continue to be liable for all (4) The net remainder of the properties of the absolute
obligations mentioned in Art. 92 and 121, and in community shall constitute its net assets, which shall
absence of sufficient ACP or CPP, the separate be divided equally between husband and wife, unless a
properties of one or both spouses shall be solidarily different proportion or division was agreed upon in
liable for the support of the family. the marriage settlements, or unless there has been a
voluntary waiver of such share provided in this Code.
Art. 101. If a spouse without just cause abandons the other For purpose of computing the net profits subject to
or fails to comply with his or her obligations to the family, forfeiture in accordance with Articles 43, No. (2) and
the aggrieved spouse may petition the court for receivership, 63, No. (2), the said profits shall be the increase in
for judicial separation of property or for authority to be the value between the market value of the community
sole administrator of the absolute community, subject to property at the time of the celebration of the marriage
such precautionary conditions as the court may impose. and the market value at the time of its dissolution.
(5) The presumptive legitimes of the common children
The obligations to the family mentioned in the preceding shall be delivered upon partition, in accordance with
paragraph refer to marital, parental or property relations. Article 51.
A spouse is deemed to have abandoned the other when her or (6) Unless otherwise agreed upon by the parties, in the
she has left the conjugal dwelling without intention of partition of the properties, the conjugal dwelling and
returning. The spouse who has left the conjugal dwelling for the lot on which it is situated shall be adjudicated to
a period of three months or has failed within the same period the spouse with whom the majority of the common
to give any information as to his or her whereabouts shall be children choose to remain. Children below the age of
prima facie presumed to have no intention of returning to seven years are deemed to have chosen the mother,
the conjugal dwelling. (178a) unless the court has decided otherwise. In case there
in no such majority, the court shall decide, taking into
∙ If separation de facto is attended by abandonment, consideration the best interests of said children. (n)
the following effects are likewise produced: Art. 103. Upon the termination of the marriage by death, the
o The spouse, who leaves the conjugal home community property shall be liquidated in the same
or refuses to live therein without just cause, proceeding for the settlement of the estate of the deceased.
shall not have the right to be supported. If no judicial settlement proceeding is instituted, the
o The aggrieved spouse may petition the surviving spouse shall liquidate the community property
court for receivership, for judicial either judicially or extra-judicially within six months from
declaration of separation of property or the death of the deceased spouse. If upon the lapse of the six
authority to be sole administrator, subject months period, no liquidation is made, any disposition or
to such precautionary conditions which the encumbrance involving the community property of the
court may impose terminated marriage shall be void.
35
Should the surviving spouse contract a subsequent marriage The provisions of this Chapter shall also apply to conjugal
without compliance with the foregoing requirements, a partnerships of gains already established between spouses
mandatory regime of complete separation of property shall before the effectivity of this Code, without prejudice to
govern the property relations of the subsequent marriage. vested rights already acquired in accordance with the Civil
(n) Code or other laws, as provided in Article 256. (n)
Art. 104. Whenever the liquidation of the community Art. 106. Under the regime of conjugal partnership of gains,
properties of two or more marriages contracted by the same the husband and wife place in a common fund the proceeds,
person before the effectivity of this Code is carried out products, fruits and income from their separate properties
simultaneously, the respective capital, fruits and income of and those acquired by either or both spouses through their
each community shall be determined upon such proof as may efforts or by chance, and, upon dissolution of the marriage
be considered according to the rules of evidence. In case of or of the partnership, the net gains or benefits obtained by
doubt as to which community the existing properties belong, either or both spouses shall be divided equally between them,
the same shall be divided between the different communities unless otherwise agreed in the marriage settlements. (142a)
in proportion to the capital and duration of each. (189a)
∙ There is no co-ownership of the properties in the
∙ The termination of the absolute community is conjugal partnership of gains.
produced ipso jure by any of the cases mentioned in ∙ Such regime shall commence only at the precise
Art. 99. Liquidation, meanwhile, involves some moment the marriage is celebrated. Any agreement
positive act on the part of the spouses or of the between spouses that this regime shall commence at
surviving spouse, in case of death of the spouse. any other time is void. Spouses who are legally
Liquidation of ACP is mandatory if marriage is separated may not adopt conjugal partnership as
terminated by death of either spouse. If upon the their new regime in case of reconciliation, although
lapse of one year upon death of either spouse, and the same seems to be permitted under provisions of
no liquidation is made, any disposition or Sec. 23 (c) and 24 (a) on the Rules of Legal
encumbrance involving the community property of Separation
the terminated marriage is declared by law to be
void. If the surviving spouse contracts a subsequent ∙ In Abalos vs. Macatangay Jr, the court explained the
marriage without compliance to the foregoing nature of interest of each spouse in the conjugal
requirements, the subsequent marriage shall be partnership prior to liquidation.
governed by CSP o The interest of each spouse is limited to the
∙ Under the law, the rights to the succession are net remainder or remanente liquid (haber
transmitted from the moment of death of the ganancial) resulting from the liquidation of
decedent. As a consequence, a co-owner has the the affairs of the partnership after its
right to alienate his pro indiviso share in the co- dissolution. Thus the right of the spouse to
owned property even without the consent of the co- one-half of the conjugal assets does not
owners. vest until the dissolution and liquidation of
the conjugal partnership, or after the
∙ If no liquidation takes place one year after the death dissolution of the marriage, it is finally
of one spouse and the surviving spouse contracts a determined that there are net assets left
subsequent marriage without compliance to the (after settlement of conjugal obligations)
foregoing requirements, the subsequent marriage which can be divided between spouses or
shall be governed by CSP, even if the spouses agree their respective heirs.
to ACP or CPG in their settlement.
Art. 107. The rules provided in Articles 88 and 89 shall also
Chapter 4. Conjugal Partnership of Gains apply to conjugal partnership of gains. (n)
Art. 108. The conjugal partnership shall be governed by the
Section 1. General Provisions rules on the contract of partnership in all that is not in
conflict with what is expressly determined in this Chapter or
by the spouses in their marriage settlements. (147a)
Art. 105. In case the future spouses agree in the marriage
settlements that the regime of conjugal partnership gains
shall govern their property relations during marriage, the
provisions in this Chapter shall be of supplementary Section 2. Exclusive Property of Each Spouse
application.
36
Art. 109. The following shall be the exclusive property of encumber without the consent of the owner-spouse or
each spouse: of the authorization of the court, otherwise, the
administration is terminated and the proceeds of the
(1) That which is brought to the marriage as his or her
alienation shall be returned to the owner-spouse.
own;
Art. 111. A spouse of age may mortgage, encumber, alienate
∙ There is nothing that prevents either spouse from or otherwise dispose of his or her exclusive property, without
including in their conjugal partnership properties the consent of the other spouse, and appear alone in court to
acquired prior to marriage. However, it is limited to the litigate with regard to the same. (n)
following conditions
o The spouses cannot include more than 1/5 of ∙ Requires only the participation of the owner-spouse.
their present property to the regime under Art.
84. Although this applies to donations proper
nuptias, the rationale of the article may Art. 112. The alienation of any exclusive property of a spouse
likewise apply to the inclusion of the present administered by the other automatically terminates the
properties of the future spouses in their administration over such property and the proceeds of the
conjugal partnership alienation shall be turned over to the owner-spouse. (n)
o The future spouses cannot include in their Art. 113. Property donated or left by will to the spouses,
conjugal partnership properties acquired prior jointly and with designation of determinate shares, shall
to the marriage by one of them who has pertain to the donee-spouses as his or her own exclusive
legitimate descendants in his or her previous property, and in the absence of designation, share and share
marriage applying by analogy the provisions alike, without prejudice to the right of accretion when
of Art. 92, No. 3 proper. (150a)
∙ Livestock shall continue to be exclusive property of the
∙ If the property is donated or left by will to the spouses
spouses. Only the excess in number of each kind
jointly and with designation of determinate shares the
brought into the marriage which shall be determined at
share of each in the said property shall be considered
the dissolution of the partnership shall be considered as
conjugal property. ∙ If a donation is made jointly to persons who are not
(2) That which each acquires during the marriage by husband and wife, the rule is there is no accretion,
gratuitous title; accretion taking place only when so expressly provided
∙ The only difference from ACP is that even the income for the donor.
Art. 114. If the donations are onerous, the amount of the
and fruits and income of such property shall also be
charges shall be borne by the exclusive property of the donee
deemed exclusive
spouse, whenever they have been advanced by the conjugal
(3) That which is acquired by right of redemption, by
partnership of gains. (151a)
barter or by exchange with property belonging to only
one of the spouses; and ∙ Refers to those donations where a burden or changes
∙ Even if the money used to redeem is from the CP, it inferior in value compared to the property donated is
shall still be the exclusive property of the redemptor imposed by the donee
spouse subject to the condition that such spouse ∙ If a donation is made during the marriage in favor of
reimburse said amount to the CP by the redemptor
the husband but the donor imposes a burden or charges
spouse.
inferior in value to the property donated, such property
(4) That which is purchased with exclusive money of the
shall remain exclusive of the donee spouse although
wife or of the husband. (148a)
conjugal funds were used for the burden or charges, in
such case the conjugal property shall be reimbursed by
Art. 110. The spouses retain the ownership, possession,
the donee spouse for the amount advanced.
administration and enjoyment of their exclusive properties.
Art. 115. Retirement benefits, pensions, annuities, gratuities,
Either spouse may, during the marriage, transfer the usufructs and similar benefits shall be governed by the rules
administration of his or her exclusive property to the other on gratuitous or onerous acquisitions as may be proper in
by means of a public instrument, which shall be recorded in each case. (n)
the registry of property of the place the property is located.
(137a, 168a, 169a) ∙ If one spouse obtains such benefit through liberality of
grantor, rule on Art. 109 applies. However, if the benefit
∙ The same shall not prejudice third persons is simply and accumulation or deduction from money
∙ In case of transfer of administration, such earned during the marriage or from the salaries of either
spouse, then the rules in Art. 117 (2) applies, the benefit
administration does not include the power to dispose or
is part of the conjugal property.
37
sum collected on the principal shall remain exclusive
property of the creditor-spouse
Section 3. Conjugal Partnership Property (4) The share of either spouse in the hidden treasure
which the law awards to the finder or owner of the
property where the treasure is found;
Art. 116. All property acquired during the marriage, whether (5) Those acquired through occupation such as fishing or
the acquisition appears to have been made, contracted or hunting;
registered in the name of one or both spouses, is presumed to ∙ By seizure of things which have no owner and with
be conjugal unless the contrary is proved. (160a) intention of acquiring them according to the rules laid
down by the law:
∙ Such presumption applies even if “the acquisition
o There must be a seizure
appears to have been made, contracted or registered in
the name of one or both spouses”. What is important is o The things must be corporeal
that the acquisition is made during the marriage. o There must be intention to appropriate
However, when there is no showing as to when the o The things must not be owned by anybody
property alleged to be conjugal was acquired, the o The rules laid down by the law must be
presumption does not operate. Proof of the acquisition fulfilled
is a condition sine qua non for the operation of the (6) Livestock existing upon the dissolution of the
presumption in favor of the conjugal partnership. partnership in excess of the number of each kind
∙ Such presumption is rebuttable with strong, clear, brought to the marriage by either spouse; and
categorical, and convincing evidence that such property ∙ Livestock shall continue to be exclusive property of the
belongs exclusively to one of the spouses and the spouses. Only the excess in number of each kind
burden of proof rests on the party asserting it. brought into the marriage which shall be determined at
Art. 117. The following are conjugal partnership properties: the dissolution of the partnership shall be considered as
(1) Those acquired by onerous title during the marriage conjugal property
at the expense of the common fund, whether the (7) Those which are acquired by chance, such as winnings
acquisition be for the partnership, or for only one of from gambling or betting. However, losses therefrom
the spouses; shall be borne exclusively by the loser-spouse. (153a,
154a, 155, 159).
∙ If funds are sourced from the exclusive property of the Art. 118. Property bought on installments paid partly from
spouse, then it is exclusive property of the spouse. If exclusive funds of either or both spouses and partly from
funds are sourced from the conjugal funds, then it is conjugal funds belongs to the buyer or buyers if full
conjugal property. ownership was vested before the marriage and to the
∙ If the property is purchased by installments prior to the conjugal partnership if such ownership was vested during
marriage, then it will depend on the time where full the marriage. In either case, any amount advanced by the
ownership becomes vested. partnership or by either or both spouses shall be reimbursed
by the owner or owners upon liquidation of the partnership.
(n)
(2) Those obtained from the labor, industry, work or
profession of either or both of the spouses; Art. 119. Whenever an amount or credit payable within a
(3) The fruits, natural, industrial, or civil, due or received period of time belongs to one of the spouses, the sums which
during the marriage from the common property, as may be collected during the marriage in partial payments or
well as the net fruits from the exclusive property of by installments on the principal shall be the exclusive
each spouse; property of the spouse. However, interests falling due during
∙ The fruits referred to include: the marriage on the principal shall belong to the conjugal
o Natural- spontaneous products of the soil partnership. (156a, 157a)
o Industrial- produced by lands through Art. 120. The ownership of improvements, whether for utility
cultivation or labor or adornment, made on the separate property of the spouses
o Civil- rents of building, price of leases on land at the expense of the partnership or through the acts or
and other property, and the amount of efforts of either or both spouses shall pertain to the conjugal
perpetual or life annuities or other similar partnership, or to the original owner-spouse, subject to the
income following rules:
∙ Any interest income falling due during the marriage on When the cost of the improvement made by the conjugal
credit payable on installment and belonging to one of partnership and any resulting increase in value are more
the spouses belongs to the conjugal partnership. Any than the value of the property at the time of the
38
improvement, the entire property of one of the spouses shall Art. 121. The conjugal partnership shall be liable for:
belong to the conjugal partnership, subject to
(1) The support of the spouse, their common children,
reimbursement of the value of the property of the owner-
and the legitimate children of either spouse; however,
spouse at the time of the improvement; otherwise, said
the support of illegitimate children shall be governed
property shall be retained in ownership by the owner-spouse,
by the provisions of this Code on Support;
likewise subject to reimbursement of the cost of the
(2) All debts and obligations contracted during the
improvement.
marriage by the designated administrator-spouse for
In either case, the ownership of the entire property shall be the benefit of the conjugal partnership of gains, or by
vested upon the reimbursement, which shall be made at the both spouses or by one of them with the consent of the
time of the liquidation of the conjugal partnership. (158a) other;
(3) Debts and obligations contracted by either spouse
∙ Applies to the case where an exclusive property is without the consent of the other to the extent that the
subject to improvement at the expense of the conjugal family may have benefited;
partnership or through the acts or efforts of either or (4) All taxes, liens, charges, and expenses, including
both spouses. major or minor repairs upon the conjugal partnership
∙ For Art. 120 to apply, the following requisites must property;
apply: (5) All taxes and expenses for mere preservation made
during the marriage upon the separate property of
o Property is exclusively owned by either spouse
either spouse;
o Said property has been subject to (6) Expenses to enable either spouse to commence or
improvement, whether utility or adornment complete a professional, vocational, or other activity
o The improvements were made at the expense for self-improvement;
of the conjugal partnership or through the acts (7) Ante-nuptial debts of either spouse insofar as they
or effects of either or both spouses have redounded to the benefit of the family;
∙ In determining the ownership (8) The value of what is donated or promised by both
o When the cost of the improvement made by spouses in favor of their common legitimate children
for the exclusive purpose of commencing or
the conjugal partnership and any resulting
completing a professional or vocational course or
increase in value are more than the value of
other activity for self-improvement; and
the property at the time of the improvement,
(9) Expenses of litigation between the spouses unless the
the entire property of one of the spouses shall
suit is found to groundless.
belong to the conjugal partnership, subject to
If the conjugal partnership is insufficient to cover the
reimbursement of the value of the property of
foregoing liabilities, the spouses shall be solidarily liable for
the owner-spouse at the time of the
the unpaid balance with their separate properties. (161a)
improvement
o When the cost of the improvement made by ∙ Rules under Art. 94 and 95 apply
the conjugal partnership and any resulting
increase in value are less than the value of the ∙ Under CPG, the law established a complete separation
property at the time of the improvement, the of capitals, all of which constitutes an unsurmountable
entire property of one of the spouses shall obstacle to the presumption of solidarity between
belong to the conjugal partnership, said spouses. Conjugal partnership is not liable for the
property shall be retained in ownership by the individual liabilities of debtor-spouse (in Alipio vs. CA
owner-spouse, likewise subject to the Court ruled that a creditor cannot sue the surviving
reimbursement of the cost of the improvement spouse of a decedent for the collection of money
chargeable against the conjugal property)
∙ Ownership shall be vested in favor of the conjugal
property upon the reimbursement. Similarly, the ∙ If contracted by both spouses or either spouse with the
conjugal partnership is required to make an consent of the other, such debt is considered to have
reimbursement only at the time of the liquidation of the redounded for the benefit of the family, and in such
conjugal partnership, there is however nothing case the creditor no longer has the burden to prove the
preventing the partnership from reimbursement prior to debt was contracted for the benefit of the partnership or
liquidation the family.
∙ In case of debt contracted by designated administrator-
spouse without consent of the other spouse or prior to
Section 4. Charges Upon and Obligations of marriage, the conjugal partnership shall be liable only if
the Conjugal Partnership it can be proven by that the debt redounded to the
benefit of the conjugal partnership or the family.
39
Burden of proof to show that debt was credited for the Art. 125. Neither spouse may donate any conjugal
benefit of the CPG lies with the creditor-party litigant partnership property without the consent of the other.
claiming as such (Ei incumbit probation qui dicit, non However, either spouse may, without the consent of the other,
qui negat- he who asserts, not he who denies, must make moderate donations from the conjugal partnership
prove) property for charity or on occasions of family rejoicing or
family distress. (174a)
Art. 122. The payment of personal debts contracted by the ∙ In the following situations, one of the spouses may
husband or the wife before or during the marriage shall not assume sole powers of administration of the
be charged to the conjugal properties partnership except common property
insofar as they redounded to the benefit of the family. o One spouse is incapacitated or otherwise
Neither shall the fines and pecuniary indemnities imposed incapable in participating in the
upon them be charged to the partnership. administration, the other spouse may
assume sole powers without the need for
However, the payment of personal debts contracted by either consent or approval.
spouse before the marriage, that of fines and indemnities o During the pendency of a legal separation
imposed upon them, as well as the support of illegitimate
case, the court hearing the case may
children of either spouse, may be enforced against the
designate either spouse as the sole
partnership assets after the responsibilities enumerated in
administrator of the absolute community
the preceding Article have been covered, if the spouse who is
where said administrator shall have the
bound should have no exclusive property or if it should be
same powers as those of a guardian under
insufficient; but at the time of the liquidation of the
the Rules of Court
partnership, such spouse shall be charged for what has been
paid for the purpose above-mentioned. (163a)
o If either spouse abandons the other without
just cause or fails to comply with his or her
Art. 123. Whatever may be lost during the marriage in any obligations to the family, the aggrieved
game of chance or in betting, sweepstakes, or any other kind spouse may petition the court for authority
of gambling whether permitted or prohibited by law, shall be to be the sole administrator of the
borne by the loser and shall not be charged to the conjugal community
partnership but any winnings therefrom shall form part of
∙ Sole power of administration does not include
the conjugal partnership property. (164a)
disposition or encumbrance without the authority of
court or written consent of the other spouse since
these two acts are in nature strict acts of ownership.
Section 5. Administration of the
Alienation means transfer of property from one
Conjugal Partnership Property
person to another.
∙ In Civil Code, the husband is sole administrator of
Art. 124. The administration and enjoyment of the conjugal property. But in the FC both spouses are
partnership shall belong to both spouses jointly. In case of administrators of the conjugal property so in case
disagreement, the husband’s decision shall prevail, subject to one spouse is incapacitated or unable to administer
recourse to the court by the wife for proper remedy, which the conjugal property, the other spouse may file for
must be availed of within five years from the date of the sole administration.
contract implementing such decision.
∙ If either spouse disposes or encumbers a conjugal
In the event that one spouse is incapacitated or otherwise property without the consent of the other spouse or
unable to participate in the administration of the conjugal without court authorization, such transaction as
properties, the other spouse may assume sole powers of based in Homeowners Savings and Loan Bank vs.
administration. These powers do not include disposition or Dailo shall be void such that the contract of
encumbrance without authority of the court or the written partnership shall govern in all that is not in conflict
consent of the other spouse. In the absence of such authority with the FC.
or consent, the disposition or encumbrance shall be void.
However, the transaction shall be construed as a continuing ∙ Any disposition of the spouses respective shares or
offer on the part of the consenting spouse and the third interest in the conjugal partnership shall be void
person, and may be perfected as a binding contract upon the since such right to one-half of the conjugal assets
acceptance by the other spouse or authorization by the court does not vest until the liquidation of the conjugal
before the offer is withdrawn by either or both offerors. partnership. Nemo dat qui habet (No one can give
(165a) what he has not)
40
Section 6. Dissolution of Conjugal Partnership Regime The obligations to the family mentioned in the preceding
paragraph refer to marital, parental or property relations.
Art. 126. The conjugal partnership terminates: A spouse is deemed to have abandoned the other when he or
she has left the conjugal dwelling without intention of
(1) Upon the death of either spouse; returning. The spouse who has left the conjugal dwelling for
(2) When there is a decree of legal separation; a period of three months or has failed within the same period
(3) When the marriage is annulled or declared void; or to give any information as to his or her whereabouts shall be
(4) In case of judicial separation of property during the prima facie presumed to have no intention of returning to
marriage under Articles 134 to 138. (175a) the conjugal dwelling. (167a, 191a)
Art. 127. The separation in fact between husband and wife
shall not affect the regime of conjugal partnership, except
that: Section 7. Liquidation of the
(1) The spouse who leaves the conjugal home or refuses to Conjugal Partnership Assets and Liabilities
live therein, without just cause, shall not have the
right to be supported; Art. 129. Upon the dissolution of the conjugal partnership
(2) When the consent of one spouse to any transaction of regime, the following procedure shall apply:
the other is required by law, judicial authorization
shall be obtained in a summary proceeding; (1) An inventory shall be prepared, listing separately all
(3) In the absence of sufficient conjugal partnership the properties of the conjugal partnership and the
property, the separate property of both spouses shall exclusive properties of each spouse.
be solidarily liable for the support of the family. The (2) Amounts advanced by the conjugal partnership in
spouse present shall, upon petition in a summary payment of personal debts and obligations of either
proceeding, be given judicial authority to administer spouse shall be credited to the conjugal partnership as
or encumber any specific separate property of the an asset thereof.
other spouse and use the fruits or proceeds thereof to (3) Each spouse shall be reimbursed for the use of his or
satisfy the latter’s share. (178a) her exclusive funds in the acquisition of property or
for the value of his or her exclusive property, the
∙ Separation de facto refers to situation where spouses
ownership of which has been vested by law in the
simply separate without the benefit of a decree of conjugal partnership.
legal separation. (4) The debts and obligations of the conjugal partnership
o They retain their right to consortium shall be paid out of the conjugal assets. In case of
because under the eyes of the law they are insufficiency of said assets, the spouses shall be
not entitled to live separately solidarily liable for the unpaid balance with their
o It does not affect the regimes of ACP or separate properties, in accordance with the provisions
CPG of paragraph (2) of Article 121.
o The spouses continue to be the legal heir of (5) Whatever remains of the exclusive properties of the
each other via intestate succession spouses shall thereafter be delivered to each of them.
o There is neither guilty nor innocent spouse (6) Unless the owner had been indemnified from whatever
source, the loss or deterioration of movables used for
∙ Judicial authorization may be obtained in a the benefit of the family, belonging to either spouse,
summary proceeding when the consent of one even due to fortuitous event, shall be paid to said
spouse to any transaction of the other is required by spouse from the conjugal funds, if any.
law. ACP or CPG shall continue to be liable for all (7) The net remainder of the conjugal partnership
obligations mentioned in Art. 92 and 121, and in properties shall constitute the profits, which shall be
absence of sufficient ACP or CPP, the separate divided equally between husband and wife, unless a
properties of one or both spouses shall be solidarily different proportion or division was agreed upon in
liable for the support of the family. the marriage settlements or unless there has been a
voluntary waiver or forfeiture of such share as
Art. 128. If a spouse without just cause abandons the other provided in this Code.
or fails to comply with his or her obligation to the family, the (8) The presumptive legitimes of the common children
aggrieved spouse may petition the court for receivership, for shall be delivered upon the partition in accordance
judicial separation of property, or for authority to be the sole with Article 51.
administrator of the conjugal partnership property, subject (9) In the partition of the properties, the conjugal
to such precautionary conditions as the court may impose. dwelling and the lot on which it is situated shall,
unless otherwise agreed upon by the parties, be
adjudicated to the spouse with whom the majority of
41
the common children choose to remain. Children Art. 131. Whenever the liquidation of the conjugal
below the age of seven years are deemed to have partnership properties of two or more marriages contracted
chosen the mother, unless the court has decided by the same person before the effectivity of this Code is
otherwise. In case there is no such majority, the court carried out simultaneously, the respective capital, fruits and
shall decide, taking into consideration the best income of each partnership shall be determined upon such
interests of said children. (181a, 182a, 183a, 184a, proof as may be considered according to the rules of
185a) evidence. In case of doubt as to which partnership the
Art. 130. Upon the termination of the marriage by death, the existing properties belong, the same shall be divided between
conjugal partnership property shall be liquidated in the the different partnerships in proportion to the capital and
same proceeding for the settlement of the estate of the duration of each. (189a)
deceased.
Art. 132. The Rules of Court on the administration of estates
If no judicial settlement proceeding is instituted, the of deceased persons shall be observed in the appraisal and
surviving spouse shall liquidate the conjugal partnership sale of property of the conjugal partnership, and other
property either judicially or extra-judicially within six matters which are not expressly determined in this Chapter.
months from the death of the deceased spouse. If upon the (187a)
lapse of the six-month period no liquidation is made, any
Art. 133. From the common mass of property support shall
disposition or encumbrance involving the conjugal
be given to the surviving spouse and to the children during
partnership property of the terminated marriage shall be
the liquidation of the inventoried property and until what
void.
belongs to them is delivered; but from this shall be deducted
Should the surviving spouse contract a subsequent marriage that amount received for support which exceeds the fruits or
without compliance with the foregoing requirements, a rents pertaining to them. (188a)
mandatory regime of complete separation of property shall
govern the property relations of the subsequent marriage.
(n) Chapter 5. Separation of Property of the
Spouses and Administration of Common Property by
∙ The termination of the conjugal partnership is One Spouse During the Marriage
produced ipso jure by any of the cases mentioned in
Art. 130. Liquidation, meanwhile, involves some
positive act on the part of the spouses or of the Art. 134. In the absence of an express declaration in the
surviving spouse, in case of death of the spouse. marriage settlements, the separation of property between
Liquidation of ACP is mandatory if marriage is spouses during the marriage shall not take place except by
terminated by death of either spouse. If upon the judicial order. Such judicial separation of property may
lapse of six months upon death of either spouse, and either be voluntary or for sufficient cause. (190a)
no liquidation is made, any disposition or
∙ Separation of properties between spouses shall take
encumbrance involving the community property of
place only in the following circumstances:
the terminated marriage is declared by law to be
void. If the surviving spouse contracts a subsequent o When the future spouses have agreed in
marriage without compliance to the foregoing their marriage settlement that their property
requirements, the subsequent marriage shall be relations during marriage shall be governed
governed by CSP by the regime of separation of property
o When the surviving spouse to a previous
∙ Under the law, the rights to the succession are
marriage terminated by death of the other
transmitted from the moment of death of the
spouse contracts a subsequent marriage
decedent. As a consequence, a co-owner has the
without compliance to the requirement of
right to alienate his pro indiviso share in the co-
liquidation within one year, the subsequent
owned property even without the consent of the co-
marriage shall be governed by CSP
owners.
o Upon finality of a decree for legal
∙ If no liquidation takes place one year after the death separation, the ACP or CPG regime shall
of one spouse and the surviving spouse contracts a be dissolved and liquidated, and what shall
subsequent marriage without compliance to the govern is the CSP
foregoing requirements, the subsequent marriage o When the court approves the joint petition
shall be governed by CSP, even if the spouses agree of the spouses for the voluntary dissolution
to ACP or CPG in their settlement. of the ACP or CPG, CSP shall govern
o When the court decrees the separation of
the spouses following the petition of the
42
spouses following the petition of one of the
spouses for such separation based on the
grounds provided on Art. 135 All creditors of the absolute community or of the conjugal
partnership of gains, as well as the personal creditors of the
spouse, shall be listed in the petition and notified of the filing
Art. 135. Any of the following shall be considered sufficient thereof. The court shall take measures to protect the
cause for judicial separation of property: creditors and other persons with pecuniary interest. (191a)
∙ If separation of property is not in the marriage Art. 137. Once the separation of property has been decreed,
settlement, it may be resorted by: the absolute community or the conjugal partnership of gains
o Filing a petition for legal separation shall be liquidated in conformity with this Code.
o Filing a petition for separation of property During the pendency of the proceedings for separation of
either voluntary or for sufficient cause property, the absolute community or the conjugal
(1) That the spouse of the petitioner has been sentenced partnership shall pay for the support of the spouses and their
to a penalty which carries with it civil interdiction; children. (192a)
(2) That the spouse of the petitioner has been judicially
Art. 138. After dissolution of the absolute community or of
declared an absentee;
the conjugal partnership, the provisions on complete
∙ Even if spouse is absent for required 2 years, if the separation of property shall apply. (191a)
person is the administrator of such property the
requirement to be declared as absentee is 5 years. Art. 139. The petition for separation of property and the
(3) That loss of parental authority of the spouse of final judgment granting the same shall be recorded in the
petitioner has been decreed by the court; proper local civil registries and registries of property. (193a)
(4) That the spouse of the petitioner has abandoned the Art. 140. The separation of property shall not prejudice the
latter or failed to comply with his or her obligations to rights previously acquired by creditors. (194a)
the family as provided for in Article 101;
∙ Those referred to under Art. 68 to 71 with regards to ∙ The decree of separation of property shall have the
husband and wife, and 220, 221 and 225 in regards following effects
to parents and children. o Once the separation of property has been
decreed, the absolute community or the
conjugal partnership of gains shall be
(5) That the spouse granted the power of administration
liquidated in conformity with the
in the marriage settlements has abused that power;
provisions of Art. 102 and 129 of this
and
Code.
∙ It is necessary that the power of administration must o After dissolution of the absolute
be granted to the spouse in the marriage settlement community or of the conjugal partnership,
itself, otherwise this section shall not apply. the provisions on complete separation of
(6) That at the time of the petition, the spouses have been property shall apply.
separated in fact for at least one year and o In order to bind third persons, the petition
reconciliation is highly improbable.
and final judgment for separation of
property must be recorded in the proper
In the cases provided for in Numbers (1), (2) and (3), the
LCR and registries of property. However,
presentation of the final judgment against the guilty or
the rights which are previously acquired by
absent spouse shall be enough basis for the grant of the
creditors prior to the judicial separation of
decree of judicial separation of property. (191a)
property shall not be prejudiced by the
Art. 136. The spouses may jointly file a verified petition with judicial decree of separation of property
the court for the voluntary dissolution of the absolute Art. 141. The spouses may, in the same proceedings where
community or the conjugal partnership of gains, and for the separation of property was decreed, file a motion in court for
separation of their common properties. a decree reviving the property regime that existed between
them before the separation of property in any of the
∙ The spouses may agree to voluntarily dissolve their following instances:
ACP or CPG however such agreement will not
(1) When the civil interdiction terminates;
produce any legal effect if the same is not approved
(2) When the absentee spouse reappears;
by the courts. The courts may not disapprove any
(3) When the court, being satisfied that the spouse
petition for separation of property on the grounds
granted the power of administration in the marriage
that the court is not satisfied with the reasons of the
parties.
43
settlements will not again abuse that power, authorizes Art. 143. Should the future spouses agree in the marriage
the resumption of said administration; settlements that their property relations during marriage
(4) When the spouse who has left the conjugal home shall be governed by the regime of separation of property,
without a decree of legal separation resumes common the provisions of this Chapter shall be suppletory. (212a)
life with the other;
Art. 144. Separation of property may refer to present or
(5) When parental authority is judicially restored to the
future property or both. It may be total or partial. In the
spouse previously deprived thereof;
latter case, the property not agreed upon as separate shall
(6) When the spouses who have separated in fact for at
pertain to the absolute community. (213a)
least one year, reconcile and resume common life; or
(7) When after voluntary dissolution of the absolute Art. 145. Each spouse shall own, dispose of, possess,
community of property or conjugal partnership has administer and enjoy his or her own separate estate, without
been judicially decreed upon the joint petition of the need of the consent of the other. To each spouse shall belong
spouses, they agree to the revival of the former all earnings from his or her profession, business or industry
property regime. No voluntary separation of property and all fruits, natural, industrial or civil, due or received
may thereafter be granted. during the marriage from his or her separate property.
The revival of the former property regime shall be governed (214a)
by Article 67. (195a)
Art. 146. Both spouses shall bear the family expenses in
Art. 142. The administration of all classes of exclusive proportion to their income, or, in case of insufficiency or
property of either spouse may be transferred by the court to default thereof, to the current market value of their separate
the other spouse: properties.
(1) When one spouse becomes the guardian of the other; The liabilities of the spouses to creditors for family expenses
(2) When one spouse is judicially declared an absentee; shall, however, be solidary. (215a)
(3) When one spouse is sentenced to a penalty which
carries with it civil interdiction; or Chapter 7. Property Regime of Unions Without Marriage
(4) When one spouse becomes a fugitive from justice or is
in hiding as an accused in a criminal case. ∙ Except in marriages declared void ab initio under
If the other spouse is not qualified by reason of Art. 40, the property regime that shall govern in a
incompetence, conflict of interest, or any other just cause, the void marriage shall not be CPG or ACP but the
court shall appoint a suitable person to be the administrator. provisions under Art. 147 and 148
(n)
∙ Transfer may be by agreement or by order of the Art. 147. When a man and a woman who are capacitated to
court. Also, under Art. 110 the transfer is allowed by marry each other, live exclusively with each other as
means of public instrument which shall be recorded husband and wife without the benefit of marriage or under a
in the registry of property where the property is void marriage, their wages and salaries shall be owned by
located them in equal shares and the property acquired by both of
them through their work or industry shall be governed by
∙ If transfer is by court order, it may be done based the rules on co-ownership.
only on the following reasons:
o Owner spouse is under guardianship In the absence of proof to the contrary, properties acquired
while they lived together shall be presumed to have been
o Owner spouse is judicially declared an obtained by their joint efforts, work or industry, and shall be
absentee owned by them in equal shares. For purposes of this Article,
o Owner spouse is sentenced to a penalty a party who did not participate in the acquisition by the
which carries with it civil interdiction other party of any property shall be deemed to have
o Owner spouse becomes a fugitive from contributed jointly in the acquisition thereof if the former’s
justice or is in hiding as an accused in a efforts consisted in the care and maintenance of the family
criminal case. and of the household.
∙ It is shall be transferred to the other spouse unless Neither party can encumber or dispose by acts inter vivos of
the they are not qualified due to incompetence, his or her share in the property acquired during cohabitation
conflict of interest or any other just cause. In such and owned in common, without the consent of the other, until
case, the court shall appoint a suitable person as after the termination of their cohabitation.
administrator.
When only one of the parties to a void marriage is in good
Chapter 6. Regime of Separation of Property faith, the share of the party in bad faith in the co-ownership
shall be forfeited in favor of their common children. In case
44
of default of or waiver by any or all of the common children parties through their actual joint contribution of money,
or their descendants, each vacant share shall belong to the property, or industry shall be owned by them in common in
respective surviving descendants. In the absence of proportion to their respective contributions. In the absence
descendants, such share shall belong to the innocent party. In of proof to the contrary, their contributions and
all cases, the forfeiture shall take place upon termination of corresponding shares are presumed to be equal. The same
the cohabitation. (144a) rule and presumption shall apply to joint deposits of money
and evidences of credit.
∙ Shall only apply in the following conditions:
If one of the parties is validly married to another, his or her
o capacitated (refers to legal capacity to share in the co-ownership shall accrue to the absolute
marry) to marry each other community or conjugal partnership existing in such valid
o live exclusively with each other as husband marriage. If the party who acted in bad faith is not validly
and wife married to another, his or her shall be forfeited in the
o living without the benefit of marriage or manner provided in the last paragraph of the preceding
under a void marriage Article.
∙ Shall not only apply in the following conditions: The foregoing rules on forfeiture shall likewise apply even if
o Minors who lived exclusively as husband both parties are in bad faith.
and wife
o Void as first cousins under Art. 38 ∙ Shall apply in the following cases
o Bigamous marriages
∙ Shall only apply in the case of psychological
incapacity, lack of marriage license or similar
o Adulterous relationships
reasons. o Relationships in state of concubinage
∙ The properties acquired during the cohabitation
o Relationships where both man and woman
are married to other people
shall be distributed as follows:
o Wages and salaries shall be owned by them o Multiple alliances of the same married man
in equal shares, even if only one of them o Common law spouses suffering from legal
contributes to wages and salaries impediment to marry each other
o Property acquired by both through work or o Does not live exclusively with each other
industry shall be governed by the rules on as husband and wife
co-ownership. In absence of proof to the ∙ The properties acquired during the cohabitation
contrary, properties acquired while together shall be distributed as follows:
shall be presumed to have been obtained o Wages and salaries earned by each party
through joint efforts, even if only one party shall be owned by them exclusively
participated in the acquisition of such o Only property acquired by both of them
properties
through their actual joint contribution of
o The share of the party on the co-ownership money, property or industry shall be owned
in void marriage who is in bad faith shall in common and in proportion to their
be forfeited in favor of their common respective contributions. If actual
children, surviving descendants for the contribution is not proved, then there can
vacant share in case the former defaults or be no co-ownership. Hence, mere
waives their share, or to the innocent party cohabitation without proof of contribution
in absence of descendants. Such forfeiture will not result in co-ownership
shall take place upon the termination of the o The share of the party validly married to
cohabitation
another shall accrue to the property regime
o Neither party can dispose or encumber by of the existing marriage
acts inter vivos of his or her share of he
property acquired during the cohabitation
 In Belcodero vs. CA, the court
held that property acquired by a
and owned in common, without the consent
man whole living with a common
of the other until the termination of he
law wife during the subsistence of
cohabitation. In other words, disposal of
his marriage is conjugal property,
share in co-ownership shall be allowed is
even when property was titled in
by way of mortis causa, or inter vivos if
the name of the common law
there is consent of the other spouse
wife. In such cases, a constructive
Art. 148. In cases of cohabitation not falling under the
trust is deemed to have been
preceding Article, only the properties acquired by both of the
45
created under Article 1456 NCC ∙ The policy of the state regarding the Family under Sec.
over the property which lawfully 1 Art. XV of the Constitution is exemplified and given
pertains to the conjugal flesh in the provisions of this Article in the FC which
partnership of the subsisting requires that earnest efforts towards a compromise be
marriage. exerted first before action or suit between or among
o If the party who has acted in bad faith is members of the same family may be given course.
not validly married, his or her share in shall
be forfeited in the manner therefore ∙ The Civil Code Commission explains the reason for
expressed. The foregoing rules of forfeiture such a requirement which is as follows: “This rule is
shall apply even if both parties acted in bad introduced because it is difficult to imagine a sadder
faith. and more tragic spectacle than a litigation between
members of the same family”
∙ Requirement is mandatory that the complaint or
TITLE V petition, which must be verified, should allege that
earnest efforts towards a compromise have been made
THE FAMILY but that the same failed, so that if shown that no such
efforts were made, the case must be dismissed.
Chapter 1. The Family as an Institution ∙ Members of the family under Art. 151 should be
construed as those referring to Art. 150. Thus hose not
Art. 149. The family, being the foundation of the nation, is a included shall not be considered as members of the
basic social institution which public policy cherishes and family.
protects. Consequently, family relations are governed by law
and no custom, practice or agreement destructive of the Chapter 2. The Family Home
family shall be recognized or given effect. (216a, 218a)
∙ Our family law is based on the policy that marriage is Art. 152. The family home, constituted jointly by the
husband and the wife or by an unmarried head of a family, is
not a mere social contract but a social institution which
the dwelling house where they and their family reside, and
the state is vitally interested
the land on which it is situated. (223a)
∙ Senator Tolentino clarifies that only the external aspect
of family relations is contemplated in the rules stated in ∙ A family home is the dwelling place of a person and his
the second sentence because it is only here that third family
persons and public interest are concerned. ∙
Art. 153. The family home is deemed constituted on a house
Art. 150. Family relations include those:
and lot from the time it is occupied as a family residence.
(1) Between husband and wife; From the time of its constitution and so long as any of its
(2) Between parents and children; beneficiaries actually resides therein, the family home
(3) Among brothers and sisters, whether of the full or continues to be such and is exempt from execution, forced
half-blood. (217a) sale or attachment except as hereinafter provided and to the
∙ The extent of the term ‘family relations includes those extent of the value allowed by law. (223a)
defined in Art. 150 as well as ascendants and
descendants. ∙ It is not only the spouses who may constitute the family
home on the properties of ACP or CPG, or on exclusive
∙ Such enumeration is exclusive and defines the property of either with the other’s consent. Even an
operation of this article unmarried head of family may constitute a family home
on his/her own property.
Art. 151. No suit between members of the same family shall
prosper unless it should appear from the verified complaint
or petition that earnest efforts toward a compromise have
been made, but that the same have failed. If it is shown that Art. 154. The beneficiaries of a family home are:
no such efforts were in fact made, the same case must be (1) The husband and wife, or an unmarried person who is
dismissed. the head of a family; and
This rules shall not apply to cases which may not be the (2) Their parents, ascendants, descendants, brothers and
subject of compromise under the Civil Code. (222a) sisters, whether the relationship be legitimate or
illegitimate, who are living in the family home and
46
who depend upon the head of the family for legal ∙ The person constituting the family home
support. (226a)
∙ The latter’s spouse
∙ This article also includes in-laws where the family
home is constituted jointly by the husband and wife, ∙ Majority of the beneficiaries of legal age.
maids and overseers are however not included. ∙ However, when the family home is part of the AC or
CP, its alienation or encumbrance during the marriage
Art. 155. The family home shall be exempt from execution, without the consent of the other shall be void.
forced sale or attachment except:
(1) For nonpayment of taxes;
(2) For debts incurred prior to the constitution of the Art. 159. The family home shall continue despite the death of
family home; one or both spouses or of the unmarried head of the family
(3) For debts secured by mortgages on the premises for a period of ten years or for as long as there is a minor
before or after such constitution; and beneficiary, and the heirs cannot partition the same unless
(4) For debts due to laborers, mechanics, architects, the court finds compelling reasons therefor. This rule shall
builders, materialmen and others who have rendered apply regardless of whoever owns the property or constituted
service or furnished material for the construction of the family home. (238a)
the building. (243a)
∙ Under Art. 153 and 159, the following rules shall apply
∙ This exemption is effective from the time of the
in the event of the death of the person or persons who
constitution of the family home as such and lasts so constitute the family home:
long as any of the beneficiaries resides therein
∙ The family home continues as such for as long as there
is a minor beneficiary actually residing therein
Art. 156. The family home must be part of the properties of
the absolute community or the conjugal partnership, or of ∙ But if there is no minor beneficiary, the family home
the exclusive properties of either spouse with the latter’s continues to be as such only for a period of ten years
consent. It may also be constituted by an unmarried head of provided that a beneficiary of legal age actually resides
a family on his or her own property. therein,
Nevertheless, property that is the subject of a conditional ∙ As a rule, any one of the co-owners may demand
sale on installments where ownership is reserved by the partition at any time. However, so long as the family
vendor only to guarantee payment of the purchase price may home constitutes as such pursuant to the provisions of
be constituted as a family home. (227a, 228a) this article, the heirs are prohibited from partitioning
the family home unless the court finds a compelling
Art. 157. The actual value of the family home shall not reason therefore
exceed, at the time of its constitution, the amount of the three
hundred thousand pesos in urban areas, and two hundred
thousand pesos in rural areas, or such amounts as may Art. 160. When a creditor whose claims is not among those
hereafter be fixed by law. mentioned in Article 155 obtains a judgment in his favor, and
In any event, if the value of the currency changes after the he has reasonable grounds to believe that the family home is
adoption of this Code, the value most favorable for the actually worth more than the maximum amount fixed in
constitution of a family home shall be the basis of evaluation. Article 157, he may apply to the court which rendered the
judgment for an order directing the sale of the property
For purposes of this Article, urban areas are deemed to under execution. The court shall so order if it finds that the
include chartered cities and municipalities whose annual actual value of the family home exceeds the maximum
income at least equals that legally required for chartered amount allowed by law as of the time of its constitution. If
cities. All others are deemed to be rural areas. (231a) the increased actual value exceeds the maximum allowed in
Article 157 and results from subsequent voluntary
Art. 158. The family home may be sold, alienated, donated,
improvements introduced by the person or persons
assigned or encumbered by the owner or owners thereof with
constituting the family home, by the owner or owners of the
the written consent of the person constituting the same, the
property, or by any of the beneficiaries, the same rule and
latter’s spouse, and a majority of the beneficiaries of legal
procedure shall apply.
age. In case of conflict, the court shall decide. (235a)
At the execution sale, no bid below the value allowed for a
∙ The law does not prohibit the alienation or family home shall be considered. The proceeds shall be
encumbrance of the family home. However, the law applied first to the amount mentioned in Article 157, and
requires written consent of the following persons in the then to the liabilities under the judgment and the costs. The
sale, alienation, donation or encumbrance of the family
home:
47
excess, if any, shall be delivered to the judgment debtor. Art. 166. Legitimacy of a child may be impugned only on the
(247a, 248a) following grounds:
Art. 161. For purposes of availing of the benefits of a family ∙ Children born to a valid marriage are presumed
home as provided for in this Chapter, a person may legitimate. Such presumption applies even if the mother
constitute, or be the beneficiary of, only one family home. (n) declares against its legitimacy (due to first, such
Art. 162. The provisions in this Chapter shall also govern declaration may have been adopted in a fit of anger or
existing family residences insofar as said provisions are to arouse jealousy of the husband; and second, as a
applicable. (n) guaranty in favor of the children whose condition
should not be under the mercy of the passions of their
parents). However, such presumption is not conclusive
and may be overthrown by evidence to the contrary.
TITLE VI Such ground for impugning the legitimacy of a chold
are enumerated in this article.
PATERNITY AND FILIATION ∙ As a rule, impugning the legitimacy of a child is strictly
the personal right of a husband for the simple reason
Chapter 1. Legitimate Children
that he is the one directly confronted with the scandal
and ridicule which the infidelity of the wife produces
Art. 163. The filiation of children may be by nature or by and he should be the one to decide whether to conceal it
adoption. Natural filiation may be legitimate or illegitimate. or expose it in view of economic and moral interest
(n) involved.
Art. 164. Children conceived or born during the marriage of (1) That it was physically impossible for the husband to
the parents are legitimate. have sexual intercourse with his wife within the first
120 days of the 300 days which immediately preceded
Children conceived as a result of artificial insemination of
the birth of the child because of:
the wife with the sperm of the husband or that of a donor or
both are likewise legitimate children of the husband and his ∙ This period is important because it is the period where
wife, provided, that both of them authorized or ratified such conception of the child takes place.
insemination in a written instrument executed and signed by (a) the physical incapacity of the husband to have
them before the birth of the child. The instrument shall be sexual intercourse with his wife;
recorded in the civil registry together with the birth ∙ It is only impotency which the law considers as
certificate of the child. (55a, 258a) sufficient ground to impugn the child’s legitimacy and
∙ Filiation of children may be by nature (legitimate or not sterility which is the mere inability to procreate.
(b) the fact that the husband and wife were living
illegitimate) or by adoption created by a judgment of
separately in such a way that sexual intercourse
adoption (a judicial act whereby the same rights and
was not possible; or
obligations as filiation by blood are established for the
(c) serious illness of the husband, which absolutely
adoptive parent and the adopted child).
prevented sexual intercourse;
∙ A child born within a valid marriage is legitimate as is a
∙ Must be of such nature as to exclude the possibility of
child born prior to the annulment of a voidable
having sexual intercourse with the wife.
marriage. Children born outside of a valid marriage
(2) That it is proved that for biological or other scientific
such a wedlock or void marriages are illegitimate,
reasons, the child could not have been that of the
except those marriages declared void under Art. 36 and
husband, except in the instance provided in the second
53.
paragraph of Article 164; or
∙ The law does not recognize as valid the use of a
∙ In Tijing vs. CA, the SC said that courts should apply
surrogate mother, as such the child will be considered
the results of science when compently obtained as an
as illegitimate unless the child is adopted by the
aid of situations presented, since to reject said result is
spouses.
to deny progress
∙ Blood tests eliminates all possibility that the putative
Art. 165. Children conceived and born outside a valid father is the father of a child, if none of the father’s
marriage are illegitimate, unless otherwise provided in this phenotypes are present in the child’s blood type. But the
Code. (n) reverse does not hold true such that the absence of the
former’s phenotype in the latter would have made his
48
paternity biologically untenable (as ruled in Co Tao vs. ∙ Applies to a situation where marriage is terminated and
CA and Jao vs CA) a child is born after 300 days following termination of
∙ DNA testing- If the man does not have the DNA types the marriage, which gives rise to the issue of the status
in his profiles match the paternal types in the child, he of the child. As such, the law leaves the burden of proof
is excluded as a father. Otherwise, he is included as a to whoever may allege such legitimacy or illegitimacy.
possible father.
(3) That in case of children conceived through artificial
insemination, the written authorization or ratification Art. 170. The action to impugn the legitimacy of the child
of either parent was obtained through mistake, fraud, shall be brought within one year from the knowledge of the
violence, intimidation, or undue influence. (255a) birth or its recording in the civil register, if the husband or,
in a proper case, any of his heirs, should reside in the city or
∙ Even if it is the wife’s authorization which was
municipality where the birth took place or was recorded.
obtained through mistake, fraud, violence, intimidation
or undue influence, she has no right to impugn the If the husband or, in his default, all of his heirs do not reside
legitimacy of the child. The proper party to impugn the at the place of birth as defined in the first paragraph or
child’s legitimacy is the husband since the right is where it was recorded, the period shall be two years if they
strictly personal to him. In exceptional cases, it may be should reside in the Philippines; and three years if abroad. If
exercised by his heirs. the birth of the child has been concealed from or was
unknown to the husband or his heirs, the period shall be
∙ It is submitted that this section should refer only to
counted from the discovery or knowledge of the birth of the
situations where the sperm of the donor is used in the
child or of the fact of registration of said birth, whichever is
artificial insemination of the wife.
earlier. (263a)
Art. 167. The child shall be considered legitimate although Art. 171. The heirs of the husband may impugn the filiation
the mother may have declared against its legitimacy or may of the child within the period prescribed in the preceding
have been sentenced as an adulteress. (256a) article only in the following cases:
Art. 168. If the marriage is terminated and the mother (1) If the husband should died before the expiration of the
contracted another marriage within three hundred days period fixed for bringing his action;
after such termination of the former marriage, these rules (2) If he should die after the filing of the complaint
shall govern in the absence of proof to the contrary: without having desisted therefrom; or
(3) If the child was born after the death of the husband.
∙ Applies to marriages that are terminated by whatever (262a)
reason. Thus the problem arises to which marriage the ∙ The issue of legitimacy cannot be collaterally attacked.
child belongs. As such the provisions of this article
provides the following presumptions:
∙ The rationale for such rule is based on the fact there is
(1) A child born before one hundred eighty days after the presumption of legitimacy in the FC. As such, it fixes
solemnization of the subsequent marriage is the status of children born out of wedlock and such
considered to have been conceived during the former status cannot be attacked collaterally. The legitimacy of
marriage, provided it be born within three hundred child can only be impugned by direct action brought for
days after the termination of the former marriage; that purpose, by the proper parties within the period
(2) A child born after one hundred eighty days following limited by law. Only the husband can impugn the
the celebration of the subsequent marriage is legitimacy of a child as it is strictly the personal right of
considered to have been conceived during such a husband for the simple reason that he is the one
marriage, even though it be born within the three directly confronted with the scandal and ridicule which
hundred days after the termination of the former the infidelity of the wife produces and he should be the
marriage. (259a) one to decide whether to conceal it or expose it in view
of economic and moral interest involved. Only in
∙ Such presumption may be rebutted by proof to the exceptional cases can heirs of the husband exercise can
contrary, and as such the presumption only applies if impugn the child’s legitimacy.
there is absence of proof to the contrary.
∙ The prescriptive period for filing action
Art. 169. The legitimacy or illegitimacy of a child born after ∙ One year, counted from the knowledge of birth of the
three hundred days following the termination of the child or recording of such birth in the civil register, if
marriage shall be proved by whoever alleges such legitimacy the husband or in cases provided by Art. 171, any of his
or illegitimacy. (261a) heirs resides in the place where the birth took place or
was recorded
49
∙ Two years, counted from the knowledge of the birth of (1) The open and continuous possession of the status of a
legitimate child; or
the child or recording of such birth in the civil register,
if the husband or in his default, all his heirs do not ∙ To prove by open and continuous status of an
reside in the place of birth or where it was recorded, if illegitimate child, there must be evidence of the
they live in the Philippines manifestation of the permanent intention of the
∙ Three years, counted from the knowledge of the birth of supposed father to consider the child as this, by
continuous and clear manifestations of parental
the child or recording of such birth in the civil register,
affection and care, which cannot be attributed to pure
if he husband or in his default, all of his heirs reside
charity.
abroad.
(2) Any other means allowed by the Rules of Court and
∙ If the birth of the child has been concealed from or was special laws. (265a, 266a, 267a)
unknown to the husband or the heirs, the period shall be
∙ Physical resemblance but not always the case (Tijing
counted from the discovery or the knowledge of the
vs. CA and Cabatania vs. CA)
birth of the child or of the fact of registration of said
birth, whichever is earlier. ∙ Blood Tests
∙ Upon the expiration of the foregoing periods, the action ∙ DNA Tests
to impugn the legitimacy of the chold can no longer be ∙ Other proof (not family portrait or pictures)
brought.
∙ Provisions of Art. 170 and 171 apply in the cases of
doubt if a child is indeed a man’s child by his wife and Art. 173. The action to claim legitimacy may be brought by
the husband (or in proper cases, his heirs) denies the the child during his or her lifetime and shall be transmitted
child’s filiation to the heirs should the child die during minority or in a state
of insanity. In these cases, the heirs shall have a period of five
Chapter 2. Proof of Filiation years within which to institute the action.
∙ Paternity or filiation, or lack of it, is a relationship that ∙ The right to claim legitimacy is strictly belonging to the
must be judicially established and it is for the court to child during his or her lifetime. Only under exceptional
declare its existence or absence, thus it cannot be left to causes may it be exercised by his heirs, as in cases of
the will of the parties. ∙ An action to establish illegitimate filiation may be
brought by the child within the same period as stated in
Art. 172. The filiation of legitimate children is established by this article, except when action is brought about by
any of the following: reasons provided in second paragraph of Art. 172 in
which case the action must be brought during the
(1) The record of birth appearing in the civil register or a lifetime of the alleged parent. Hence if the reasons are
final judgment; or based on (1) and (2) of Art. 172, the same may be
∙ It is necessary that the putative father must have a brought by the child at any time during his/her lifetime.
participation in its preparation. It is not indispensable ∙ The putative parent is given a chance to dispute this
that the same be signed by the putative father. claim, considering that illegitimate children are usually
∙ Baptismal certificate is not a conclusive proof as it does begotten and raised in secrecy and without the
not have the same probative value as the birth legitimate children being aware of their existence.
certificate.
Art. 174. Legitimate children shall have the right:
(2) An admission of legitimate filiation in a public (1) To bear the surnames of the father and the mother, in
document or a private handwritten instrument and conformity with the provisions of the Civil Code on
signed by the parent concerned. Surnames;
∙ The admission must be made personally by the parent ∙ Illegitimate children shall principally use the surname
himself/herself. The public document contemplated of their mother. They may only be allowed to use the
under this article is purposely executed as an admission surname of their father in such exceptional
of filiation and not for other purposes. circumstances (which appears to be governed by Art.
172 without the need for judicial proceeding).
In the absence of the foregoing evidence, the legitimate
filiation shall be ∙ Their illegitimate filiation has been expressly
recognized by their father through the record of birth
proved by: appearing in the civil registry
50
∙ When an admission of paternity is made by putative by parents who could be legally married at the time
they were conceived, cannot be substantially
father in a public instrument or a private handwritten
differentiated from legitimate children once their
instrument.
parents do marry after their birth.
(2) To receive support from their parents, their
ascendants, and in proper cases, their brothers and
sisters, in conformity with the provisions of this Code Art. 177. Only children conceived and born outside of
on Support; and wedlock of parents who, at the time of the conception of the
∙ Illegitimate children are entitled to support from their former, were not disqualified by any impediment to marry
parents. However, only the separate property of the each other may be legitimated. (269a)
person obliged to give support shall be answerable. In
the case that such person has no exclusive properties,
∙ Any impediment to marry is a legal obstacle to
the ACP or CPG shall advance support if financially contracting a valid marriage. This may include being
capable, which shall be deducted from the share of the under age of 18 or impediments under Art 37 and 38.
spouse obliged upon liquidation of the ACP or CPG The child may not be legitimated if the impediment
(3) To be entitled to the legitimate and other successional exists at the time of conception of the child. If it existed
rights granted to them by the Civil Code. (264a) after the child is conceived, then the child may be
legitimated.
∙ Illegitimate children are considered as compulsory and
legal heirs with respect to their parents. Their legitime
is one-half of the legitime of a legitimate child Art. 178. Legitimation shall take place by a subsequent valid
∙ There are 3 kinds of heirs under the law of succession: marriage between parents. The annulment of a voidable
marriage shall not affect the legitimation. (270a)
∙ Voluntary- as those in the express will of the testator in
the latter’s will and testament ∙ No additional acts are needed on the part of the children
∙ Legal or intestate- called by law to the succession in the or the parents
absence of voluntary heirs designated by the testator ∙ It is essential that the marriage must be valid or at least
∙ Compulsory- those who are entitled to legitime and voidable, to which the annulment shall not affect the
cannot be deprived thereof by the testator unless legitimation that took place upon the celebration of
properly disinherited by testator. marriage.
∙ Marriages void ab inition shall not consider
Chapter 3. Illegitimate Children legitimation since the marriage is deemed never o have
taken place.
Art. 175. Illegitimate children may establish their illegitimate Art. 179. Legitimated children shall enjoy the same rights as
filiation in the same way and on the same evidence as legitimate children. (272a)
legitimate children.
The action must be brought within the same period specified Art. 180. The effects of legitimation shall retroact to the time
in Article 173, except when the action is based on the second of the child’s birth. (273a)
paragraph of Article 172, in which case the action may be Art. 181. The legitimation of children who died before the
brought during the lifetime of the alleged parent. (289a) celebration of the marriage shall benefit their descendants.
(274)
Art. 176. Illegitimate children shall use the surname and
shall be under the parental authority of their mother, and Art. 182. Legitimation may be impugned only by those who
shall be entitled to support in conformity with this Code. The are prejudiced in their rights, within five years from the time
legitime of each illegitimate child shall consist of one-half of their cause of action accrues. (275a)
the legitime of a legitimate child. Except for this
modification, all other provisions in the Civil Code governing ∙ As such, all the other legal or compulsory heirs of the
successional rights shall remain in force. (287a) parents of the legitimated child are to be considered as
proper party to impugn legitimation
Chapter 4. Legitimated Children ∙ It is believed that the cause of action accrues only at the
∙ Legitimation is a right granted by law to the children death of parent whose property is transmitted through
conceived and born outside of wedlock of parents, who succession.
at the time of the conception of the former, were not ∙ The validity of legitimation may only be questioned in
disqualified by any impediment to marry each other. In a direct proceeding.
other words, children conceived or born out of wedlock
51
• (1) A person of legal age, unless he or she is a child by
TITLE VII nature of the adopter or his or her spouse, or, prior
ADOPTION to the adoption, said person has been consistently
considered and treated by the adopter as his or her
Art. 183. A person of age and in possession of full civil own child during minority.
capacity and legal rights may adopt, provided he is in a • (2) An alien with whose government the Republic of
position to support and care for his children, legitimate or the Philippines has no diplomatic relations; and
illegitimate, in keeping with the means of the family.
Only minors may be adopted, except in the cases when the • (3) A person who has already been adopted unless such
adoption of a person of majority age is allowed in this Title. adoption has been previously revoked or rescinded.
(30a, E. O. 91 and PD 603)
In addition, the adopter must be at least sixteen years older
than the person to be adopted, unless the adopter is the
parent by nature of the adopted, or is the spouse of the Art. 188. The written consent of the following to the adoption
legitimate parent of the person to be adopted. (27a, E. O. 91 shall be necessary:
and PD 603)
• (1) The person to be adopted, if ten years of age or
over,
Art. 184. The following persons may not adopt:
• (2) The parents by nature of the child, the legal
guardian, or the proper government
(1) The guardian with respect to the ward prior to the
instrumentality;
approval of the final accounts rendered upon the
termination of their guardianship relation;
• (3) The legitimate and adopted children, ten years of
age or over, of the adopting parent or parents;
(2) Any person who has been convicted of a crime
involving moral turpitude;
• (4) The illegitimate children, ten years of age or over, of
the adopting parent, if living with said parent and
(3) An alien, except:
the latter's spouse, if any; and
(4) (a) A former Filipino citizen who seeks to adopt a

• (5) The spouse, if any, of the person adopting or to be
relative by consanguinity; (b) One who seeks to adopt the
adopted. (31a, E. O. 91 and PD 603)
legitimate child of his or her Filipino spouse; or (c) One
who is married to a Filipino citizen and seeks to adopt
jointly with his or her spouse a relative by consanguinity
Art. 189. Adoption shall have the following effects:
of the latter.
• (1) For civil purposes, the adopted shall be deemed to
Aliens not included in the foregoing exceptions may adopt be a legitimate child of the adopters and both shall
Filipino children in accordance with the rules on inter- acquire the reciprocal rights and obligations arising
country adoptions as may be provided by law. (28a, E. O. 91 from the relationship of parent and child, including
and PD 603) the right of the adopted to use the surname of the
adopters;
Art. 185. Husband and wife must jointly adopt, except in the • (2) The parental authority of the parents by nature
following cases: over the adopted shall terminate and be vested in
the adopters, except that if the adopter is the spouse
• (1) When one spouse seeks to adopt his own illegitimate of the parent by nature of the adopted, parental
child; or authority over the adopted shall be exercised jointly
by both spouses; and
• (2) When one spouse seeks to adopt the legitimate child
of the other. (29a, E. O. 91 and PD 603)
• (3) The adopted shall remain an intestate heir of his
parents and other blood relatives. (39(1)a, (3)a, PD
Art. 186. In case husband and wife jointly adopt or one 603)
spouse adopts the legitimate child of the other, joint parental
authority shall be exercised by the spouses in accordance
with this Code. (29a, E. O. and PD 603) Art. 190. Legal or intestate succession to the estate of the
adopted shall be governed by the following rules:
Art. 187. The following may not be adopted:
52
• (1) Legitimate and illegitimate children and the court in the same proceeding shall reinstate the parental
descendants and the surviving spouse of the adopted authority of the parents by nature, unless the latter are
shall inherit from the adopted, in accordance with disqualified or incapacitated, in which case the court shall
the ordinary rules of legal or intestate succession; appoint a guardian over the person and property of the
• (2) When the parents, legitimate or illegitimate, or the minor. If the adopted person is physically or mentally
legitimate ascendants of the adopted concur with the handicapped, the court shall appoint in the same proceeding
adopter, they shall divide the entire estate, one-half a guardian over his person or property or both.
to be inherited by the parents or ascendants and the Judicial rescission of the adoption shall extinguish all
other half, by the adopters; reciprocal rights and obligations between the adopters and
the adopted arising from the relationship of parent and
child. The adopted shall likewise lose the right to use the
• (3) When the surviving spouse or the illegitimate surnames of the adopters and shall resume his surname
children of the adopted concur with the adopters, prior to the adoption.
they shall divide the entire estate in equal shares,
one-half to be inherited by the spouse or the The court shall accordingly order the amendment of the
illegitimate children of the adopted and the other records in the proper registries. (42a, PD 603)
half, by the adopters.
• Adoption is the process of making a child, whether or not
• (4) When the adopters concur with the illegitimate related to the adopter, possess in general the rights accorded to a
children and the surviving spouse of the adopted, legitimate child.
they shall divide the entire estate in equal shares,
one-third to be inherited by the illegitimate children,
one-third by the surviving spouse, and one-third by •Adoption is an accion in rem which creates a relation between
the adopters; two persons which results from legitimate paternity and filiation,
as well as creates a legitimate status.
• (5) When only the adopters survive, they shall inherit
the entire estate; and •Congress enacted R.A. 8043 and R.A. 8552, which covers
inter-country and domestic adoption, however such laws did not
repeal the provisions of the FC on adoption
• (6) When only collateral blood relatives of the adopted
survive, then the ordinary rules of legal or intestate
succession shall apply. (39(4)a, PD 603) • R.A. 8552 governs domestic adoption, regardless of whether or
not adopter is a citizen or alien, while R.A. 8043 govers
adoptions of Filipino children by adopter who may not be
Art. 191. If the adopted is a minor or otherwise qualified to adopt under the FC or R.A. 8552
incapacitated, the adoption may be judicially rescinded upon
petition of any person authorized by the court or proper Domestic adoption
government instrumental acting on his behalf, on the same Filipino adopter must be:
grounds prescribed for loss or suspension of parental 1. Of legal age
authority. If the adopted is at least eighteen years of age, he 2. At least 16 years older than the adoptee unless the
may petition for judicial rescission of the adoption on the adopter is the biological parent of the adoptee or spouse of the
same grounds prescribed for disinheriting an ascendant. adoptee’s parent
(40a, PD 603) 3. In possession of full civil capacity and legal right
4. Of good moral character and not convicted of an
Art. 192. The adopters may petition the court for the judicial offense involving moral turptitude
rescission of the adoption in any of the following cases:
5. Emotionally and psychologically capable of caring for
the children and in a position to support and care for his or her
• (1) If the adopted has committed any act constituting children in keeping with the means of the family
ground for disinheriting a descendant; or
• (2) When the adopted has abandoned the home of the - A person not in possession of his/her full civil rights
adopters during minority for at least one year, or, by cannot adopt as in the case of insane, imbecile, deaf-mute or
some other acts, has definitely repudiated the persons in civil interdiction cannot adopt
adoption. (41a, PD 603)
Alien adopter
Art. 193. If the adopted minor has not reached the age of
1. Has same qualifications as Filipino adopter
majority at the time of the judicial rescission of the adoption,
53
2. His/her country must have diplomatic relations with the c. In Santos Jr. vs. Republic, the SC ruled against adoption
Philippines of a sibling of his other sibling. But the law does not
3. Has been certified by his/her diplomatic or consular prohibit adoption of relatives.
office pr appropriate government agency to be legally capable
of adopting in his/her country Written consent of the required in the following cases:
4. His/her government allows the adoptee to enter his/her 1. The adoptee if ≥10 years old
country as an adopted child 2. Biological parents of the child, if known, or the legal
5. Has been residing in the Philippines for the past 3 years guardian, or the proper government agency which has legal
prior to the filing of the application for adoption and custody of the child
maintains the same until the adoption decree is entered a. Child is declared abandoned if biological parents cannot
be found or located
Residency and certification requirements waivable in the 3. Illegitimate children of the adopter, if ≥10 years old,
following cases: and living with the said adopter and the latter’s spouse
1. Former citizen who wishes to adopt a relative within 4. The spouse, if any, of the person adopting or to be
4th degree of consanguinity or affinity adopted
2. One who seeks to adopt the legitimate child of their - Absence of parental authority on the part of the
Filipino spouse biological parent does not necessarily mean that their consent
3. One who is married to a Filipino citizen and wishes to is not required
adopt jointly with their spouse the relative of the latter within - Law, in requiring consent of biological parents of the
the 4th degree of consaguinity or affinity. child, does not distinguish between illegitimate or legitimate
filiation
- Guardian may not adopt their ward prior to the - Written consent of natural parents may be dispensed
approval of the final accounts rendered upon the termination of with when the parent has abandoned the child or such parent is
their guardianship insane or hopelessly intemperate
- Joint adoption of husband and wife is required except in
the following csaes Jurisdiction and venue
- One spouse seeks to adopt the legitimate child of the - Jurisdiction is under the Family Court
other - Proceedings are in rem, hence publication is necessary to give
- One spouse seeks to adopt their illegitimate child, proper notice to the parties
provided the other spouse consents. Here both spouses
exercise parental authority over the child Contents of petition
- If the spouses are legally separated 1. Domestic
a. Jurisdiction facts
Who may be adopted b. Should allege that
1. Any person below 18 years of age who has been i. Name, age, residence of the adoptee as shown in the
administratively or judicially put up for adoption birth, baptismal or foundling certificate and school
a. Covers those voluntarily or involuntarily committed to records
the DSWD or a duly licensed and accredited child ii. The adoptee is not disqualifed by law to be adopte
placing or child caring agency and has been freed of the
parental authority by their biological parents
iii. The probable value and character of the estate
of the adoptee
2. The legitimate child of one spouse by the other spouse
iv. Name by which the adoptee is to be known or
3. An illegitimate child by a qualied adopter to render registered in the Civil Registry
them legitimate
v. Also requires certificate of NFS
4. A person of legal age if prior to the adoption, said
persons has been consistently considered and treated by the
vi.
adopter as his/her child since minority c. Requirements to adopt (see Filipino and Alien adopter
5. A child whose adoption as has been previously must be)
rescinded d. See adoption for guardians and for spouses for rules and
6. A child whose biological or adoptive parents have died exceptions
a. Requires that child is below 18 years old e. If the adoptee is a foundlng, the petition shall allege the
entries which should appear in his birth certificate
b. No adoption proceedings shall be initiated within 6
months from the death of said parents
f. If petition prays for a change of name, it shall also state
the cause or reason for the change of name.
54
d. That the Department, child-placement or child-caring
Rectification of simulation of birth agency is authorized to give its consent.
1. Simulation of birth - tampering of the civil registry 3. When there is also a petition for change of name,
making it appear in the birth records that a certain child is contents are:
born to persons whoare not their biological parents a. The registered name of the child;
2. Prior to the effectivity of R.A. 8552, a person who b. Aliases or other names by which the child has been
simulated the birth of a child shall not be punished if: known; and
a. Done in the best interests of the child and that the child c. The full name by which the child is to be known.
has been consistently been considered or treated as the
child of the person
4. Annexes to petition
b. The application for the correction of the birth registration a. Birth, baptismal or foundling certificate, as the case may
and the petition for adoption shall be filed within 5 years be, and school records showing the name, age and
from the effectivity of the said law residence of the adoptee;
c. Such person complies with the procedure as specified in b. Affidavit of consent of the following:
Art. IV of R.A. 8552 and the requirements as determined i. The adoptee, if ten (10) years of age or over;
by the DSWD ii. The biological parents of the child, if known, or the
3. If seeking rectification of a simulation of birth legal guardian, or the child-placement agency, child-
a. Petition ia applying for rectification of a simulated birth caring agency, or the proper government
instrumentality which has legal custody of the child;
b. Simulation made prior to the effectivity of R.A. 8552 and
petition for both rectification and adoption was filed
iii. The legitimate and adopted children of the
within 5 years from said date adopter and of the adoptee, if any, who are ten (10)
years of age or over;
c. Simulation done in the best interests of the child
iv. The illegitimate children of the adopter living
d. That the child has been consistently been considered or with him who are ten (10) years of age or over; and
treated as the child of the person
v. The spouse, if any, of the adopter or adoptee.
Adoption of foundling, abandoned, dependent or neglected child c. Child study report on the adoptee and his biological
1. Definition of terms parents by DSWD;
a. “Foundling” refers to a deserted or abandoned infant or d. If the petitioner is an alien, certification by his diplomatic
child whose parents, guardian or relatives are unknown; or consular office or any appropriate government agency
or a child committed to an orphanage or charitable or that he has the legal capacity to adopt in his country and
similar institution with unknown facts of birth and that his government allows the adoptee to enter his
parentage and registered in the Civil Register as a country as his own adopted child unless exempted under
“foundling.” Section 4(2);
b. “Abandoned child” refers to one who has no proper e. Home study report on the adopters. If the adopter is an
parental care or guardianship or whose parents have alien or residing abroad but qualified to adopt, the home
deserted him for a period of at least six (6) continuous study report by a foreign adoption agency duly accredited
months and has been judicially declared as such. by the Inter-Country Adoption Board; and
c. “Dependent child” refers to one who is without a parent, f. Decree of annulment, nullity or legal separation of the
guardian or custodian or one whose parents, guardian or adopter as well as that of the biological parents of the
other custodian for good cause desires to be relieved of adoptee, if any.
his care and custody and is dependent upon the public for
support. Effects of adoption:
d. “Neglected child” is one whose basic needs have been 1. All ties with the biological parents are severed and they
deliberately not attended to or inadequately attended to, shall be vested with the adopter, unless where the biological
physically or emotionally, by his parents or guardian. parent is the spouse of the adopter
2. Contents of petition 2. Adopted child is entitled to all the rights of the
legitimate child of the adopter
a. The facts showing that the child is a foundling,
abandoned, dependent or neglected;
3. Right to use the surname of the adopter
b. The names of the parents, if known, and their residence. 4. Support from adopter
If the child has no known or living parents, then the name 5. Compulsary heir of adoptive parents but only
and residence of the guardian, if any; testamentary heir of biological parents, and likewise serves as
c. The name of the duly licensed child-placement agency or legal heir of adopter o
individual under whose care the child is in custody; and
55
Rescission of adoption vii. agrees to uphold the basic rights of the child as
1. Right to rescind is vested with adopted child, with embodied under Philippine laws, the U.N.
assistance if minor or incapacitated Convention on the Rights of the Child, and to abide
2. Grounds by the rules and regulations issued to implement the
a. repeated physical and verbal maltreatment by the provisions of this Act;
adopter(s) despite having undergone counseling; viii. comes from a country with whom the
b. attempt on the life of the adoptee; Philippines has diplomatic relations and whose
government maintains a similarly authorized and
c. sexual assault or violence; or accredited agency and that adoption is allowed under
d. abandonment and failure to comply with parental his/her national laws; and
obligations. ix. possesses all the qualifications and none of the
3. Action prescribes in 5 years after reaching age of disqualifications provided herein and in other
majority or removal of incapacity applicable Philippine laws.
4. Effects of rescission b. Who may be adopted
a. the parental authority of the adoptee's biological i. Only a legally free child may be subject to inter-
parent(s), if known, or the legal custody of the country adoption, who has been voluntarily or
Department shall be restored if the adoptee is still a involuntarily committed to the DSWD either as
minor or incapacitated. dependent, neglected or abandoned
b. The reciprocal rights and obligations of the adopter(s) ii. Application shall be filed either with the Family
and the adoptee to each other shall be extinguished. Court where the child resides or may be found or
c. The court shall order the Civil Registrar to cancel the with the Inter-country Adoption Board
amended certificate of birth of the adoptee and restore
his/her original birth certificate. TITLE VIII
d. Succession rights shall revert to its status prior to SUPPORT
adoption, but only as of the date of judgment of judicial
rescission. Vested rights acquired prior to judicial Art. 194. Support comprises everything indispensable for
rescission shall be respected. sustenance, dwelling, clothing, medical attendance, education
and transportation, in keeping with the financial capacity of
Inter-country adoption the family.
1. Governed by R.A. 8043 The education of the person entitled to be supported referred
to in the preceding paragraph shall include his schooling or
2. Who may adopt
training for some profession, trade or vocation, even beyond
a. An alien or a Filipino citizen permanently residing the age of majority. Transportation shall include expenses in
abroad may file an application for inter-country adoption going to and from school, or to and from place of work.
of a Filipino child if he/she: (290a)
i. is at least twenty-seven (27) years of age and at least
sixteen (16) years older than the child to be adopted, - Support only encompasses everything necessary for the
at the time of application unless the adopter is the sustenance of life, hence other financial expenses are not
parent by nature of the child to be adopted or the covered by the provision such as funeral expenses
spouse of such parent:
ii. if married, his/her spouse must jointly file for the -
adoption;
iii. has the capacity to act and assume all rights Art. 195. Subject to the provisions of the succeeding articles,
and responsibilities of parental authority under his the following are obliged to support each other to the whole
national laws, and has undergone the appropriate extent set forth in the preceding article:
counseling from an accredited counselor in his/her
country; • (1) The spouses;
iv. has not been convicted of a crime involving • (2) Legitimate ascendants and descendants;
moral turpitude;
v. is eligible to adopt under his/her national law; • (3) Parents and their legitimate children and the
vi. is in a position to provide the proper care and legitimate and illegitimate children of the latter;
support and to give the necessary moral values and
example to all his children, including the child to be
• (4) Parents and their illegitimate children and the
adopted;
legitimate and illegitimate children of the latter; and
56
• (5) Legitimate brothers and sisters, whether of full or - A defense against support pendente lite is that there is denial
half-blood (291a) of existence of a valid marriage, or that the other spouse has
committed an act of adultery if proven
- For a spouse to be entitled to support, he or she must be the - Rules for procedure in determining support for spouses:
legitimate spouse 1. In absence of a written agreement, the AC or CP
- Illegitimate descendants from legitimate or illegitimate 2. Shall be as amount that the court may deem just based
parents are entitled to support from their grandparents on the standard of living during the marriage
- Brothers or sisters, whether legitimate or not, and whether 3. Shall consider the following factors:
half or full blood, are bound to support each other, as set forth a. custody of children
under Art. 196
b. time necessary to acquire sufficient education and
training for the spouse to obtain appropriate employment,
Art. 196. Brothers and sisters not legitimately related,
and that spouse’s future earning capacity
whether of the full or half-blood, are likewise bound to
support each other to the full extent set forth in Article 194, c. duration of marriage
except only when the need for support of the brother or d. financial capacities of either spouse
sister, being of age, is due to a cause imputable to the e. obligations and needs of either spouse
claimant's fault or negligence. (291a) f. contributions rendered by the spouses during the
pendency of the marriage
Art. 197. In case of legitimate ascendants; descendants,
g. age and health of the spouses
whether legitimate or illegitimate; and brothers and sisters,
whether legitimately or illegitimately related, only the h. physical and emotional conditions of the spouses
separate property of the person obliged to give support shall i. ability of supporting spouse to give support
be answerable provided that in case the obligor has no j. Any other factors just and equitable
separate property, the absolute community or the conjugal 4. The FCourt may order the direct deduction of the
partnership, if financially capable, shall advance the provisional support from the salary of the spouse
support, which shall be deducted from the share of the
- the common children shall be supported by the AC or CG
spouse obliged upon the liquidation of the absolute
properties, the court may likewise either or both spouses to
community or of the conjugal partnership. (n)
provide support
- In determining amount of support for the common children,
- Properties which are answerable for support are those under the following factors shall be used to determine the same:
the ACP or CPG. The spouses shall be solidarily liable in case
the AC or CP is insufficient 1. Financial resources of the custodial and non-custodial
parent of the child
- Support for illegitimate children shall be taken from the 2. physical, emotional health and special needs and
separate properties of the spouses aptitudes of the child
3. standard of living that the child has been accustomed to
Art. 198. During the proceedings for legal separation or for - Under R.A. 9262, the spouse who is a victim of spousal
annulment of marriage, and for declaration of nullity of violence may apply for Temporary Protection Order which
marriage, the spouses and their children shall be supported will grant a more immediate faster remedy for support
from the properties of the absolute community or the
conjugal partnership. After the final judgment granting the Art. 199. Whenever two or more persons are obliged to give
petition, the obligation of mutual support between the support, the liability shall devolve upon the following
spouses ceases. However, in case of legal separation, the persons in the order When therein provided:
court may order that the guilty spouse shall give support to
the innocent one, specifying the terms of such order. (292a) (1) The spouse;
(2) The descendants in the nearest degree;
- upon the final judgment granting the petition for declaration (3) The ascendants in the nearest degree; and
of nullity of marriage or petition for annulment of marriage, (4) The brothers and sisters. (294a)
the obligation to provide support for each other ceases
- support pendente lite is a provisional remedy for support for - When the obligation for support falls upon two or more
the spouses and the children which is granted during the persons, the same shall be divided equally among them, and
pendency of the petition for annulment or declaration of the judge may order only one of them to provide in case of
nullity of marriage, which the court shall grant in the absence urgency subject to the right to reimbursement of the other
of a written agreement between spouses - When two or more persons who are seeking support from one
who is obliged to but has insufficient means, the order
57
provided for under Art. 199 shall be followed unless the - Judgment in action for support is immediately executory and
concurrent obligees are the spouse and the children in which cannot be stayed by an appeal
case the children shall be preferred - Characteristics of right to support
Art. 200. When the obligation to give support falls upon two
1. Cannot be levied upon or made attachment or
or more persons, the payment of the same shall be divided execution, which would defeat the purpose of the same
between them in proportion to the resources of each. 2. Cannot be renounced or transmitted to a third preson
However, in case of urgent need and by special 3. Cannot be made subject of a future inheritance
circumstances, the judge may order only one of them to 4. Cannot be subject to compensation
furnish the support provisionally, without prejudice to his
right to claim from the other obligors the share due from Art. 205. The right to receive support under this Title as well
them. as any money or property obtained as such support shall not
be levied upon on attachment or execution. (302a)
When two or more recipients at the same time claim support
from one and the same person legally obliged to give it, Art. 206. When, without the knowledge of the person obliged
should the latter not have sufficient means to satisfy all to give support, it is given by a stranger, the latter shall have
claims, the order established in the preceding article shall be a right to claim the same from the former, unless it appears
followed, unless the concurrent obligees should be the spouse that he gave it without intention of being reimbursed.
and a child subject to parental authority, in which case the (2164a)
child shall be preferred. (295a)
Art. 207. When the person obliged to support another
Art. 201. The amount of support, in the cases referred to in unjustly refuses or fails to give support when urgently
Articles 195 and 196, shall be in proportion to the resources needed by the latter, any third person may furnish support
or means of the giver and to the necessities of the recipient. to the needy individual, with right of reimbursement from
(296a) the person obliged to give support. This Article shall
particularly apply when the father or mother of a child
Art. 202. Support in the cases referred to in the preceding under the age of majority unjustly refuses to support or fails
article shall be reduced or increased proportionately, to give support to the child when urgently needed. (2166a)
according to the reduction or increase of the necessities of
the recipient and the resources or means of the person - the term stranger refers to the third person who has no
obliged to furnish the same. (297a) obligation to provide support to the person entitled to receive
it
Art. 203. The obligation to give support shall be demandable
from the time the person who has a right to receive the same
- The obligation to reimburse arises out of quasi-contract
needs it for maintenance, but it shall not be paid except from -
the date of judicial or extra-judicial demand. Art. 208. In case of contractual support or that given by will,
the excess in amount beyond that required for legal support
Support pendente lite may be claimed in accordance with the shall be subject to levy on attachment or execution.
Rules of Court.
Furthermore, contractual support shall be subject to
Payment shall be made within the first five days of each adjustment whenever modification is necessary due to
corresponding month or when the recipient dies, his heirs changes of circumstances manifestly beyond the
shall not be obliged to return what he has received in contemplation of the parties. (n)
advance. (298a)
- contractual support arises from the will of the obligor, which
Art. 204. The person obliged to give support shall have the is usually in a will, or the agreement of the parties
option to fulfill the obligation either by paying the allowance - the recipient need not be mutually obliged to give support
fixed, or by receiving and maintaining in the family dwelling unlike in legal support
the person who has a right to receive support. The latter - the excess beyond what is necessary for legal support, in
alternative cannot be availed of in case there is a moral or case of a will, shall be subject to levy on attachment or
legal obstacle thereto. (299a) execution
- Contractual support may be waived or renounced
- Where the duty to provide support is admitted but fails to do
so causing the need for the other party to seek judicial TITLE IX
intervention, the person obliged to provide support shall pay PARENTAL AUTHORITY
reasonable attorney’s fees incurred by the other. Chapter 1. General Provisions
58
- If there is a need to impose disciplinary measures on the
Art. 209. Pursuant to the natural right and duty of parents child, the same may be obtained through petition with the
over the person and property of their unemancipated court which may be granted by way of commitment of the
children, parental authority and responsibility shall include child in an institution for not more than 30 days, but the
the caring for and rearing them for civic consciousness and parents shall still provide support.
efficiency and the development of their moral, mental and
physical character and well-being. (n) Art. 210. Parental authority and responsibility may not be
renounced or transferred except in the cases authorized by
law. (313a)
- Parental authority is the mass of rights and obligations which Art. 211. The father and the mother shall jointly exercise
the parents have in relation to the person and property of their parental authority over the persons of their common
children until their majority age of emancipation, and even children. In case of disagreement, the father's decision shall
after this in certain circumstances prevail, unless there is a judicial order to the contrary.
- Parental authority is exercised over unemacipated children
and may be exercised notwithstanding the age of majority of Children shall always observe respect and reverence towards
their children as in the case of parental consent for marriage their parents and are obliged to obey them as long as the
when one of the parties is below 21 years old children are under parental authority. (311a) chan robles
virtual law library
Consequences of parental authority
1. Right to have the children in their custody or company Art. 212. In case of absence or death of either parent, the
parent present shall continue exercising parental authority.
2. Right to be obeyed and respected
The remarriage of the surviving parent shall not affect the
3. Right to impose discipline as may be required by the parental authority over the children, unless the court
circumstances appoints another person to be the guardian of the person or
4. Right to give and withhold consent in certain matters property of the children. (n)
5. Right to exercise legal guardianship over the property
of the unemancipated children - While parental authority is jointly exercised, there are cases
6. Limited right to usufruct over the children’s properties where the exercise of parental authority is primarily lodged
7. Duty to support, educate and instruct them by right with the father (see Art. 14 and Art. 78) in case of legitimate
precept and good example, and to provide for their upbringing children
in keeping with their means - Parental authority over illegitimate children shall be exercised
8. Duty to give them love and affection, advice and by the mother regardless of whether or not the father admits
comfort, companionship and understanding paternity and filiation
9. Duty to provide them with moral and spiritual - Visitation rights may be granted to non-custodial parents
guidance, inculcate in them honesty, integrity, self-discipline,
self-reliance, industry and thrift, stimulate their interest in Art. 213. In case of separation of the parents, parental
civic affairs, and inspire in them compliance with the duties authority shall be exercised by the parent designated by the
of citizenship Court. The Court shall take into account all relevant
10. Duty to furnish them with good and wholesome considerations, especially the choice of the child over seven
years of age, unless the parent chosen is unfit. (n)
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, No child under seven years of age shall be separated from
studies and morals; the mother unless the court finds compelling reasons to order
otherwise
11. Duty to represent them in all matters affecting their
interests;
- The award of custody to the innocent spouse does not mean
12. Duty to perform such other duties as are imposed by
deprivation of parental authority of the guilty spouse
law upon parents and guardians.
- Compelling reasons for separation of mother from child does
not necessarily mean that if the wife is the guilty spouse, the
- The rights and duties of parental authority cannot be child will be separated from her
renounced or waived except only in cases of adoption,
guardianship, surrender of children in children’s home or - Compelling reasons include
orphan’s institution - Neglect, abandonment
- Unemployment, immorality
59
- Habitual drunkenness Whenever the appointment or a judicial guardian over the
- Drug addiction, maltreatment of child, insanity and property of the child becomes necessary, the same order of
communicable diseases preference shall be observed. (349a, 351a, 354a)
- Husband must prove that such reasons have had an adverse
effect on the welfare of the child or have distracted the spouse - Due to the deep ties that bind parents to child, the mother or
from exercising proper parental care father, if suitable, is entitled to the custody of the child over
all other persons even their grandparents
- If child is over 7 years old, they may make their own choice
but the court shall not be bound by the same - Parental preference rule may not be invoked by the father of
an illegitimate child in case of death, absence or
Art. 214. In case of death, absence or unsuitability of the unsuitability of the mother since Art. 176 provides that the
parents, substitute parental authority shall be exercised by illegitimate child is not under the parental authority of the
the surviving grandparent. In case several survive, the one father. Hence in case of death of both mother and father, the
designated by the court, taking into account the same grandparents on the maternal side shall be entitled to the
consideration mentioned in the preceding article, shall custody of the child
exercise the authority. (355a)
Who may exercise substitute parental authority
Art. 215. No descendant shall be compelled, in a criminal 1. Grandparents as provided for under Art. 214
case, to testify against his parents and grandparents, except 2. Older brother or sister, over 21 years old, unless unfit or
when such testimony is indispensable in a crime against the disqualified
descendant or by one parent against the other. (315a) 3. The child’s actual custodian, over 21 years old, unless
unfit or disqualified
- Compared to Sec. 25, Rule 130
Art. 215 Sec. 25, Rule 130 Art. 217. In case of foundlings, abandoned neglected or
abused children and other children similarly situated,
Applies only to criminal cases Both civil and criminal parental authority shall be entrusted in summary judicial
proceedings to heads of children's homes, orphanages and
Invoked by descendants Both descendants and similar institutions duly accredited by the proper
ascendants government agency. (314a)
Criminal cases against parents Both civil and criminal,
and grandparents and likewise against other - “Foundling” refers to a deserted or abandoned infant or
direct ascendants, children child whose parents, guardian or relatives are unknown; or a
and other descendants child committed to an orphanage or charitable or similar
institution with unknown facts of birth and parentage and
Not absolute if testimony is Absolute with no registered in the Civil Register as a “foundling.”
indispensible in a crime against exceptions - “Abandoned child” refers to one who has no proper parental
the descendants, or by one parent care or guardianship or whose parents have deserted him for
against the other a period of at least six (6) continuous months and has been
judicially declared as such.
- “Neglected child” is one whose basic needs have been
deliberately not attended to or inadequately attended to,
-
physically or emotionally, by his parents or guardian, which
Chapter 2. Substitute and Special Parental Authority
can be physical neglect or emotional neglect (see Art. 141,
No 3, PD 603)
Art. 216. In default of parents or a judicially appointed
guardian, the following person shall exercise substitute
Art. 218. The school, its administrators and teachers, or the
parental authority over the child in the order indicated:
individual, entity or institution engaged in child are shall
• (1) The surviving grandparent, as provided in Art. 214; have special parental authority and responsibility over the
• (2) The oldest brother or sister, over twenty-one years minor child while under their supervision, instruction or
of age, unless unfit or disqualified; and custody.
• (3) The child's actual custodian, over twenty-one years Authority and responsibility shall apply to all authorized
of age, unless unfit or disqualified. activities whether inside or outside the premises of the
school, entity or institution. (349a)
60
Art. 219. Those given the authority and responsibility under (7) To impose discipline on them as may be required under
the preceding Article shall be principally and solidarily liable the circumstances; and
for damages caused by the acts or omissions of the
unemancipated minor. The parents, judicial guardians or the (8) To perform such other duties as are imposed by law upon
persons exercising substitute parental authority over said parents and guardians. (316a)
minor shall be subsidiarily liable.
Art. 221. Parents and other persons exercising parental
The respective liabilities of those referred to in the preceding authority shall be civilly liable for the injuries and damages
paragraph shall not apply if it is proved that they exercised caused by the acts or omissions of their unemancipated
the proper diligence required under the particular children living in their company and under their parental
circumstances. authority subject to the appropriate defenses provided by
law. (2180(2)a and (4)a )
All other cases not covered by this and the preceding articles
shall be governed by the provisions of the Civil Code on Art. 222. The courts may appoint a guardian of the child's
quasi-delicts. (n) property or a guardian ad litem when the best interests of
the child so requires. (317)
- Special parental authority is granted by law to certain
persons, entities or institutions in view of their special Parental rights as provided for and protected by law and statutes
relation to children under their supervision, instruction or 1. Custody of child, and in case of custodial parent
custody includes the day to day care and companionship of the child
- Those who may exercise special parental authority include a. Ancillary to the proper discharge of parental duties to
- The School provide the children with adequate support, education,
- Its administrators and teachers moral, intellectual and civic training and development
- The individual, entity or institution engaged in b. Such rule applies to legitimate children only since
child rearing illegitimate children is under sole parental authority of
the mother
2. Right to discipline the child, which covers both the
Chapter 3. Effect of Parental Authority moral and ethical standards
Upon the Persons of the Children 3. Right to control and manage the child’s earnings
4. Right to be supported by the adult child
Art. 220. The parents and those exercising parental authority 5. Right to have child bear the parents name
shall have with the respect to their unemancipated children
on wards the following rights and duties:
6. Right to prevent adoption without parents consent
(1) To keep them in their company, to support, educate and
instruct them by right precept and good example, and to - Duty of the parents to provide support to their children is
provide for their upbringing in keeping with their means; not necessarily terminated upon the emancipation of the
(2) To give them love and affection, advice and counsel, same
companionship and understanding; - Parents have a duty to represent their unemancipated
children in all matters affecting their interests, as well as in
(3) To provide them with moral and spiritual guidance, court litigations as provided in Sec. 5, Rule 3, RoC
inculcate in them honesty, integrity, self-discipline, self- - Parents also have the duty to give their unemancipated
reliance, industry and thrift, stimulate their interest in civic children proper advice and counsel, and may be extend to
affairs, and inspire in them compliance with the duties of giving consent even beyond the age of emancipation, like in
citizenship; case of parental consent in case of marriage where parties
are of age 18 to 21.
(4) To furnish them with good and wholesome educational - Under the law, children below 15 years of age shall not be
materials, supervise their activities, recreation and employed unless the child is under the sole responsibility of
association with others, protect them from bad company, and his or her parents or legal guardian and where there are only
prevent them from acquiring habits detrimental to their members or his/her family are employed
health, studies and morals; - A child below 15 years old may likewise be employed in the
public entertainment or information, provided that the
(5) To represent them in all matters affecting their interests; employment contract is concluded with the parents or legal
guardian, with the child’s express agreement if possible, and
(6) To demand from them respect and obedience; with the approval of the DSWD
61
- In order to be liable for quasi delict under Art. 221, the In case of disagreement, the father's decision shall prevail,
requisites are unless there is a judicial order to the contrary.
- the minor is living under the custody of the parent Where the market value of the property or the annual
income of the child exceeds P50,000, the parent concerned
- the minor is under the custody of the parent shall be required to furnish a bond in such amount as the
- the parents failed to exercise due diligence of a court may determine, but not less than ten per centum (10%)
good father of a family to prevent the damage of the value of the property or annual income, to guarantee
- Art. 2180 also imposes civil liability on the father, or the the performance of the obligations prescribed for general
mother in case of the father’s death for any quasi-delict guardians.
committed by the minor children who lives with them as
long as the same is under 21 years old A verified petition for approval of the bond shall be filed in
- Liability of parents for crimes committed by their children is the proper court of the place where the child resides, or, if
governed by Art. 101 of the RPC, as well as civil liability the child resides in a foreign country, in the proper court of
arising from criminal offenses committed by their minor the place where the property or any part thereof is situated.
children
- The liability of the parents under said provisions of law are The petition shall be docketed as a summary special
primary and not subsidiary proceeding in which all incidents and issues regarding the
performance of the obligations referred to in the second
Art. 223. The parents or, in their absence or incapacity, the paragraph of this Article shall be heard and resolved.
individual, entity or institution exercising parental authority,
may petition the proper court of the place where the child The ordinary rules on guardianship shall be merely
resides, for an order providing for disciplinary measures suppletory except when the child is under substitute parental
over the child. The child shall be entitled to the assistance of authority, or the guardian is a stranger, or a parent has
counsel, either of his choice or appointed by the court, and a remarried, in which case the ordinary rules on guardianship
summary hearing shall be conducted wherein the petitioner shall apply. (320a)
and the child shall be heard.
Art. 226. The property of the unemancipated child earned or
However, if in the same proceeding the court finds the acquired with his work or industry or by onerous or
petitioner at fault, irrespective of the merits of the petition, gratuitous title shall belong to the child in ownership and
or when the circumstances so warrant, the court may also shall be devoted exclusively to the latter's support and
order the deprivation or suspension of parental authority or education, unless the title or transfer provides otherwise.
adopt such other measures as it may deem just and proper.
(318a) The right of the parents over the fruits and income of the
child's property shall be limited primarily to the child's
Art. 224. The measures referred to in the preceding article support and secondarily to the collective daily needs of the
may include the commitment of the child for not more than family. (321a, 323a)
thirty days in entities or institutions engaged in child care or
in children's homes duly accredited by the proper Art. 227. If the parents entrust the management or
government agency. administration of any of their properties to an
unemancipated child, the net proceeds of such property shall
The parent exercising parental authority shall not interfere belong to the owner. The child shall be given a reasonable
with the care of the child whenever committed but shall monthly allowance in an amount not less than that which the
provide for his support. Upon proper petition or at its own owner would have paid if the administrator were a stranger,
instance, the court may terminate the commitment of the unless the owner, grants the entire proceeds to the child. In
child whenever just and proper. (391a) any case, the proceeds thus give in whole or in part shall not
be charged to the child's legitime. (322a)
- Under both the provisions of the NCC and the FC, parents
may impose disciplinary measures to the extent required by - Under the FC, father and mother shall exercise joint legal
the circumstances guardianship over the property of the unemancipated
common child, without need of a court appointment.
Chapter 4. Effect of Parental Authority Upon However, when the property or annual income exceeds
the Property of the Children 50,000 pesos, the law requires the parents to furnish a bond
equivalent to the market value of the property of the annual
Art. 225. The father and the mother shall jointly exercise income.
legal guardianship over the property of the unemancipated - Properties earned or acquired by the minor child through
common child without the necessity of a court appointment. onerous or gratuitous title shall be considered as owned by
62
the child, but things given as part of support or necessities Art. 232. If the person exercising parental authority has
shall be considered as owned by the parent and do not subjected the child or allowed him to be subjected to sexual
belong to the child. However, clothing furnished through abuse, such person shall be permanently deprived by the
funds by parents for general purposes. without specific court of such authority. (n)
instructions as to the appropriation, shall be not considered
as property of the parent Art. 233. The person exercising substitute parental authority
- Parents have a limited right of usufruct over the property of shall have the same authority over the person of the child as
the minor child, and only for the following purposes the parents.
- Primarily for the child’s support
In no case shall the school administrator, teacher of
- Secondarily, for the family’s collective needs
individual engaged in child care exercising special parental
authority inflict corporal punishment upon the child. (n)
Chapter 5. Suspension or Termination of Parental Authority
Grounds of the termination of parental authority
Art. 228. Parental authority terminates permanently:
Permanent
(1) Upon the death of the parents;
(2) Upon the death of the child; or 1. Death of parents
(3) Upon emancipation of the child. (327a) a. Unless one of the parents survive, and unless the court
will appoint another person
Art. 229. Unless subsequently revived by a final judgment, b. If both parents die, substitute parental authority shall be
parental authority also terminates: exercised by persons designated
1) Upon adoption of the child; 2. Death of child
(2) Upon appointment of a general guardian;
3. Emancipation of child
(3) Upon judicial declaration of abandonment of the child in
a case filed for the purpose; a. There are still some rights and obligations not
(4) Upon final judgment of a competent court divesting the extinguished by the emancipation of the child
party concerned of parental authority; or Temporary and may be revived by court judgment
(5) Upon judicial declaration of absence or incapacity of the 1. Adoption of child
person exercising parental authority. (327a) a. Permanent unless rescinded based on the grounds under
the DAA.
Art. 230. Parental authority is suspended upon conviction of 2. Appointment of a general guardian (Grounds)
the parent or the person exercising the same of a crime
a. Death, absence or incapacity of parents
which carries with it the penalty of civil interdiction. The
authority is automatically reinstated upon service of the b. Suspension, deprivation or termination of parental
penalty or upon pardon or amnesty of the offender. (330a) authority
c. Remarriage of minor’s surviving parent if found
Art. 231. The court in an action filed for the purpose in a unsuitable to exercise parental authority
related case may also suspend parental authority if the d. When best interests of minor so require
parent or the person exercising the same: 3. Judicial declaration of abandonment of the child in a
case filed for that purpose
(1) Treats the child with excessive harshness or cruelty; a. There must be an intention to abandon the child,
(2) Gives the child corrupting orders, counsel or example; expressly or impliedly which is apparent from the
(3) Compels the child to beg; or conduct and intent of the parent respecting the child
(4) Subjects the child or allows him to be subjected to acts of
lasciviousness. 4. Final judgment of the competent court divesting the
The grounds enumerated above are deemed to include cases party concerned of parental authority
which have resulted from culpable negligence of the parent a. When the best interests of the child so require
or the person exercising parental authority. 5. Judicial declaration of absence or incapacity of the
If the degree of seriousness so warrants, or the welfare of the person exercising parental authority
child so demands, the court shall deprive the guilty party of a. Even without judicial declaration if child is placed under
parental authority or adopt such other measures as may be guardianship
proper under the circumstances.
Other grounds for suspension of parental authority
The suspension or deprivation may be revoked and the 1. Treats child with excessive harshness or cruelty
parental authority revived in a case filed for the purpose or
in the same proceeding if the court finds that the cause
2. Gives child corrupting orders, counsel or example
therefor has ceased and will not be repeated. (33a) 3. Compels child to beg
63
4. Subjects the child or allows the same to be subjected to regards separation in fact between husband and wife,
acts of lasciviousness abandonment by one of the other, and incidents involving
If person exercising parental authority has subjected or allowed parental authority. (n)
the child to be subjected to sexual abuse, the person shall be
deprived permanently of parental authority by the court Chapter 2. Separation in Fact
TITLE X Art. 239. When a husband and wife are separated in fact, or
EMANCIPATION AND AGE OF MAJORITY one has abandoned the other and one of them seeks judicial
authorization for a transaction where the consent of the
Art. 234. Emancipation takes place by the attainment of other spouse is required by law but such consent is withheld
majority. Unless otherwise provided, majority commences at or cannot be obtained, a verified petition may be filed in
the age of eighteen years (as amended by R.A. 6805). court alleging the foregoing facts.
The petition shall attach the proposed deed, if any,
Art. 235. (Repealed by. R.A. 6809 embodying the transaction, and, if none, shall describe in
detail the said transaction and state the reason why the
Art. 236. Emancipation shall terminate parental authority required consent thereto cannot be secured. In any case, the
over the person and property of the child who shall then be final deed duly executed by the parties shall be submitted to
qualified and responsible for all acts of civil. life, save for and approved by the court. (n)
exceptions established by existing laws in special cases.
(412a) Art. 240. Claims for damages by either spouse, except costs
of the proceedings, may be litigated only in a separate action.
Contracting parties shall require parental consent until the (n)
age of twenty one.
Art. 241. Jurisdiction over the petition shall, upon proof of
Nothing in this Code shall be construed to derogate from the notice to the other spouse, be exercised by the proper court
duty or responsibility of the parents and guardians for authorized to hear family cases, if one exists, or in the
children and wards below twenty-one years of age mentioned regional trial court or its equivalent sitting in the place
in the second and third paragraphs of Art. 2160 of the Civil where either of the spouses resides. (n)
Code (as amended by R.A. 6805)
Art. 242. Upon the filing of the petition, the court shall notify
Art. 237. (Repealed by R.A. 6805) the other spouse, whose consent to the transaction is
required, of said petition, ordering said spouse to show cause
- Emancipations means freeing the child form the parental why the petition should not be granted, on or before the date
custody and authority of, and from the obligation to set in said notice for the initial conference. The notice shall
be accompanied by a copy of the petition and shall be served
render services to the parent, and thereby render the child
qualified and responsible for all acts of civil life at the last known address of the spouse concerned. (n)
Instances where rights and obligations are retained by parents Art. 243. A preliminary conference shall be conducted by the
even after parental authority is terminated judge personally without the parties being assisted by
1. Securing parental consent in marriage when parties are counsel. After the initial conference, if the court deems it
below 21 useful, the parties may be assisted by counsel at the
2. Securing parental advice when spouses are below 25 succeeding conferences and hearings. (n)
3. Consent of parent as a party concerned in case of
marriage settlement prior to the celebration of marriage Art. 244. In case of non-appearance of the spouse whose
4. Obligation to support the children is not co-terminus consent is sought, the court shall inquire into the reasons for
with the exercise of parental authority his failure to appear, and shall require such appearance, if
5. Parents still liable for quasi-delict of children below age possible. (n)
of 21 under Art. 236, last paragraph FC
Art. 245. If, despite all efforts, the attendance of the non-
TITLE XI consenting spouse is not secured, the court may proceed ex
SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY parte and render judgment as the facts and circumstances
LAW may warrant. In any case, the judge shall endeavor to
Chapter 1. Prefatory Provisions protect the interests of the non-appearing spouse. (n)
Art. 238. Until modified by the Supreme Court, the Art. 246. If the petition is not resolved at the initial
procedural rules provided for in this Title shall apply as conference, said petition shall be decided in a summary
64
hearing on the basis of affidavits, documentary evidence or 5. Disagreement as to the administration and enjoyment of
oral testimonies at the sound discretion of the court. If the AC or CP under Art. 96 and 124
testimony is needed, the court shall specify the witnesses to 6. Alienation or encumbrance of the AC or CP in case one
be heard and the subject-matter of their testimonies, spouse is absent or unable to participate in its administration
directing the parties to present said witnesses. (n) 7. Spouses separated in fact, or abandoned the other where
the other spouse seeks to conduct a transaction requiring the
Art. 247. The judgment of the court shall be immediately consent of the other in case such consent is withheld or unable
final and executory. (n) to be obtained (Art. 236 in relation to Art. 100 (2) and 127 (c)
8. Separation in fact or abandonment, the other spouse
Art. 248. The petition for judicial authority to administer or may petition the court for the administration and encumbrance
encumber specific separate property of the abandoning of the specific property of the other and use the fruits or
spouse and to use the fruits or proceeds thereof for the proceeds thereof for the support of the family
support of the family shall also be governed by these rules. 9. Foundling, abandoned, neglected, abused and other
(n) children similarly situated, parental authority shall be
entrusted to heads of children’s homes, orphanages, and other
similar institutions duly accredited by the government
10. Petition of order for disciplinary measures on the child
Chapter 3. Incidents Involving Parental Authority 11. Petition for application for bond in case the property or
annual income of the unemancipated child exceeds 50,000
Art. 249. Petitions filed under Articles 223, 225 and 235 of pesos, in an amount as the court may determine
this Code involving parental authority shall be verified. (n) TITLE XII
FINAL PROVISIONS
Art. 250. Such petitions shall be verified and filed in the
proper court of the place where the child resides. (n) Art. 254. Titles III, IV, V, VI, VIII, IX, XI, and XV of Book 1
of Republic Act No. 386, otherwise known as the Civil Code
Art. 251. Upon the filing of the petition, the court shall notify of the Philippines, as amended, and Articles 17, 18, 19, 27,
the parents or, in their absence or incapacity, the individuals, 28, 29, 30, 31, 39, 40, 41, and 42 of Presidential Decree No.
entities or institutions exercising parental authority over the 603, otherwise known as the Child and Youth Welfare Code,
child. (n) as amended, and all laws, decrees, executive orders,
proclamations, rules and regulations, or parts thereof,
Art. 252. The rules in Chapter 2 hereof shall also govern inconsistent herewith are hereby repealed.
summary proceedings under this Chapter insofar as they are
applicable. (n) Art. 255. If any provision of this Code is held invalid, all the
other provisions not affected thereby shall remain valid.
Chapter 4. Other Matters Subject to Summary Proceedings
Art. 256. This Code shall have retroactive effect insofar as it
Art. 253. The foregoing rules in Chapters 2 and 3 hereof does not prejudice or impair vested or acquired rights in
shall likewise govern summary proceedings filed under accordance with the Civil Code or other laws.
Articles 41, 51, 69, 73, 96, 124 and 127, insofar as they are
applicable. (n) Art. 257. This Code shall take effect one year after the
completion of its publication in a newspaper of general
Matters which are subject to summary proceedings under the circulation, as certified by the Executive Secretary, Office of
Family Code the President.
1. Summary proceeding for declaration of presumptive
death for purpose of contracting subsequent marriage under Done in the City of Manila, this 6th day of July, in the year of
Art. 41 Our Lord, nineteen hundred and eighty-seven.
2. In case of disagreement as to the fixing of the family
domicile under Art. 69, the matter shall be decided by the
Family Court
3. Under Art. 69, the court may exempt one spouse from
living with the other if the latter should live abroad or if there
are compelling reasons
4. Under Art. 69, either spouse may validly exercise any
legitimate profession, business or activity without the consent
of the other, and the other spouse may object only on valid,
serious and moral grounds
65

Persons and Family Relations Reviewer 1

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Persons and Family Relations Reviewer 1

Uploaded by

Copyright:

Available Formats

Civil Law Examination Reviewer

Persons and Family Relations Reference: Elmer T. Rabuya. The Law

∙ If there is no deficiency in abovementioned laws, then

If during the pendency of the civil action, an information

MARRIAGE Art. 3. The formal requisites of marriage are:

∙ Contribution of each spouse to the marriage, including ∙ Visitation Rights

∙ Under the Insurance Code, the beneficiary designated

In case of disagreement, the court shall decide whether or

(4) (a) A former Filipino citizen who seeks to adopt a

You might also like