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PERSONS & FAMILY RELATIONS

CIVIL LAW

EFFECT

A P P L IC A T IO N LAWS

AND

OF

The Civil Code took effect on August 30, 1950.

E F F E C T IV IT Y

OF

L A W S (A R T .2)

General Rule: Laws take effect after 15 days following the completion of its publication in the Official Gazette or in a newspaper of general circulation (EO No. 200). The law shall take effect on the 16th day because in counting the period, the first day is excluded and the last day included (Art. 13, NCC). No one shall be charged with notice of the statute’s provision until publication is completed and the 15 day period has expired. Exception: Unless otherwise provided by the law (EO No. 200). The exception refers to the “15-day period” only and not the requirement of publication. Publication is indispensable, absence of which will not render the law effective (Tañada v. Tuvera G.R. No. L-63915, December 29, 1986). Rules on Period Provided by Statute Shorter/longer period than the 15-day Such period as provided in the statute shall prevail. Takes effect immediately It shall take effect immediately after publication with the 15-day period being dispensed with (Tañada vs. Tuvera G.R. No. L-63915, December 29, 1986). No provision as to its effectivity It takes effect 15 days following its publication.

EXECUTIVE COMMITTEE IAN MICHEL GEONANGA overall chairperson, JOSE ANGELO DAVID chairperson for academics, RUTH ABIGAIL ACERO chairperson for hotel operations, ALBERTO RECALDE, JR. vice-chairperson for operations, MARIA CARMELA HAUTEA vice-chairperson for secretariat, MARK EMMANUEL ABILO vice-chairperson for finance, RYAN LIGGAYU vice-chairperson for electronic data processing, JOMARC PHILIP DIMAPILIS vicechairperson for logistics



Coverage (PLAC3E) 1. Presidential Decrees; 2. Laws which refer to all statutes, including local and private laws; 3. Administrative Rules and Regulations where purpose is to enforce/implement existing law pursuant to a valid delegation; 4. Charter of a City; 5. Circulars issued by the Monetary Board where purpose is not merely to interpret but to fill in the details of the Central Bank Act; 6. Circulars and Regulations which prescribe a penalty for its violation (People vs. Que Po Lay, G.R. No. L6791, March 29, 1954); 7. Executive Orders (Tañada vs. Tuvera G.R. No. L63915, December 29, 1986). Publication not Required (I – L) 1. Interpretative regulations and those internal in nature, regulating only the personnel of the administrative agency. 2. Letters of Instructions issued by administrative superiors on rules/guidelines to be followed by subordinates in the performance of their duties (Tañada vs. Tuvera, ibid). Date of effectivity of Municipal Ordinances is NOT covered by this rule but by the Local Government Code (Tañada vs. Tuvera, supra).

IGNORANCE OF THE LAW E X C U S E S N O O N E (A R T .3) Conclusive Presumption Every person is presumed to know the law even if they have no actual knowledge of the law. It applies only to mandatory and prohibitory laws. Does not apply to foreign laws because there is no judicial notice of such foreign laws; it must be proved like any other matter of fact (Ching Huat vs. Co Heong L1211, January 30, 1947).

SUBJECT COMMITTEE JHOY PALLONES subject chair, MICAELA KRISTINA GALVEZ assistant subject chair, PIA ISABEL CO edp, FRANCIA ROMLINA RODRIGUEZ persons and family relations, JENNETH CAE CAINDAY property, IRENE ALCOBILLA wills and succession, JOSE AMELITO BELARMINO II and ROWNEYLIN SIA obligations and contracts, SAMANTHA GRACE MANALO sales and lease, LAUREN GAIL DIVINO partnership, agency and trusts, MABEL BUTED credit transactions, JULIUS CEASAR BALBUENA torts and damages, KATHLEEN VALERIO land titles and deeds, ILLAC BOHOL conflict of laws

MEMBERS Phoebe Alhambra, Diana Bartolome, Jesus Paolo Borlagdan, Darniel Bustamante, Jamela Jane Caringal, Ma. Criselda Correa, Reynaldo Dalisay, Kristine Lara Defensor, Carel Brendth Dela Cruz, Regine Estillore, Anne Clarisse Guzman, Aziel Guzman, Martin Michael Hatol, Maria Emma Gille Mercado, Richmond Montevirgen, Astrid Ong, Ruth Ann Ong, Rodel James Pulma, Dan Bernard Sabilala, Jeth Lester Tan, Maria Anne Cyra Uy





PERSONS & FAMILY RELATIONS

Note: Mistakes in the application or interpretation of difficult or doubtful provisions of law may be the basis of good faith and has been given the same effect as a mistake of fact, which may excuse one from the legal consequences of his conduct (Art. 526, 2155, NCC).

N O N R E T R O A C T IV IT Y (A R T .4)

OF

LAWS

General Rule: No retroactive effect. Exceptions: (P2UT NICE) 1. Procedural or Remedial; 2. Penal laws favorable to the accused; 3. Unless the law otherwise provides; 4. Tax laws when expressly declared or is clearly the legislative intent (Cebu Portland Cement vs. Coll. G.R. No. 18649, February 27, 1965); 5. Laws creating new rights (Bona vs. Briones G.R. No. L-10806, July 6, 1918; Bustamante et al. vs. Cayas, G.R. Nos. L-8562-8563, December 17, 1955); 6. Interpretative Statutes; 7. Curative or Remedial statutes; 8. Emergency Laws. Exceptions to the Exception: (E–L) 1. Ex Post Facto Laws; 2. Laws that impair obligation of contracts (Asiatic Petroleum vs. Llanes, G.R. No. L-25386, October 20, 1926).

ACTS CONTRARY (A R T .5)

TO

LAW

General Rule: Acts contrary to mandatory or prohibitory laws are VOID. Exceptions: (PAVE) 1. The law makes the act valid but punishes the violator (ex. Marriage solemnized by a person without legal authority) 2. The law itself authorizes its validity (ex. Lotto, sweepstakes) 3. The law makes the act only voidable (ex. Voidable contracts where consent is vitiated) 4. The law declares the nullity of an act but recognizes its effects as legally existing (ex. Child born before annulment of marriage is considered legitimate).

CIVIL LAW W A IV E R

OF

R IG H T S (A R T .6)

General Rule: Rights can be waived. Requisites for a valid waiver: (CUE–CF) 1. Full capacity to make the waiver. 2. Waiver must be unequivocal 3. Right must exist at the time of the waiver 4. It must not be contrary to law, public policy, morals or good customs or prejudicial to a third person with a right recognized by law. 5. When formalities are required, the same must be complied with. Exceptions: (C–PEN) 1. Waiver is contrary to law, public order, public policy, morals or good customs; 2. If the waiver is prejudicial to a third party with a right recognized by law. 3. Alleged rights which are really not yet in existence, as in the case of future inheritance 4. If the right is a natural right, such as right to be supported.

J U D IC IA L D E C IS IO N S F O R M PART OF LEGAL SYSTEM OR D O C T R IN E O F S T A R E D E C IS IS (A R T .8) Doctrine of Stare Decisis It enjoins adherence to judicial precedents and is based on the principle that once a question of law has been examined and decided, it should be deemed settled and closed to further argument. Judicial decisions applying or interpreting laws shall form a part of the legal system of the Philippines. Stare decisis et non quieta movere. Let the decision stand and disturb not what is already settled. The doctrine of stare decisis is a salutary and necessary rule. When the Court lays down a principle of law applicable to a certain set of facts, it must adhere to such principle and apply it to all future cases where the facts in issue are substantially the same. Else, the ideal of a stable jurisprudential system can never be achieved (Saguiguit vs. People, G.R. No. 144054, June 30, 2006). Legal Effects of Judicial Decisions 1. No Publication required; 2. Binding between parties after the lapse of appeal period; and

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PERSONS & FAMILY RELATIONS

CIVIL LAW





3. Will bind all future cases with identical facts, until

reversed by SC. Judicial decisions, although in themselves not laws, assume the same authority as the statute itself (People vs. Licera G.R. No. L-39990, July 2, 1975). No publication required, binding on parties after the lapse of appeal period, and will bind all future cases with identical facts, until reversed by SC. The application or interpretation placed by the Court upon a law is part of the law as of the date of enactment of said law because the Supreme Court’s interpretation merely establishes the contemporaneous legislative intent that the construed law purports to carry into effect (People v. Licera G.R. No. L-39990, July 2, 1975). HOWEVER, when a doctrine is overruled and a different view is adopted, the new doctrine should be applied prospectively and should not prejudice parties who relied on the old doctrine (People v. Jabinal G.R. No. L-30061, February 27, 1974).

C U S T O M S (A R T S .11

AND

12)

Customs Rules of conduct formed by repetition of acts uniformly observed as a social rule. They are legally binding and obligatory. General Rule: Customs must be proved as a fact according to the rules of evidence. Exception: A court may take judicial notice of a custom if there is already a decision rendered by the same court recognizing the custom. Requisites to Make a Custom an Obligatory Rule: (P2OT) 1. Plurality or repetition of acts; 2. Practiced by the great mass of the social group; 3. The community accepts it as a proper way of acting, such that it is considered as obligatory upon all; 4. Continued practice for a long period of time.

RULE

ON

P E R IO D S (A R T .13)

Rule on Periods 1. Years - 365 days, unless year is identified; 2. Months - 30 days, unless month identified; 3. Days – 24 hours; 4. Nights – Sunset to sunrise;



5. Calendar week – Sunday to Saturday; 6. Week – Count 7 days as indicated, not necessarily Sunday to Saturday. To count the period, first day is excluded, last day is included. Exception: Rule does NOT apply to computation of age; each year is counted based on birth anniversary. Policy if the Last Day is a Sunday or a Legal Holiday 1. If the act to be performed within the period is prescribed or allowed (a) by the Rules of Court, (b) by an order of the court, or (c) by any other applicable statute, the last day will automatically be considered the next working day. 2. If the act to be performed within the period arises from a contractual relationship, the act will become due despite the fact that the last day falls on a Sunday or Holiday.

P R O V IS IO N O N C O N F L IC T L A W (A R T S .14-17)

OF

1. Penal Laws and laws of public security (Article 14): Territoriality rule governs regardless of the nationality but subject to principles of international law and to treaty stipulations. 2. Laws relating to family rights and duties, or to status, condition and legal capacity of persons (Article 15): Nationality rule applies regardless of their place of residence. Exception: Divorce validly obtained abroad by alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. (Article 26 (2) Family Code) 3. Laws on property (real and personal) Lex Rei Sitae: The law of the country where the property is situated shall govern property transactions. (Article 16 (1)) Exception: Order and amount of successional rights, intrinsic validity of testamentary provisions, and capacity to succeed governed by the national law of decedent (Article 16 (2)).

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PERSONS & FAMILY RELATIONS

4. Laws on forms and solemnities Lex Loci Celebrationis: Forms and solemnities of contracts, wills, and other public instruments (extrinsic validity) shall be governed by the laws of the country in which they are executed (Article 17). Exceptions: a. Marriage between Filipinos solemnized abroad shall be void though valid abroad when void under Philippine laws. (Article 26(1) FC) b. Intrinsic Validity of Contracts: Validity is determined by the following rules: i. The law stipulated by the parties shall be applied; ii. In default thereof, and the parties are of the same nationality, their national law shall be applied; iii. If the parties are not of the same nationalities, the law of the place of the perfection of the obligation shall govern its fulfillment; iv. If the above places are not specified and they cannot be deduced from the nature and circumstances of the obligation, then the law of the passive subject shall apply. Lex Nationalii

Lex Rei Sitae

Art. 15, CC Citizenship is the basis for determining the personal law applicable

Art. 16, CC Law of the place where the property is situated is the basis for determining law applicable Covers both real and personal property

Covers family rights and duties, status, condition and legal capacity of persons. Exception: Exceptions: Art. 26, par. 2 of (CIAO) Family Code a. Capacity to succeed; b. Intrinsic validity of the will; c. Amount of successional rights; d. Order of succession.

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Lex Loci Celebrationis Art. 17, CC Law of the place where the contract was executed is the basis for determining law applicable Covers only the forms and solemnities (extrinsic validity) Exceptions: 1. Art. 26, par. 1 of Family Code 2. Intrinsic validity of contracts

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CIVIL LAW Rules on Personal Law: Domiciliary Rule and Nationality Rule Distinguished Domiciliary Rule Nationality Rule Basis for determining Basis for determining personal law of an personal law is his individual is his DOMICILE CITIZENSHIP 5. Renvoi Doctrine: Occurs when a citizen of another country dies as a domiciliary of another country. Where the conflict rules of the forum refer to a foreign law, and the latter refers it back to the internal law, the law of the forum shall apply. Transmission Theory: If the foreign law refers it to a third country, the said country’s law shall govern. 6. Doctrine of Processual Presumption: The foreign law, whenever applicable, should be proved by the proponent thereof; otherwise, such law shall be presumed to be exactly the same as the law of the forum. Rule on Prohibitive Laws General Rule: Prohibitive laws concerning persons, their acts or property, and laws which have for their object public order, public policy or good customs are NOT rendered ineffective by laws, or judgments promulgated or by determinations or conventions agreed upon in foreign country. (Art. 17(3)) Exception: Art. 26, par. 2 Family Code (ex. Divorce Law)

H U M A N R E L A T IO N S ABUSE OF RIGHT (Art. 19) Elements: (LEP) 1. Existence of a legal right or duty; 2. Which is exercised in bad faith; 3. For the sole intent of prejudicing or injuring another. Doctrine of Violenti Non Fit Injuria (to which a person assents is not esteemed in law as injury) Refers to self-inflicted injuries or to the consent to injury which precludes the recovery of damages by one who has knowingly and voluntarily exposed himself to danger, even if he is not negligent in doing so (Nikko Hotel Manila Garden, et all vs. Roberto Reyes (Amay Bisaya) G.R. No. 154259, Feb. 28, 2005).





CIVIL LAW

Damnum Absque Injuria (damage without injury) A person who exercises his legal right does no injury. HOWEVER, it cannot be said that a person exercises a right when he unnecessarily prejudices another or offends morals or good customs. When damages result from a person’s exercise of rights, it is damnum absque injuria (ABS-CBN v. Republic Broadcasting Corp. G.R. No. 128690, January 21, 1999). ACTS CONTRARY TO LAW (Art. 20) Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same. ACTS CONTRA BONUS MORES (Art. 21) Elements: (L-C-I) 1. There is a legal act; 2. But which is contrary to morals, good customs, public order or public policy; and, 3. It is done with intent to injure. Articles 19, 20 and 21 are related to one another and under these articles, an act which causes injury to another may be made the basis for an award of damages (Albenson Enterprises Corp. v. CA, G.R. No. 88694, January 11, 1993). Articles 19 and 21 refer to INTENTIONAL acts while Article 20 pertains either to WILLFUL or NEGLIGENT acts, which must be contrary to law. (Ibid.)

P R IN C IP L E O F U N J U S T E N R IC H M E N T (A R T .22) Accion in Rem Verso It is an action for recovery of what has been paid without just cause. Application: 1. When someone acquires or comes into possession of something, which means delivery or acquisition of things; AND 2. Acquisition is undue and at the expense of another, which means without just or legal ground.

PERSONS & FAMILY RELATIONS Accion in Rem Verso and Solutio Indebiti Solutio Indebiti Accion In Rem Verso (Art. 2154) It is not necessary that the payment was made by mistake, payment could have been made knowingly and voluntarily but nevertheless, there would be recovery of what has been paid.

Payment was made by mistake is an essential element to maintain the action for recovery.

Requisites: (JELA) 1. Enrichment is without just or legal ground 2. Defendant has been enriched; 3. Plaintiff has suffered a loss; and 4. He has no other action based on contract, quasi– contract, crime or quasi–delict. For a more comprehensive discussion of Articles 19-35, please see discussion thereof under Torts.

P R E J U D IC IA L Q U E S T IO N (A R T .36) General Rule: If both criminal and civil cases are filed in court, the criminal case takes precedence. Exceptions: 1. In case of prejudicial questions, the criminal case is suspended because the issues in the civil case are determinative of the outcome of the criminal case. A prejudicial question is that which arises in a case, the resolution of which is a logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal (Yap v. Paras, G.R. No. 101236, January 30, 1992). Requisites: (Section 7, Rule 111, Rules of Court) a. Previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action; an b. The resolution of such issue determines whether or not the criminal action may proceed. 2. Independent civil action granted by law (CD-RQ) a. Breach of constitutional and other rights (Art. 32) b. Defamation, fraud, physical injuries (Art. 33) c. Refusal or failure of city or municipal police to give protection (Art. 34)



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PERSONS & FAMILY RELATIONS

d. Quasi-delict or culpa-aquiliana (Art.2177)

The Civil Code has SUPPLETORY application in matters governed by special laws.

C IV IL P E R S O N A L IT Y (A R T .37) Civil Personality It is the aptitude of being the subject, active or passive, of rights and obligations. Juridical capacity and Capacity to Act (Paras, E. Civil Code of the Philippines Annotated 15th ed. (2002), p. 236) Juridical Capacity Capacity To Act Fitness to be the subject of legal relations (Art. 37)

Power to do acts with legal effects (Art. 37)

Passive Inherent

Active Merely acquired Lost through death and other causes Cannot exist without juridical capacity Can be restricted, modified or limited

Lost only through death Can exist without capacity to act Cannot be limited or restricted

A person is presumed to have capacity to act. (Standard Oil Co. v. Arenas, et al., 14 Phil. 363) Theories on Capacity to Act Theory of General Theory of Special Capacities Capacities Applies to natural persons Applies to juridical persons This limits the power of juridical persons only to effects except only in those those that are expressly specific circumstances conferred upon them or where the capacity to act is those which can be implied restrained therefrom or incidental thereto Restrictions on capacity to act The same do not exempt the incapacitated person from certain obligations as when the latter arise from his acts or from property relations such as easements (Art. 38): (MID-PC) 1. Minority Minority does not exempt the minor from certain obligations, as when the latter arise from his acts or from property relations. (Art. 38) Thus, he may acquire property using the capital of his parents, said property to belong to the latter in ownership and usufruct.

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CIVIL LAW 2. Insanity or imbecility 3. State of being deaf mute Deaf mute may either be sane or insane. 4. Prodigality – The state of squandering money or property with a morbid desire to prejudice the heirs of a person (Martinez v. Martinez, 1 Phil. 182). 5. Civil interdiction Modifications/ limitations on capacity to act (Art. 39): (FI3T P2A3D) 1. Family Relations; 2. Insanity; 3. Imbecility; 4. Insolvency; 5. Trusteeship; 6. Penalty; 7. Prodigality; 8. Age; 9. Alienage; 10. Absence; and 11. State of being deaf-mute. Note: The consequences of the restrictions and modifications on a person’s capacity to act are provided by the Civil Code, other codes, special laws and the Rules of Court.

NATURAL PERSONS Beginning of personality General rule: Birth determines personality (actual personality) (Art. 40). Exception: The law considers the conceived child as born for all purposes favorable to it if born alive. Therefore, the child has a presumptive personality, which has two characteristics: 1. Limited and 2. Provisional or conditional (Quimiguing vs. Icao, G.R. No. L-26795, July 31, 1970) Note: The concept of provisional personality CANNOT be invoked to obtain damages for and in behalf of an aborted child (Geluz vs. CA, G.R. No. L-16439, July 20, 1961). A conceived child is already entitled to support from its progenitors (Quimiguing vs. Icao, G.R. No. L-26795, July 31, 1970) and can be acknowledged even before it is born (De Jesus v. Syquia, 58 Phil. 866).





CIVIL LAW

When is a child considered born: (Art. 41) General Rule: For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the mother’s womb. Exception: If the fetus had an intra-uterine life of less than 7 months, it is NOT deemed born if it dies within 24 hours after its complete delivery from the maternal womb (Article 41). Illustration: Intra-uterine life 7 months or more

Less than 7 months

When considered born Alive upon complete delivery - regardless whether the child dies within 24 hours or not Alive upon complete delivery AND at least 24 hours thereafter

The legitimacy or illegitimacy of a child attaches upon conception (Continental Steel Manufacturing Corp. v. Hon. Accredited Voluntary Arbitrator, et al., G.R. No. 182836, October 13, 2009). How civil personality is extinguished Civil personality is extinguished by death. The effect of death upon the rights and obligations of the deceased is determined by law, by contract and by will (Art. 42). Presumption of survivorship In case of doubt as to which of two or more persons called to succeed each other died first: 1. Whoever alleges the death of one prior to the other shall prove the same 2. In the absence of proof, the presumption is that the parties died at the same time and there shall be no transmission of rights from one another (Art. 43) Note: Article 43 applies when the case involves two or more persons who are called to succeed each other. But if the parties are not called to succeed each other, Rule 131, Sec. 3 (jj) of the Rules of Court applies. Both are to be applied only in the absence of facts. (Paras, p. 248) Rule 131 Section 3 (jj). That except for purposes of succession, when two persons perish in the same calamity, such as wreck, battle, or conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, the survivorship is determined from the probabilities resulting



PERSONS & FAMILY RELATIONS from the strength and the age of the sexes, according to the following rules: 1. If both were under the age of fifteen years, the older is deemed to have survived; 2. If both were above the age sixty, the younger is deemed to have survived; 3. If one is under fifteen and the other above sixty, the former is deemed to have survived; 4. If both be over fifteen and under sixty, and the sex be different, the male is deemed to have survived, if the sex be the same, the older; 5. If one be under fifteen or over sixty, and the other between those ages, the latter is deemed to have survived. JURIDICAL PERSONS (Art. 44 to 46) A juridical person is a being of legal existence susceptible of rights and obligations, or of being the subject of juridical relations (Roldan vs. Philippine Veterans Board G.R. No. L-11973, June 30, 1959) Who are juridical persons: 1. State and its political subdivisions 2. Corporations for public interest - governed either by the Corporation Code or their special charters passed by the legislature. Personality begins as soon as they have been constituted according to law 3. Corporations, partnerships and associations for private interest Corporations are governed by the Corporation Code. Their personality exist from the moment a certificate of incorporation is granted to it from the Securities and Exchange Commission (Sec. 19, Corporation Code) By a contract of partnership, two or more persons bind themselves to contribute money, property or industry to a common fund, with the intention of dividing the profits among themselves; or for the exercise of profession (Art. 1767, NCC). Partnerships are governed by the contract between partners and the provisions of Art. 1767 to 1867 of the Civil Code.

C IT IZ E N S H IP

AND

D O M IC IL E

Citizenship It is the membership in a political community which is more or less permanent in nature. Article IV of 1987 Philippine Constitution now governs the rule on citizenship.

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PERSONS & FAMILY RELATIONS

Modes of acquiring citizenship 1. Jus sanguinis – by blood, wherever he may be born 2. Jus soli – by place of birth 3. Naturalization – artificial means (judicial or administrative) by which a state adopts an alien and gives him imprint and endowment of a citizen of that country Domicile For the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is the place of their habitual residence (Art. 50 NCC). Residence Indicates a place of abode, whether permanent or temporary There can be several places of residence No length of residence without intention of remaining will constitute domicile

Domicile Denotes a fixed permanent residence, which when absent, one has the intention of returning There can only be one place of domicile It is residence coupled with intention to remain for an unlimited time

Elements of domicile 1. Physical presence in a fixed place 2. Intention to remain permanently in said place (animus manendi) (Romualdez-Marcos vs. COMELEC, G.R. No. 119976 September 18, 1995). Kinds of domicile (Romualdez-Marcos vs. COMELEC, G.R. No. 119976 September 18, 1995) 1. Domicile of origin – Given by law to a person at birth 2. Domicile of choice – That which is voluntarily chosen by a sui juris – as his more or less permanent home; that to which, whenever he is absent, he intends to return. (Uytengsu v. Republic, 50 O.G. 4781, Oct. 1954) Note: Three basic rules on domicile of choice: (Ugdoracion vs. COMELEC G.R. No. 179851, April 18, 2008): a. A man must have a residence or domicile somewhere; b. Domicile, once established, remains until a new one is validly acquired; and c. A man can have but one residence or domicile at any given time. d. Every sui generis may change his domicile. 3. Domicile by operation of law – attributes to a person a domicile independent of his own intention or actual residence, ordinarily resulting from legal domestic

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CIVIL LAW relations, as that of the wife arising from marriage, or the relation of a parent and a child Requirements for the acquisition of new domicile (Romualdez v. RTC, Br. 7, Tacloban City, 226 SCRA 408, 415) 1. Bodily presence in a new locality – actual removal or actual change of domicile 2. Intention to remain therein (animus manendi) 3. Intention to abandon the old domicile (animus non revertendi) Rules for determining the domicile of juridical persons (Article 51): A. Get the domicile provided for in the law creating or recognizing them or in their articles of agreement. B. If not provided for, get the place: 1. Where their legal representation is established. 2. Or where they exercise their principal functions. If the corporation has head office and with branches, the domicile is where the head office is located. (Paras, p. 366)

F A M IL Y C O D E The Family Code of the Philippines took effect on August 3, 1988.

M A R R IA G E Marriage A special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. The Family Code emphasizes the permanent nature of marriage, hailing it as the foundation of the family. It is this inviolability which is central to our traditional and religious concepts of morality and provides the very bedrock on which our society finds stability (MalcampoSin vs. Sin, G.R. No. 137590 March 26, 2001). In Republic v. Nolasco (G.R. No. 94053 March 17, 1993), the Supreme Court stressed the strong need to protect “…the basic social institutions of marriage and the family in the preservation of which the State has the strongest interest; the public policy here involved is of the most fundamental kind. In Article II, Section 12 of the Constitution, there is set forth the following basic state policy: 'The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic





CIVIL LAW

autonomous social institution. The same sentiment has been expressed in the Family Code of the Philippines in Article 149: 'The family, being the foundation of the nation, is a basic social institution which public policy cherishes and protects. Consequently, family relations are governed by law and no custom, practice or agreement destructive of the family shall be recognized or given effect. Marriage and ordinary contract distinguished Marriage Ordinary Contract Special contract Merely a contract Social institution Merely a contract Governed by law on Governed by law on marriage contracts Not subject to stipulations Generally subject to except in property stipulations relations Minors may contract through their parents or Legal capacity is required guardians or in some cases by themselves Contracting parties must only be two persons – one Two or more parties is a female and the other regardless of gender is a male Parties can fix a period for its efficacy to be Permanent union ineffective after a few years Breach of obligations of husband and wife does not give rise to an action for damages. The law Breach of ordinary provides penal and civil contracts gives rise to an sanctions such as action for damages prosecution for adultery or concubinage and proceedings for legal separation. Can be dissolved only by Can be dissolved by death or annulment, not mutual agreement and by other legal causes by mutual agreement Breach of promise to marry General Rule: It is not by itself an actionable wrong (Hermosisima vs. CA L-14628, September 30, 1960). One cannot seek specific performance to compel marriage. Exceptions: To be actionable, there must be another act independent of the breach of promise to marry which



PERSONS & FAMILY RELATIONS gives rise to liability as where there was financial damage, social humiliation, and moral seduction. 1. Mere breach of promise to marry is not an actionable wrong; but to formally set a wedding and go through all the preparations and publicity, only to walk out of it when the matrimony is about to be solemnized, is quite different. This is palpably and unjustifiably contrary to good customs for which defendant must be held answerable in damages pursuant to Art. 21 NCC. (Wassmer vs. Velez, No. L-20089, December 26, 1964) 2. Where a man’s promise to marry was the proximate cause of giving herself unto him in sexual congress and there is proof he had no intention of marrying her, the promise being a deceptive device, damages may be awarded pursuant to Art. 21 NCC because of the fraud and deceit behind it and the willful injury to her honor and reputation (Baksh vs. CA, G.R. No. 97336, February 19, 1993). ESSENTIAL REQUISITES OF MARRIAGE: (LC) 1. Legal capacity of the contracting parties, who must be a male and a female a. Eighteen years old or above b. Not under any impediment mentioned in Arts. 37 and 38 (Art. 5) 2. Consent freely given in the presence of a solemnizing officer (Art. 2) No particular form required Capable of intelligently understanding the nature and consequences of the act FORMAL REQUISITES OF MARRIAGE: (ALM) 1. Authority of the solemnizing officer 2. Valid Marriage License 3. Marriage ceremony where the contracting parties appear before the solemnizing officer, with their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age (Art. 3) Effects of noncompliance with the requisites (Art. 4) Essential Formal Void ab initio Absence

Defect

(ex: expired marriage license; one of the parties is below 18 years old at the time of the marriage) Voidable Voidable (ex: consent obtained

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PERSONS & FAMILY RELATIONS through force and intimidation; Art. 45, 46) Valid

Valid, but person responsible for irregularity shall be civilly and criminally liable Except: when parties over 18 but below 21 failed to obtain parental consent, in which case the marriage is voidable (Art. 14)

Irregularity

(example of irregularity: no witnesses of legal age, or only one witness of legal age, or witnesses but not of legal age during the marriage ceremony (Sta. Maria, M., Persons and Family Relations, 2010, p. 127); issuance of marriage license despite absence of publication prior to the completion of the 10-day period for publication (Alcantara vs. Alcantara G.R. No. 167746 August 28, 2007)

CIVIL LAW Marriages by proxy 1. If it was solemnized in the Philippines, the marriage is VOID because physical appearance is required under Art. 6. 2. If performed abroad, whether between Filipinos or foreigners or mixed, the controlling article is Art. 26 of the Family Code. (Paras, p. 377-378) Authority of solemnizing officer It is not the presence or absence of the solemnizing officer which constitutes the formal requirement but the absence or presence of the solemnizing officer’s authority at the time of the solemnization of the marriage (Arañes vs. Occiano A.M. No. MTJ-02-1390 April 11, 2002; Navarro vs. Domagtoy A.M. No. MTJ-961088. July 19, 1996). General Rule: The solemnizing officer is not duty bound to investigate whether the marriage license was regularly issued. Must only determine if it was issued by a competent official (Alcantara vs. Alcantara G.R. No. 167746 August 28, 2007) If so, it may be presumed that the said official fulfilled the duty to ascertain whether the contracting parties fulfilled the requirements of law (People vs. Janssen G.R. No. L31763 December 27, 1929). Exception: In cases of marriage in articulo mortis, in remote places, and between a man and a woman living together as husband and wife for at least 5 years without legal impediment to marry each other Solemnizing officer must take steps to ascertain the ages, relationship, and qualifications of contracting parties (Art. 29) Persons authorized to solemnize marriages (Art. 7) (PMJ-C³) Priest, rabbi, imam or ministers of any church or religious sect

Requisites for the exercise of their authority a. Duly authorized by his church or religious sect;

Marriage ceremony (Art. 6) No prescribed form or religious rite for solemnization of marriage is required.

b. Registered with the office of the civil registrar general;

The absence of two witnesses of legal age is merely an irregularity but the party responsible for the irregularity shall be civilly, criminally, and administratively liable.

c. Acting within the limits of the written authority granted; and

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Municipal and city mayors (Sec. 444, 445 Local Government Code, January 1, 1992)

Incumbent members of the judiciary within the court’s jurisdiction

Ship captains or air plane chiefs

CIVIL LAW d. At least one of the parties belongs to the solemnizing officer’s church or religious sect The term “mayor” includes a vice-mayor who is the “Acting Mayor” or who is merely acting as a Mayor (People vs. Bustamante, citing Laxamana vs. Baltazar G.R. No. L11598 January 27, 1959) Note: Court of Tax Appeals, Sandiganbayan, Court of Appeals and Supreme Court justices have jurisdiction over the whole Philippine territory (Sta. Maria, M., Persons and Family Relations, 2010,, p. 135) a. The marriage must be in articulo mortis (one of the parties is at the point of death); b. The marriage must be between passengers or crew members; c. The ship must be at sea or the plane must be in flight; including stopovers at ports of call.

Commander of a military unit, in the absence of chaplain (Art. 32)

Assistant pilot has no authority to solemnize a marriage even if airplane chief dies during the trip a. He or she must be a military commander of a unit; Note: Unit refers to a battalion under the present table of organization and not a mere company (Minutes of the Civil Code Revision Committee held on May 23, 1983, p. 4)

PERSONS & FAMILY RELATIONS commissioned officer; Note: Rank should start from 2nd lieutenant, ensign and above (Webster Dictionary, 1991 ed.) c. A chaplain must be assigned to such unit; d. Such chaplain must be absent at the time of the marriage; e. Marriage must be one in articulo mortis; and f.

Consul generals, consuls or vice–consuls of the Republic of the Philippines abroad (Art. 10)

The contracting parties, whether members of the armed forces or civilians, must be within the zone of military operation. a. Marriage must only be between Filipino citizens; b. Has authority to solemnize marriage only abroad; c. Acts not only as solemnizer of a marriage but also perform the duties of a local civil registrar such as the issuance of a marriage license; b. The solemnities established by Philippine laws shall be observed in their execution (Art. 17, NCC).

Authorized venues of marriage (Art. 8) General Rule: Must be solemnized publicly, and not elsewhere, in the 1. Chambers of the judge or in open court 2. Church, chapel or temple 3. Office of consul–general, consul or vice–consul

b. He or she must be a



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Exceptions: 1. Marriage in articulo mortis; 2. Marriage in remote places; 3. Marriage at a house or place designated by the parties in a sworn statement to that effect, with the written request of both parties to the solemnizing officer (Sta. Maria, M., Persons and Family Relations, 2010, p. 140) Note: This provision is only directory and the requirement that the marriage be solemnized in a particular or a public place is not an essential requisite. (Sta. Maria, M., Persons and Family Relations, 2010, p. 140) Valid marriage license (Art. 9) A formal requisite of marriage Issued by the local civil registrar of the city or municipality where EITHER contracting party habitually resides. The license is valid in any part of the Philippines for 120 days from date of issue, which is the date when the local civil registrar signed the license. Automatically cancelled at the expiration of the period if contracting parties have not made use of it (Art. 20) Exceptions to the marriage license requirement (MARCO): 1. Among Muslims or members of ethnic cultural communities solemnized in accordance with their customs, rites and practices (Art. 33) Exception only applies to Muslims and members of the ethnic groups of the Cordillera Autonomous Region because they have a separate law—Code of Muslim Personal Laws of the Philippines and Organic Act of the Cordillera Autonomous Region (RA 6766). Other ethnic groups are still governed by the Family Code (Sta. Maria, M., Persons and Family Relations, 2010, p. 187). 2. In articulo mortis (Art. 27) Marriage remains valid even if spouse at the point of death subsequently survives (Art. 27) 3. In remote place Residence of either party is so located that there is no means of transportation to enable them to personally appear before the local civil registrar (Art. 28) 4. Marriage of people who have previously cohabited for at least 5 years /ratification by cohabitation (Art. 34)

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CIVIL LAW Requisites: a. The man and woman must have been living as husband and wife for at least five years before the marriage; b. The parties must have no legal impediment to marry each other; c. The fact of absence of legal impediment between the parties must be present at the time of marriage; d. The parties must execute an affidavit before any person authorized by law to administer oaths stating that they have lived together for at least five years (and are without legal impediment to marry each other); and e. The solemnizing officer must execute a sworn statement that he had ascertained the qualifications of the parties and that he had found no legal impediment to their marriage (Manzano v. Sanchez G.R. No. MTJ–00–1329, March 08, 2001). The 5–year period should be computed on the basis of cohabitation as husband and wife where the only missing factor is the marriage contract to validate the union (ex: if both cohabited at the age of 17, counting starts when parties reach 18 years). This 5–year period should be the years immediately before the day of the marriage and it should be a period of cohabitation characterized by EXCLUSIVITY – meaning no legal impediment was present at any time within the 5 years and CONTINUITY – that is unbroken (Republic v. Dayot, G.R. No. 175581, March 8, 2008). 5. Solemnized outside the Phil. where no marriage license is required by the country where they were solemnized (Art. 26 par. 1) Solemnizing of a marriage involving a foreign contracting party in the Philippines (Art. 21) When either or both parties are foreign citizens, they must first submit a CERTIFICATE OF LEGAL CAPACITY TO MARRY issued by their diplomatic/consular officials before marriage license can be obtained. Ratio: A certificate of legal capacity is necessary because the Philippines, insofar as marriage is concerned, adheres to the national law of the contracting parties with respect to their legal capacity to contract marriage. Without this certification of legal capacity, the local civil registrar will not issue the marriage license (Sta. Maria, M., Persons and Family Relations, 2010, p. 151).





CIVIL LAW

Exception: Marriage of both foreign citizens will be solemnized by their country’s consul-general assigned in the Philippines, if their country’s law allows the same Stateless persons or refugees from other countries shall submit an affidavit stating circumstances to show capacity to contract marriage before a marriage license can be obtained (Art. 21 par. 2). Marriage certificate (Art. 22) Best documentary evidence of the existence of a marriage (Tenebro vs. CA G.R. No. 150758 February 18, 2004). A mere photostat copy of a marriage certificate is a worthless piece of paper (Vda. De Chua vs. CA, G.R. No. 116835, March 5, 1998) but if such photostat copy emanated from the Office of the Local Civil Registrar and duly certified by the local civil registrar as an authentic copy of the records in his office, such certified photostat copy is admissible as evidence (Sta. Maria, M., Persons and Family Relations, 2010, p. 154). Testimony of one of the parties to the marriage, witnesses or solemnizing officer is admissible to prove the fact of marriage (Balogbog v. CA, G.R. No. 83598, March 7, 1997). It may also be proved by parol evidence (Sta. Maria, M., Persons and Family Relations, 2010, p.156). Mere cohabitation is not direct proof of marriage, and it must be proved by proper documents or by oral testimony in case they have been lost (Sta. Maria, M., Persons and Family Relations, 2010, p.158). Once the presumption of marriage arises, other evidence may be presented in support thereof. The evidence need not necessarily or directly establish the marriage but must at least be enough to strengthen the presumption of marriage. Every intendment of law leans toward legitimizing marriage (Delgado vda de De la Rosa v. Heirs of Marciana vda de Damian, GR No 155733, January 27, 2006). The Supreme Court rules in (Trinidad vs. CA, G.R. No. 118904. April 20, 1998) that when the question of whether a marriage has been contracted arises in litigation, said marriage may be proven by relevant evidence. To prove the fact of marriage, the following would constitute competent evidence: the testimony of a witness to the matrimony, the couple’s public and open cohabitation as husband and wife after the alleged wedlock, the birth and the baptismal certificates of



PERSONS & FAMILY RELATIONS children born during such union, and the mention of such nuptial in subsequent documents. Marriage license Formal requisite; Absence renders marriage void ab initio except in the cases provided under Art. 27 to 34 Issued by the local civil registrar (Art. 19) Issued before solemnization of marriage

the the

Marriage certificate/marriage contract Not essential for the validity of the marriage; Best evidence to prove existence (not validity) of marriage Issued by the person solemnizing the marriage (Art. 23) Issued after the solemnization of the marriage

Note: Marriage certificate is NOT an essential requisite of marriage and should NOT be confused with a marriage license.

M A R R IA G E C E L E B R A T E D O U T S ID E T H E P H IL IP P IN E S (A R T .26) VALIDITY OF MARRIAGE General Rule: Where one or both parties in the marriage are citizens of the Philippines, the foreign marriage is valid in this country if solemnized in accordance with the laws of the country of celebration (Art. 26). In case a Filipino contracts a foreign marriage which is null and void in the place where it was solemnized, the same shall also be null and void in the Philippines even if such was valid if celebrated under Philippine laws. If both are foreigners, lex loci celebrationis applies. Exceptions: Foreign marriages shall not be recognized in the Philippines if: (B2MA-PIP) 1. Contracted by a national who is below 18 years of age (Art. 35(1)) Note: This exception should be construed as referring to a situation where the marriage abroad is between a Filipino and a Filipina and not between a Filipino or Filipina and an alien married in the alien’s state where he or she (the alien), though below 18 years of age, is capacitated to marry (Sta. Maria, M., Persons and

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Family Relations, 2010, p. 165).

2. Bigamous or polygamous except as provided in Art. 41, FC (Art. 35(4)) 3. Contracted through mistake of one party as to the identity of the other (Art. 35(5)) 4. Contracted following the annulment or declaration of nullity of a previous marriage but before partition (Art.35(6)) 5. Void due to psychological incapacity (Art. 36) 6. Incestuous (Art.37) 7. Void for reasons of public policy (Art. 38) Note: The existence of the pertinent provision of the foreign marriage law must be shown to prove a foreign marriage. It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign laws. Like any other facts, they must be alleged and proved. Australian marital laws are not among those matters that judges are supposed to know by reason of their judicial function. The power of judicial notice must be exercised with caution, and every reasonable doubt upon the subject should be resolved in the negative (Garcia vs. Recio, G.R. No. 138322 October 2, 2001). DIVORCE General rule: Divorce is not allowed in the Philippines Exceptions: 1. Between 2 aliens – if valid in their national laws even if marriage was celebrated in the Philippines 2. Between a Filipino and an alien – if (a) there is a valid marriage celebrated between a Filipino citizen and a foreigner; and (b) a valid divorce according to the national law of the foreigner is obtained abroad by the alien spouse capacitating him or her to remarry (Art. 26[2])). The Filipino spouse should likewise be allowed to remarry as if he or she was a foreigner at the time of the solemnization of the marriage. To rule otherwise would sanction absurdity and injustice (Republic v. Orbecido III G.R. No. 154380 October 5, 2005). Party pleading it must prove divorce as a fact and demonstrate its conformity to the foreign law allowing it, which must be proved as courts cannot take judicial notice of foreign laws. If a valid divorce decree has been obtained abroad, there is no more need to file an action to nullify the marriage. The plaintiff has no more personality to sue since the marriage bond has already

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CIVIL LAW been severed (Felicitas Amor-Catalan v. CA, G.R. No. 167109, February 6, 2007). Article 26(2) applies where parties were Filipino citizens at the time of the marriage was celebrated, and later on, one of them becomes naturalized as a foreign citizen and obtains a divorce decree: the reckoning point is their citizenship at the time the valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry (Rep. v. Obrecido III, G.R. No. 154380, Oct. 5, 2005). In Edgar San Luis v. Felicidad Sagalongos (G.R. No. 134029, February 6, 2007), it was held that a Filipino who had been divorced by his alien spouse abroad may NOT validly remarry in the Philippines if the marriage was solemnized BEFORE the Family Code took effect. It was noted that there is no need to retroactively apply Art. 26 paragraph 2 of the Family Code, since there is sufficient jurisprudential basis allowing the Court to rule in the affirmative. There must be a showing that the divorce decree gave the foreigner spouse legal capacity to remarry because in some jurisdictions, remarriage may be limited or prohibited (Bayot v. Bayot, G.R. No. 155635 & 163979, November 7, 2008). The legislative intent is for the benefit of the Filipino spouse, by clarifying his or her marital status, settling the doubts created by the divorce decree. Essentially, the second paragraph of Article 26 of the Family Code provided the Filipino spouse a substantive right to have his or her marriage to the alien spouse considered as dissolved, capacitating him or her to remarry (Corpus v. Sto. Tomas, G.R. No. 186571, August 11, 2010).

V O ID M A R R IA G E S (A R T .35) KINDS OF VOID MARRIAGES (LAPIS): I. Those contrary to law or public policy II. Due to absence of essential or formal requisites III. Due to psychological incapacity IV. Incestuous marriages V. Void subsequent marriages Note: As a general rule, good faith and bad faith are immaterial in determining whether or not a marriage is null and void. Nonetheless, the party who knew that he or she was entering a void marriage before its solemnization may be held liable for damages by the other contracting party under Art,19, 20 and 21 of the Civil Code.



PERSONS & FAMILY RELATIONS

CIVIL LAW





Exceptions: 1. Art. 35 (2): either of the contracting parties is in good faith in believing that the solemnizing officer has authority although he has none in fact 2. Art. 41: person whose spouse disappears for four consecutive years, or two years where there was danger of death, the present spouse may validly marry again after he or she: a. Has a well-founded belief that his or her spouse is dead; b. Procures a judicial declaration of presumptive death; c. At the time of subsequent marriage ceremony, is in good faith with the subsequent spouse; otherwise, the subsequent marriage shall be considered void. In these two cases, it is necessary that both contracting parties be in bad faith in order for the marriage to be considered void.( Sta. Maria, M., Persons and Family Relations, 2010, p. 195) BAD FAITH DISPOSITION

AS

AFFECTING

PROPERTY

General rule: In a void marriage, the property regime is one of co-ownership (Art. 147 and 148). The law provides that the person in bad faith will forfeit his or her share in the co-ownership in favour of their common children. Exception: Void subsequent marriage due to the failure of a party to get a prior judicial declaration of nullity of the previous void marriage pursuant to Art. 40 of the Family Code in which case Art. 43 par. 2 (instead of Art. 147 or 148) shall apply (Sta. Maria, M., Persons and Family Relations, 2010, p. 195-196). IMPRESCRIPTIBILITY OF DECLARATION OF NULLITY

ACTION

Declaration of nullity not a prejudicial question The pendency of the civil action for nullity of marriage does not pose a prejudicial question in a criminal case for concubinage (Beltran vs. People, G.R. No. 137567, June 20, 2000). This ruling applies in a case for bigamy by analogy since both crimes presuppose the subsistence of a marriage (Bobis v. Bobis, G.R. No.138509, July 31, 2000). ATTACKING A VOID MARRIAGE General rule: A void marriage can be attacked collaterally. Exceptions: a. Art. 40: a person in a void marriage who wants to remarry must first file a civil case to obtain a judicial declaration of nullity of the first marriage b. Obtaining a judicial declaration of nullity for purposes other than remarriage (legitimacy, settlement of estate, criminal case) when the validity of the marriage is an issue c. If a donor desires to revoke a donation propter nuptias (in consideration of the marriage) given to one or both the spouses on the ground that the marriage is void (Sta. Maria, M., Persons and Family Relations, 2010, p. 196-198). JUDICIAL DECLARATION OF NULLITY (Art. 40) The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void (Art. 40).

FOR

General Rule: The action or defense for the declaration of absolute nullity of a marriage shall not prescribe (Art. 39, as amended by R.A. 8533 approved on February 23, 1998). Only the spouses can file petition for declaration of nullity Pursuant to A.M. No. 02-11-10-SC (SC Resolution which took effect on March 15, 2003), a petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife. Thus, compulsory or intestate heirs can question the validity of the marriage of the spouses, not in a proceeding for declaration of nullity, but upon the death of a spouse in a proceeding for the



settlement of the estate of the deceased spouse filed in the regular courts (Enrico v. Heirs of Medinaceli, G.R. No. 173614, September 28, 2007).

Remarriage is not the sole purpose of declaration of nullity of a marriage as it can be declared void for other purposes For purposes of remarriage, the only legally acceptable basis for declaring a previous marriage an absolute nullity is a final judgment declaring such previous marriage void Parties to a marriage should not be permitted to judge for themselves its nullity, only competent courts having such authority. Prior to such declaration of nullity, the validity of the first marriage is beyond question (Landicho vs. Rolova L-22579, February 23, 1968). One who enters into a subsequent marriage without first

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CIVIL LAW

obtaining such judicial declaration is guilty of bigamy. This principle applies even if the earlier union is characterized by statute as “void” (Manuel vs. People, G.R. No. 165842, November 29, 2005).

5. Marriages contracted through mistake of one of the parties as to the physical identity of the other 6. Subsequent marriages that are void under Article 53 of the Family Code

Interestingly, in Lucio Morigo v. People, (GR No. 145226, Feb. 6, 2004), the SC ruled that a judicial declaration of nullity is NOT NEEDED where NO MARRIAGE CEREMONY at all was performed by a duly authorized solemnizing officer, as where the parties merely signed a marriage contract on their own without the presence of the solemnizing officer.

General rule: A marriage contracted by any person during the subsistence of a previous valid marriage shall be null and void (Gomez v. Lipana, GR. No. L– 23214, June 30, 1970).

The requirement for a declaration of absolute nullity of a marriage is also for the protection of the spouse who, believing that his or her marriage is illegal and void, marries again. With the judicial declaration of the nullity of his or her marriage, the person who marries again cannot be charged with bigamy. A judicial declaration of nullity is required before a valid subsequent marriage can be contracted; or else, what transpires is a bigamous marriage, reprehensible and immoral. (Teves vs. People, G.R. No. 188775, August 24, 2011). For purposes other than remarriage, such as but not limited to determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime or criminal case, other evidence is acceptable to show the nullity of the marriage and the court may pass upon the validity of marriage so long as it is essential to the determination of the case (Niñal vs. Bayadog, G.R. No. 133778, March 14, 2000). Collateral attack of marriage is allowed. In a case for concubinage, the accused need not present a final judgment declaring his marriage void, for he can adduce evidence in the criminal case of the nullity of his marriage other than proof of a final judgment declaring his marriage void (Beltran vs. People, G.R. No. 137567, June 20, 2000). I. VOID MARRIAGES DUE TO ABSENCE OF ANY OF THE ESSENTIAL OR FORMAL REQUISITES: (BB– LAPIS) 1. Contracted by any party below 18 years of age even with parental consent 2. Bigamous or polygamous marriages except Art 41 3. Solemnized WITHOUT a license except as otherwise provided 4. Solemnized by any person NOT LEGALLY authorized to perform marriages UNLESS one or both of the parties believed in good faith that the solemnizing officer had the legal authority to do so

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Elements of bigamy (Art. 349, RPC): a. The offender has been legally married. b. The marriage has not been legally dissolved or in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code. c. The offender contracts a second or subsequent marriage. d. The second or subsequent marriage has all the essential requisites for validity. . Exception: Before the celebration of the subsequent marriage, a declaration of presumptive death is obtained after complying with the following requirements: (JAB) i. Judicial declaration of presumptive death; present spouse must file a summary proceeding for the declaration of the presumptive death of the absentee without prejudice to the latter’s reappearance. ii. Absence of the other spouse must have been for 4 consecutive years, or 2 years where there was danger of death under circumstances laid down in Art. 391 of the NCC; iii. Well-founded belief of the present spouse who wishes to marry that absent spouse is already dead; and There is no well-founded belief that the absent spouse is already dead when the present party fails to conduct a diligent search for the missing party (Republic v. Nolasco, G.R. No. 94053, March 17, 1993). Note: This is intended to protect the present spouse from criminal prosecution for bigamy under Art 349 of the Revised Penal Code. However, if the bigamous marriage was committed abroad, the guilty party cannot be criminally prosecuted for bigamy in the Philippines as our penal statutes are territorial in nature. Exception to the exception: If both spouses of the subsequent marriage acted in bad faith, said





CIVIL LAW marriage shall be void ab initio and all donations made by one in favor of the other are revoked by operation of law (Art. 44). Effect of reappearance of absent spouse: General rule: The subsequent bigamous marriage under Article 41 remains valid despite reappearance of the absentee spouse. Exception: Subsequent marriage is automatically terminated if the reappearance was recorded in a sworn statement in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person with due notice to said spouses, without prejudice to the fact of reappearance being judicially determined in case such fact is disputed. Exception to the exception: If there was a previous judgment annulling or declaring the first marriage a nullity, the subsequent bigamous marriage remains valid. Notes: If the absentee reappears, but no step is taken to terminate the subsequent marriage either by affidavit or by court action, the absentee’s mere reappearance even if made known to the spouses in the subsequent marriage will not terminate such marriage (SSS v. Bailon, G.R. No 165545, March 24, 2006). By express provision of law (Art. 247, FC), the judgment of the court in a summary proceeding shall be immediately final and executory. As a matter of course, it follows that no appeal can be had of the trial court’s judgment in a summary proceeding for the declaration of presumptive death of an absent spouse under Article 41 of the Family Code. It goes without saying, however, that an aggrieved party may file a petition for certiorari to question abuse of discretion amounting to lack of jurisdiction. Such petition should be filed in the Court of Appeals in accordance with the Doctrine of Hierarchy of Courts (Republic vs. Tango G.R. No. 161062 July 31, 2009).

Note: Enumeration in Art 35 is NOT exclusive. Other VOID marriages include: 1. Marriages in a play, drama, or movie 2. Marriages between two boys and two girls 3. Marriages in jest 4. Common law marriages



PERSONS & FAMILY RELATIONS II. PSYCHOLOGICAL INCAPACITY (Art. 36) No less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage. Its meaning is confined to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. This psychological condition must exist at the time the marriage is celebrated (Santos vs. CA, G.R. No. 112019, January 4, 1995). Psychological incapacity It is the downright incapacity or inability to take cognizance of and to assume the basic marital obligations. The burden of proving psychological incapacity is on the plaintiff. The plaintiff must prove that the incapacitated party, based on his or her actions or behavior, suffers a serious psychological disorder that completely disables him or her from understanding and discharging the essential obligations of the marital state. The psychological problem must be grave, must have existed at the time of marriage, and must be incurable (Kalaw v. Fernandez, G.R. No. 166357, September 19, 2011). In Marable v. Marable, G.R. No. 178741, January 17, 2011, the Supreme Court ruled that “the term ‘psychological incapacity’ to be a ground for the nullity of marriage under Article 36 of the Family Code, refers to a serious psychological illness afflicting a party even before the celebration of the marriage. These are the disorders that result in the utter insensitivity or inability of the afflicted party to give meaning and significance to the marriage he or she has contracted. Psychological incapacity must refer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage.” Requisites of psychological incapacity: (JIG) 1. Juridical Antecedence – Must be rooted in the history of the party antedating the marriage, although the overt manifestations may emerge only after the marriage; and 2. Incurability – Must be incurable or, even if it were otherwise, the cure would be beyond the means of the party involved; 3. Gravity – must be grave/serious such that the party would be incapable of carrying out the ordinary duties required in a marriage (Santos vs. CA, G.R. No. 112019, January 4, 1995).

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not controlling should be given great respect.

May involve a senseless, protracted and constant refusal to comply with the essential marital obligations by one or both of the spouses although he, she or they are physically capable of performing such obligations (Chi Ming Tsoi v. CA, G.R. No. 119190, Jan. 16, 1997). A person who is unable to distinguish between fantasy and reality would be unable to comprehend the legal nature of the marital bond much less its psychic meaning and the obligations attached to the marriage, including parenting. One unable to adhere to reality cannot be expected to adhere as well to any legal or emotional commitments (Antonio v. Reyes, G.R. No. 155800, March 10, 2006). While disagreements on money matters would, no doubt, affect the other aspects of one’s marriage as to make the wedlock unsatisfactory, this is not a sufficient ground to declare a marriage null and void. In fact, the Court takes judicial notice of the fact that disagreements regarding money matters are common, and even normal occurrences between husbands and wives (Tongol vs. Tongol, G.R. No. 157610, October 19, 2007). Petitioner is not entitled to moral damages based on declaration of psychological incapacity because the award of moral damages should be predicated, not on the mere act of entering into the marriage, but on specific evidence that it was done deliberately and with malice by a party who had known of his or her disability and yet willfully concealed the same (Noel Buenaventura v. CA, et al., G.R. No. 127358, March 31, 2005). Jurisprudential guidelines (Molina doctrine) (Republic v. Molina G.R. No. 108763, February 13, 1997): (PROBE PIG) 1. Incapacity must be permanent or incurable; 2. Root cause of the psychological incapacity must be: a. Medically or clinically identified b. Alleged in the complaint: i. Sufficiently proven by experts ii. Clearly explained in the decision 3. Marital obligations refer to Art. 68–71, 220,221 and 225 of the FC; 4. Plaintiff has burden of proof; 5. Incapacity proven to be existing at the time of the celebration of marriage; 6. Trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear for the state; 7. Illness is grave enough to bring about disability to assume essential marital obligations; and Interpretations of the National Appellate Matrimonial Tribunal of the Catholic Church of the Philippines while

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SAN BEDA COLLEGE OF LAW 2013 CENTRALIZED BAR OPERATIONS

Note: The Supreme Court said that the provisions of Article 36 should be interpreted on a case-to-case basis. The Court said: “Let it be remembered that each case involving the application of Article 36 must be treated distinctly and judged not on the basis of a priori assumptions, predilections or generalizations but according to its own attendant facts. Courts should interpret the provision on a case-to-case basis, guided by experience, the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals.” (Aurelio vs. Aurelio, G.R. No. 175367, June 6, 2011). In Te v. Yu-Te (G.R. No. 161793, February 13, 2009), the SC stressed that it is the court, on a case to case basis, which determines whether a party to a marriage is psychologically incapacitated, and that each case should be treated differently. In ruling that the doctrine in Republic vs. CA and Molina (1997) was inapplicable, the Court declared that cases of psychological incapacity should be decided not on the basis of a priori assumptions, predictions or generalizations but according to its own facts. Courts should interpret the provision on a case-to-case basis; guided by experience, the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals. While it was not suggesting the abandonment of the Molina doctrine, it ruled that said doctrine has become a straitjacket, forcing all sizes to fit into and be bound by it, and in conveniently applying said doctrine, has allowed diagnosed sociopaths, schizophrenics, nymphomaniacs, narcissists and the like, to continuously debase and pervert the sanctity of marriage. In ruling that both parties to the marriage were psychologically incapacitated, the Court also stressed that the expert opinion on the psychological and mental temperament of the parties must not be discounted, but must instead be considered as decisive evidence. The wife’s promiscuity and the psychiatrist’s report that she was suffering from social personality disorder exhibited by blatant display of infidelity, emotional immaturity, and irresponsibility cannot be equated with psychological incapacity (Dedel v. Court of Appeals, G.R. No. 151867, January 29, 2004). Similarly, the husband’s alleged alcoholism, drunkenness, his habitual verbal and physical abuse of the wife, failure to support the latter and her children, and unbearable jealousy, do not constitute psychological incapacity (Republic vs. Melgar, G.R. No. 139676,March 31, 2006).





CIVIL LAW

In Marcos v. Marcos (GR. NO. 136490, October 19, 2000), the SC held that psychological incapacity may be established by the totality of the evidence presented. The facts alleged in the petition and the evidence presented, considered in totality, should be sufficient to convince the court of the psychological incapacity of the party concerned (Bernardino S. Zamora vs. CA, G.R. No. 141917, February 7, 2007). There is NO REQUIREMENT that the person sought to be declared psychologically incapacitated should be personally examined by a physician or psychologist as a condition sine qua non to arrive at such declaration. It can be proven by independent means that one is psychologically incapacitated; there is no reason why the same should not be credited (Republic of the Philippines vs. Laila Tanyag-San Jose and Manolito San Jose, G.R. No. 168328, February 28, 2007). Psychological incapacity is not meant to comprehend all possible cases of psychoses. The fourth guideline in Molina requires that the psychological incapacity as understood under Art. 36 (FC) must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in a job (Tongol vs. Tongol, G.R. No. 157610, October 19, 2007). Final judgment denying a petition for nullity on the ground of psychological incapacity bars a subsequent petition for declaration of nullity on the ground of lack of marriage license. There is res judicata (Mallion vs. Alcantara, G.R. No. 141528, October 31, 2006). In petitions for the declaration of nullity of marriage, the burden of proof to show the nullity of marriage lies with the plaintiff. Unless the evidence presented clearly reveals a situation where the parties, or one of them, could not have validly entered into a marriage by reason of a grave and serious psychological illness existing at the time it was celebrated, we are compelled to uphold the indissolubility of the marital tie (Republic v. Galang, G.R. No. 168335, June 6, 2011). III. INCESTUOUS MARRIAGES, WHETHER THE RELATIONSHIP IS LEGITIMATE OR ILLEGITIMATE, BETWEEN (Art. 37): 1. Ascendants & Descendants of any degree; 2. Brothers & Sisters whether full or half blood IV. THOSE CONTRARY TO PUBLIC POLICY CONTRACTED BETWEEN (Art. 38): (CS-PASS-AKA) 1. Collateral blood relatives whether legitimate or illegitimate up to the 4th civil degree



PERSONS & FAMILY RELATIONS 2. Step–parents & step children 3. Parents–in–law & children–in–law 4. The adopting parent & the adopted child 5. The surviving spouse of the adopting parent & the adopted child 6. The surviving spouse of the adopted child & the adopter 7. Adopted child & a legitimate child of the adopter 8. Parties where one, with the intention to marry the other, killed the latter’s spouse, or his/her spouse. 9. Adopted children of the same adopter Note: There is no need for conviction in a criminal case of the guilty party. The fact of killing committed by one of the parties to the marriage can be proved in a civil case. The following can now marry each other: (LSG-AC2) 1. Brother–in–law and sister–in–law 2. Stepbrother and stepsister 3. Guardian and ward 4. Adopted and illegitimate child, parents and relatives by consanguinity or affinity of the adopter; 5. Parties who have been convicted of adultery or concubinage 6. Collateral relatives by the half blood. Determination if two persons are relatives up to the 4th civil degree: 1. Consider the nearest and immediate common ascendant 2. Count the number of relatives from one of them to the common ascendant and from the common ascendant to the other one. Relationship by consanguinity is in itself not capable of dissolution. Hence, the mere fact that a common ascendant, a grandfather for example, died does not sever the blood relationship of first cousins. Two views on termination of marriage on the “affinity prohibition” a. Relationship by affinity terminates with the termination of the marriage whether there are children or not in the marriage. b. Relationship by affinity is dissolved if one of the spouses dies and the spouses have no living issues or children; it does not cease if there are living issues or children of the marriage ‘in whose veins the blood of the parties are commingled, since the relationship of affinity was continued through the medium of the issue of marriage (Sta. Maria, M., Persons and Family Relations, 2010, p. 251-253).

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V. VOID SUBSEQUENT MARRIAGES 1. Without judicial declaration of nullity of previous void marriage (Art. 40) 2. Without judicial declaration of presumptive death of absent spouse (Art. 41) No judicial proceeding to annul a subsequent marriage contracted under Art. 41 is necessary. Also, the termination of the subsequent marriage by affidavit provided for in Art. 42 does not preclude the filing of an action in court to prove the reappearance of the absentee and obtain a declaration of dissolution or termination of the subsequent marriage (SSS vs. Vda. De Ballon, G.R. No. 166645, March 24, 2006). 3. Where the absent spouse was presumed dead, and both the present spouse and would–be spouse were in bad faith in contracting marriage (Art. 44) 4. Failure to comply with Art. 52 requiring the partition and distribution of properties and delivery of children’s presumptive legitimes which should be recorded in the appropriate civil registry and registry of property after obtaining judgment for declaration of nullity or annulment (Art. 53) Note: Failure to record in the civil registry and registry of property the judgment of annulment or of absolute nullity of the marriage, partition and distribution of the property of the spouses and the delivery of the children’s presumptive legitimes shall not affect third persons (Arts. 52–53). VOID AND VOIDABLE MARRIAGE DISTINGUISHED Void Voidable Decree of nullity Decree of annulment Ratified by free Incapable of ratification cohabitation Can be attacked directly Can be attacked directly or collaterally only Can still be impugned Can no longer be even after death of impugned after death of parties one of the parties Co–ownership of Generally Conjugal properties through joint Partnership or Absolute actual contributions Community Always void Valid until annulled Action for declaration of Action prescribes nullity does not prescribe See Comparative Chart on Effects of Declaration of Nullity, Annulment and Termination of Marriage in Art. 41 and Legal Separation.

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CIVIL LAW V O ID A B L E M A R R IA G E S (A R T .45) Unlike void marriages which is invalid from the beginning, voidable marriages are considered valid until annulled. The grounds for annulment of marriage are exclusive (Sta. Maria, M., Persons and Family Relations, 2010, p. 291). Grounds: (AUF-VPS) must exist AT THE TIME of marriage 1. Absence of consent to contract marriage from the parents, guardian or person exercising substitute parental authority (in that order) over one or both of the parties, where one or both of the parties is over 18 but below 21 2. Unsound mind of either party The true test is whether the party concerned could intelligently consent; that is, that he knew what contract he was entering into (Hoadley v. Hoadley, 244 N.Y. 424). Intoxication which results in lack of mental capacity to give consent is equivalent to unsoundness of mind (McKnee v. McKnee, 49 Nev. 90). So is somnambulism at the time of wedding (15 Sanchez Roman 528). 3. Consent of either party obtained by fraudulent means as enumerated in Art. 46: (NPSD) a. Non–disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude; b. Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband; Must have been done in bad faith. If the woman did not expressly inform the man of her pregnancy but such physical condition was readily apparent to the man, he cannot claim lack of knowledge thereof (Buccat vs. Buccat, G.R. No. 47101, April 25, 1941). c. Concealment of a sexually transmissible disease, regardless of its nature, existing at the time of the marriage; and Nature or gravity of disease is irrelevant; it is enough that there was concealment at the time of the





CIVIL LAW ceremony.

d. Concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism existing at the time of the marriage Note: There is fraud when, through insidious words or machinations of one of the contracting parties, the other is induced to enter into a contract which, without them, he would not have agreed to (Art. 1338, NCC). The enumeration in Article 46 is exclusive. Hence, misrepresentation as to character, health, rank, fortune or chastity is NOT a ground for annulment (Anaya vs. Palaroan, GR. No. L–27930, November 26, 1970) 4. Vitiated consent of either party through force, intimidation or undue influence Criminal liability attaches to anyone who uses violence, intimidation and fraud in contracting a marriage (Art. 350 RPC) Violence When in order to wrest consent, serious or irresistible force is employed (Art. 1335 par. 1, NCC). Intimidation When one of the contracting parties is compelled by a reasonable and well-grounded fear of an imminent and grave evil upon his person or property, or upon the person or property of his spouse, descendants or ascendants, to give his consent (Art. 1335 par. 2, NCC) Factors to consider in violence and intimidation: the age, sex and condition of the person. A threat to enforce one’s claim through competent authority, if the claim is just or legal, does not vitiate consent (Art. 1335 par. 3 and 4, NCC) Undue influence It is when a person takes improper advantage of another, depriving the latter of reasonable freedom of choice. Factors to consider: the confidential, family, spiritual and other relations between the parties or the fact that the person alleged to have been unduly influenced was suffering from mental weakness or was ignorant or in financial distress (Art 1337, NCC).



PERSONS & FAMILY RELATIONS 5. Physical incapability of either party to consummate the marriage with the other, and such incapacity continues and appears to be incurable (impotency) Impotency being an abnormal condition should not be presumed. The presumption is in favor of potency (Jimenez vs. Cañizares G.R. No. L-12790 August 31, 1960). Article 45(5) of the Family Code refers to lack of power to copulate. Incapacity to consummate denotes the permanent inability on the part of the spouses to perform the complete act of sexual intercourse. Nonconsummation of a marriage may be on the part of the husband or of the wife and may be caused by a physical or structural defect in the anatomy of one of the parties or it may be due to chronic illness and inhibitions or fears arising in whole or in part from psychophysical conditions. It may be caused by psychogenic causes, where such mental block or disturbance has the result of making the spouse physically incapable of performing the marriage act (Alcazar vs. Alcazar G.R. No.174451 October 13, 2009). Requisites for annulment due to impotence: (CUPIN) a. It exists at the time of the celebration of the marriage; b. It is unknown to the other spouse; c. It is permanent; d. It is incurable; and e. The other spouse must not also be impotent. Doctrine of triennial cohabitation Presumption that the husband is impotent should the wife still remain a virgin for at least 3 years from time spouses started cohabiting (Tompkins vs. Tompkins, 92 NJ 113 as cited Sta. Maria, p. 307-308; Paras, p. 450-451). Refusal on the part of a Filipino girl to submit to a physical examination to determine impotency does NOT raise the presumption of impotency because of the natural modesty of our native girls. (Jimenez v. Canizares, L-12790, August 31, 1960) 6. Sexually transmissible disease of either party found to be serious and appears to be incurable. Elements: (ESSA) a. Existing at the time of marriage b. Sexually transmissible disease c. It is serious; and d. Appears incurable

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ACTION FOR ANNULMENT OF VOIDABLE MARRIAGES (Art. 47) Persons PrescripGrounds RatifiWho May tive (F2I2NS) cation Sue Period Free cohabitaWithin 5 tion after Force, Injured years from disapintimidaparty the time pearance tion, or the force, of force, undue intimidaintimidainfluence tion, or tion / undue undue influence influence ceased respecttively Free cohabitation even Within 5 with full years from Injured know-ledge Fraud the party of discovery facts of fraud constituting the fraud Within 5 No Incapabiyears after ratification lity to Injured the since consumparty celebration defect is mate of the permanent marriage Sane Anytime spouse Free before the who has cohabitadeath of no knowtion after either party ledge of insane the regains insanity sanity

Insanity

Relative guardian or persons having legal charge of the insane Insane spouse

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Anytime before the death of either party During lucid interval or after regaining sanity

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Free cohabitation after insane regains sanity

Grounds (F2I2NS)

Non– consent

Persons Who May Sue Parent/ legal guardian having charge of the “no– consent” party “No consent” party

STD

Injured party

Prescriptive Period Anytime before the “no consent” party reaches 21 Within 5 years after reaching 21 Within 5 years after the celebration of the marriage

Ratification

Free cohabitation after reaching age of 21

No ratification since defect is permanent.

Note: Whichever comes first may convalidate the marriage: cohabitation OR prescription. Additional requirements for annulment or declaration of nullity (Art. 48 par. 1; Supreme Court En Banc Resolution A.M. 02-11-10-SC) Prosecuting attorney or fiscal should: 1. Appear on behalf of the state 2. Take steps to prevent collusion between the parties 3. Take care that evidence is not fabricated or suppressed (Sec.9) There will be collusion only if the parties had arranged to make it appear that a ground existed or had been committed although it was not, or if the parties had connived to bring about a matrimonial case even in the absence of grounds therefor (Ocampo vs. Florenciano, G.R. No. L–13553, February 23, 1960). However, petitioner’s vehement opposition to the annulment proceedings negates the conclusion that collusion existed between the parties. Under these circumstances, the non–intervention of a prosecuting attorney to assure lack of collusion between the contending parties is not fatal to the validity of the proceedings in the trial court (Tuason vs. CA, G.R. No. 116607, April 10, 1996). Pendency of action for annulment During the pendency of the action and in the absence of adequate provisions in a written agreement between the spouses, the court shall:





CIVIL LAW

PERSONS & FAMILY RELATIONS

1. Provide for the support of the spouses and the custody and support of common children 2. Give paramount consideration to the moral and material welfare of the said children and their choice of the parent with whom they wish to remain. 3. Provide for appropriate visitation rights. (Art. 49, FC)

Delivery shall in no way prejudice the ultimate successional rights of the children accruing upon the death of either or both parents

Visitation rights flow from the natural right of both parents to each other’s company. There being no such parent– child relationship between them, Gerardo has no demandable right to visit the child of Mario with Theresa (Concepcion vs. CA GR. No. 12345, August 31, 2005).

3. Registration of the entry of judgment granting petition for declaration of absolute nullity or annulment in the Civil Registry where the marriage was celebrated and in the Civil Registry of the place where the FC was located. 4. Registration of approved partition and distribution of properties of the spouses in the proper Registry of Deeds where the real properties are located.

Decision on the nullification of the marriage No judgment shall be based upon stipulation of facts or confession of judgment (Art. 48 par. 2).

The value of the properties received shall be considered as advances.

Note: The rule applies to Legal Separation. Stipulation of facts An admission by both parties made in court agreeing to the existence of the act constituting the ground for annulment or for the declaration of nullity. Confession of judgment The admission made in court by the respondent admitting fault as invoked by the plaintiff to sever the marriage ties (Sta. Maria, M., Persons and Family Relations, 2010, p. 319). If the defendant spouse fails to answer the complaint, the court CANNOT declare him or her in default; instead, it should order the public prosecutor to determine if collusion exists between the parties (Section 6, Rule 18 of the Revised Rules of Court; Sec. 13 (b); Supreme Court En Banc Resolution A.M. 02-11-10-SC). If aside from a stipulation of facts or a confession of judgment, sufficient evidence was presented, the court may render a judgment annulling the marriage (Ocampo v. Florenciano, GR. No. L–13553, February 23, 1960). Note: The rule also applies to Legal Separation After court grants petition, it shall issue the decree of absolute nullity or annulment only after compliance with the following: 1. Must proceed with the liquidation, partition, and distribution of the properties of the spouses including custody and support of the common children unless such matters had been adjudicated in previous judicial proceedings. 2. Delivery of the children’s presumptive legitimes in cash, property or sound securities unless otherwise mutually agreed upon and judicially approved.



Effects of nullity 1. Either of the former spouses may marry again after complying with the requirements of Art. 52 (Art. 53). 2. On Children (Art. 54) a. Those conceived or born before the judgment or annulment or absolute nullity of the marriage under Art. 36 has become final and executory, shall be considered legitimate. b. Those conceived or born of the subsequent marriage under Art. 53 shall likewise be legitimate. In both instances under Articles 40 and 45, the marriages are governed either by absolute community of property or conjugal partnership of gains unless the parties agree to a complete separation of property in a marriage settlement entered into before the marriage. Since the property relations of the parties is governed by absolute community of property or conjugal partnership of gains, there is a need to liquidate, partition and distribute the properties (Dino v. Dino, G.R. No. 178044, January 19, 2011).

L E G A L S E P A R A T IO N A decree of legal separation or relative divorce does not affect the marital status, there being no severance of the vinculum (Laperal v. Republic G.R. No. L-18008 October 30, 1962). A legal separation involves nothing more than bed-andboard separation of the spouses (Lapuz v. Eufemio G.R. No. L-30977 January 31, 1972).

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EXCLUSIVE GROUNDS FOR LEGAL SEPARATION: (Art. 56) (PAA-ID-LAMBS) 1. Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner 2. Attempt of the respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement Refers to prostitution only and irrespective of the age of the child (Sta. Maria, M., Persons and Family Relations, 2010, p. 356) The law does not give a cause of action to the petitioner to file a case for legal separation on the ground that the respondent-spouse committed the ground provided in Art. 55(3) upon his or her own child with another person. However, such act may be a cause to suspend or terminate, depending on the severity, the parental authority of the respondent over his own child pursuant to Art. 231 (2) and (4) of he Family Code (Sta. Maria, M., Persons and Family Relations, 2010, p. 357). 3. Attempt by the respondent against the life of the petitioner The attempt on the life of the spouse must proceed from an evil design and not from any justifiable cause like self-defense or from the fact that the spouse caught the other in flagrante delicto having carnal knowledge with another man or woman (Sta. Maria, M., Persons and Family Relations, 2010, p. 359-360). 4. Final judgment sentencing the respondent to imprisonment of more than 6 years even if pardoned 5. Drug addiction or habitual alcoholism of the respondent 6. Lesbianism or homosexuality of the respondent 7. Abandonment of the petitioner by the respondent without justifiable cause for more than 1 year There must be absolute cessation of marital relations, duties, and rights, with the intention of perpetual separation (Partosa-Jo vs. CA, G.R. No. 82606, December 18, 1992). Abandonment implies total renunciation of duties. 8. Physical violence or moral pressure to compel petitioner to change religious or political affiliation 9. Contracting by respondent of a subsequent bigamous marriage; and 10. Sexual infidelity or perversion.

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CIVIL LAW Sexual perversion includes engaging in such behavior not only with third persons but also with the spouse (Sta. Maria, M., Persons and Family Relations, 2010, p. 359). Note: Mere preponderance of evidence will suffice to prove the existence of these grounds EXCEPT the 4th ground. RA 9262 Anti-Violence Against Women and Children (March 8, 2004) Acts of Violence: 1. Causing physical harm to the woman or her child; 2. Threatening to cause the woman or her child physical harm; 3. Attempting to cause the woman or her child physical harm; 4. Placing the woman or her child in fear of imminent physical harm; 5. Attempting to compel or compelling the woman or her child to engage in conduct which the woman or her child has the right to desist from or desist from conduct which the woman or her child has the right to engage in, or attempting to restrict or restricting the woman's or her child's freedom of movement or conduct by force or threat of force, physical or other harm or threat of physical or other harm, or intimidation directed against the woman or child. This shall include, but not limited to, the following acts committed with the purpose or effect of controlling or restricting the woman's or her child's movement or conduct: a. Threatening to deprive or actually depriving the woman or her child of custody to her/his family; b. Depriving or threatening to deprive the woman or her children of financial support legally due her or her family, or deliberately providing the woman's children insufficient financial support; c. Depriving or threatening to deprive the woman or her child of a legal right; d. Preventing the woman in engaging in any legitimate profession, occupation, business or activity or controlling the victim's own money or properties, or solely controlling the conjugal or common money, or properties; 6. Inflicting or threatening to inflict physical harm on oneself for the purpose of controlling her actions or decisions; 7. Causing or attempting to cause the woman or her child to engage in any sexual activity which does not constitute rape, by force or threat of force, physical harm, or through intimidation directed against the woman or her child or her/his immediate family;





CIVIL LAW

8. Engaging in purposeful, knowing, or reckless conduct, personally or through another that alarms or causes substantial emotional or psychological distress to the woman or her child. This shall include, but not be limited to, the following acts: a. Stalking or following the woman or her child in public or private places; b. Peering in the window or lingering outside the residence of the woman or her child; c. Entering or remaining in the dwelling or on the property of the woman or her child against her/his will; d. Destroying the property and personal belongings or inflicting harm to animals or pets of the woman or her child; and e. Engaging in any form of harassment or violence; 9. Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child, including, but not limited to, repeated verbal and emotional abuse, and denial of financial support or custody of minor children of access to the woman's child/children (Sec. 5, RA 9262). In cases of legal separation, where violence as specified in RA 9262 is alleged, Article 58 of the Family Code on the 6 months cooling-off period shall NOT apply. The court shall proceed on the main case and other incidents of the case as soon as possible. The hearing on any application for a protection order filed by the petitioner must be conducted within the mandatory period specified (Sec. 19, RA 9262). The woman victim of violence shall be entitled to the custody and support of her child/children. Children below seven (7) years old older but with mental or physical disabilities shall automatically be given to the mother, with right to support, unless the court finds compelling reasons to order otherwise. A victim who is suffering from battered woman syndrome shall not be disqualified from having custody of her children. In no case shall custody of minor children be given to the perpetrator of a woman who is suffering from battered woman syndrome (Sec. 28, RA 9262). GROUNDS FOR DENIAL OF PETITION (Art. 56): (C4–MP–DR) 1. Condonation of the offense or act complained of. Condonation It is the act of forgiving the offense after its commission (Sta. Maria, M., Persons and Family Relations, 2010, p. 362).



PERSONS & FAMILY RELATIONS Failure of the husband to look for his adulterous wife is NOT condonation to wife's adultery (Ocampo v. Florenciano, G.R. No. L–13553, February 23, 1960). The act of the husband in having sexual intercourse with his wife in spite of his knowledge of the latter’s infidelity is an act of implied condonation. A single voluntary act of sexual intercourse by the innocent spouse after discovery of the offense is ordinarily sufficient to constitute condonation (Bugayong vs. Ginez, G.R. No. L-10033, December 28, 1956). 2. Consent to commission of offense or act complained of Consent is prior to the act; condonation comes after (People v. Schneckenburger, 73 Phil 413). There is consent when either of the spouses agreed to or did not object, despite full knowledge, to the act giving rise to a ground for legal separation, before such act was in fact committed (Sta. Maria, M., Persons and Family Relations, 2010, p. 363). 3. Connivance between parties of commission of offense or act constituting ground Connivance or procurement Denotes direction, influence, personal exertion, or other action with knowledge and belief that such action would produce certain results and which results are produced (Cohen, Divorce and Alimony in North Carolina, 59, IV, p. 98 as cited Sta. Maria, p. 364). 4. Collusion between parties Collusion It is a corrupt agreement between the spouses by making it appear that the marriage is defective due to the existence of any of the grounds and agreeing to represent such false or non-existent cause of action before the proper court to procure divorce or legal separation (Sta. Maria, M., Persons and Family Relations, 2010, p. 317). 5. Mutual guilt or where both parties have given ground for legal separation 6. Prescription An action for legal separation shall be filed within 5 years from time of occurrence of the cause (Art. 57) 7. Death of either party during the pendency of the case (Lapuz–Sy vs. Eufemio, G.R. No. 113842, August 3,

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CIVIL LAW

1994)

8. Reconciliation of the spouses during the pendency of the case By filing in the same proceeding a joint manifestation under oath, duly signed by the spouses (Art. 65) Cooling–off period 6-month period from the filing of the petition designed to give the parties enough time to further contemplate their positions with the end in view of attaining reconciliation between them. No action for Legal Separation shall be tried during such period (Art. 58). It is a mandatory requirement and its non-compliance makes the decision infirm (Pacete vs. Carriaga, G.R. No. 53880, March 17, 1994). The cooling-off period does not mean the overruling of provisions as custody, alimony, and support pendente lite.

Even if the parents are separated de facto, still in the absence of judicial grant of custody to one parent, both parents are entitled to the custody of their child. The remedy of habeas corpus may be resorted to by the parent who has been deprived of the rightful custody of the child (Salientes v. Abanilla, G.R. No. 162734, August 29, 2006). A decree of legal separation, on the ground of concubinage, may issue upon proof of preponderance of evidence in the action for legal separation. No criminal proceedings or conviction is necessary. RECONCILIATION OF LEGALLY SEPARATED SPOUSES If the spouses should reconcile, the corresponding joint manifestation under oath duly signed by them shall be filed with the court in the same proceeding for legal separation (Art. 65).

A writ of preliminary mandatory injunction for the return of the wife’s paraphernal property can in the meantime be heard and granted during the 6-month period (SomosaRamos v. Vamenta, G.R. No. L-34132 July 29, 1972).

Effects of reconciliation of the spouses (Art. 66) 1. The legal separation proceedings, if still pending, shall thereby be terminated at whatever stage. 2. The final decree of legal separation shall be set aside, but the separation of property and any forfeiture of share of the guilty spouse already effected shall subsist, unless the spouses agree to revive their former property regime.

Effects of filing petition: (Art. 61) 1. The spouses shall be entitled to live separately from each other 2. In the absence of an agreement between the parties, the court shall designate the husband, the wife, or a third person to manage the absolute community or conjugal partnership property (Art. 61) 3. The husband shall have no more right to have sexual intercourse with his wife.

Revival of property regime (Art. 67) Agreement of revival and motion for its approval shall be filed in court in the same proceeding for legal separation and shall be executed under oath and shall specify: 1. Properties to be contributed anew to restored regime; 2. Those to be retained as separated properties of each spouse; 3. Names of all known creditors, addresses, and amounts owing to each.

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. (Art. 59)

After due hearing, court shall take measures to protect interest of creditors and such order shall be recorded in the proper registries of properties but the same shall not prejudice creditors not listed or notified, unless debtorspouse has sufficient separate properties to satisfy creditor’s claim.

Note: The wife who has been granted legal separation cannot petition to be allowed to revert to her maiden name (Art. 372, NCC).

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CIVIL LAW

PERSONS & FAMILY RELATIONS

EFFECTS OF THE PETITION FOR DECLARATION OF PRESUMPTIVE DEATH, NULLITY OF MARRIAGE, ANNULMENT AND LEGAL SEPARATION Termination (Art.41)

Declaration of Nullity Annulment Legal Separation (Art. 40) (Art. 45) (Art. 55) Rendering judgment on the petition No motion to dismiss shall be allowed except if the ground is lack of jurisdiction. The grounds alleged must be proved. No judgment on the pleadings, summary judgment or confession of judgment shall be allowed.

Summary proceeding; judgment may be rendered based on affidavits, documentary evidence or oral testimonies at the sound discretion of the court (Art. 246)

Notes: Stipulation of facts- an admission by both parties made in court agreeing to the existence of the act constituting the ground for annulment or for the declaration of nullity. Confession of judgment- the admission made in court by the respondent admitting fault as invoked by the plaintiff to sever the marriage ties (Sta. Maria, M., Persons and Family Relations, 2010, p. 319). In legal separation cases, no decree shall be issued unless the Court has take steps toward reconciliation of the spouses and is fully satisfied, despite such efforts, that reconciliation is highly improbable (Art. 59).

Subsequent marriage automatically terminated by affidavit of reappearance Legitimate Custody in case of dispute shall be decided by the court in separate proceedings for custody but same considerations as in Declaration of Nullity

Procedural requirements after judgment, before issuance of decree 1. Liquidation, partition, delivery of properties, including custody and support of common children unless such matters had been adjudicated in previous judicial proceedings 2. Delivery of children’s presumptive legitimes 3. Registration of the entry of judgment granting the petition in the Civil Registry where the marriage was celebrated AND in the Civil Registry of the place where the family court is located 4. Registration of approved partition and distribution of properties in the Registry of Deeds where the real properties are located Marital Status Previous marriage, void ab Valid until annulled or No dissolution of marriage, only initio terminated separation of bed-and-board; entitled to live separately Status of Children Born/Conceived Before Termination Illegitimate except those as Legitimate Legitimate provided in Art. 36 and 53 Custody of Children During pendency: 1. Written agreement 2. Absence thereof, court decides based on best interest of child and may award it in the following order of preference: a. Both parents jointly b. Either parent, may consider choice of child over 7 years unless parent chosen is unfit c. Surviving grandparent, if several then choice of child over 7 years unless grandparent chosen is unfit/disqualified d. Eldest brother/sister over 21unless unfit/ disqualified e. Any other person deemed suitable by court After decree: To the innocent spouse but no child under 7 shall be separated from the mother unless there are



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PERSONS & FAMILY RELATIONS Termination (Art.41)

Support in case of dispute shall be decided by the court in separate proceedings for custody but same considerations as in Declaration of Nullity

CIVIL LAW

Declaration of Nullity Annulment Legal Separation (Art. 40) (Art. 45) (Art. 55) compelling reasons Child Support During pendency: 1. Written agreement 2. In the absence thereof, from properties of the absolute community of property (ACP) or conjugal partnership (CP)

After Decree: Either parent/ both may be ordered by court to give an amount necessary for support in proportion to resources/means of giver and necessities of recipient Spousal Support During pendency: 1. Written agreement 2. In the absence thereof, from properties of the ACP or CP, considered as advance to be deducted from share during liquidation 3. Restitution if after final judgment court finds that person providing support pendente lite is not liable therefor (Sec. 7, Rule 61, ROC) Property Relations 1. ACP or CP shall be dissolved and liquidated 1. ACP or CP shall be 2. If either spouse contracted marriage in bad faith, he or she has no right to any dissolved and liquidated. share of net profits earned by ACP or CP 2. Offending spouse has no 3. Net profits shall be forfeited in favor of common children, or if none, children of right to any share of net guilty spouse by previous marriage, or in default thereof, the innocent spouse profits earned by ACP or CP 4. In all other cases of void marriage, Art. 147 and 148 applies (Valdes vs. RTC) 3. Net profits shall be forfeited in favor of common children, In addition, for marriages under Art. 40 and 45: or if none, children of guilty 1. All creditors of spouses and of the ACP or CP shall be notified of the proceedings spouse by previous for liquidation marriage, or in default 2. Conjugal dwelling and lot on which it is situated shall be adjudicated pursuant to thereof, the innocent spouse. Art. 102 and 129 Presumptive Legitime 1. Delivery of presumptive legitime of all common children computed as of date of final judgment without prejudice to ultimate successional rights of children accruing upon death of either or both parents 2. Shall be considered as advances on common children’s legitime (Art. 51) Donation Propter Nuptias 1. Shall remain valid, 1. Shall remain valid, unless 1. Shall remain valid, 1. Donor is given option to unless donee donee contracted marriage unless donee revoke; if donor decides to contracted marriage in bad faith, in which case, contracted marriage revoke, must do so within 5 in bad faith, in donation is revoked by in bad faith, in which years from finality of decree which case, operation of law. case, donation is 2. But if ground for legal donation is revoked 2. If both spouses of revoked by operation separation is sexual infidelity by operation of law. subsequent marriage of law (Art. 43(3)). (adultery or concubinage), 2. If both spouses of acted in bad faith, 2. No conflict donation between persons subsequent donations propter nuptias 3. with Art. 86(2) as guilty thereof at time of marriage acted in made by one in favor of such does not donation is void (Art. bad faith, donations the other are revoked by require that marriage 739[1]NCC) propter nuptias operation of law (Art. 44) be annulled first made by one in 3. If both spouses in good before donor may favor of the other faith, donor after finality of revoke donation –

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CIVIL LAW

Termination (Art.41) are revoked by operation of law

PERSONS & FAMILY RELATIONS

Annulment Legal Separation (Art. 45) (Art. 55) donor has 5 years from time he had 4. knowledge of lack of consent; cannot revoke if there was knowledge before the marriage 4. Conflict with Art. 86(3) but Art. 43(3) prevails – more in harmony with general purpose/intent of act (Ibid.) Insurance Policy Innocent spouse may revoke designation of spouse in bad faith as beneficiary even if Innocent spouse may revoke stipulated as irrevocable (Art. 43(4)) donations made by him or her in favor of offending spouse as well as designation of latter as beneficiary even if stipulated as irrevocable (Art. 64). Action to revoke donation must be brought within 5 years from finality of decree. Succession 1. Spouse in bad faith disqualified to inherit from innocent spouse by testate or 1. Offending spouse intestate succession disqualified from inheriting 2. If both spouses of subsequent marriage acted in bad faith, testamentary from innocent spouse by dispositions made by one in favor of the other are revoked by operation of law intestate succession (Art. 44) 2. Provisions in favor of offending spouse made in the will of innocent spouse are revoked by operation of law (Art. 63(4))



Declaration of Nullity (Art. 40) decree may revoke pursuant to Art. 86(1) If marriage not celebrated: a. Those stipulated in marriage settlement are void (Art. 81) b. Those excluded from marriage settlement or if no such contract, may be revoked by donor (Art. 86[]))

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PERSONS & FAMILY RELATIONS

CIVIL LAW



R IG H T S

A N D O B L IG A T IO N S BETWEEN THE HUSBAND AND T H E W IF E (LORF-JM) 1. Live together Act of living together is a voluntary act of the spouses which cannot be compelled by any proceeding in court. Only the moral obligation of the spouses constitutes the motivating factor for making them observe the said duties and obligations which are highly personal (Ramirez-Cuaderno v Cuaderno, 12 SCRA 505). If the wife refuses unjustifiably to live with her husband, the court will admonish but not order her return; and even if an order is made, contempt proceeding against the wife will not prosper. The only remedy here for the husband is to refuse to grant support (Mariano B. Arroyo v. Dolores C. Vasquez de Arroyo, 42 Phil. 54).

aggrieved party may apply to the court for relief. (Art 72.) The relief may take on many forms: filing a case for legal separation if there are grounds for the same; filing an action for declaration of nullity based on Art 36 if the neglect is such that it does not create a functional marital life; petitioning the court for receivership, for judicial separation of property, or for authority to be the sole administrator of community property or conjugal partnership.(Sta Maria, Melencio Jr. S., Persons and Family Relations Law,page 408 ex., 3-4 [2010]) EXERCISE OF PROFESSION General Rule: Both can engage in any lawful enterprise or profession WITHOUT the consent of the other. Exception: The other spouse may object only on valid, serious and moral grounds. In case of disagreement, court shall decide whether (1) the objection is proper; and (2) the benefit accrued to the family prior to the objection or thereafter [Art. 73 (2)].

2. Observe mutual love, respect and fidelity 3. Render mutual help & support 4. Fix the family domicile a. Both husband and wife shall fix the family domicile. In case of disagreement, the court shall decide. b. The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family (Art 69). 5. Joint responsibility for the support of the family a. Expenses shall be paid from the community property b. In the absence thereof, from income or fruits of their separate properties c. In the absence or insufficiency thereof, from their separate properties (Art. 70) 6. Joint management of the household Expenses for such management shall be paid in accordance with Art. 70 Effect of neglect of duty When one of the spouses neglects his or her duties to the conjugal union or commits acts which tend to bring danger, dishonor or injury to the other or to the family, the

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If a husband compels the wife to desist from pursuing a profession or any other conduct which the wife has the right to engage in, this can be considered acts of violence against women under RA 9262 (Sta. Maria, M., Persons and Family Relations, 2010, M. p. 409 ) RULE IF BUSINESS BENEFITED FAMILY General rule: 1. Debts and obligations incurred of whatever nature and regardless of the time they were incurred but redounding to the benefit of the family shall be chargeable to the ACP or the CPG. 2. An obligation incurred as a result of a spouse’s exercise of a legitimate profession is an obligation redounding to the benefit of the family shall be shouldered by the ACP or CPG. Exceptions: 1. Benefit accrued to family before objection to an immoral or unlawful profession The resulting obligation shall be enforced against the separate property of the spouse who has not obtained consent (Art. 73). Example: Separate property of erring spouse shall be liable if profession is seriously invalid and immoral, even





CIVIL LAW

if benefits actually accrued in favor of the family. For said exception to apply, the innocent spouse must have no knowledge of the other spouse’s engagement in an immoral activity such that he could not have interposed any objection (Sta. Maria, M., Persons and Family Relations, 2010, p. 411). Exception to exception: When spouse has knowledge of other spouse’s engagement in an immoral activity, it is as if there was actually no disagreement (Paras, p. 507; Sta. Maria, M., Persons and Family Relations, 2010, p. 411).

2. Benefit accrued after objection – After objection by the innocent spouse, any obligation incurred by the erring spouse that redounded to the benefit of the family shall be borne by the absolute community of property or conjugal property. Ratio: It would be unfair if the spouse, after obtaining knowledge of the immoral profession, thereafter, interposed his objection but at the same time made use of the “immoral money” to benefit the family (Sta. Maria, M., Persons and Family Relations, 2010, p. 412). 3. Creditors who acted in good faith are protected – if spouse transacted with creditor without the consent of the other but creditor had no knowledge thereof, the absolute community of property (ACP) or conjugal partnership of gains (CPG) shall be liable.

P R O P E R T Y R E L A T IO N S B E T W E E N T H E H U S B A N D A N D T H E W IF E Governed By: 1. Marriage settlements (MS) executed before the marriage or ante nuptial agreements. 2. Provisions of the Family Code. 3. Local customs when spouses repudiate ACP. When parties stipulate in their MS that local custom shall apply or that ACP regime shall not govern but fail to stipulate what property regime will be applied. 4. In the absence of local custom, rules on co–ownership will apply (Art. 74).

PERSONS & FAMILY RELATIONS Commencement It commences at the precise moment of the celebration of the marriage. Any stipulations to the contrary shall be void. (Art. 88 for ACP and 107 for CPG) Marriage settlement (MS) It is a contract entered into by the future spouses fixing the matrimonial property regime that should govern during the existence of the marriage. In the absence of MS or when regime agreed upon is void, ACP shall govern. (Art. 75) Requisites: (BW-SPF-NA) 1. Made before celebration of marriage 2. In writing (even modifications) Oral MS is void and cannot be ratified by any claim of partial execution or absence of objection Exception: If marriage is terminated by death of one of spouses and surviving spouse marries again without initiating settlement of properties of previous marriage within 1 year from death of deceased spouse, mandatory regime of complete separation of property shall govern property relations of subsequent marriage (Arts. 103 & 130) 3. Signed by the parties 4. Will not prejudice third persons unless registered in the civil registry and proper registries of property (Sta. Maria, M., Persons and Family Relations, 2010, p. 418420) 5. Shall fix terms and conditions of their property relations 6. Must NOT contain provisions contrary to law, good morals, good customs, public order, and public policy, or against the dignity of either spouse. 7. Additional signatories/ parties Civil interdictees & disabled: It is indispensable for the guardian appointed by court to be made a party to the MS. Note: It is argued by some law practitioners and authors that while no person below 18 can enter into a valid marriage and since the MS is required to be executed before the marriage, one below 18 may execute a MS as long as he or she is 18 or above at the time of marriage. Efficacy of marriage settlement (Art. 81) 1. The consideration is the marriage itself. If the marriage does not take place, the MS is generally void. Exception: Stipulations in the MS that do not depend

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PERSONS & FAMILY RELATIONS

upon the celebration of the marriage shall be valid

CIVIL LAW 2. Donation in MS not more than one-fifth (1/5) of present

property (Art. 84) 2. Property relations shall be governed by Philippine laws, regardless of the place of the celebration of the marriage or the parties’ residence (Art. 80). Exceptions: 1. If both spouses are aliens, even if married in the Philippines 2. As to extrinsic validity of contracts affecting property: a. Not situated in the Philippines executed in the country where the property is located b. Situated in a foreign country whose laws require different formalities for extrinsic validity entered into in the Philippines 3. Contrary stipulation Modification in marriage settlements

Any excess shall be considered void and the donation will be reduced to one-fifth. However, if their property regime is ACP, no reduction will be made. Limitation does not apply if DPN is not included in MS but contained in separate deed; general rules on donation apply subject to limitation that no person may give/receive by way of donation more than he may give/receive by will 3. Accepted by would-be spouse 4. Complies with requisites in Title II of Book II of Civil

Code on Donations.

General Rule: Must be made before the marriage, in writing, signed by parties

If one of the requisites is not complied with, it may still be valid as an ordinary donation.

Exceptions: Modifications made through judicial decree during the marriage: 1. In case of revival of former property regime between reconciling spouses after decree of legal separation has been issued (Art. 66, 67) 2. When abandoned spouse files petition for judicial separation of property under Art. 128 3. When a spouse files petition for judicial separation of property for sufficient cause under Art. 135 4. Petition for voluntary dissolution of property regime under Art. 136

For donation of present property to be valid, the rules governing ordinary donations under Title III of Book III of the Civil Code must be observed.

DONATION BY REASON OF MARRIAGE Donations propter nuptias (DPN) are made by one spouse in favor of the other or by a stranger. It is without onerous consideration, the marriage being merely the occasion or motive for the donation, not its causa. Being liberalities, they remain subject to reduction for inofficiousness upon the donor’s death, should they infringe the legitime of a forced heir (Mateo vs. Lagua, No. L-26270, October 30, 1969). Requisites: (Art. 82) (COB) 1. In consideration of marriage 2. In favor of one or both of the future spouses 3. Made before celebration of marriage Rules in case of donation by the would-be spouses to each other: (MOAC) 1. There must be a valid MS stipulating a property regime other than ACP (Art. 84).

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Please refer to Property on requisites for valid donations. DPN of future property DPN of future property is allowed by way of exception to Art. 751 of NCC (which provides that donations cannot comprehend future property). It is governed by the law on testamentary succession both as to intrinsic and extrinsic validity. However said DPN can only be revoked by the donor only on the basis of Art. 86 of the FC (Art. 84 par. 2). DPN of encumbered property The donation is valid because the donor is still the owner, even if it is encumbered. If mortgage is foreclosed and sold at a lesser price, donee is not liable for deficiency but if sold for more, donee is entitled to excess (Art. 85). Donations propter nuptias and ordinary donations Donations Propter Ordinary Donations Nuptias Formalities Governed by the rules on Governed by rules on ordinary donations except donations (Arts. 725–773, that if future property is NCC) donated, it must conform with formalities of wills Present Property May be donated but only No limit except that donor





CIVIL LAW

up to 1/5 of donor’s shall leave property enough present property if the for his support spouses agree on a regime other than absolute community Future property May be included provided Cannot be included donation is mortis causa Grounds for revocation Art. 86, FC Arts. 760, 764, & 765, NCC RULE ON DONATION BETWEEN SPOUSES DURING MARRIAGE General rule: VOID, either direct or indirect donation Rationale: 1. To protect unsecured creditors from being defrauded; 2. To prevent stronger spouse from imposing upon the weaker one the transfer of the latter’s property to the former; 3. To prevent indirect modification of the marriage settlement (Paras, p. 520). Exceptions: 1. Moderate gifts on occasions of family celebrations 2. Donations mortis causa Note: This rule also applies to persons living together as husband and wife without a valid marriage (Art.87). The prohibition does not include a spouse being the beneficiary of an insurance contract over the life of the other spouse. (Gercio vs. Sunlife Assurance Co. of Canada, G.R. No. 23703, September 28, 1925) Grounds for revocation (VoCALRI) 1. Marriage not celebrated or declared Void ab initio except those made in MS that do not depend on celebration of marriage If made by a stranger, action for revocation may be brought under ordinary rules on prescription: if in writing, brought within 10 years and if oral, within 6 years (Albano, Ed Vincent S., Persons and Family Relations, 2006). 2. Marriage without parental consent 3. Marriage is annulled and donee is in bad faith 4. Upon legal separation, the donee being the guilty spouse 5. Complied with resolutory condition 6. Donee commits acts of ingratitude as specified by Art. 765 of NCC (Art. 86).

PERSONS & FAMILY RELATIONS

SYSTEMS OF PROPERTY R E G IM E S I. ABSOLUTE COMMUNITY OF PROPERTY (ACP) The property regime of the spouses in the absence of a marriage settlement or when the marriage is void. This is so because it is more in keeping with Filipino culture. It commences at the precise moment the marriage is celebrated; any stipulation for the commencement thereof at any other time is void (Art. 88). The same applies to CPG (Art. 107). Provisions on CO-OWNERSHIP apply to ACP in all matters not provided by the Chapter on ACP (Art. 90). General Rule: Community property shall consist of all property owned by the spouses at the time of the marriage or acquired thereafter (Art. 91). Exceptions: (BEG) 1. Property, including fruits and income thereof, acquired before the marriage by either spouse who has legitimate descendants by a former marriage 2. Property for personal and exclusive use except jewelry 3. Property acquired during the marriage by gratuitous title, including fruits and income thereof, except when the donor, testator or grantor expressly provides otherwise (Art. 92) Presumption: Property acquired during the marriage is presumed to belong to the community, unless otherwise proven (Art. 93). Note: No waiver of rights allowed during the marriage except in case of judicial separation of property. The waiver must be in a public instrument and recorded in the office of the local civil registrar where the marriage contract was recorded as well as in the proper registry of property (Art. 89 and 77). The same applies to CPG (Art. 107). Rule on games of chance (Art. 95) Loss: Shall be borne by the loser-spouse and shall not be charged to the community property Winnings: Shall form part of the community property (Art. 95) Exception: If said ticket was gratuitously given by a friend to a spouse, only upon express provision of the donor will it be considered part of the community property. Note: The same applies to CPG (Art. 123).

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PERSONS & FAMILY RELATIONS

II. CONJUGAL PARTNERSHIP OF GAINS (CPG) It is that formed by a husband and wife whereby they place in a common fund the proceeds, products, fruits and income of their separate properties, and those acquired by either or both spouses through their efforts or by chance, the same to be divided between them equally (as a general rule) upon the dissolution of the marriage or the partnership (Art. 106). The CPG shall be governed by the rules on the CONTRACT OF PARTNERSHIP in all that is not in conflict with what is provided in the chapter on CPG or by the spouses in their MS (Art. 108). Before the presumption under Art. 116 applies (that properties acquired during marriage are presumed conjugal), there must be proof that the property was acquired during the marriage. This is a condition sine qua non for the operation in favor of conjugal ownership (Metrobank, et al. v. Tan, GR No. 163712, November 30, 2006). Properties under conjugal partnership (L2C2 FONTI) 1. Obtained from labor, industry, work or profession of either or both spouses 2. Livestock existing upon dissolution of partnership in excess of number of each kind brought to the marriage by either spouse 3. Acquired by chance such as winnings from gambling, but losses therefrom shall be borne exclusively by loserspouse 4. Acquired during the marriage by onerous title with conjugal funds

CIVIL LAW payable in partial payments/ installments and collected during the marriage (Art. 119). Disposition of CPG A wife’s consent to the husband’s disposition of conjugal property does not always have to be explicit or set forth in any particular document, so long as it is shown by the acts of the wife that such consent was indeed given (Pelayo v. CA, G.R. No. 141323 June 8, 2005). The sale of conjugal property requires the consent of both spouses; otherwise the sale shall be void, including the portion of the conjugal property pertaining to the husband who contracted the sale (Homeowners and Savings Loan Bank vs. CA, GR No 153802, March 11, 2005). Exclusive property of each spouse (OGREC) (Art. 109) 1. That which is brought to the marriage as his/her own, whether with or without legitimate descendants 2. Acquired during the marriage by gratuitous title Property donated/left by will to spouses, jointly with designation of determinate shares, shall pertain to donee-spouse as exclusive property; in the absence of designation, property shall be divided between them but shall belong to them exclusively (Art. 113). If spouse does not accept his/her part of the donation, accretion sets in favor of the other spouse who will own all of property donated as separate property. Accretion will not apply if donor so provides or if there is designation of determinate properties (i.e. house, car).

Damages for physical injuries inflicted by a third person are exclusive property (Lilius vs. Manila Railroad Co. G.R. No. 42551 September 4, 1935)

If donation is onerous, charges shall be borne by exclusive property of donee-spouse, whenever advanced by the CPG.

Damages from illegal detention of exclusive property pertains to CPG if detention deprived the CP of the use and earnings thereof (Bismorte vs. Aldecoa, G.R. No. L5586, December 10, 1910).

Retirement benefits, pensions, annuities, gratuities, usufructs, and similar benefits acquired by gratuitous title are exclusive properties; if by onerous title during marriage (i.e. contributions to pension funds or deduction from salaries of common funds), they are CP (Art. 115).

Note: The registration of the property in either party’s name alone is immaterial if the property was acquired with conjugal funds (Marigsa v. Macabuntoc, G.R. No. 4883, September 27, 1910). 5. Fruits of the conjugal property during the marriage 6. Acquired through occupation such as fishing 7. Net fruits of their exclusive property 8. Share of either spouse in hidden treasure (Art. 117) 9. Interest falling due during the marriage on principal amount of credit belonging to one spouse which is

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Unearned increment (such as increase in the value of the paraphernal property) belongs to the spouse concerned. 3. Acquired by right of redemption, barter or exchange with property belonging to either spouse





CIVIL LAW

Ownership still belongs to person who has right of redemption, even if conjugal funds are used to redeem, subject to reimbursement If separate property in addition to conjugal funds were used as part of purchase price of a new property, the new property shall be considered conjugal

4. Purchased with exclusive money of either spouse 5. Principal amount of credit belonging to one spouse payable in partial payments/ installments, which will be fully paid during the marriage (Art. 119). Use of Exclusive Properties: (PISI) 1. Payment of personal debts 2. Fines and indemnities 3. Support of illegitimate children of the owner-spouse 4. In case of insufficiency of the CPG (Sta. Maria, M., Persons and Family Relations, 2010, p. 504) The spouses retain the ownership, possession, administration and enjoyment of their exclusive properties (Art. 110). A spouse may mortgage, encumber, alienate or otherwise dispose of his or her exclusive property, without the consent of the other spouse, and appear alone in court to litigate with regard to the same (Art. 111). Transfer of administration of the exclusive property of either spouse does not confer ownership of the same (Rodriguez v. De la Cruz, G.R. No. L-3629, September 28, 1907). Property bought on installment (Art. 118) Property bought on installments paid partly from exclusive funds of the spouses and partly from conjugal funds: 1. If full ownership was vested before the marriage – it shall belong to the buyer-spouse (ex: contract to sell, full payment made during marriage using CP)

PERSONS & FAMILY RELATIONS the principal property at the time of the improvement, the entire property shall belong to CPG subject to reimbursement of the value of the principal property at the time of the improvement to the owner-spouse. Accession: if the cost of the improvement of the plus value is equal to or less than the value of the principal property at the time of the improvement, the entire property remains the exclusive property of the spouse, subject to reimbursement of the value of the cost of improvement The obligation to reimburse rests on the spouse upon whom ownership of the entire property is vested. There is no obligation on the part of the purchaser of the property in case the property is sold by the owner-spouse (Ferrer v. Ferrer, G.R. No. 166496, November 29, 2006). CHARGES UPON AND OBLIGATIONS OF ACP and CPG ACP (Art. 94) CPG (Art. 121) Support of the spouses, their common children, and legitimate children of either spouse For illegitimate children, For illegitimate children, support from separate support from separate property of person obliged property of person obliged to give support. In case of to give support. In case of insufficiency or absence of insufficiency or absence of separate property, CP shall separate property, ACP advance support, shall advance support, chargeable to share of chargeable to share of parent upon liquidation, but parent upon liquidation only after obligations in Art. 121 have been covered Debts and Obligations Contracted During Marriage a. By the administrator spouse designated in MS/appointed by court/one assuming sole administration b. By one without the consent of the other c. By one with the consent of other d. By both spouses

2. If full ownership was vested during the marriage – it shall belong to the conjugal partnership (ex: contract of sale)

For (a) and (b), creditor has burden of proving benefit to family and ACP/CPG chargeable to extent of benefit proven, otherwise, chargeable to separate property of obligor spouse

In both cases, there is reimbursement upon liquidation. In (1), owner-spouse reimburses the CP. In (2), CP shall reimburse the owner-spouse.

For (c) and (d), benefit to family presumed All taxes, liens, charges and expenses including minor repairs upon ACP or CP

Improvement of exclusive property Reverse Accession: if the cost of the improvement resulted in the increase in value of more than the value of

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PERSONS & FAMILY RELATIONS ACP (Art. 94)

CPG (Art. 121) Taxes and Expenses for mere preservation during marriage upon separate Taxes and Expenses for property of either spouse, mere preservation during regardless of whether used marriage upon separate by family because use and property of either spouse enjoyment of separate used by family property of the spouses belong to the partnership Expenses to enable either spouse to commence/complete a professional, vocational or other activity for selfimprovement Value donated/promise by both spouses in favor of common legitimate children for exclusive purpose of commencing or completing professional or vocational course or other activity for self-improvement Expenses of litigation between spouses unless suit found to be groundless 1. Ante-Nuptial Debts For Ante-Nuptial Debts, Chargeable to ACP if same as ACP but in case redounded to benefit of of insufficiency of separate family property, obligations 2. Personal debts not enumerated in Art. 121 redounding to benefit must first be satisfied of family such as before such debts may be liabilities incurred by chargeable to the CP reason of crime or quasi-delict, chargeable to separate property of debtor spouse 3. In case of insufficiency of separate property, chargeable to ACP but considered advances deductible from share of debtor-spouse upon liquidation Note: The separate properties shall be solidarily and subsidiarily liable for the obligations if the community or conjugal properties are insufficient. Benefits that might accrue to a husband in his signing a surety or guarantee agreement not in favor of the family but in favor of his employer corporation are not benefits that can be considered as giving a direct advantage accruing to the family. Hence, the creditors cannot go against the conjugal partnership property in satisfying the obligation subject of the surety agreement. A contrary view would put in peril the conjugal partnership property by allowing it to be given gratuitously similar to cases of

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CIVIL LAW donation of conjugal partnership property, which is prohibited. The conjugal partnership is NOT liable for an indemnity agreement entered into by the husband to accommodate a third party (Security Bank v. Mar Tierra Corp., GR No. 143382, November 29, 2006). PROVISIONS COMMON TO ACP AND CPG A. Administration of property (ACP: Art. 96-98/ CPG: Art. 124-125) General Rule: Administration shall belong to both spouses jointly. Exceptions: 1. In case of disagreement, husband’s decision shall prevail, subject to recourse to the court by the wife for proper remedy within 5 years from date of contract implementing such decision 2. In case one spouse is incapacitated or unable to participate in the administration of the common properties, the other spouse may assume sole powers of administration (Art. 96). These powers do NOT include: a. Disposition b. Encumbrance Written consent of other spouse or authority of the court is required, otherwise disposition or encumbrance is VOID. The husband and wife are the joint administrators of their properties forming part of the conjugal partnership and absolute community of properties. The right vested upon them to ½ of the conjugal assets does not vest until the dissolution and liquidation of the conjugal partnership. The sale by the husband of property belonging to the conjugal partnership or the absolute community without the consent of the wife or authority of the court is void (Abalos vs. Macatangay, G.R. No. 155043, September 30, 2004). The transaction, however, shall be construed as a continuing offer on the part of the consenting spouse and the third person, until acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors (ACP: Art. 96;CPG: Art. 124). Neither spouse may donate any community property without the consent of the other but either may, without the other’s consent, make moderate donations for charity or on occasions of family rejoicing or family distress (ACP: Art. 98; CPG:Art. 125).





CIVIL LAW

Exception: In ACP, either spouse may dispose by will of his or her interest in the ACP (Art. 97) B. Remedies of present spouse in case of abandonment by the other spouse or failure to comply with obligations (marital, parental or property relations) 1. Receivership 2. Judicial separation of property 3. Authority to be the sole administrator of the absolute community (ACP: Art. 101; CPG: Art. 128) A spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without any intention of returning. Three (3) months’ disappearance or failure to give within the same period any information as to a spouse’s whereabouts prima facie raises a presumption that the absent spouse has no intention of returning (ACP: Art. 101 par. 3; CPG: Art. 108 par. 3). C. Grounds for termination (ACP: Art. 99-101; CPG: Art. 126-128): (LADS) 1. Decree of legal separation 2. Annulment or declaration of nullity of marriage 3. Death of either spouses Surviving spouse shall liquidate ACP within 1 year from death of deceased spouse if no judicial settlement is instituted, failure to do so upon lapse of 1 year period makes any disposition or encumbrance of ACP void Mandatory regime of complete separation of property governs subsequent marriage of surviving spouse if he/she fails to comply with liquidation of ACP of previous marriage 4. Judicial separation of property Note: Effect of separation in fact (ACP: Art. 102; CPG: Art. 127) General Rule: The separation in fact between husband and wife shall not affect the regime of ACP/CPG Exceptions: 1. The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported; 2. When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding;

PERSONS & FAMILY RELATIONS 3. In the absence of sufficient community property, the separate property of both spouses shall be solidarily liable for the support of the family. The spouse present shall, upon proper petition in a summary proceeding, be given judicial authority to administer or encumber any specific separate property of the other spouse and use the fruits or proceeds thereof to satisfy the latter's share (Art. 100). D. Steps in liquidation of ACP and CPG (Art. 102 and 129) 1. Inventory of ACP or CPG properties and exclusive property of each spouse Separate property included as it is solidarily liable to creditors and will be used to pay them if ACP or CPG is insolvent Should also include receivables from each spouse for: a. Amounts advanced for personal debts of each spouse b. Support pendent elite of each spouse c. For CPG, include value of improvements constructed on separate property 2. Payment of ACP or CPG debts Must first pay out of the ACP or CP property, if insufficient, spouses solidarily liable with separate properties For CPG, must first reimburse spouse for separate property acquired by CP due to increased value thereof as a result of improvements thereon 3. Delivery to each spouse of his/her separate property if any 4. For CPG, unless owner indemnified from whatever source, payment of loss or deterioration of movables belonging to either spouse that was used for the benefit of the family 5. Division of net assets (for ACP) or net profits (CPG), which are not subject to forfeiture Use of Exclusive Properties: (PISI) a. Payment of personal debts b. Fines and indemnities c. Support of illegitimate children of the owner-spouse d. In case of insufficiency of the CPG (Sta. Maria, M., Persons and Family Relations, 2010, p. 504) 6. Delivery of presumptive legitime, if any, to the

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PERSONS & FAMILY RELATIONS

children 7. Adjudication of conjugal dwelling and lot

III. SEPARATION OF PROPERTY DURING THE MARRIAGE Takes place if expressly provided for in the MS or by judicial order after the marriage (Art. 134). It may refer to present or future property or both, total or partial. If partial, ACP shall govern properties not agreed upon as separate (Art. 144). Separation of property may be effected voluntarily or for sufficient cause, subject to judicial approval (Art. 134). Causes of judicial separation of property: (CLA²PS) (Art. 135) 1. Petitioner’s spouse has been sentenced with a penalty which carries with it civil interdiction; 2. Loss of parental authority of petitioner’s spouse as decreed by the court; 3. Petitioner’s spouse has been judicially declared an absentee; 4. Abandonment by the petitioner’s spouse or failure to comply with the obligations to the family as provided in Art. 101; 5. Spouse granted power of administration in marriage settlement abused such power; and 6. At the time of the petition, spouses have been separated in fact for at least 1 year and reconciliation is highly improbable Note: In the cases provided for in (1-3), presentation of final judgment against guilty/ absentee spouse is enough basis for grant of degree of judicial separation of property. Effects of judicial separation of property 1. Dissolution and liquidation of ACP/CPG (Art. 137) 2. Liability of the spouses to creditors shall be solidary with their separate properties 3. Mutual obligation to support each other continues except when there is legal separation 4. Rights previously acquired by creditors are not prejudiced (Art. 140) Revival of former property regime (Art. 141) It shall be governed by Art. 67 and may be filed in the same proceedings where separation of property was decreed in any of the following instances: 1. Termination of civil interdiction 2. Reappearance of absentee

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CIVIL LAW 3. Upon satisfaction of court that spouse granted administration in the MS will not abuse that power and authorizes resumption of said administration 4. Return and resumption of common life with spouse by the other who left the conjugal home without decree of legal separation 5. Restoration of parental authority 6. Reconciliation and resumption of common life of spouses who had been separated in fact for at least 1 year 7. Spouses agree upon joint petition to revival of former property regime after voluntary dissolution of ACP or CPG has been judicially decreed No voluntary separation of property may thereafter be granted. Administration of exclusive property (Art. 142) 1. The administration of all classes of exclusive property of either spouse may be transferred by the court to the other spouse: a. When one spouse becomes the guardian of the other; b. When one spouse is judicially declared an absentee; c. When one spouse is sentenced to a penalty which carries with it civil interdiction; or d. When one spouse becomes a fugitive from justice or is in hiding as an accused in a criminal case. 2. If the other spouse is not qualified by reason of incompetence, conflict of interest, or any other just cause, the court shall appoint a suitable person to be the administrator (Art. 142). IV. REGIME OF SEPARATION OF PROPERTY 1. Each spouse shall own, dispose of, possess, administer and enjoy his or her own separate estate, without need of the consent of the other. To each spouse shall belong all earnings from his or her profession, business or industry and all fruits, natural, industrial or civil, due or received during the marriage from his or her separate property (Art. 145). 2. The spouses contribute to the family expenses PROPORTIONATELY with their income or in case of insufficiency or default thereof, with the current market value of their separate properties. However, the liability of the spouses to the creditors for family expenses is SOLIDARY (Art. 146). A Compromise Agreement which was judicially approved is exactly such a separation of property allowed under the law. However, voluntary separation of property is subject to the rights of all creditors of the conjugal partnership of gains and other persons with pecuniary interest pursuant to Article 136 of the Family Code (Virgilio Maquilan vs. Dita Maquilan, G.R. No. 155409, June 8, 2007).





CIVIL LAW

V. PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE Art. 147 Art. 148 Applicability In cases of cohabitation not The following must concur: falling under Art. 147. 1. Parties who are Parties do not have the capacitated to marry capacity to marry due to each other some legal impediments 2. Live exclusively with (i.e. adulterous each other as husband relationships and and wife marriages which are 3. Without benefit of bigamous, incestuous, or marriage or under void void by reason of public marriage policy under Art. 38) Salaries and Wages Separately owned by the parties. If any of them is Owned in equal shares married, his/her salary is the property of the CPG of the legitimate marriage Property acquired by either exclusively by own funds Belongs to such party subject to proof of Belongs to such party acquisition by exclusive funds Property acquired by both through their work / industry Owned by them in common Governed by rules on coin proportion to respective ownership contributions Property acquired while living together Presumed to be obtained by their joint efforts, work, or industry and shall be owned by them in equal shares. Efforts in care and maintenance of family and household considered No presumption of joint contribution in acquisition. acquisition. When there is evidence of joint acquisition Note: Neither party can but none as to the extent of encumber or dispose by actual contribution, there is acts inter vivos of his or her a presumption of equal share in the property sharing acquired during cohabitation and owned in common without the consent of the other until after the termination of their cohabitation. Forfeiture When only one of the 1. If one of parties is validly parties to avoid marriage is married to another, his or

PERSONS & FAMILY RELATIONS in good faith, share of party in bad faith in the coownership shall be forfeited: 1. In favor of their common children. 2. In case of default or waiver by any or all common children or their descendants each vacant share shall belong to respective surviving descendants 3. In their absence, to the innocent party.

her share in the coownership shall accrue to the ACP or CPG existing in such valid marriage. 2. If party who acted in bad faith is not validly married to another, his/her share shall be forfeited in the same manner provided for in Art. 147 3. The above rules apply even if both parties are in bad faith.

In all cases, forfeiture takes place upon termination of cohabitation. Tender Loving Care Doctrine The relationship between a man and a woman whose marriage was subsequently declared null and void on the ground of psychological incapacity is governed by Art. 147 of the Family Code. Under this article, there exists a presumption that the contributions are equal. Even if one of the parties did not contribute materially to the common fund, but the said party took care of the household, the other party and their common children, these acts are considered the said party’s contribution to the common fund (Buenaventura v. Buenaventura, G.R. No. 127358 & 127449, March 31, 2005). Note: Under Art. 148 there is no presumption of joint acquisition. It must be stressed that actual contribution is required by this provision, in contrast to Art. 147 which states that efforts in the care and maintenance of the family and household, are regarded as contributions to the acquisition of common property by one who has no salary or income or work or industry. Under Art. 148, if the actual contribution of the party is not proved, there will be no coownership and no presumption of equal shares (Agapay v. Palang, G.R. No. 116668, July 28, 1997). Hence, mere cohabitation without proof of contribution will not result in a co-ownership (Tumlos vs. Fernandez, G.R. NO. 137650, April 12, 2000). HOWEVER, in the case of Abing v. Waeyan (G.R. No.146294, July 31, 2006) the Supreme Court ruled that any property acquired by common law spouses during the period of cohabitation is presumed to have been obtained through their joint efforts and owned by them in equal shares in the absence of proof to the contrary. Rules on co- ownership govern their property relations.

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PERSONS & FAMILY RELATIONS

T H E F A M IL Y The family is a basic social institution which public policy cherishes and protects (Art. 149); hence, no suit between members of the family shall prosper unless a compromise between the parties has failed (Art. 151). Family relations are governed by law and no custom, practice or agreement destructive of the family shall be recognized or given effect (Art. 149). Family relations include: 1. Between husband and wife 2. Between parents and children 3. Among other ascendants and descendants 4. Among brothers and sisters whether full or half–blood (Art. 150) Mandatory Prior Recourse to Compromise No suit between members of the same family shall prosper UNLESS it appears from the verified complaint or petition that earnest efforts toward a compromise have been made, and that the same have failed. If it is shown that no such efforts were, in fact, made, the case must be dismissed (Art. 151). Exceptions: 1. When a stranger is involved in the suit Ratio: The interest of such stranger may differ from the interest of members of the same family. (Sta. Maria, M., Persons and Family Relations, 2010, p. 588) 2. In cases where compromise is invalid under the Civil

Code (Art. 2035): (CV JAFF) a. Civil status of persons b. Validity of marriage or a legal separation c. Jurisdiction of courts d. Any ground for legal separation e. Future support f. Future legitime The term “suit” provided by law clearly implies only civil actions. (Manalo vs. CA, G.R. No. 129242, January 26, 2000) On the other hand, Art. 332 of the Revised Penal Code provides for exemption from criminal, but not civil liability, for the crimes of theft, swindling or malicious mischief committed or caused by the following: 1. Spouses, ascendants and descendants, or relative by affinity in the same line; 2. The widowed spouse with respect to the property which belonged to the deceased spouse before the same shall have passed into the possession of another; and 3. Brothers and sisters and brothers-in-law and sisters-in-

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CIVIL LAW law, if living together. Running of prescriptive periods Unless otherwise provided by the Family Code and other laws, Art. 1109 of the Civil Code provides that prescription does not run between: a. Husband and wife, even though there be a separation of property agreed upon in the marriage settlements or by judicial decree; b. Parents and children during the latter’s minority or insanity; c. Guardian and ward during the continuance of the guardianship. (Sta. Maria, m., persons and family relations 2010 ed., p. 589) FAMILY HOME It is constituted jointly by the husband and wife or by an unmarried head of a family; is the dwelling house where they and their family reside, and the land on which it is situated (Art. 152). General Rule: The family home is exempt from execution, forced sale or attachment. Rationale: When the creditors seize the family house, they virtually shatter the family itself. Exceptions: (PLMN) 1. Debts incurred prior to constitution (Art. 153); Note: Art. 153 cannot be given retroactive effect to shield the homes of debtors from execution of judgment arising from debts which became due and demandable prior to the effectivity of the Family Code. To be able to avail of the benefits of a family home in relation to debts which matured prior to August 3, 1988, it must be shown that the home was constituted either judicially or extrajudicially pursuant to the old Civil Code (Sta. Maria, M., Persons and Family Relations, 2010, p. 591). 2. Debts due to laborers, mechanics, architects, builders, material men and others who have rendered service or furnished materials for the construction of the building (Art. 155); 3. Debts secured by mortgages on family home (Art. 155); 4. Non–payment of taxes on home (Art. 155) If ever the family home is subject of an attachment, the beneficiaries thereof have to move for the quashal of the writ of attachment. If no motion for the quashal of the writ or attachment or levy is filed, the benefit of exemption is considered waived (Honrado v. Court of Appeals, G.R. No. 166333, November 25, 2005).





CIVIL LAW

As a rule, the family home is exempt from execution, forced sale or attachment. However, Article 155(3) of the Family Code explicitly allows the forced sale of a family home “for debts secured by mortgages on the premises before or after such constitution.” In this case, there is no doubt that spouses Fortaleza voluntarily executed on January 28, 1998 a deed of Real Estate Mortgage over the subject property which was even notarized by their original counsel of record. And assuming that the property is exempt from forced sale, spouses Fortaleza did not set up and prove to the Sheriff such exemption from forced sale before it was sold at the public auction (Sps. Fortaleza and Ofelia Fortaleza v. Sps. Lapitan, G.R. No. 178288, August 15, 2012).

Outline of provisions regarding the family home: 1. It is constituted on the dwelling house of the family and the land on which house is situated 2. Deemed constituted from time of actual occupation as a family residence (Art. 153) 3. Continues to be such as long as any of its beneficiaries actually resides therein (Art. 153) 4. Must be part of the properties of the absolute community or the conjugal partnership or owned by person constituting it (may be either or both spouses or the single head of a family) (Art. 156) Property that is the subject of a conditional sale on installments where ownership is reserved by the vendor only to guarantee payment of the purchase price may be constituted as a family home. (Art. 156 par. 2) 5. Must be permanent (Sta. Maria, M., Persons and Family Relations, 2010, p. 590). 6. Rule applies to valid and voidable and even to commonlaw spouses under Articles 147 and 148 7. Continues despite death of one or both spouses or unmarried head of the family for 10 years, or as long as a minor beneficiary lives therein. Heirs cannot partition the same unless the court finds compelling reasons therefor. (Art. 159). After 10 years and a minor beneficiary still lives therein, the family home shall be preserved only until that minor beneficiary reaches the age of majority. The intention of the law is to safeguard and protect the interests of the minor beneficiary until he reaches the age of majority (Perla G. Patricio vs. Marcelino G. Dario III, G.R. No. 170829, November 20, 2006). The family home is shielded from immediate partition under Article 159 regardless of its ownership. This signifies that even if the family home has passed by succession to the co-ownership of the heirs, or has been

PERSONS & FAMILY RELATIONS willed to any one of them, this fact alone cannot transform the family home into an ordinary property, much less dispel the protection cast upon it by the law. The rights of the individual co-owner of the family home cannot subjugate the rights granted under Article 159 to the beneficiaries of the family home (Arriola v. Arriola, G.R. No. 177703, January 28, 2008). 8. To be a beneficiary (other than the husband and the wife or an unmarried person who is the head of the family), three requisites must concur: a. They must be either the parent, ascendant, descendant, brother or sister whether legitimate or illegitimate (Art. 154). b. They must live in the family home c. They are dependent for legal support upon the head of the family. Thus in Patricio vs. Dario III (G.R. No. 170829, November 20, 2006) a grandson was not considered a beneficiary of a family home owned by his grandparent because, while the said grandchild was living in the said family home, he was not dependent for support on the grandparent, who was the head of the family where the grandchild lived, but on his father. d. In-laws, provided the home is jointly constituted by husband and wife. But this law definitely excludes maids and overseers (Manacop v. CA, G.R. No. 102855 November 13, 1992). 8. Every person may constitute or be the beneficiary of one (1) family home only. (Art. 161) 9. May be alienated, sold, donated, assigned or encumbered by the owners provided the written consent of the following are obtained: a. The person who constituted the same, b. His or her spouse, and c. Majority of the beneficiaries of legal age give their consent. (Art. 158)

P A T E R N IT Y

AND

F IL IA T IO N

Paternity and filiation It refers to the relationship existing between parent and child (Noe v. Velasco, 61 O.G. 411). Paternity It is the civil status relationship of the father to the child. Filiation It is the civil status or relationship of the child to the father or mother.

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The filiation of children may be by nature or by adoption. Natural filiation may be legitimate or illegitimate (Art. 163). LEGITIMATE AND DISTINGUISHED Legitimate

ILLEGITIMATE

Conceived or born during a valid marriage (Art. 164)

CHILDREN

Illegitimate Conceived and born outside a valid marriage or inside a void ab initio marriage such as bigamous and incestuous marriages and marriage declared void for being contrary to law and public policy (Art. 165)

Conceived or born before the judgment of annulment Born after the decree of or absolute nullity of annulment of a voidable marriage if the ground is marriage psychological incapacity (Art. 54) Born in a subsequent void marriage due to failure to comply with Art. 52 and 53 (Art. 54) Product of artificial insemination provided both spouses authorized or ratified such procedure in a written instrument, executed and signed before birth of child and recorded (Art. 164) Conceived or born of mothers who might have declared against its legitimacy or was sentenced as an adulteress (Art. 167) Legitimated: conceived and born outside of wedlock of parents without impediment at the time of conception and had subsequently married Use of Surname Generally required to use mother’s surname Right to bear father’s surname

Exception: If child’s filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when

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CIVIL LAW Legitimate

Illegitimate an admission in a public document or private handwritten instrument is made by the father. (Sec.1, RA 9255) Parental Authority Sole parental authority of Joint authority of parents mother Support Entitled to receive support from any of his or her direct ascendants and Entitled to receive support descendants in accordance only up t his or her with the priority set by law grandparents or in Art. 195 and 199 (Sta. grandchildren as provided Maria, M., Persons and for in Art. 195(2) and (3) Family Relations, 2010, p. (Sta. Maria, M., Persons 650). and Family Relations, 2010, p. 650). Preferential right to support over mother if father has no No such preference sufficient means to meet both claims Successional Right Entitled to ½ of legitimate Entitled to inheritance child’s inheritance Beneficiary Right Under the SSS (RA 8282) and GSIS (RA 8291) Primary beneficiary Not primary beneficiaries Paternity Leave under RA 8187 (Paternity Leave Act of 1996) Father is entitled to No such benefit paternity leave of 7 days with full pay RULE ON CHILDREN CONCEIVED AS A RESULT OF ARTIFICIAL INSEMINATION The status of the child is legitimate if all the requirements under Art. 164 are complied with namely: 1. Both spouses authorize or ratify such insemination 2. The authorization or ratification is in a written instrument signed by them before the birth of the child 3. The instrument is recorded in the civil registry together with the birth certificate of the child. Note: Even if the above requirements are not complied with and the husband does not impugn the legitimacy of the child on grounds provided by Art. 166 within the prescriptive period, the child shall still be considered legitimate because the child has been conceived or born during the valid marriage of the parents pursuant to Article 164 par. 1.





CIVIL LAW

RULES ON IMPUGNING LEGITIMACY (Art. 166 and 167) Necessarily applies only to a situation where the child has been delivered by a woman who is the child’s natural mother (Sta. Maria, M., Persons and Family Relations, 2010, p. 609). In the event that any of the grounds enumerated in Art. 166 is proven, the child will neither be legitimate nor illegitimate in so far as the husband is concerned. Simply, the husband and the child will not be related to each other in any manner considering that the husband did not participate in any way as to the child’s precreation. In so far as the mother is concerned, the child will be considered illegitimate (Sta. Maria, M., Persons and Family Relations, 2010, p. 609).

PERSONS & FAMILY RELATIONS initial period of conception; impotence which is patent, continuing and incurable; and imprisonment, unless it can be shown that cohabitation took place through corrupt violation of prison regulations. 2. Biological or scientific proof that the child could not have been that of the husband; Note: Racial dissimilarity may be a considered sufficient scientific proof (Watkins vs. Carlton, 37 VA [10 Leigh] 586 as cited Sta. Maria, p. 617). For sterility to constitute proof of non-paternity, the husband must be shown to be completely sterile at the time when the child was conceived (Sta. Maria, M., Persons and Family Relations, 2010, p. 618). 3. Vitiated consent in artificial insemination

Grounds for impugning legitimacy: (PBC) 1. Physical impossibility of the husband to have sexual intercourse with his wife within the first 120 days of the 300 days immediately preceding the child’s birth, due to: a. Physical incapacity of the husband; Note: Must be proved by convincing and persuasive evidence hence, the fact that a husband, who was never separated from his wife, has been absolutely stiff in th hips at the time of the conception of the child has been held as not conclusive enough to overturn the presumption of legitimacy. (State vs. Reed, 107 W Va. 563, as cited Sta. Maria, p. 616) b. Husband and the wife were living separately; Note: Mere remoteness of the wife from the husband is not sufficient to disavow paternity. Hence, the bare testimony by the husband that he and his wife were living thirty miles away from each other at the time of the conception of the child is not enough to show the illegitimacy of the child without any showing that the sexual intercourse with the wife was not possible (Skott vs. State, 46 ALR 3d 180 as cited Sta. Maria, p.616). c. Serious illness of the husband which absolutely prevented sexual intercourse Note: Must be such as to absolutely prevent him from engaging in sexual intercourse. Hence in Andal v. Macaraig (G.R. No. L-2474, May 30, 1951), the Court ruled that the fact that the husband was seriously sick with tuberculosis was not sufficient to overcome the presumption of legitimacy. Impossibility of access by husband to wife would include absence during the

Note: The mistake, fraud, violence, intimidation or undue influence can be exerted by not only the spouses against each other but also by third persons on both of the spouses or on any one of them. In any case, only the husband can impugn the legitimacy of the child, or the heirs in special cases provided in Art. 171. Prescriptive periods to file action to impugn legitimacy: 1. One year, from knowledge of birth or recording in the civil register, if husband or heirs live in the SAME city/municipality where the birth took place or was recorded. 2. Two years, if both reside in the Philippines. 3. Three years, if the child’s birth took place or was recorded in the Philippines while the husband has his residence abroad, or vice versa (Art. 170). Note: The question of legitimacy cannot be collaterally attacked. It can be impugned only in a direct action. (Liyao Jr. vs. Liyao, G.R. No. 138961, March 7, 2002) Parties who can impugn legitimacy of a child: General Rule: Only the husband may impugn. Exception: The heirs may impugn within the same period in the following cases: 1 If the husband dies before the expiration of the period fixed for bringing his action 2 If he should die after the filing of the complaint without having desisted therefrom; or 3 If the child was born after the husband’s death (Art. 171). An assertion by the mother against the legitimacy of her

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child cannot affect the legitimacy of the child born or conceived within a valid marriage. A mother has no right to disavow a child because maternity is never uncertain (Concepcion v. CA, GR No 123450, August 31, 2005). The death of the putative father does not ipso facto negate the application of DNA testing for as long as appropriate biological samples of his DNA exist. In such a case the petitioner must show the impossibility of obtaining an appropriate biological sample that can be utilized for the conduct of DNA testing (Estate of Rogelio Ong v. Diaz, G.R. No. 171713, December 17, 2007). STATUS OF CHILDREN BORN WITHIN 300 DAYS FROM THE TERMINATION OF A FIRST MARRIAGE AND THE CELEBRATION OF A SUBSEQUENT MARRIAGE (Art. 168 and 169) Requisites: (TS–WBN) 1. First marriage terminated 2. Mother contracted subsequent marriage 3. Subsequent marriage was contracted within 300 days after termination of previous marriage 4. Child was born within 300-day period 5. No evidence as to status of child Rules on presumption of filiation in case of two marriages: 1. To first marriage, if child was born before the lapse of 180 days after celebration of 2nd marriage, provided it was born within 300 days after termination of the 1st marriage. 2. To second marriage, if child was born after 180 days following celebration of 2nd marriage, whether born within 300 days after termination of 1st marriage or afterwards (Art. 168).

CIVIL LAW marriage shall be proved by whoever alleges such illegitimacy or illegitimacy (Art. 169). Note: Art. 169 negates any presumption of filiation for a child born after 300 days from the termination of a marriage, in the absence of a subsequent marriage (Sta. Maria, M., Persons and Family Relations, 2010, p. 627). PROOF OF FILIATION General Rule: Filiation of legitimate (or illegitimate) children is established by any of the following: (RA) 1. The record of birth appearing in the civil registry or a final judgment 2. An admission of legitimate (or illegitimate) filiation in a public document or a private handwritten instrument and signed by the parent concerned. Exceptions: In the absence of any of the foregoing evidence, such legitimate or illegitimate filiation shall be proved by: (OA) 1. Open and continuous possession of the status of a legitimate or illegitimate child; 2. Any other means allowed by the Rules of Court and special laws (Art. 172). a. An act or declaration concerning pedigree (Sec. 33, Rule 130, Rules of Court) b. Family reputation or tradition concerning pedigree (Sec. 34, Rule 130, Rules of Court) c. Common reputation respecting pedigree (Sec. 35, Rule 130, Rules of Court) d. Judicial admission (Sec. 2, Rule 129, Rules of Court) e. Admission of a party (Sec. 22, Rule 130, Rules of Court) f. Admission by silence (Sec. 23, Rule 130, Rules of Court)

Illustration: Termination of first marriage: October 1, 2011 Celebration of second marriage: January 1, 2012 300th day from termination of first marriage: July 26, 2012 180th day from celebration of second marriage: June 28, 2012

Baptismal certificate, judicial admission, family bible, evidence of pedigree, admission by silence, testimonies of witnesses and other pieces of evidence under Rule 130, Rules of Court may be proofs of filiation (Cruz vs. Cristobal, G.R. No. 148247,August 7, 2006).

Hence: Child born on or before June 28, 2012 is presumed to be filiated to the first husband.

In Dela Cruz vs. Garcia (G.R. No. 177728, July 31, 2009), a handwritten autobiography of the father was recognized as evidence of filiation although not signed. The Court ruled that “where the private handwritten instrument is accompanied by other relevant and competent evidence, it suffices that the claim of filiation therein be shown to have been made and handwritten by the acknowledging parent as it is merely corroborative of such other evidence.”

Child born at any time after June 28, 2012 (even if before July 26, 2012) is presumed to be filiated with the second husband. Note: The legitimacy or illegitimacy of a child born after three hundred days following the termination of the

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CIVIL LAW

Action to Claim Legitimacy (Art. 173) Who may claim: 1. Child – exclusive and personal right of child which may be brought anytime during his lifetime, regardless of the proof presented to support his claim 2. Transmitted to heirs of the child within a period of 5 years in case a. Child dies during minority b. Child dies in a state of insanity c. Child dies after action has already been instituted Action to Claim Illegitimacy Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children (Art. 175). 1. If illegitimate filiation is established by a record of birth in the civil register or a final judgment, or an admission of filiation in a public document or a private handwritten instrument signed by the parent concerned, the action for recognition may be brought by the child during his lifetime (Guy, vs. CA, G.R. No. 163707, September 15, 2006). 2. If the action is based upon open and continuous possession of the status of an illegitimate child, or any other means allowed by the rules or special laws, it may be only brought during the lifetime of the alleged parent (Guy vs. CA, ibid). 3. Unlike an action for legitimacy, the right to claim for status is NOT transmissible to the heirs. “Continuous” does not mean that the concession of status shall continue forever but only that it shall not be of an intermittent character while it is continuous. The possession of such status means that, the father has treated the child as his own, directly and not through others, spontaneously, and without concealment, though without publicity. There must be a showing of permanent intention of the supposed father to consider the child as his own by continuous and clear manifestation of paternal affection and care (Mendoza vs. CA, G.R. No. 86302 September 24, 1991). The paternal affection and care must not be attributed to pure charity. “Such acts must be of such a nature that they reveal not only the conviction of paternity, but also the apparent desire to have and treat the child as such in all relations in society and in life, not accidentally, but continuously” (Jison vs. CA, GR. No. 8454, April 13, 1956).

PERSONS & FAMILY RELATIONS If the unsigned record of birth can be a proof of filiation of the child, it would be easy for a woman to vest legitimate status to an illegitimate child. Hence, an unsigned record of birth cannot be used as proof of filiation (Reyes v. Court of Appeals, GR. 39537, March 19, 1985). RIGHTS OF CHILDREN Legitimate Use of father & mother’s surname

Illegitimate Use of mother‘s surname Note: However, R.A. 9255 amended Art. 176, FC

Receive support from ascendants or descendants of the same line.

Receive support only up to grandparent and grandchildren

Entitled to the legitime in succession

Legitime is ½ of the legitime of a legitimate child

Right to inherit ab intestato from legitimate children and relatives of his father and mother

No right to inherit as such

R.A. No. 9255 An Act Allowing Illegitimate Children to use the surname of their Father, amending for the purpose Article 176 of EO No. 209, otherwise known as the "FAMILY CODE OF THE PHILIPPINES" (approved February 24, 2004). Illegitimate children may use the surname of their father if: 1. Their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or 2. When an admission in a public document or private handwritten instrument is made by the father; Provided, that the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime. LEGITIMATED CHILDREN Legitimation It is a remedy by means of which those who in fact were conceived and born outside of wedlock and should therefore be considered illegitimate are by legal fiction considered legitimate. It shall take place only by the subsequent valid marriage between the biological parents.

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Requisites: (NIM) 1. The child is illegitimate. 2. The parents at the time of the child’s conception are not disqualified by any impediment from marrying each other or were so disqualified only because either or both of them were below eighteen (18) years of age (Art. 177, as amended by R.A. 9858). 3. There is a valid marriage subsequent to the child’s birth (Art. 178). Note: Children born out of wedlock to parents who were not allowed by law to marry for being minors are now qualified for legitimation. This has been made possible by RA 9858, approved on December 20, 2009 and has amended Article 177 of the Family Code of the Philippines. Before RA 9858, Article 177 stated that only children born out of wedlock to parents who were not disqualified from getting married at the time of conception could be legitimized.Under the present law, legitimation would automatically take place upon marriage of the parents. Moreover, couples who had children when they were below the marrying age would not need to go through the process of having to adopt their own offspring just so their kids could enjoy the rights of legitimate children. Notes: Laws providing for the process of legitimation are remedial in character intended for the benefit and protection of the innocent offspring and, therefore, may be applied retrospectively (Lund’s Estate, 162 ALR 606) and must be liberally construed (Cardenas vs. Cardenas, 12 Ill. App 2d 497, 63 Alr2rd 1001 as cited in Sta. Maria, p. 659). Effects of legitimation: 1. Legitimated children shall enjoy the same rights as legitimate children (Art. 179) Note: Legitimation creates for the legitimated child the total and full extent of the blood-relationship existing within the family to include all descendants, ascendants and collateral relative, unlike in adoption where only a parent-child relationship is created. (Sta. Maria, M., Persons and Family Relations, 2010, p. 661) 2. The effects of legitimation shall retroact to the time of the child’s birth (Art. 180) 3. The legitimation of children who died before the celebration of the marriage shall benefit their ascendants (Art. 181) 4. Legitimation may be impugned only by those who are prejudiced in their rights. Generally refers to those who would suffer economic or material injury by legitimation such as testamentary or intestate heirs (Sta. Maria, M., Persons and Family

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CIVIL LAW Relations, 2010, p. 663). Legitimation may be impugned within 5 years from the time their cause of action accrues, that is, from the death of the putative parent. Legitimation may be impugned on grounds like: a. The subsequent marriage of the child’s parents is void; b. The child allegedly legitimated is not natural; or c. The child is not really the child of the alleged parents.

A D O P T IO N The process of making a child, whether related or not to the adopter, possess in general, rights accorded to a legitimate child (Paras, E. Civil Code of the Philippines Annotated, 2002 ed., p. 685). Adoption statutes, being humane and salutary, hold the interest and welfare of the child to be of paramount consideration and are designed to provide homes, parental care and education for unfortunate, needy or orphaned children and give them the protection of society and family in the person of the adopter as well as to allow childless couples to experience the joys of parenthood and give them legally a child in the person of the adopted for the manifestation of their natural parental instincts. Every reasonable intendment should be sustained to promote and fulfill these noble and compassionate objectives of the law (In re: Petition for adoption of Michelle P. Lim, G.R. No. 168992-93 May 21, 2009). Nature of adoption proceedings 1. Adoption is a juridical act. Only an adoption made through the court, or in pursuance with the procedure laid down under Rule 99 of the Rules of Court is valid in this jurisdiction. It is not of natural law at all, but is wholly and entirely artificial. To establish the relation, the statutory requirements must be strictly carried out, otherwise, the adoption is an absolute nullity (Lazatin vs. Hon. Judge Campos, G.R. No. L-42955-56 July 30, 1979). 2. Adoption proceedings are IN REM and publication serves as constructive notice to the whole world (Santos vs. Aranzanso, L-23828, February 28, 1966).

DOMESTIC ADOPTION ACT OF 1998 (R.A. No. 8552) Pre–adoption services (Sec. 4-6) The DSWD shall provide for the following services:





CIVIL LAW

1. Counseling services for – a. biological parents [Sec. 4(a)], Note: No binding commitment for and adoption plan shall be permitted before the birth of his or her child. A period of 6 months shall be allowed for the biological parent(s) so reconsider any decision to relinquish his/her child for adoption before the decision becomes irrevocable. b. prospective adoptive parents [Sec. 4 (b)] and c. prospective adoptee [Sec. 4(c)] 2. Exhaust all efforts to locate the unknown biological parents Note: If efforts fail, child shall be listed as a foundling and shall be judicially declared as abandoned [Sec. 5] Who may adopt: (LPG-CONE) 1. Filipino citizen [Sec. 7 (a)]: a. Of legal age b. In a position to support and care for his/her children in keeping with the means of the family c. Good moral character d. In possession of full civil capacity or legal rights e. At least 16 years older than the adoptee, except when: i. Adopter is the biological parent of the adoptee ii. Adopter is the spouse of the adoptee’s parent f. Has not been convicted of any crime involving moral turpitude g. Emotionally and psychologically capable of caring for children 2. Alien (S-DELL) a. Same qualifications as a Filipino b. Country has diplomatic relations with the Philippines. c. Certified by said office that his government allows the adoptee to enter his country as his adopted child d. Has been living in the Philippines for at least three (3) continuous years prior to the application for adoption and maintains such residence until the adoption decree is entered, e. Certified to have legal capacity to adopt by his/her diplomatic or consular office but certification may be waived in the same instances for waiver of residency requirement in (c) Note: Requirements listed under (c), (d) and (e) may be waived if the alien is: i.A former Filipino citizen seeks to adopt a relative

PERSONS & FAMILY RELATIONS within the 4th degree of consanguinity or affinity ii.One who seeks to adopt the legitimate son/daughter of his/her Filipino spouse iii.One who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the 4th degree of consanguinity or affinity of the Filipino spouse If a Filipino adopts an alien, the adopted alien does not acquire Philippine citizenship because such acquisition of citizenship acquires the character of naturalization which is regulated, not by the Civil Code or the Family Code, but by special law (Ching Leng vs. Galang, G.R. No. L-11931, October 27, 1958). 3. Guardian (TC) [Sec. 7(c)] a. After termination of the guardianship, with respect to the ward, and b. Clearance of his/her financial accountabilities Rule on adoption by spouses General rule: The husband and the wife shall JOINTLY adopt. Exceptions: (LIS) 1. One spouse seeks to adopt the legitimate child of the other spouse 2. One spouse seeks to adopt his/her own illegitimate child with the consent of the other spouse 3. The spouses are legally separated Other factors to be considered in evaluating prospective parents: 1. Total personality of the applicants 2. Emotional maturity 3. Quality of marital relationship 4. Feeling about children 5. Feeling about childlessness and readiness to adopt 6. Motivation (Sta. Maria, M., Persons and Family Relations, 2010, p. 681). Who may be adopted: (Sec. 8) (DARILL) 1. Child whose biological or adoptive parents have died, provided that no proceedings shall be initiated within 6 months from the time of death of said parents 2. Any person below 18 years of age who has been voluntarily committed to the DSWD under P.D. 603 or judicially declared available for adoption 3. Child whose adoption has been previously rescinded 4. Illegitimate child of a qualified adopter to improve the child’s status 5. Legitimate child of the other spouse 6. A person of legal age, who, prior to the adoption, has been consistently considered by the adopter as his/her

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own child since minority Consent in adoption (Sec. 9) (A-BALIS) The written consent of the following is required: 1. The adoptee, if he is 10 years of age or older; 2. Known biological parents or legal guardians or proper government instrumentality which has legal custody of the child; 3. Legitimate/adopted children, 10 years old or over, of the adopter and adoptee; 4. The illegitimate children, 10 years old or over, of the adopter if living with the adopter and the latter's spouse; 5. Spouse of the adopter and adoptee Note: An alleged capability to support an adoptee through the help of other persons is not enough to support a petition for adoption. According to the SC, adoption is personal between the adopter and adoptee; the adopter should be in a position to support the would-be adopted child in keeping with the means of the family (Landingin v. Republic, GR No 164948, June 27, 2006). Sec.9 of R.A. 8552 provides that if the written consent of the biological parents cannot be obtained, the consent of the legal guardian must be sought. To dispense with the requirement of written consent, the abandonment must be shown to have existed at the time of adoption and evinces a settled purpose to forego all parental duties. The written consent of the biological parents is indispensable for the validity of a decree of adoption. The natural right of parent to child requires that consent be obtained before parental rights and duties may be terminated and re-established in adoptive parents. (Landingin vs. Republic,ibid). Effectivity of decree of adoption (Sec. 13) A decree of adoption shall be effective as of the date the original petition was filed. This applies also in case petitioner dies before the issuance of the adoption decree, to protect the interest of the adoptee. In Tamargo vs. CA (209 SCRA 518, G.R. No. 85044 June 3, 1992), where the petition for adoption was granted after the child had shot and killed a girl, the SC did not consider the retroactive effect of the decree of adoption so as to impose a liability upon the adopting parents accruing at the time when they had no actual or physical custody over the adopted child. It held that retroactive effect may be given where such is essential to permit the accrual of some benefit or advantage in favor of the adopted child. To hold that parental authority had been retroactively lodged in the adopting parents so as to burden them with liability for a tortuous act that they could neither have foreseen nor prevented would be unfair and unconscionable.

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CIVIL LAW Middle name of adopted child The illegitimate child subsequently adopted by his/her natural father is permitted to use as her middle name the surname of her natural mother for the following reasons: 1. It is necessary to preserve and maintain the child’s filiation with her natural mother because under Art. 189 of the Family Code, she remains to be an intestate heir of the latter. To prevent any confusion and needless hardship in the future, her relationship or proof of that relationship with her natural mother should be maintained; 2. There is no law expressly prohibiting the adopted to use the surname of her natural mother as her middle name. What the law does not prohibit, it allows; and 3. It is customary for every Filipino to have a middle name, which is ordinarily the surname of the mother (In the Matter of the Adoption of Stephanie Nathy Astorga Garcia, G.R. No. 148311, March 31, 2005). Effects of Adoption: (SAL) 1. Severance of legal ties between the biological parents and the adoptee, which shall be vested in the adopters. Exception: if the biological parent is the spouse of the adopter (Sec. 16). 2. Adoptee shall be considered as a legitimate child of the adopter(s) for all intents and purposes (Sec. 17). 3. In legal or intestate succession, the adoptee and the adopter(s) shall have reciprocal rights of succession without distinction from legitimate filiation. However, if there is a will, the rules on testamentary succession shall be followed (Sec. 18). Note: Once an adoption decree is issued, it cannot be attacked collaterally as in their action for partition, but in a direct proceeding frontally addressing the issue (Sayson vs. CA, G.R. Nos. 89224-25 January 23, 1992). Rescission of adoption (Sec. 19) - by ADOPTEE ONLY Grounds: (ASAR) 1. Attempt on the life of the adoptee 2. Sexual assault or violence 3. Abandonment and failure to comply with parental obligations 4. Repeated physical or verbal maltreatment by the adopter despite having undergone counseling Note: Adoption shall not be subject to rescission by the adopters. However, the adopters may disinherit the adoptee for causes provided under Art 919 of the Civil





CIVIL LAW

Code (Sec. 19). An adoptee refused to use the surname of the adopter though already adopted. The adopter sought to rescind/revoke the Decree of Adoption (DOA), but the Domestic Adoption Act (R.A. 8552) which removes the right of adopter to challenge the validity of the DOA became effective. SC held that the adopter may disinherit the adoptee, and that the latter has the sole right to challenge the DOA (Lahom v. Sibulo, G.R. No 143989, July 14, 2003). Disinheritance of adoptee by adopter Grounds: (Art. 919, NCC) (GAMM-CARD) 1. Groundless accusation against the testator of a crime punishable by six (6) years or more imprisonment 2. Found guilty of an attempt against the life of the testator, his/her spouse, descendants or ascendants 3. Causes the testator to make or changes a testator’s will through violence, intimidation, fraud or undue influence 4. Maltreatment of the testator by word or deed 5. Conviction of a crime which carries the penalty of civil interdiction 6. Adultery or concubinage with testator’s spouse 7. Refusal without justifiable cause to support the parent or ascendant 8. Leads a dishonorable or disgraceful life. Effects of rescission: (Sec. 20) (PRAS) 1. Parental authority of adoptee’s biological parents or legal custody of DSWD shall be restored if adoptee is still a minor or incapacitated. 2. Reciprocal rights and obligations of the adopter(s) and the adoptee to each other shall be extinguished. 3. Amended certificate of birth of the adoptee shall be cancelled and its original shall be restored. 4. Succession rights shall revert to their status prior to the adoption, but vested rights shall be respected. Being a legitimate child by virtue of adoption, it follows that the child is entitled to all the rights provided by law to a legitimate child. The adopted child remains an intestate heir of his/her biological parents. Hence, she can well assert her hereditary rights from her natural mother in the future (In the matter of adoption of Stephanie Nathy Astorga Garcia, GR No 148311 March 31, 2005). Simulation of Birth Is the tampering of the civil registry making it appear in the birth records that a certain child was born to a person who is not his/her biological mother, causing such child to lose his/her true identity and status [R.A.8552 Art. 1 Sec. 3 (J)]. Punished by prision mayor in its medium and a fine not exceeding P50, 000 under Sec. 21 (b) of the same law.

PERSONS & FAMILY RELATIONS A crime defined and punished by Sec. 21 (b) of RA 8552 committed by any person who shall cause the fictitious registration of the birth of a child under the names of persons who are not his/her biological parents. INTER-COUNTRY ADOPTION ACT OF 1995 (R.A. 8043) The socio-legal process of adopting a Filipino child by a foreigner or a Filipino citizen permanently residing abroad where the petition is filed, the supervised trial custody is undertaken, and the decree of adoption is issued outside the Philippines [Sec. 3 (a)]. Who may be adopted (Sec. 8) Only a “legally-free child” may be the subject of intercountry adoption Legally-free Child A child who has been voluntarily or involuntarily committed to the DSWD of the Philippines, in accordance with the Child Youth and Welfare Code [Sec. 3 (f)] No child shall be matched to a foreign adoptive family unless it is satisfactorily shown that the child cannot be adopted locally (Sec. 11). There shall be no physical transfer of a voluntarily committed child earlier than six (6) months from the date of execution of Deed of Voluntary Commitment except: 1. Adoption by a relative 2. Children with special medical conditions Who may adopt (Sec. 9) 1. Any alien or 2. Filipino citizen, both permanently residing abroad Conditions: (JAC-NERD--PQ) 1. If married, his/her spouse must jointly file for the adoption 2. At least 27 years of age and at least 16 years older than the child to be adopted, at the time of the application unless the adopter is: a. Parent by nature of the child to be adopted or b. Spouse of such parent 3. Capacity to act and assume all rights and responsibilities of parental authority under his/her national laws, and has undergone the appropriate counseling from an accredited counselor in his/her country 4. Has not been convicted of a crime involving moral turpitude 5. Eligible to adopt under his/her national law 6. Agrees to uphold the basic rights of the child as embodied under Philippine laws, the U.N. Convention

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on the Rights of a Child, and to abide by the rules and regulations issued to implement the Inter–Country Adoption Act 7. Comes from a country with whom the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that adoption is allowed under his/her national laws 8. In a position to provide the proper care and support and to give the necessary moral values and examples to all his children, including the child to be adopted 9. Possesses all the qualifications and none of the disqualifications under the Inter–Country Adoption Act and other applicable Philippine laws Filing of application (Sec.10): Either with the Philippine RTC having jurisdiction over the child OR with the InterCountry Adoption Board, through an intermediate agency Inter-Country Adoption Board (Sec. 4) It acts as the central authority in matters relating to intercountry adoption. The Board shall ensure that all possibilities for the adoption of the child under the Family Code have been exhausted and that inter–country adoption is in the best interest of the child. Supervision of trial custody (Sec. 14) Mandatory period of 6 months from the time of placement before a decree of adoption may be issued. During this period, the adopting parents shall submit a progress report of the child’s adjustment which shall be taken into consideration in issuing the decree of adoption. 1. Starts upon actual physical transfer of the child to the applicant who, as actual custodian, shall exercise substitute parental authority over the person of the child (Sec. 44, Implementing Rules of RA 8043) 2. The adopting parent(s) shall submit to the governmental agency or authorized and accredited agency, which shall in turn transmit a copy to the Board, a progress report of the child’s adjustment. Disruption and termination of placement: (Sec. 47, Implementing Rules of RA 8043) In the event of serious damage in the relationship between the child and applicant; or when the continued placement is no longer in the best interests of the child: a. The Board through the Central Authority shall take necessary measures to protect the child, in particular cause the child to be withdrawn from the applicant and arrange for his temporary care b. The Central Authority shall exhaust all means to

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CIVIL LAW remove cause of unsatisfactory relationship c. The Central Authority shall submit at complete report to the Board as to the actions taken as well as recommendations. d. Based on the report submitted by the Central Authority, the Board may terminate the pre-adoptive relationship. Note: If the pre-adoptive relationship is found unsatisfactory by the child or the applicant or both, or if the foreign adoption agency finds that the continued placement of the child is not in the child’s best interest, said relationship shall be suspended by the Board and the foreign adoption agency shall arrange for the child’s temporary care. If a satisfactory pre-adoptive relationship is formed between the applicant and the child, the Board shall submit the written consent to the adoption to the foreign adoption agency within 30 days after receipt of the latter’s request. A copy of the final decree of adoption of the child, including certificate of citizenship/naturalization whenever applicable, shall be transmitted by the foreign adoption agency to the Board within 1 month after its issuance (Sec. 53, Implementing Rules of RA 8043) Presumption of illegal adoption: (Sec. 57, Implementing Rules of RA 8043) (CPEN) 1. Consent for adoption was acquired through or attended by coercion, fraud, improper material inducement 2. Procedures and safeguards provided by law for adoption were not complied with 3. Has exposed or subjected the child to be adopted to danger, abuse or exploitation 4. No authority to effect adoption from the Board

SUPPORT Support It comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation in keeping with the financial capacity of the family (Art. 194). Kinds: (LJC) 1. Legal – one required or given by law; 2. Judicial – required by the court to be given whether pendente lite or in a final judgment; 3. Conventional – given by agreement. Characteristics: (MR P2INE) 1. Mandatory





CIVIL LAW

2. Reciprocal on the part of those who are by law bound to support each other 3. Personal 4. Provisional character of support judgment 5. Intransmissible 6. Not subject to waiver or compensation 7. Exempt from attachment or execution (A. Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines, Vol. I, 1990 ed. p. 575) Persons obliged to support each other: (Art. 195) 1. Spouses 2. Legitimate ascendants and descendants 3. Parents and their legitimate children, and the legitimate and illegitimate children of the latter 4. Parents and their illegitimate children, and the legitimate and illegitimate children of the latter 5. Legitimate brothers and sisters whether full or halfblood provided: Brothers and sisters NOT legitimately related whether full or half-blood are likewise entitled to support to the full extent under Art. 194 except when the need for support of the brother or sister, being of age, is due to a cause imputable to claimant’s fault or negligence (Art. 196) Note: Art. 197 providing for the source from where the support should be taken out highlights the fact that the people enumerated in Art. 195 have a personal obligation to support each other (Sta. Maria, M., Persons and Family Relations, 2010, p. 763). For support of legitimate ascendants, descendants (legitimate/illegitimate), brothers and sisters (legitimate/illegitimate), only separate property of person obliged to give support shall be answerable. In the absence of separate property, the CPG or ACP shall advance support deductible from share of spouse obliged upon liquidation (Art. 197). In case of legitimate descendants which are the common children of the spouse or the legitimate children of either spouse. In which case, the ACP or CPG shall be principally charged for their support as mandated by law in Art. 94(1) and Art. 121(1). This is different from personal support owing to them from the father or mother as provided in Art. 194 and 197. Order of liability if several persons obliged to give support: (Art. 199) (SDAB) 1. Spouse 2. Descendants in the nearest degree 3. Ascendants in the nearest degree

PERSONS & FAMILY RELATIONS 4. Brothers and sisters If the obligation to give support falls upon two or more persons, payment shall be divided between them in proportion to their resources. In case of urgent need and special circumstances, the court may order only one of them to furnish support provisionally subject to the right to claim from the others the share due them (Art. 200). When two or more recipients at the same time claim for support and the person legally obliged to give does not have sufficient means to satisfy all claims: 1. The order of liability provided by law shall be followed. 2. If the concurrent obligees should be the spouse and a child subject to parental authority, the child shall be preferred. (Art. 200) In Mangonon vs. CA (G.R. No. 125041, June 30, 2006), the Supreme Court ordered the grandfather, who was proven to be well-off to support his grandchildren on the basis of Art. 199, considering that their parents were not capable of supporting the children. If the obligation to give support falls upon two or more persons, the payment shall be divided between them in proportion to their resources. [Art. 200 (1st par)] In case of or urgent need and special circumstances, the court may order only one of them to furnish support provisionally subject to the right to claim from the others the share due them (Art. 200 [2nd par]). When two or more recipients at the same time claim for support and the person legally obliged to give does not have sufficient means to satisfy all claims: 1. The order of liability provided by law shall be followed. 2. If the concurrent obliges should be the spouse and a child subject to parental authority, the child shall be preferred (Art. 200 [3rd par]). Obligation to give support arising from: Spousal and general Parental authority familial ties (Title IX) (Title VIII) Ends upon the Ideally lasts during the emancipation of the child obligee’s lifetime Pertains to parents, Passes on to the passing to ascendants only ascendants not only upon upon its termination or default of the parents but suspension also for the latter’s inability to provide sufficient support (Lim vs. Lim, G.R. No. 163209, Oct. 30 2009)

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The governing text are the relevant provisions in Title VIII of the Civil Code, as amended, on Support, not the provisions in Title IX on Parental Authority. While both areas share a common ground in that parental authority encompasses the obligation to provide legal support, they differ in other concerns including the duration of the obligation and its concurrence among relatives of differing degrees. Thus, although the obligation to provide support arising from parental authority ends upon the emancipation of the child, the same obligation arising from spousal and general familial ties ideally lasts during the obligee’s lifetime.. Also, while parental authority under Title IX (and the correlative parental rights) pertains to parents, passing to ascendants only upon its termination or suspension, the obligation to provide legal support passes on to ascendants not only upon default of the parents but also for the latter’s inability to provide sufficient support. (Lim vs. Lim, G.R. No. 163209, October 30, 2009) Requisites in order for support from stranger to be reimbursable: Under Art. 206: 1. Stranger gives support to another person with the intention to be reimbursed; and 2. Person obliged to give support to the recipient does not have knowledge of the stranger’s act Under Art. 207: 1. There is an urgent need to be supported on the part of the recipient; 2. The person obliged to support unjustly refuses or fails to give the support; and 3. A third person furnishes the support to the needy individual. Support from Stranger 1. When, without the knowledge of the person obliged to give support, it is given by a stranger, the latter shall have a right to claim the same from the former, unless it appears that he gave it without any intention of being reimbursed (Art 206) 2. When the person obliged to support another unjustly refuses or fails to give support when urgently needed by the latter, any third person may furnish support to the needy individual, with a right of reimbursement from the person obliged to give support (Art. 207) Logically, the sisters would, thru their mother, turn to their uncle (Noel Daban) for their sustenance and education when petitioner (their father) failed to give the same, a failing which stretched from their pre-schooling days to their college years. Since such failure has been

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CIVIL LAW established, it is not amiss to deduce, as did the trial court and the CA, that Noel Daban who, owing to consideration of kinship, had reasons to help, indeed lent his sister Lea money to support her children. Mention may also be made that, contextually, the resulting juridical relationship between the petitioner and Noel Daban is a quasicontract, an equitable principle enjoining one from unjustly enriching himself at the expense of another (Lacson vs. Lacson, G.R. No. 150644 August 28, 2006). Support Pendente Lite (Art. 198 in relation to Rule 61 of the Rules of Court) During the proceedings for legal separation or for annulment of marriage, and for declaration of nullity of marriage, the spouses and their children shall be supported from the properties of the absolute community or the conjugal partnership. Mutual support between the spouses ceases after final judgment. In case of legal separation, the court may order the guilty spouse to support the innocent spouse. In determining the amount to be awarded as support pendent lite, it is not necessary to go fully into the merits of the case, it being sufficient that the court ascertain the kind and amount of evidence it may deem sufficient to enable it to justly resolve the application, one way or the other, in view of the merely provisional character of the resolution to be entered. Mere affidavits may satisfy the court to pass upon the application for support pendente lite. It is enough that the facts be established by affidavits or other documentary evidence appearing in the record (Reyes vs. Ines-Luciano, G.R. No. L-48219 February 28, 1979). Amount of support It shall be in proportion to the resources or means of the giver and to the necessities of the recipient (Art. 201, See Lam vs. Chua, G.R. No.131286. March 18, 2004). It shall be increased or reduced proportionately, according to the increase or reduction of necessities of the recipient and the resources or means of the person obliged (Art. 202). Support is rooted on the fact that the right and duty to support, especially the right to education, subsists even beyond the age of majority (Estate of Hilario M. Ruiz vs. CA, G.R. No. 118671, January 29, 1996). Demand for support (Art. 203) The obligation to give support shall be demandable from





CIVIL LAW

the time the person who has a right to receive the same needs it for maintenance, but it shall not be paid except from the date of judicial or extrajudicial demand. Support must be demanded and the right to it established before it becomes payable. For the right to support does not arise from the mere fact of relationship, even from relationship of parents and children, but from ‘imperative necessity’ without which it cannot be demanded, and the law presumes that such necessity does not exist unless support is demanded. (Sy vs. CA, G.R. No. 124518, Dec. 17, 2007) Payment of the amount for support starts only from the time support has been judicially or extra-judicially demanded for the right to support does not arise from the mere fact of relationship but from imperative necessity without which it cannot be demanded, and the law presumes that such necessity does not exist, unless support is demanded (Jocson vs. Empire Insurance Co., G.R. No. L-10792, April 30, 1958). Performance of obligation to support (Art. 204) 1. Paying the allowance fixed; or 2. Receiving and maintaining in the family dwelling the person who has a right to receive support provided that there is no moral or legal obstacle to do so. Note: The law provides that the husband, who is obliged to support the wife, may fulfill the obligation either by paying her a fixed pension or by maintaining her in his own home at his option. However, this option given by law is not absolute. The law will not permit the husband to evade or terminate his obligation to support his wife if the wife is driven away from the conjugal home because of his wrongful acts. In the case at bar, the wife was forced to leave the conjugal abode because of the lewd designs and physical assault of the husband, she can therefore claim support from the husband for separate maintenance even outside the conjugal home (Goitia vs. CamposRueda G.R. No. G.R. No. 11263, November 2, 1916). As to how the obligation to support can be performed, Art. 204 provides that the person obliged to give support shall have the option to fulfill the obligation either by paying the allowance fixed, or by receiving and maintaining in the family dwelling the person who has the right to receive support. The latter alternative cannot be availed of in case there is a moral or legal obstacle thereto, such as the strained relationship between the parties (Ma. Belen B. Mangonon vs. CA, G.R. No. 125041, June 30, 2006). Exemption of support from attachment or execution The right to receive support as well as money or property

PERSONS & FAMILY RELATIONS obtained as such support shall not be levied upon on attachment or execution (Art. 205). But in case of contractual support or that given by will, the excess in amount beyond that required for legal support shall be subject to levy on attachment or execution (Art. 208). Only salary "due" the judgment debtor is subject to attachment and execution, and then only if it is not made to appear by the affidavit of the debtor or otherwise that such earnings are necessary for the support of his family. Under the Revised Rules, so much of the earnings of the debtor for his personal services within the month preceding the levy as are necessary for the support of his family (Sec. 12, Rule 39) is exempt from execution (Avendaño vs. Alikapala, G.R. No. L-21189 November 28, 1964).

P A R E N T A L A U T H O R IT Y (PA) Parental authority is the sum total of the right of the parents over the persons and property of their unemancipated children. It is pursuant to the natural right and duty of parents over the same and it includes caring for and rearing of such children for civic consciousness and efficiency and the development of their moral and physical character and well-being (Art. 209). Parental Preference Rule The natural parents, who are of good moral character and who can reasonably provide for the child, are ordinarily entitled to custody as against all other persons (Sta. Maria, M., Persons and Family Relations, 2010, p. 789). Parental authority and responsibility are inalienable and may not be transferred or renounced except in cases authorized by law. The right attached to parental authority, being purely personal, the law allows a waiver of parental authority only in cases of adoption, guardianship and surrender to a children’s home or an orphan institution. When a parent entrusts the custody of a minor to another, such as a friend or godfather, even in a document, what is given is merely temporary custody and it does not constitute a renunciation of parental authority. Even if a definite renunciation is manifest, the law still disallows the same. The father and mother, being the natural guardians of unemancipated children, are duty-bound and entitled to keep them in their custody and company (Sagala-Eslao vs. CA, G.R. No. 116773, January 16, 1997). The right of custody accorded to parents springs from the exercise of parental authority. (Santos vs. CA, G.R. No. 113054 March 16, 1995)

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Rules on the exercise of parental authority Joint parental authority by the father and mother over the persons of their common children, whether legitimate or illegitimate. In case of disagreement, the father’s decision shall prevail unless there is a judicial order to the contrary (Art. 211) Under Art. 176, parental authority of illegitimate children is generally with the mother. To harmonize Art. 176 with Art. 211, joint parental authority may be exercised over illegitimate children if: 1. The father is certain, and 2. The illegitimate children are living with the said father and mother who are cohabiting without the benefit of marriage or under a void marriage not falling under Arts. 36 and 53.( Sta. Maria, M., Persons and Family Relations, 2010, p. 781) Note: The recognition by the father could be a ground for ordering him to give support, but not custody of the child. Only if the mother defaults can the father assume such custody or authority. Only the most compelling of reasons, such as the mother’s unfitness to exercise sole parental authority shall justify deprivation of her parental authority and the award of custody to someone else (Briones vs. Miguel, G.R. No. 156343 October 18, 2004). Duties of Children towards their Parents 1. To observe respect and reverence toward their parents; 2. To obey their parents as long as they are under their parental authority. Rule of filial privilege No descendant shall be compelled, in a criminal case, to testify against his parents and grandparents, except when such testimony is indispensable in a crime against the descendant or by one parent against the other (Art. 215, FC in relation to Sec. 25, Rule 130 of the Rules on Evidence) In Emma Lee vs. CA (G.R. No. 177861, July 13, 2010), the person (Tiu) who invoked the filial privilege, claims that she is the stepmother of petitioner Lee. The Supreme Court declared that the privilege cannot apply because the rule applies only to “direct” ascendants and descendants, a family tie connected by a common ancestry. A stepdaughter does not have a common ancestry by her stepmother. Relative thereto, Art. 965 of the NCC provides that the direct line is either descending or ascending. The former unites the head of the family with those who descend from him. The latter binds a person with those from whom he descends. Consequently, Tiu can be compelled to testify against petitioner Emma Lee.

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CIVIL LAW This rule is not strictly a rule on disqualification because a descendant is not incompetent or disqualified to testify against an ascendant. The rule refers to a privilege not to testify, which can be invoked or waived like other privileges. As correctly observed by the lower court, Elven was not compelled to testify against his father; he chose to waive that filial privilege when he voluntarily testified against Artemio. Elven declared that he was testifying as a witness against his father of his own accord and only "to tell the truth” (People vs. Invencion, G.R. No. 131636 March 5, 2003). In line with the filial privilege under Art. 215 of the Family Code is the marital privilege provided for under Sec. 24 (a) of Rule 130 of the Rules of Court which states that: The husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants. Rules in case parental authority cannot be exercised jointly (Art. 212 to 214) Cause of absence of Effect on parental parent authority Absence or death of one PA continued by the parent parent present or surviving parent In case of remarriage of PA continued to be the surviving parent exercised by surviving parent unless court appoints another person a guardian

Legal separation parents

of

Note: The new spouse, by virtue of his or her marrying the surviving parent, does not automatically possess parental authority over the children of the surviving parent unless such new spouse adopts the children. (Sta. Maria, M., Persons and Family Relations, 2010, p. 784) PA shall be exercised by the parent designated by the court





CIVIL LAW Exception: If child is under seven years old, the mother shall have custody over said child.

Death, absence or unsuitability of both parents

Exception to the exception: Unless the court finds compelling reasons to order otherwise. Substitute parental authority shall be exercised by the surviving grandparent. In case several survive, the court shall consider the best interests of the child in the designation.

Doctrines regarding the maternal preference granted by Art. 213 par. 2 as decided in Dacasin vs. Dacasin (G.R. No. 168785 February 5, 2010) Maternal preference cannot be subject to an agreement between the separated spouses: Indeed, the separated parents cannot contract away the provision in the Family Code on the maternal custody of children below seven years anymore than they can privately agree that a mother who is unemployed, immoral, habitually drunk, drug addict, insane or afflicted with a communicable disease will have sole custody of a child under seven as these are reasons deemed compelling to preclude the application of the exclusive maternal custody regime under the second paragraph of Article 213. As to the bias favoring the mother over the father in case of separation: At any rate, the rule’s seeming harshness or undesirability is tempered by ancillary agreements the separated parents may wish to enter such as granting the father visitation and other privileges. These arrangements are not inconsistent with the regime of sole maternal custody under the second paragraph of Article 213 which merely grants to the mother final authority on the care and custody of the minor under seven years of age, in case of disagreements. As to the limited period of application of preference: Further, the imposed custodial regime under the second paragraph of Article 213 is limited in duration, lasting only until the child’s seventh year. From the eighth year until the child’s emancipation, the law gives the separated

PERSONS & FAMILY RELATIONS parents freedom, subject to the usual contractual limitations, to agree on custody regimes they see fit to adopt. Writ of habeas corpus in child custody cases Habeas corpus may be resorted in cases where rightful custody is withheld from a person entitled thereto (Salientes vs. Abanilla G.R. No. 162734 August 29, 2006). The controversy does not involve the question of personal freedom, because an infant is presumed to be in the custody of someone until he attains majority age. In passing on the writ in a child custody case, the court deals with a matter of an equitable nature. Not bound by any mere legal right of parent or guardian, the court gives his or her claim to the custody of the child due weight as a claim founded on human nature and considered generally equitable and just. Therefore, these cases are decided, not on the legal right of the petitioner to be relived from unlawful imprisonment or detention, as in the .case of adults, but on the court’s view of the best interests of those whose welfare requires that they be in custody of one person or another. Hence, the court is not bound to deliver a child into the custody of any claimant or of any persons, but should, in the consideration of the facts, leave it in such custody as its welfare at the time appears to require. In short, the child’s welfare is the supreme consideration (Sombong vs. CA, G.R. No. 111876. January 31, 1996). Maternal Preference/ Tender Years Rule General Rule: No child under 7 years of age shall be separated from the mother. Exception: When the court finds compelling reason to order otherwise. The welfare and well-being of the child is the paramount consideration in awarding custody. SUBSTITUTE PARENTAL AUTHORITY (Art. 216) Persons who will exercise parental authority in the default of parents or a judicially appointed guardian, in the order indicated: 1. Surviving grandparent 2. Oldest brother or sister over 21 years of age unless unfit or disqualified 3. Actual custodian over 21 years of age unless unfit or disqualified The same order of preference shall be observed when appointment of guardian over property of child becomes necessary. Private respondents' (grandparents) demonstrated love and affection for the boy, notwithstanding, the legitimate

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father is still preferred over the grandparents. The latter's wealth is not a deciding factor, particularly because there is no proof that at the present time, petitioner is in no position to support the boy. The fact that he was unable to provide financial support for his minor son from birth up to over three years when he took the boy from his in-laws without permission, should not be sufficient reason to strip him of his permanent right to the child's custody. While petitioner's previous inattention is inexcusable and merits only the severest criticism, it cannot be construed as abandonment. His appeal of the unfavorable decision against him and his efforts to keep his only child in his custody may be regarded as serious efforts to rectify his past misdeeds. To award him custody would help enhance the bond between parent and son. It would also give the father a chance to prove his love for his son and for the son to experience the warmth and support which a father can give (Santos vs. CA, G.R. No. 113054 March 16, 1995). Note: The person exercising substitute parental authority shall have the same authority over the person of the child as the parents (Art. 233). Rule in case of foundlings, abandoned, neglected or abused children and other children similarly situated: (Art. 217) Foundling Newborn child abandoned by its parents who are unknown (Bouvier’s Law Dictionary, 3rd Revision, p. 1293) Abandoned child One who has no proper parental care or guardianship, or those whose parents or guardians have deserted him for a period of at least six continous months [Art. 141 (2), PD 603] Neglected child One whose basic needs have been deliberately unattended or inadequately attended and may be done through physical or emotional neglect [Art. 141 (3), PD 603] Abused child Can come within the emotionally-neglected child (Sta. Maria, M., Persons and Family Relations, 2010, p. 804) Parental authority shall be entrusted in summary judicial proceeding to: 1. Heads of children’s homes, 2. Orphanages, or 3. Similar institutions duly accredited by the proper government agency (Art. 217)

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CIVIL LAW SPECIAL PARENTAL AUTHORITY (Art. 218 and 219) Can only be exercised over minors while under their supervision, instruction or custody. The authority and supervision also attach to all authorized activities whether inside or outside the school, entity or institution. The following shall be held principally and solidarily liable for damages caused by the acts or omissions of the unemancipated minor: 1. School No distinction between academic or non-academic (arts and trades) Note: In Amadora vs. CA (G.R. No. L-47745 April 15, 1988), the Court has come to the conclusion that the Art. 218 and 219 should apply to all schools, academic as well as non-academic. Where the school is academic rather than technical or vocational in nature, responsibility for the tort committed by the student will attach to the teacher in charge of such student, following the first part of the provision. This is the general rule. In the case of establishments of arts and trades, it is the head thereof, and only he, who shall be held liable as an exception to the general rule. In other words, teachers in general shall be liable for the acts of their students except where the school is technical in nature, in which case it is the head thereof who shall be answerable. Following the canon of reddendo singula singulis "teachers" should apply to the words "pupils and students" and "heads of establishments of arts and trades" to the word "apprentices." 2. Administrators and teachers 3. Individual, entity or institution engaged in child care As held in the case of Palisoc vs. Brillantes (G.R. No. L29025 October 4, 1971), the phrase "so long as (the students) remain in their custody" means the protective and supervisory custody that the school and its heads and teachers exercise over the pupils and students for as long as they are at attendance in the school, including recess time. There is nothing in the law that requires that for such liability to attach, the pupil or student who commits the tortious act must live and board in the school. In the view of the Court, the student is in the custody of the school authorities as long as he is under the control and influence of the school and within its premises, whether the semester has not yet begun or has already ended. Note: In no case shall the persons exercising special parental authority inflict corporal punishment upon the child (Art. 233).





CIVIL LAW

SPECIAL PARENTAL AUTHORITY AND SUBSTITUTE PARENTAL AUTHORITY DISTINGUISHED Special PA Substitute PA Rests on the theory that Exercised in case of while the child is in the death, absence, or care and custody of the unsuitability of parents person/s exercising special parental authority, the parents temporarily relinquish parental authority Concurrent with parental NOT exercised authority concurrently with the exercise of parents Liability is principal and Liability is only solidary with the minor subsidiary, that is, only if under their custody the persons with special parental authority cannot satisfy their liability. Defense of exercise the No such defense is proper diligence available in case of acts required under the or omissions committed particular circumstances while the child is in the may extinguish liability custody of the person exercising special parental authority. In acts and omissions committed outside the custody of the school, entity or institution, for the primary liability of the parents to attach under Art. 221, the unemancipated child must be living in their company AND under their parental authority. The principle of parental liability (under Art. 221) is a species of vicarious liability, or the doctrine of imputed negligence where a person is not only liable for torts committed by himself, but also for torts committed by others with whom he has a certain relationship and for whom he is responsible. Parental liability is, in other words, anchored upon the parental authority coupled with the presumed parental dereliction in the discharge of the duties accompanying such authority (Tamargo vs. CA, G.R. No. G.R. No. 85044 June 3, 1992).

PERSONS & FAMILY RELATIONS Liability Vicarious Liability or Imputed Negligence: Parents and other persons exercising PA shall be civilly liable for injuries and damages caused by acts or omissions of their unemancipated children living in their company and under their PA subject to appropriate defenses provided by law. (Art. 221) Persons Exercising Special PA shall be principally and solidarily liable for damages caused by acts or omissions of the unemancipated minor. The parents, judicial guardians or Persons Exercising Substitute PA shall be subsidiarily liable. Note: Liability will not attach if it is proved they exercised the proper diligence required under the particular circumstances (Art. 219) EFFECTS OF PARENTAL AUTHORITY I. Upon the Person of the Children Rights and duties of parents and those exercising parental authority (Art. 220) 1. To keep them in their company, to support, educate and instruct them by right precept and good example, and to provide for their upbringing in keeping with their means; 2. To give them love and affection, advice and counsel, companionship and understanding; 3. To provide them with moral and spiritual guidance, inculcate in them honesty, integrity, self-discipline, selfreliance, industry and thrift, stimulate their interest in civic affairs, and inspire in them compliance with the duties of citizenship; 4. To furnish them with good and wholesome educational materials, supervise their activities, recreation and association with others, protect them from bad company, and prevent them from acquiring habits detrimental to their health, studies and morals; 5. To represent them in all matters affecting their interests; 6. To demand from them respect and obedience; 7. To impose discipline on them as may be required under the circumstances; and 8. To perform such other duties as are imposed by law upon parents and guardians. Procedure for imposing discipline on the child (Art. 223) 1. Parent or person exercising parental authority, may petition the proper court of the place where the child

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resides, for an order providing for disciplinary measures over the child. a. Relief prayed for may include commitment in an institution in child care duly accredited by the proper government authority for not more than 30 days. b. If petition is granted, parent shall not interfere with the implementation of the decision but shall continue to provide for his support.

2. There will be a summary hearing and the child shall be entitled to the assistance of counsel, either of his choice or appointed by the court. 3. If in the same proceeding the court finds the petitioner at fault, irrespective of the merits of the petition, or when the circumstances so warrant, the court may also order the deprivation or suspension of parental authority or adopt such other measures as it may deem just and proper. 4. The court may terminate the commitment of the child whenever just and proper (Art. 224) II. Upon the Property of the Children (Art. 225 and 226) The father and the mother shall jointly exercise legal guardianship over the property of the unemancipated common child without the necessity of a court appointment. In case of disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary. Note: Two cases where a parent cannot be the administrator of the property of his children under the provisions on succession, Art. 923 and Art. 1035 of the Civil Code. Exception: Parents are required to file a bond where the market value of the property or the annual income of the child exceeds P50,000. The bond shall not be less than ten per centum (10%) of the value of the property or annual income, to guarantee the performance of the obligations prescribed for general guardians. Fruits and profits of industry of child: a. Owned by the child; b. Shall be devoted exclusively to the child’s support and education unless the title or transfer provides otherwise. c. Parent may only use such fruits and income shall be limited primarily to the child's support and secondarily to the collective daily needs of the family. Administration of parents’ property by unemancipated child (Art. 227) 1. The net proceeds of such property shall belong to the

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CIVIL LAW parents-owner. 2. The child shall be given a reasonable monthly allowance in an amount not less than that which the owner would have paid if the administrator were a stranger, unless the owner, grants the entire proceeds to the child. 3. The proceeds given in whole or in part shall not be charged to the child's legitime. Kinds of Properties of a Minor Adventitious (Art. 226) Profectitious (Art. 227) Earned or acquired by the Property given by the child through his work or parents to the child for the industry by onerous or latter to administer gratuitous title Owned by the child

Owned by the parents

Child is also the usufructuary, but the child’s use of the property shall be Parents are the usufructuary secondary to the collective daily needs of the family Property administered by Property administered by the parents the child Note: The courts may appoint a guardian of the child’s property, or a guardian ad litem when the best interests of the child so require. (Art. 222) SUSPENSION AND TERMINATION OF PARENTAL AUTHORITY (Art. 228 and 229) Grounds for suspension: (CHOBAN) 1. Conviction of a crime with the penalty of civil interdiction 2. Harsh or cruel treatment against the child 3. Orders, counsel and example which are corrupting, given by the person exercising authority 4. Child is compelled to beg 5. Subjecting child or allowing child to be subjected to acts of lasciviousness, 6. Negligence, which is culpable, committed by the person exercising authority (Art. 231) Note: The suspension or deprivation may be revoked and parental authority revived if the court finds that the cause has ceased and will not be repeated. (Art. 231 par. 4) In case of civil interdiction, the authority is automatically reinstated upon service of penalty or pardon or amnesty of the offender. There is no need of a court order. (Art. 230)



PERSONS & FAMILY RELATIONS

CIVIL LAW





Grounds for termination of parental authority Permanent (Art. 228 and Temporary (Art. 229) 232)

life, save the exceptions established by existing laws in special cases (Art 236 as amended by RA 6809).

Death of the parents

Adoption of the child

Death of the child

Appointment of a general guardian

Emancipation of the child

Judicial declaration abandonment

of

If the person exercising parental authority has Final judgment divesting the subjected the child or parents of parental authority allowed him to be subjected to sexual abuse Judicial declaration of absence or incapacity of the parents exercising parental authority over the child. Notes: Sec. 10 (b) of the RA 7610 punishes any person who shall keep or have in his company a minor: a. Who is 12 years old or younger in any public or private place, hotel, motel, beer joint, discotheque, cabaret, pension house, sauna or massage parlor, beach and/or other tourist resort or similar places; or b. Who is 10 or more years his junior, in the places enumerated in (a). The same provision expressly provides that it does not apply to any person who is related to the minor within the fourth degree of consanguinity or affinity or any bond recognized by law, local custom and tradition or acts in the performance of a social, moral or legal duty. However, Sec. 10 (c) of RA 7610 provides as penalty, among others, the loss of parental authority to any ascendant, stepparent or guardian of a minor, who shall induce, deliver or offer a minor under his custody to persons described and enumerated in Sec. 10 (b).

E M A N C IP A T IO N Emancipation takes place by the attainment of the age of majority. Unless otherwise provided, majority commences at the age of eighteen years. (Art 234 as amended by RA 6809) Effect of Emancipation Emancipation for any cause shall terminate parental authority over the person and property of the child who shall then be qualified and responsible for all acts of civil

Upon the effectivity of this Act (December 13, 1989), existing wills, bequests, donations, grants, insurance policies and similar instruments containing references and provisions favorable to minors will not retroact to their prejudice (Sec, 4, RA 6809).

S U M M A R Y J U D IC IA L P R O C E E D IN G S IN T H E F A M IL Y LAW Actions requiring summary judicial proceedings under the Family Code: 1. To obtain a judicial declaration of presumptive death for the purpose of contracting a subsequent marriage (Art. 41) 2. In case of legally separated spouses, when the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding (Art. 100 [2]) 3. In case of legally separated spouses, when the community property is not sufficient for the support of the family each spouse is liable with his/her separate property. The spouse present shall petition the court for the administration of the specific separate property of the other spouse and the use the fruits or proceeds to satisfy the latter’s share (Art. 100 [3]). 4. To confer parental authority over foundlings, abandoned, neglected, and abused children to heads of children’s homes and orphanages (Art. 217) 5. To provide for disciplinary measures over the child at the motion of the parents or any person exercising over parental authority (Art. 223) 6. For the filing of a bond to enable the parents of a minor to exercise of legal guardianship latter’s properties, when the value of said properties exceed Php 50,000 (Art. 225) 7. Determination of the value of the presumptive legitimes in cases of partition of the conjugal dwelling (Art. 51) 8. In case of disagreement in fixing the family domicile (Art. 69) 9. In case of objection to a spouse’s exercise of legitimate profession (Art. 73) 10. In case of disagreement in the administration and enjoyment of the community property/conjugal partnership (Art. 96, 124) Procedure: (Art. 239-248) F-NOPED-J 1. Upon filing of verified petition in the family court where the spouses reside (or in the RTC, if there is no family

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CIVIL LAW



court), jurisdiction of said court over the petition shall attach upon proof of notice to the other spouse. 2. Notice to the non-petitioning spouse shall include a show cause order why the petition should not be granted 3. The non-petitioning spouse is given the opportunity to answer on or before the date set for the initial conference as indicated in the notice. 4. The preliminary conference shall be conducted by the judge personally, and the spouses shall not be accompanied by counsel. After the initial conference, the spouses may be assisted by counsel at the court’s discretion. 5. The court may proceed ex parte and render judgment if despite all efforts, the non-petitioning spouse does not appear. 6. If both spouses are present during the initial conference and the petition is not resolved then, the petition shall be decided in a summary hearing on the basis of affidavits submitted. 7. The judgment of the court shall be immediately final and executory.

F IN A L P R O V IS IO N S Retroactive Effect The Family Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws (Art 256).

FUNERALS General Guidelines: 1. Duty and right to make arrangement for funerals is in accordance with right and duty to support under Article 199, FC. In case of descendants of the same degree, or brothers and sisters, the eldest shall be preferred (Art. 305 NCC). 2. The funeral shall be in keeping with the social position of the deceased (Art. 306 NCC) 3. The funeral shall be in accordance with the expressed wishes of the deceased a. In the absence of the expressed wishes, his religious beliefs or affiliation shall determine funeral rites b. In case of doubt, the persons in Art. 199, FC shall decide, after consulting other members of the family (Art. 307 NCC) 4. No human remains shall be retained, interred, disposed of or exhumed without the consent of the persons in Art. 199, FC (Art. 308 NCC) 5. Any person who disrespects the dead or allows the same or wrongfully interferes with a funeral shall be liable for damages (Art. 309 NCC)

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6. If the deceased is married, the tombstone or mausoleum is deemed a part of the funeral expense and chargeable against ACP or CPG (Art. 310 NCC)

USE

OF

SURNAMES

Child Legitimate Legitimated Conceived before the decree annulling a voidable marriage

Illegitimate

Adopted

Surname Surname of father Surname of father Surname of father Generally, surname of mother. May use surname of father if filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father. Surname of adopter

Rules on the surname of a married woman (Art. 307) 1. A married woman may use: a. Her maiden first name and surname and add her husband's surname (ex: Maria Aquino-dela Cruz) or b. Her maiden first name and her husband's surname (ex: Maria dela Cruz) or c. Her husband's full name, but prefixing a word indicating that she is his wife, such as "Mrs.” (ex: Mrs. Juan dela Cruz) 2. In case of annulment of marriage (Art. 371): a. If the wife is the guilty party, she shall resume her maiden name and surname. b. If she is the innocent spouse, she may resume her maiden name and surname. However, she may choose to continue employing her former husband's surname, unless: i. The court decrees otherwise, or ii. She or the former husband is married again to another person. 3. When legal separation has been granted, the wife shall continue using her name and surname employed before the legal separation. (Art. 372) Note: The language of the statute is mandatory that the wife, even after the legal separation has been decreed, shall continue using her name and surname employed





CIVIL LAW

before the legal separation. This is so because her married status is unaffected by the separation, there being no severance of the vinculum. It seems to be the policy of the law that the wife should continue to use the name indicative of her unchanged status for the benefit of all concerned ( Laperal vs. Republic, G.R. No. L18008 October 30, 1962).

4. A widow may use the deceased husband's surname as though he were still living, in accordance with Article 370. (Art. 373) Identity of names and surnames 1. The younger person shall be obliged to use such additional name or surname as will avoid confusion (Art. 374) 2. Between ascendants and descendants, the word "Junior" can be used only by a son. Grandsons and other direct male descendants shall either: a. Add a middle name or the mother's surname, or b. Add the Roman Numerals II, III, and so on (Art 375) Article 375 restricts the use of “Junior” but social usage allows the use of “Junior” also for daughters. General Rule: No person shall use different names and surnames (Art. 380). Exception: Use of pen names or stage names is permitted, PROVIDED it is done in good faith and there is no injury to third persons (Art 379) Usurpation of a name and surname may be the subject of an action for damages and other relief. (Art. 377) Elements: a. There is an actual use of another’s name by the defendant b. The use is unauthorized; c. The use of another’s name is to designate personality or identify a person (Tolentino vs. Ca, G.R. no. L-41427 june 10, 1988). The unauthorized or unlawful use of another person's surname gives a right of action to the latter. (Art. 378) Change of name is a judicial proceeding in rem. Jurisdiction to hear and determine a petition therefor, by law, is acquired after publication of the "order reciting the purpose of the petition" and the "date and place for the hearing thereof"---for three (3) successive weeks in a newspaper of general circulation. But, for that publication to be effective, it must give a correct information. We therefore rule that for purposes of an application for

PERSONS & FAMILY RELATIONS change of name under Article 376 of the Civil Code, the only name that may be changed is the true or official name recorded in the civil register. In addition, we accordingly hold that for a publication of a petition for a change of name to be valid, the title thereof should include, first, his real name, and second, his aliases, if any (Ng Yao vs. Republic, G.R. No. L-20306 March 31, 1966).

ABSENCE The legal status of a person who has absented himself from his domicile and whose whereabouts and fate are unknown, it not being known with certainty whether he is still living or not (Jurado, Civil Law Reviewer, 19th Ed. (1999), p. 260). Different stages of absence [Paras, 15th ed. (2002), p. 857]: (PDP) 1. Provisional absence (Art. 381)- When a person disappears from his domicile, his whereabouts being unknown, without leaving an agent to administer his property. a. There is no declaration of absence yet but legal representative may be appointed only when urgent representation is necessary and applies only if no agent has been appointed to represent the absentee or agent’s authority has expired. b. The spouse is preferred as the legal representative except when they are legally separated. c. If absentee left no spouse, any competent person any be appointed. 2. Declared absence (Art. 384)

a. Without administrator - When a person disappears from his domicile, and 2 years have elapsed without any news about him, or since the receipt of the last news. b. With administrator – 5 years have elapsed The following may ask for the declaration of absence: i. Spouse present ii. Testate or Intestate heirs iii. Other persons subordinated to rights by death. The judicial declaration of absence shall not take effect until six months after its publication in a newspaper of general circulation (Art. 386) An administrator of the absentee’s property shall be appointed.

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When the wife is appointed as an administratrix, she cannot alienate or encumber the husband’s property or that of the conjugal property without judicial authority. The administration shall cease when: i. Absentee reappears personally or through an agent ii. Death is proven iii. Third person appears and shows proof that he acquired absentee’s property when absentee was still alive.

3. Presumptive death- When the absentee is presumed

dead. (Art. 390, 391) PRESUMPTION OF DEATH (Arts. 390 to 392, NCC) Absence under ordinary circumstances (Art. 390) Presumed dead for all purposes 7 years

Exception: For purposes of opening succession Presumed dead for purposes of opening succession

10 years

4 years

Exception: If at the time of disappearance person was already 75 years old, 5 years of absence is sufficient for this presumption to apply. Presumed dead for purposes of remarriage of the spouse present

Absence under extraordinary circumstances/ Qualified absence (Art. 391) 4 years

Presumed dead for all purposes including opening of succession

2 years

Presumed dead for purposes of remarriage

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CIVIL LAW Extraordinary circumstances under Art. 391: (LAO) 1. Person on board a vessel or airplane lost during sea voyage or missing, counted from the loss of the vessel or airplane 2. Person in armed forces who took part in war 3. Person in danger of death under other circumstances and his existence has not been known Note: A well-founded belief that the absentee is already dead is required before an absent spouse may be declared presumably dead. The requisites are: (4-RBF) a. Absent spouse has been missing for 4 years or 2 consecutive years if the disappearance is under Art. 391 of the Civil Code; b. Present spouse wishes to remarry; c. Present spouse has a well- founded belief that the absent spouse is dead; d. Present spouse files a summary proceeding for the declaration of presumptive death of the absent spouse (Republic v. Nolasco, G.R. NO. 14053, March 13, 1993). The legal requirement on the need for judicial declaration of presumptive death does not apply to a marriage celebrated under the (Old) Civil Code as the law itself presumed as dead the spouse who disappeared for a period of seven (7) years where the present spouse has no news of the absentee being alive, or for less than seven (7) years where the absentee was generally presumed dead (Valdez vs. Republic, G.R. No. 180863, September 8, 2009). Hence, proof of “well- founded” belief is not required.

C IV IL R E G IS T E R Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register (Art. 407). This includes: 1. Births; 2. Marriages; 3. Deaths; 4. Legal separations; 5. Annulments of marriage; 6. Judgments declaring marriages void from the beginning; 7. Legitimations; 8. Adoptions; 9. Acknowledgments of natural children; 10. Naturalization; 11. Loss; or 12. Recovery of citizenship; 13. Civil interdiction; 14. Judicial determination of filiation; 15. Voluntary emancipation of a minor; and





CIVIL LAW

16. Changes of name. (Art. 408) Duty of the Clerk of Court To ascertain whether the decree has been registered, and if this has not been done, to send a copy of said decree to the civil registry of the city or municipality where the court is functioning (Art. 409). Books of the Civil Register and related documents 1. Considered public documents 2. Prima facie evidence of the facts therein contained. (Art. 410) Unlawful alteration (Art. 411) General Rule: Every civil registrar shall be civilly responsible for any unauthorized alteration made in any civil register, to any person suffering damage thereby. Exception: If the civil register proves that he has taken every reasonable precaution to prevent the unlawful alteration. Change of first name or nickname Under R.A. 9048 (An Act Authorizing City or Municipal Civil Registrar or the Consul General to Correct a Clerical or Typographical Error in an Entry and/or Change of First Name or Nickname in the Civil Registrar without Need of a Judicial Order, Amending For This Purpose Arts. 376 And 412 Of The Civil Code) Authority to correct clerical or typographical error and change of first name or nickname: (Sec. 1) General Rule: No entry in a civil register shall be changed or corrected without a judicial order. Exceptions: Administrative proceeding for change of first name or nickname and clerical or typographical errors. Clerical or typographical error It refers to a mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as misspelled name or misspelled place of birth or the like, which is visible to the eyes or obvious to the understanding, and can be corrected or changed only by reference to other existing record or records [Sec. 2(3)]. Exceptions to the exception: (SANS) 1. Sex 2. Age 3. Nationality 4. Status

PERSONS & FAMILY RELATIONS Note: Correction or change can be made by the concerned city or municipal civil registrar or consul general in accordance with the provisions of this Act and its implementing rules and regulations. The State has an interest in the names borne by individuals and entities for purposes of identification. A change of name is a privilege, not a right. Petitioner must show proper or reasonable cause or any compelling reason which may justify such change (Silverio v. Republic, G.R. NO. 174689, October 22, 2007). Grounds for change of first name or nickname (Haw Liong vs. Republic G.R. No. L-21194 April 29, 1966): (HAR) 1. New first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that first name or nickname in the community; 2. The change will avoid confusion 3. First name or nickname is ridiculous, tainted with dishonor or extremely difficult to write or pronounce; Note: R.A. 9048 does NOT sanction a change of name on the ground of sex reassignment. To otherwise may create grave complications in the registry and public interest (Republic v. CA, GR 97906, May 21, 1992).

first rule civil NO.

Middle names serve to identify the maternal lineage or filiation of a person as well as further distinguish him from others who may have the same given name and surname as he has. The dropping of the middle name of a minor so that he will not be different from his classmates in Singapore and on the additional ground that it would cause confusion and difficulty in its pronunciation in Singapore does not constitute proper and reasonable cause to drop it from his registered complete name. As he is of tender age, he may not yet understand and appreciate the value of the change of his name and granting of the same at this point may just prejudice him in his rights under our laws (In Re: Petition for Change of Name and/or Correction/Cancellation of Entry in Civil Registry of Julian Lin Carulasan Wang vs. Cebu City Civil Registrar, G.R. No. 159966, March 30, 2005). Please refer to Remedial Law Memory Aid for a comprehensive discussion of the procedural aspects of change of name.

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Cancellation or correction of entries in the Civil Registry (Rule 108, Rules of Court) Any person interested in any act, event, order or decree concerning the civil status of persons which has been recorded in the civil register, may file a verified petition for the cancellation or correction of any entry relating thereto, with the Court of First Instance of the province where the corresponding civil registry is located. (Sec 1) All persons who have or claim any interest which would be affected thereby shall be made parties to the proceeding. (Sec. 3) Upon the filing of the petition, the court shall: 1. Fix the time and place for the hearing of the same 2. Cause reasonable notice thereof to be given to the persons named in the petition. 3. Cause the order to be published once a week for 3 consecutive weeks in a newspaper of general circulation in the province. (Sec. 4) Opposition may be filed by the civil registrar and any person having or claiming any interest under the entry whose cancellation or correction is sought within 15 days from notice of the petition, or from the last date of publication of such notice. (Sec. 5) Orders expediting the proceedings and preliminary injunction for the preservation of the rights of the parties pending such proceedings may be granted by the court. (Sec. 6) After hearing, the court may either dismiss the petition or issue an order granting the cancellation or correction prayed for. In either case, a certified copy of the judgment shall be served upon the civil registrar concerned who shall annotate the same in his record. (Sec. 7) Entries subject to cancellation or correction upon good and valid grounds (Sec.2) 1. Births 2. Marriages 3. Deaths 4. Legal separations 5. Judgments of annulments of marriage 6. Judgments declaring marriages void from the beginning 7. Legitimations 8. Adoptions 9. Acknowledgments of natural children 10.Naturalization 11.Election, loss or recovery of citizenship 12.Civil interdiction

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CIVIL LAW 13.Judicial determination of filiation 14.Voluntary emancipation of a minor 15.Changes of name