Civil Law Review of Atty. Steve Dicdican 5th to 12th Session

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

5th to 9th Session I.

Voidable Marriages Art. 35-46 I. Grounds for annulment Art. 35. The following marriages shall be void from the beginning: (1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians; (2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so; (3) Those solemnized without license, except those covered the preceding Chapter; (4) Those bigamous or polygamous marriages not failing under Article 41; (5) Those contracted through mistake of one contracting party as to the identity of the other; and (6) Those subsequent marriages that are void under Article 53. Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. (As amended by Executive Order 227) Art. 37. Marriages between the following are incestuous and void from the beginning, whether relationship between the parties be legitimate or illegitimate: (1) Between ascendants and descendants of any degree; and (2) Between brothers and sisters, whether of the full or half blood. (81a) Art. 38. The following marriages shall be void from the beginning for reasons of public policy: (1) Between collateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree; (2) Between step-parents and step-children; (3) Between parents-in-law and children-in-law;

(4) Between the adopted child;

adopting

parent

(5) Between the surviving spouse adopting parent and the adopted child;

and

the

of

the

(6) Between the surviving spouse of the adopted child and the adopter; (7) Between an adopted child and a legitimate child of the adopter; (8) Between adopted children of the same adopter; and (9) Between parties where one, with the intention to marry the other, killed that other person's spouse, or his or her own spouse. (82) Art. 39. The action or defense for the declaration of absolute nullity of a marriage shall not prescribe. (As amended by Executive Order 227 and Republic Act No. 8533; The phrase "However, in case of marriage celebrated before the effectivity of this Code and falling under Article 36, such action or defense shall prescribe in ten years after this Code shall taken effect" has been deleted by Republic Act No. 8533 [Approved February 23, 1998]). Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. (n) Art. 41. A marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient. For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. (83a) Art. 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there

1

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session is a judgment annulling the previous marriage or declaring it void ab initio. A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed. (n) Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects: (1) The children of the subsequent marriage conceived prior to its termination shall be considered legitimate; (2) The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or in default of children, the innocent spouse; (3) Donations by reason of marriage shall remain valid, except that if the donee contracted the marriage in bad faith, such donations made to said donee are revoked by operation of law; (4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and (5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession. (n) Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of marriage and testamentary dispositions made by one in favor of the other are revoked by operation of law. (n) Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage: (1) That the party in whose behalf it is sought to have the marriage annulled was eighteen years

of age or over but below twenty-one, and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife; (2) That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife; (3) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife; (4) That the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife; (5) That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or (6) That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable. (85a) Art. 46. Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Article: (1) Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude; (2) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband; (3) Concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage; or (4) Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of the marriage. No other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage. (86a)

Aquino V. Delizo 2

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

Facts: Complaint for annulment. Wife was pregnant of another man during the marriage. No birth certificate was presented to show that the child was born within 180 days after the marriage between the parties. TC dismissed the complaint on the ground that it does not constitute fraud. Motion for NEW TRIAL by plaintiff annexed affidavits and pictures of the defendants natural plumpness at that time which shows that the defendant does not show signs of pregnancy at 4 months. Held: The evidence sought to be introduced at the new trial taken together with what has already been adduced would be sufficient to sustain the fraud alleged by plantiff. The dismissal of plaintiff’s complaint was unsustainable. Under the NCC, concealment by the wife of the fact that at the time of the marriage she was pregnant with another man other than her husband constitutes fraud and isground for annulment of marriage. CA should not have denied the motion praying for new trial simplu because defendant failed to file her answer thereto. Anaya V. Palaroan Facts: Husband concealed to the wie that he had pre-marital relationship with a close relative. Issue: Did this constitute fraud and makes the marriage voidable? Held: No, Non-disclosure of a husband’s pre-marital relationship with another

woman is not one of the enumerated circumstances that would constitute a ground for annulment; and it is further excluded by the last paragraph of the article, providing that “no other misrepresentation or deceit as to… chastity” shall give ground for an action to annul a marriage. II.

Action for annulment Art. 47. The action for annulment of marriage must be filed by the following persons and within the periods indicated herein: (1) For causes mentioned in number 1 of Article 45 by the party whose parent or guardian did not give his or her consent, within five years after attaining the age of twenty-one, or by the parent or guardian or person having legal charge of the minor, at any time before such party has reached the age of twenty-one; (2) For causes mentioned in number 2 of Article 45, by the same spouse, who had no knowledge of the other's insanity; or by any relative or guardian or person having legal charge of the insane, at any time before the death of either party, or by the insane spouse during a lucid interval or after regaining sanity; (3) For causes mentioned in number 3 of Article 45, by the injured party, within five years after the discovery of the fraud; (4) For causes mentioned in number 4 of Article 45, by the injured party, within five years from the time the force, intimidation or undue influence disappeared or ceased; (5) For causes mentioned in number 5 and 6 of Article 45, by the injured party, within five years after the marriage. (87a)

Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed. In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or confession of judgment. (88a)

3

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

Tolentino V. Villanueva Facts: Petitioner refused to submit himself for interrogation by the city fiscal which was the reason for the dismissal of the case for annulment of marriage. Issue: WON it was proper? Held: YES, Art. 88 and Art. 101 expresses a prohibition of the aforesaid laws and rules is predicated on the fat that the institutions of marriage and of the family are sacred and therefore are as much the concern of the state as of the spouses; because the state and public have vital interest in the maintenance and the preservation of these social institutions against desecration by collusion between the parties or by fabricating evidence. It stresses the fact that the marriage is more than a mere contract between the parties.

presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings.

Jocson v. Robles The court found indications of collusion between the parties in their attempt to secure the nullification of the said marriage. The court correctly denied the motion for summary judgment based on the first paragraph of Art. 88 and 101 of the Civil code of the Philippines.

Art. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses and the delivery of the children's presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect third persons. (n)

III.

Effects of Annulment Art. 50. The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and by Article 44 shall also apply in the proper cases to marriages which are declared ab initio or annulled by final judgment under Articles 40 and 45. The final judgment in such cases shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of third

All creditors of the spouses as well as of the absolute community or the conjugal partnership shall be notified of the proceedings for liquidation. In the partition, the conjugal dwelling and the lot on which it is situated, shall be adjudicated in accordance with the provisions of Articles 102 and 129. Art. 51. In said partition, the value of the presumptive legitimes of all common children, computed as of the date of the final judgment of the trial court, shall be delivered in cash, property or sound securities, unless the parties, by mutual agreement judicially approved, had already provided for such matters. The children or their guardian or the trustee of their property may ask for the enforcement of the judgment. The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the ultimate successional rights of the children accruing upon the death of either of both of the parents; but the value of the properties already received under the decree of annulment or absolute nullity shall be considered as advances on their legitime. (n)

Art. 53. Either of the former spouses may marry again after compliance with the requirements of the immediately preceding Article; otherwise, the subsequent marriage shall be null and void.

III.Conflict of Law Rules Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6), 3637 and 38.

Van Dorn V. Romillo Whether or not the divorce obtained in Nevada is valid and binding in the Philippines? 4

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

Held: Owing to the nationality principle embodied in At. 15 of the Civil Code, only the Philippines nationals covered by the policy against absolute divorces the same being considered contrary to our public policy and morality. Exceptions are aliens who may obtain valid divorce. Pursuant to his national law, private respondent is no longer the husband of the petitioner. He would have no standing to sue in the case below as petitioner’s husband entitles to exercise control over conjugal assets. He is now stopped by his own representation before said court from asserting his right over the alleged conjugal property. PD 1083 (Muslim code) Art. 13. Application. — (1) The provisions of this Title shall apply to marriage and divorce wherein both parties are Muslims, or wherein only the male party is a Muslim and the marriage is solemnized in accordance with Muslim law or this Code in any part of the Philippines. (2) In case of marriage between a Muslim and a nonMuslim, solemnized not in accordance with Muslim law or this Code, the Civil Code of the Philippines shall apply. (3) Subject to the provisions of the preceding paragraphs, the essential requisites and legal impediments to marriage, divorce, paternity and filiation, guardianship and custody of minors, support and maintenance, claims for customary dower (mahr), betrothal, breach of contract to marry, solemnization and registration of marriage and divorce, rights and obligations between husband and wife parental authority, and the properly relations between husband and wife shall be governed by this Code and other applicable Muslim laws. Art. 29. By divorcee. — (1) No woman shall contract a subsequent marriage unless she has observed an 'idda of three monthly courses counted from the date of divorce. However, if she is pregnant at the time of the divorce, she may remarry only after delivery.

ACT NO. 3613 THE MARRIAGE LAW SEC. 1. Essential requisites. Essential requisites for marriage are the legal capacity of the contracting parties and consent. Sec. 19. Marriages performed abroad. - All marriages performed outside of the Philippine Islands in accordance with the laws in force in the country where they were performed and valid there as such, shall also be valid in these Islands. Section 25 of the Marriage Law (Act No. 3613) provides that marriages between Mohammedans may be performed in accordance with the rites or practice of their religion, but there is no provision of law which authorizes the granting of divorces in accordance with the rites or practices of their religion. "marriages between Mohammedans may be performed in accordance with the rites or practices of their religion" SEC. 27. Failure to comply with formal requirements. No marriage shall be declared invalid because of the absence of one or several of the formal requirements of this Act if, when it was performed, the spouses or one of them believed in good faith that the person who solemnized the marriage was actually empowered to do so, and that the marriage was perfectly legal. SEC. 29. Illegal Marriages. - Any marriage subsequently contracted by any person during the lifetime of the first spouse of such person with any person other than such first spouse shall be illegal and void from its performance, unless: (a) The first marriage was annulled or dissolved; (b) The first spouse had been absent for seven consecutive years at the time of the second marriage without the spouse present having news of the absentee being alive, or the absentee being generally considered as dead and believed to be so by the spouse present at the time of contracting such subsequent marriage, the marriage so contracted being valid in either case until declared null and void by a competent court. Approved, December 4, 1929.

II.Legal Separation Tenchavez v. Esano

ACT 3613 (Revised Marriage Law) 5

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

Held: Marriage was valid because lack of ecclesiastical authorization from the parish priest by Canon Law, is irrelevant to our civil law. Held: The marriage was valid and subsisting notwithstanding the decree of absolute divorce the wife obtained under the state of Nevada. But the wife’s cohabitation with Leo Moran, the man she subsequently marriage after the divorce declaration, is technically intercourse with a person not her husband and entitles petitioner a decree of legal separation under our own law on the basis of adultery. I. Grounds Art. 55. A petition for legal separation may be filed on any of the following grounds: (1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner; (2) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation; (3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement; (4) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned; (5) Drug addiction or habitual alcoholism of the respondent; (6) Lesbianism or homosexuality of the respondent; (7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad; (8) Sexual infidelity or perversion; (9) Attempt by the respondent against the life of the petitioner; or (10) Abandonment of petitioner by respondent without justifiable cause for more than one year.

For purposes of this Article, the term "child" shall include a child by nature or by adoption. (9a) Art. 56. The petition for legal separation shall be denied on any of the following grounds: (1) Where the aggrieved party has condoned the offense or act complained of; (2) Where the aggrieved party has consented to the commission of the offense or act complained of; (3) Where there is connivance between the parties in the commission of the offense or act constituting the ground for legal separation; (4) Where both parties have given ground for legal separation; (5) Where there is collusion between the parties to obtain decree of legal separation; or (6) Where the action is barred by prescription. (100a)

II.

Limitation of Action

Art. 57. An action for legal separation shall be filed within five years from the time of the occurrence of the cause.

People V. Sensano The husband showed that he consented to the adulterous relations existing between the accused and therefore is not authorized by law to institute the criminal proceeding. We cannot accept the argument that it was impossible for the husband to take any action against the accused during the whole 7 years. (The husband abandoned his wife and child and during such time she met another man and he took her and her child to live with him.) Bugayong V. Ginez The fact that the husband slept with his wife convinces us that there was reconciliation between them. A single voluntary by the innocent spouse after discovery of the offense is ordinarily sufficient to constitute condonation, especially as against the husband. 6

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

Matubis v. Praxedes The complaint for legal separation was filed outside the period provided under Art. 102 of the NCC. (one year) By the very admission of the plaintiff, she found out of the ground (concubinage) was in January 1955 and filed a complaint only on April 24, 1956. Contreras V. Macaraig Issue: When did knowledge of the ground occur as basis for the prescription period to start tolling? The time the wife heard via hearsay the infidelity or the time when the husband admitted to her that he was living with and would no longer leave his concubine? Held: The latter case. The first time, the wife was hurt but it was merely hearsay. The only time she was cognizant of the infidelity of her husband was in the early part of Dec. 1963 only when defendant informed the wife he could no longer leave Lily Ann and refused to return to the legitimate family. III.Hearing Art. 58. An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition. (103) Art. 59. No legal separation may be decreed unless the Court has taken steps toward the reconciliation of the spouses and is fully satisfied, despite such efforts, that reconciliation is highly improbable. (n) Art. 60. No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment.

Ramos V. Vamenta The 6 month period stated in Art. 103 of the Civil Code that bars the proceedings

for legal separation does not bar the ancillary writ for preliminary injunction. Araneta V. Concepcion Evidence can still be presented and trial be had on the question of support pendente lite and custody for children notwithstanding that 6 months have not yet elapsed since the filing of the case for legal separation. I.

Rights and obligations of the parties Art. 61. After the filing of the petition for legal separation, the spouses shall be entitled to live separately from each other. The court, in the absence of a written agreement between the spouses, shall designate either of them or a third person to administer the absolute community or conjugal partnership property. The administrator appointed by the court shall have the same powers and duties as those of a guardian under the Rules of Court. (104a) Art. 62. During the pendency of the action for legal separation, the provisions of Article 49 shall likewise apply to the support of the spouses and the custody and support of the common children.

Reyes V. Ines-Luciano It is true the adultery is defense against support penedente lite but must be established by competent evidence which the petitioner failed to present any evidence. The complaint for legal separation contains allegations showing that at least two occasion the defendant, petitioner, has made attempts to kill private respondent. II. Effect of Death of a spouse Lapuz V. Eufemio Sy-uy Legal separation is purely personal and it follows that the death of one party to the 7

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

action causes the death of the action relief-actio personalis moritur cum persona. Other rights that are personal: 1) Right to dissolution of the conjugal partnership of gains or of (ACP); 2) Loss of the right of the offending party spouse to share of the profits earned by the partnership or community; 3) Disqualification to inherit by intestacy from the innocent spouse 4) Revocation of testamentary provisions in favor of the offending spouse made by the innocent one. They are vested exclusively in the prsons of the spouses and such claims and disabilities are difficult to concelive as assignable and transmissible. Macadangdang V. CA The death of a spouse after a final decree of legal separation has no legal effect on the legal separation. Dicdican: Definition of Net Profits (Art. 102 par 4) second sentence. III.Decree of Legal Separation I. Effects Art. 63. The decree of legal separation shall have the following effects: (1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed; (2) The absolute community or the conjugal partnership shall be dissolved and liquidated but the offending spouse shall have no right to any share of the net profits earned by the absolute community or the conjugal partnership, which shall be forfeited in accordance with the provisions of Article 43(2);

(3) The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of Article 213 of this Code; and (4) The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. Moreover, provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked by operation of law. (106a) Art. 64. After the finality of the decree of legal separation, the innocent spouse may revoke the donations made by him or by her in favor of the offending spouse, as well as the designation of the latter as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable. The revocation of the donations shall be recorded in the registries of property in the places where the properties are located. Alienations, liens and encumbrances registered in good faith before the recording of the complaint for revocation in the registries of property shall be respected. The revocation of or change in the designation of the insurance beneficiary shall take effect upon written notification thereof to the insured. The action to revoke the donation under this Article must be brought within five years from the time the decree of legal separation become final. (107a)

II.

Reconciliation

Art. 65. If the spouses should reconcile, a corresponding joint manifestation under oath duly signed by them shall be filed with the court in the same proceeding for legal separation. (n) Art. 66. The reconciliation referred to in the preceding Articles shall have the following consequences: (1) The legal separation proceedings, if still pending, shall thereby be terminated at whatever stage; and (2) The final decree of legal separation shall be set aside, but the separation of property and any forfeiture of the share of the guilty spouse already effected shall subsist, unless the spouses agree to revive their former property regime. The court's order containing the foregoing shall be recorded in the proper civil registries. (108a) Art. 67. The agreement to revive the former property regime referred to in the preceding Article shall be executed under oath and shall specify: (1) The properties to be contributed anew to the restored regime; (2) Those to be retained as separated properties of each spouse; and

8

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session (3) The names of all their known creditors, their addresses and the amounts owing to each. The agreement of revival and the motion for its approval shall be filed with the court in the same proceeding for legal separation, with copies of both furnished to the creditors named therein. After due hearing, the court shall, in its order, take measure to protect the interest of creditors and such order shall be recorded in the proper registries of properties. The recording of the ordering in the registries of property shall not prejudice any creditor not listed or not notified, unless the debtor-spouse has sufficient separate properties to satisfy the creditor's claim.

III. R’s and O’s between spouses In General

Art. 68. The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support. (109a) Art. 69. The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide. The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family. (110a) Art. 70. The spouses are jointly responsible for the support of the family. The expenses for such support and other conjugal obligations shall be paid from the community property and, in the absence thereof, from the income or fruits of their separate properties. In case of insufficiency or absence of said income or fruits, such obligations shall be satisfied from the separate properties. (111a) Art. 71. The management of the household shall be the right and the duty of both spouses. The expenses for such management shall be paid in accordance with the provisions of Article 70. (115a) Art. 72. When one of the spouses neglects his or her duties to the conjugal union or commits acts which tend to bring danger, dishonor or injury to the other or to the family, the aggrieved party may apply to the court for relief. (116a) Art. 73. Either spouse may exercise any legitimate profession, occupation, business or activity without the consent of the other. The latter may object only on valid, serious, and moral grounds. In case of disagreement, the court shall decide whether or not:

(1) The objection is proper; and (2) Benefit has occurred to the family prior to the objection or thereafter. If the benefit accrued prior to the objection, the resulting obligation shall be enforced against the separate property of the spouse who has not obtained consent. The foregoing provisions shall not prejudice the rights of creditors who acted in good faith. (117a)

Obligation to live together Arroyo V. Vasquez The wife cannot be compelled to return to the matrimonial home and live with her husband. The court in this case said the only remedy of the husband is to refuse to grant support for the unjustifiable abandonment. Atilano V. Chua Ching Beng The option in Art. 299. Which states, “The person obliged to give support may, at his option, fulfill his obligation either by paying the allowance fixed, or by receiving and maintaining in his house the person who has a right to receive support. The latter alternative cannot be availed of in case there is a moral or legal obstacle thereto.” Clearly provides for only one occasion when the second alternative could be availed of when there is moral or legal obstacle thereto. The moral and legal obstacle in this case were the in-laws which are third persons to the marriage. Hence, the SC gave the husband the option to support his wife at their conjugal dwelling apart from the parents of the husband and if wife should refuse to abide by the terms of this decision, the husband is relieves from the obligation to support his wife. 9

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

XII. Property Relations between Spouses In General Art. 74. The property relationship between husband and wife shall be governed in the following order: (1) By marriage settlements executed before the marriage; (2) By the provisions of this Code; and (3) By the local custom. (118) Art. 75. The future spouses may, in the marriage settlements, agree upon the regime of absolute community, conjugal partnership of gains, complete separation of property, or any other regime. In the absence of a marriage settlement, or when the regime agreed upon is void, the system of absolute community of property as established in this Code shall govern. (119a) Art. 76. In order that any modification in the marriage settlements may be valid, it must be made before the celebration of the marriage, subject to the provisions of Articles 66, 67, 128, 135 and 136. (121) Art. 77. The marriage settlements and any modification thereof shall be in writing, signed by the parties and executed before the celebration of the marriage. They shall not prejudice third persons unless they are registered in the local civil registry where the marriage contract is recorded as well as in the proper registries of properties. (122a) Art. 78. A minor who according to law may contract marriage may also execute his or her marriage settlements, but they shall be valid only if the persons designated in Article 14 to give consent to the marriage are made parties to the agreement, subject to the provisions of Title IX of this Code. (120a) Art. 79. For the validity of any marriage settlement executed by a person upon whom a sentence of civil interdiction has been pronounced or who is subject to any other disability, it shall be indispensable for the guardian appointed by a competent court to be made a party thereto. (123a) Art. 80. In the absence of a contrary stipulation in a marriage settlement, the property relations of the spouses shall be governed by Philippine laws, regardless of the place of the celebration of the marriage and their residence. This rule shall not apply: (1) Where both spouses are aliens; (2) With respect to the extrinsic validity of contracts affecting property not situated in the Philippines and

executed in the country where the property is located; and (3) With respect to the extrinsic validity of contracts entered into in the Philippines but affecting property situated in a foreign country whose laws require different formalities for its extrinsic validity. (124a) Art. 81. Everything stipulated in the settlements or contracts referred to in the preceding articles in consideration of a future marriage, including donations between the prospective spouses made therein, shall be rendered void if the marriage does not take place. However, stipulations that do not depend upon the celebration of the marriages shall be valid.

Capacity to Execute Marriage SettlementART. 78-79 Formalities-ART.76-77 Conflicts of Law Rule-Art. 80 Effect of marriage not taking place-Art. 81 Donations Propter Nuptias

Art. 82. Donations by reason of marriage are those which are made before its celebration, in consideration of the same, and in favor of one or both of the future spouses.

Nature

Serrano V. Solomon This was not a valid donation propter nuptias because the donation was being made not in favor of alejandria, the wife, but rather in favor of those whoc acted as her parents and raised her from girlhood to womanhood in the absence of her father. The suspensive condition here was that the marriage would have to be childless and one of the spouses would have to die before the other so that the donation would operate. Also, the donation did not fulfill the requirements as it was never accepted by the done either in the same instrument or

10

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

donation or in a separate document as required by law.

Art, 87 extends relationship)

Form

Revocation Art. 83. These donations are governed by the rules on ordinary donations established in Title III of Book III of the Civil Code, insofar as they are not modified by the following articles. (127a)

to

common-law

Art. 86. A donation by reason of marriage may be revoked by the donor in the following cases:

Art. 84. If the future spouses agree upon a regime other than the absolute community of property, they cannot donate to each other in their marriage settlements more than one-fifth of their present property. Any excess shall be considered void. (FCP)

(1) If the marriage is not celebrated or judicially declared void ab initio except donations made in the marriage settlements, which shall be governed by Article 81; (2) When the marriage takes place without the consent of the parents or guardian, as required by law;

Art. 748. The donation of a movable may be made orally or in writing.

(3) When the marriage is annulled, and the donee acted in bad faith;

An oral donation requires the simultaneous delivery of the thing or of the document representing the right donated.

(4) Upon legal separation, the donee being the guilty spouse;

If the value of the personal property donated exceeds five thousand pesos, the donation and the acceptance shall be made in writing, otherwise, the donation shall be void. (NCC)

Distinguished from Donations inter vivos Consideration and Donee Art. 87. Every donation or grant of gratuitous advantage, direct or indirect, between the spouses during the marriage shall be void, except moderate gifts which the spouses may give each other on the occasion of any family rejoicing. The prohibition shall also apply to persons living together as husband and wife without a valid marriage.

Sumbad V. CA GR: Donation before marriage when they were in a common-law relationship was void as the prohibition extended to common-law relationship but since they were not able to prove the common law relationship then the donation was valid. Matabuena V. Cervantes (Same ruling as Sumbad that the prohibition of donation of the brother to his common-law wife was not valid as

(5) If it is with a resolutory condition and the condition is complied with; (6) When the donee has committed an act of ingratitude as specified by the provisions of the Civil Code on donations in general.(FCP) Art. 760. Every donation inter vivos, made by a person having no children or descendants, legitimate or legitimated by subsequent marriage, or illegitimate, may be revoked or reduced as provided in the next article, by the happening of any of these events: (1) If the donor, after the donation, should have legitimate or legitimated or illegitimate children, even though they be posthumous; (2) If the child of the donor, whom the latter believed to be dead when he made the donation, should turn out to be living; (3) If the donor subsequently adopt a minor child. Art. 766. Although the donation is revoked on account of ingratitude, nevertheless, the alienations and mortgages effected before the notation of the complaint for revocation in the Registry of Property shall subsist. Later ones shall be void. (NCC)

Solis V. Barroso Donation proper nuptias here was not valid because it was made in a private instrument. This donation must be governed by the rules on Donation. Real 11

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

Property may be valid, it must be made in the public instrument. (Formal Validity) The only exceptions to this rule are onerous and remuneratory donations, insofar as they do not exceed the value of the charge imposed, which are then governed by the rules on contracts, and those which are to take effect upon the donor’s death, which are governed by the rules established for testamentary succession. Marriage in DPN is rather a resolutory condition which presupposes the existence of the obligation which may be resolved or revoked, and it is not a condition necessary for the birth of the obligation. Extent of property Donated

Donations of future property shall be governed by the provisions on testamentary succession and the formalities of wills.(FCP) Art. 750. The donations may comprehend all the present property of the donor, or part thereof, provided he reserves, in full ownership or in usufruct, sufficient means for the support of himself, and of all relatives who, at the time of the acceptance of the donation, are by law entitled to be supported by the donor. Without such reservation, the donation shall be reduced in petition of any person affected. (634a) Donations

cannot

Art. 1070. Wedding gifts by parents and ascendants consisting of jewelry, clothing, and outfit, shall not be reduced as inofficious except insofar as they may exceed one-tenth of the sum which is disposable by will. .(NCC)

Mateo V. Lagua Before there could be any conclusion about the legal share due to a compulsory heir may be reached, it is necessary that certain steps should be taken first. The CA should follow Art. 908 to determine the legitime before reducing the donation for being inofficious. ABSOLUTE COMMUNITY Chapter 3. System of Absolute Community Section 1. General Provisions

Art. 84. If the future spouses agree upon a regime other than the absolute community of property, they cannot donate to each other in their marriage settlements more than one-fifth of their present property. Any excess shall be considered void.

Art. 751. property.

The donation shall be inofficious in all that it may exceed this limitation

comprehend

future

By future property is understood anything which the donor cannot dispose of at the time of the donation. (635) Art. 752. The provisions of Article 750 notwithstanding, no person may give or receive, by way of donation, more than he may give or receive by will.

Art. 88. The absolute community of property between spouses shall commence at the precise moment that the marriage is celebrated. Any stipulation, express or implied, for the commencement of the community regime at any other time shall be void. (145a) Art. 89. No waiver of rights, shares and effects of the absolute community of property during the marriage can be made except in case of judicial separation of property. When the waiver takes place upon a judicial separation of property, or after the marriage has been dissolved or annulled, the same shall appear in a public instrument and shall be recorded as provided in Article 77. The creditors of the spouse who made such waiver may petition the court to rescind the waiver to the extent of the amount sufficient to cover the amount of their credits. (146a) Art. 90. The provisions on co-ownership shall apply to the absolute community of property between the spouses in all matters not provided for in this Chapter. (n) Section 2. What Constitutes Community Property Art. 91. Unless otherwise provided in this Chapter or in the marriage settlements, the community property

12

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session shall consist of all the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter. (197a) Art. 92. The following shall be excluded from the community property: (1) Property acquired during the marriage by gratuitous title by either spouse, and the fruits as well as the income thereof, if any, unless it is expressly provided by the donor, testator or grantor that they shall form part of the community property; (2) Property for personal and exclusive use of either spouse. However, jewelry shall form part of the community property; (3) Property acquired before the marriage by either spouse who has legitimate descendants by a former marriage, and the fruits as well as the income, if any, of such property. (201a) Art. 93. Property acquired during the marriage is presumed to belong to the community, unless it is proved that it is one of those excluded therefrom. (160) chan robles virtual law library Section 3. Charges and Obligations of the Absolute Community Art. 94. The absolute community of property shall be liable for: (1) The support of the spouses, their common children, and legitimate children of either spouse; however, the support of illegitimate children shall be governed by the provisions of this Code on Support; (2) All debts and obligations contracted during the marriage by the designated administrator-spouse for the benefit of the community, or by both spouses, or by one spouse with the consent of the other; (3) Debts and obligations contracted by either spouse without the consent of the other to the extent that the family may have been benefited; (4) All taxes, liens, charges and expenses, including major or minor repairs, upon the community property; (5) All taxes and expenses for mere preservation made during marriage upon the separate property of either spouse used by the family; (6) Expenses to enable either spouse to commence or complete a professional or vocational course, or other activity for self-improvement; (7) Ante-nuptial debts of either spouse insofar as they have redounded to the benefit of the family; (8) The value of what is donated or promised by both spouses in favor of their common legitimate children

for the exclusive purpose of commencing or completing a professional or vocational course or other activity for self-improvement; (9) Ante-nuptial debts of either spouse other than those falling under paragraph (7) of this Article, the support of illegitimate children of either spouse, and liabilities incurred by either spouse by reason of a crime or a quasi-delict, in case of absence or insufficiency of the exclusive property of the debtorspouse, the payment of which shall be considered as advances to be deducted from the share of the debtor-spouse upon liquidation of the community; and (10) Expenses of litigation between the spouses unless the suit is found to be groundless. If the community property is insufficient to cover the foregoing liabilities, except those falling under paragraph (9), the spouses shall be solidarily liable for the unpaid balance with their separate properties. (161a, 162a, 163a, 202a-205a) Art. 95. Whatever may be lost during the marriage in any game of chance, betting, sweepstakes, or any other kind of gambling, whether permitted or prohibited by law, shall be borne by the loser and shall not be charged to the community but any winnings therefrom shall form part of the community property. (164a) Section 4. Ownership, Administrative, Enjoyment and Disposition of the Property

Community

Art. 96. The administration and enjoyment of the community property shall belong to both spouses jointly. In case of disagreement, the husband's decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision. In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the common properties, the other spouse may assume sole powers of administration. These powers do not include disposition or encumbrance without authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors. (206a)

13

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session Art. 97. Either spouse may dispose by will of his or her interest in the community property. (n) Art. 98. Neither spouse may donate any community property without the consent of the other. However, either spouse may, without the consent of the other, make moderate donations from the community property for charity or on occasions of family rejoicing or family distress. (n) Section 5. Dissolution of Absolute Community Regime Art. 99. The absolute community terminates: (1) Upon the death of either spouse; (2) When there is a decree of legal separation; (3) When the marriage is annulled or declared void; or (4) In case of judicial separation of property during the marriage under Articles 134 to 138. (175a) Art. 100. The separation in fact between husband and wife shall not affect the regime of absolute community except that: (1) The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported; (2) When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding; (3) In the absence of sufficient 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. (178a)

any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling. (178a) Section 6. Liquidation of the Absolute Community Assets and Liabilities Art. 102. Upon dissolution of the absolute community regime, the following procedure shall apply: (1) An inventory shall be prepared, listing separately all the properties of the absolute community and the exclusive properties of each spouse. (2) The debts and obligations of the absolute community shall be paid out of its assets. In case of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid balance with their separate properties in accordance with the provisions of the second paragraph of Article 94. (3) Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each of them. (4) The net remainder of the properties of the absolute community shall constitute its net assets, which shall be divided equally between husband and wife, unless a different proportion or division was agreed upon in the marriage settlements, or unless there has been a voluntary waiver of such share provided in this Code. For purpose of computing the net profits subject to forfeiture in accordance with Articles 43, No. (2) and 63, No. (2), the said profits shall be the increase in value between the market value of the community property at the time of the celebration of the marriage and the market value at the time of its dissolution. (5) The presumptive legitimes of the common children shall be delivered upon partition, in accordance with Article 51.

Art. 101. If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the aggrieved spouse may petition the court for receivership, for judicial separation of property or for authority to be the sole administrator of the absolute community, subject to such precautionary conditions as the court may impose. The obligations to the family mentioned in the preceding paragraph refer to marital, parental or property relations.

(6) Unless otherwise agreed upon by the parties, in the partition of the properties, the conjugal dwelling and the lot on which it is situated shall be adjudicated to the spouse with whom the majority of the common children choose to remain. Children below the age of seven years are deemed to have chosen the mother, unless the court has decided otherwise. In case there in no such majority, the court shall decide, taking into consideration the best interests of said children. (n)

A spouse is deemed to have abandoned the other when her or she has left the conjugal dwelling without intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give

Art. 103. Upon the termination of the marriage by death, the community property shall be liquidated in the same proceeding for the settlement of the estate of the deceased. If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the community

14

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session property either judicially or extra-judicially within six months from the death of the deceased spouse. If upon the lapse of the six months period, no liquidation is made, any disposition or encumbrance involving the community property of the terminated marriage shall be void.

Art. 108. The conjugal partnership shall be governed by the rules on the contract of partnership in all that is not in conflict with what is expressly determined in this Chapter or by the spouses in their marriage settlements. (147a)

Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage. (n)

Section 2. Exclusive Property of Each Spouse

Art. 104. Whenever the liquidation of the community properties of two or more marriages contracted by the same person before the effectivity of this Code is carried out simultaneously, the respective capital, fruits and income of each community shall be determined upon such proof as may be considered according to the rules of evidence. In case of doubt as to which community the existing properties belong, the same shall be divided between the different communities in proportion to the capital and duration of each. (189a) (FCP)

Conjugal Partnership of Gains Chapter 4. Conjugal Partnership of Gains Section 1. General Provisions Art. 105. In case the future spouses agree in the marriage settlements that the regime of conjugal partnership gains shall govern their property relations during marriage, the provisions in this Chapter shall be of supplementary application. The provisions of this Chapter shall also apply to conjugal partnerships of gains already established between spouses before the effectivity of this Code, without prejudice to vested rights already acquired in accordance with the Civil Code or other laws, as provided in Article 256. (n) Art. 106. Under the regime of conjugal partnership of gains, the husband and wife place in a common fund the proceeds, products, fruits and income from their separate properties and those acquired by either or both spouses through their efforts or by chance, and, upon dissolution of the marriage or of the partnership, the net gains or benefits obtained by either or both spouses shall be divided equally between them, unless otherwise agreed in the marriage settlements. (142a) Art. 107. The rules provided in Articles 88 and 89 shall also apply to conjugal partnership of gains. (n)

Art. 109. The following shall be the exclusive property of each spouse: (1) That which is brought to the marriage as his or her own; (2) That which each acquires during the marriage by gratuitous title; (3) That which is acquired by right of redemption, by barter or by exchange with property belonging to only one of the spouses; and (4) That which is purchased with exclusive money of the wife or of the husband. (148a) Art. 110. The spouses retain the ownership, possession, administration and enjoyment of their exclusive properties. Either spouse may, during the marriage, transfer the administration of his or her exclusive property to the other by means of a public instrument, which shall be recorded in the registry of property of the place the property is located. (137a, 168a, 169a) Art. 111. A spouse of age 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. (n) Art. 112. The alienation of any exclusive property of a spouse administered by the other automatically terminates the administration over such property and the proceeds of the alienation shall be turned over to the owner-spouse. (n) Art. 113. Property donated or left by will to the spouses, jointly and with designation of determinate shares, shall pertain to the donee-spouses as his or her own exclusive property, and in the absence of designation, share and share alike, without prejudice to the right of accretion when proper. (150a) Art. 114. If the donations are onerous, the amount of the charges shall be borne by the exclusive property of the donee spouse, whenever they have been advanced by the conjugal partnership of gains. (151a)

15

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session Art. 115. Retirement benefits, pensions, annuities, gratuities, usufructs and similar benefits shall be governed by the rules on gratuitous or onerous acquisitions as may be proper in each case. (n) Section 3. Conjugal Partnership Property Art. 116. All property acquired during the marriage, whether the acquisition appears to have been made, contracted or registered in the name of one or both spouses, is presumed to be conjugal unless the contrary is proved. (160a) Art. 117. The following are conjugal partnership properties: (1) Those acquired by onerous title during the marriage at the expense of the common fund, whether the acquisition be for the partnership, or for only one of the spouses; (2) Those obtained from the labor, industry, work or profession of either or both of the spouses; (3) The fruits, natural, industrial, or civil, due or received during the marriage from the common property, as well as the net fruits from the exclusive property of each spouse; (4) The share of either spouse in the hidden treasure which the law awards to the finder or owner of the property where the treasure is found; (5) Those acquired through occupation such as fishing or hunting; (6) Livestock existing upon the dissolution of the partnership in excess of the number of each kind brought to the marriage by either spouse; and (7) Those which are acquired by chance, such as winnings from gambling or betting. However, losses therefrom shall be borne exclusively by the loserspouse. (153a, 154a, 155, 159) Art. 118. Property bought on installments paid partly from exclusive funds of either or both spouses and partly from conjugal funds belongs to the buyer or buyers if full ownership was vested before the marriage and to the conjugal partnership if such ownership was vested during the marriage. In either case, any amount advanced by the partnership or by either or both spouses shall be reimbursed by the owner or owners upon liquidation of the partnership. (n) Art. 119. Whenever an amount or credit payable within a period of time belongs to one of the spouses, the sums which may be collected during the marriage in partial payments or by installments on the principal shall be the exclusive property of the

spouse. However, interests falling due during the marriage on the principal shall belong to the conjugal partnership. (156a, 157a) Art. 120. The ownership of improvements, whether for utility or adornment, made on the separate property of the spouses at the expense of the partnership or through the acts or efforts of either or both spouses shall pertain to the conjugal partnership, or to the original owner-spouse, subject to the following rules: When the cost of the improvement made by the conjugal partnership and any resulting increase in value are more than the value of the property at the time of the improvement, the entire property of one of the spouses shall belong to the conjugal partnership, subject to reimbursement of the value of the property of the owner-spouse at the time of the improvement; otherwise, said property shall be retained in ownership by the owner-spouse, likewise subject to reimbursement of the cost of the improvement. In either case, the ownership of the entire property shall be vested upon the reimbursement, which shall be made at the time of the liquidation of the conjugal partnership. (158a) Section 4. Charges Upon and Obligations of the Conjugal Partnership Art. 121. The conjugal partnership shall be liable for: (1) The support of the spouse, their common children, and the legitimate children of either spouse; however, the support of illegitimate children shall be governed by the provisions of this Code on Support; (2) All debts and obligations contracted during the marriage by the designated administrator-spouse for the benefit of the conjugal partnership of gains, or by both spouses or by one of them with the consent of the other; (3) Debts and obligations contracted by either spouse without the consent of the other to the extent that the family may have benefited; (4) All taxes, liens, charges, and expenses, including major or minor repairs upon the conjugal partnership property; (5) All taxes and expenses for mere preservation made during the marriage upon the separate property of either spouse; (6) Expenses to enable either spouse to commence or complete a professional, vocational, or other activity for self-improvement;

16

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session (7) Ante-nuptial debts of either spouse insofar as they have redounded to the benefit of the family; (8) The value of what is donated or promised by both spouses in favor of their common legitimate children for the exclusive purpose of commencing or completing a professional or vocational course or other activity for self-improvement; and (9) Expenses of litigation between the spouses unless the suit is found to groundless. If the conjugal partnership is insufficient to cover the foregoing liabilities, the spouses shall be solidarily liable for the unpaid balance with their separate properties. (161a) Art. 122. The payment of personal debts contracted by the husband or the wife before or during the marriage shall not be charged to the conjugal properties partnership except insofar as they redounded to the benefit of the family. Neither shall the fines and pecuniary indemnities imposed upon them be charged to the partnership. However, the payment of personal debts contracted by either spouse before the marriage, that of fines and indemnities imposed upon them, as well as the support of illegitimate children of either spouse, may be enforced against the partnership assets after the responsibilities enumerated in the preceding Article have been covered, if the spouse who is bound should have no exclusive property or if it should be insufficient; but at the time of the liquidation of the partnership, such spouse shall be charged for what has been paid for the purpose above-mentioned. (163a) Art. 123. Whatever may be lost during the marriage in any game of chance or in betting, sweepstakes, or any other kind of gambling whether permitted or prohibited by law, shall be borne by the loser and shall not be charged to the conjugal partnership but any winnings therefrom shall form part of the conjugal partnership property. (164a) Section 5. Administration of the Conjugal Partnership Property Art. 124. The administration and enjoyment of the conjugal partnership shall belong to both spouses jointly. In case of disagreement, the husband's decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision. In the event that one spouse is incapacitated or otherwise unable to participate in the administration

of the conjugal properties, the other spouse may assume sole powers of administration. These powers do not include disposition or encumbrance without authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors. (165a) Art. 125. Neither spouse may donate any conjugal partnership property without the consent of the other. However, either spouse may, without the consent of the other, make moderate donations from the conjugal partnership property for charity or on occasions of family rejoicing or family distress. (174a) Section 6. Dissolution of Conjugal Partnership Regime Art. 126. The conjugal partnership terminates: (1) Upon the death of either spouse; (2) When there is a decree of legal separation; (3) When the marriage is annulled or declared void; or (4) In case of judicial separation of property during the marriage under Articles 134 to 138. (175a) Art. 127. The separation in fact between husband and wife shall not affect the regime of conjugal partnership, except that: (1) The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported; (2) When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding; (3) In the absence of sufficient conjugal partnership property, the separate property of both spouses shall be solidarily liable for the support of the family. The spouse present shall, upon petition in a summary proceeding, be given judicial authority to administer or encumber any specific separate property of the other spouse and use the fruits or proceeds thereof to satisfy the latter's share. (178a) Art. 128. If a spouse without just cause abandons the other or fails to comply with his or her obligation to the family, the aggrieved spouse may petition the court for receivership, for judicial separation of property, or for authority to be the sole administrator

17

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session of the conjugal partnership property, subject to such precautionary conditions as the court may impose. The obligations to the family mentioned in the preceding paragraph refer to marital, parental or property relations. A spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling. (167a, 191a) Section 7. Liquidation of the Conjugal Partnership Assets and Liabilities Art. 129. Upon the dissolution of the conjugal partnership regime, the following procedure shall apply: (1) An inventory shall be prepared, listing separately all the properties of the conjugal partnership and the exclusive properties of each spouse. (2) Amounts advanced by the conjugal partnership in payment of personal debts and obligations of either spouse shall be credited to the conjugal partnership as an asset thereof. (3) Each spouse shall be reimbursed for the use of his or her exclusive funds in the acquisition of property or for the value of his or her exclusive property, the ownership of which has been vested by law in the conjugal partnership. (4) The debts and obligations of the conjugal partnership shall be paid out of the conjugal assets. In case of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid balance with their separate properties, in accordance with the provisions of paragraph (2) of Article 121. (5) Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each of them. (6) Unless the owner had been indemnified from whatever source, the loss or deterioration of movables used for the benefit of the family, belonging to either spouse, even due to fortuitous event, shall be paid to said spouse from the conjugal funds, if any. (7) The net remainder of the conjugal partnership properties shall constitute the profits, which shall be divided equally between husband and wife, unless a different proportion or division was agreed upon in the marriage settlements or unless there has been a

voluntary waiver or forfeiture of such share as provided in this Code. (8) The presumptive legitimes of the common children shall be delivered upon the partition in accordance with Article 51. (9) In the partition of the properties, the conjugal dwelling and the lot on which it is situated shall, unless otherwise agreed upon by the parties, be adjudicated to the spouse with whom the majority of the common children choose to remain. Children below the age of seven years are deemed to have chosen the mother, unless the court has decided otherwise. In case there is no such majority, the court shall decide, taking into consideration the best interests of said children. (181a, 182a, 183a, 184a, 185a) Art. 130. Upon the termination of the marriage by death, the conjugal partnership property shall be liquidated in the same proceeding for the settlement of the estate of the deceased. If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the conjugal partnership property either judicially or extrajudicially within six months from the death of the deceased spouse. If upon the lapse of the six-month period no liquidation is made, any disposition or encumbrance involving the conjugal partnership property of the terminated marriage shall be void. Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage. (n) Art. 131. Whenever the liquidation of the conjugal partnership properties of two or more marriages contracted by the same person before the effectivity of this Code is carried out simultaneously, the respective capital, fruits and income of each partnership shall be determined upon such proof as may be considered according to the rules of evidence. In case of doubt as to which partnership the existing properties belong, the same shall be divided between the different partnerships in proportion to the capital and duration of each. (189a) Art. 132. The Rules of Court on the administration of estates of deceased persons shall be observed in the appraisal and sale of property of the conjugal partnership, and other matters which are not expressly determined in this Chapter. (187a)

18

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session Art. 133. From the common mass of property support shall be given to the surviving spouse and to the children during the liquidation of the inventoried property and until what belongs to them is delivered; but from this shall be deducted that amount received for support which exceeds the fruits or rents pertaining to them. (188a)

no longer therefore be the subject of execution under a judgment exclusively affective the personal liability of the latter.

Exclusive Properties of Each Spouse (Art 109-115 of the FCP)

Conjugal Property-Arts. 116-117

Plata V. Yatco Judgment in eviction suit cannot be held against the wife being not lawful against her as she was not made party defendant to the said suit. The property was paraphernal in origin being that she sold the property and bought it back seven months later. The fact that Begoso signed as co-mortgagor of a subsequent mortgage made by Plata of the propert does not convert the property into conjugal. The property was paraphernal and the creditors and purchasers knew this so the judgment bound the husband alone and not the wife’s possession of her paraphernal property which by law she hold and administers independently, and which she may even encumber without her husband’s knowledge and consent. Property Acquired by right of redemption or exchange with exclusive property of spouse Rosete v. Prob. Sheriff The property is now the exclusive property of the wife by virtue of the right of redemption as successor in interest of her husband. It has ceased to be the property of the judgment debtor. It can

Castillo v. Pasco Held: The property was partly conjugal and partly paraphernal. Under Spanish CC, determining ownership of properties acquired by onerous consideration during the marriage depends on source of funds used for acquisition. a. Separate if bought w/exclusive money. (Spanish CC Art. 1396) b. Conjugal if bought w/common funds whether for partnership or for one spouse only. (Spanish CC Art. 1401) Last phrase is immaterial since it’s been proven that prop was sold to both spouses. 2.First payment: according to CA it came from Pasco’s private funds. Petitioners: w/o express proof that debt of Gabriel came from Pasco’s private fund, they should be presumed conjugal (Art. 1407 Spanish CC). However, Art. 1416 provides that wife can’t bind conjugal partnership w/o husband’s consent. Her private transactions are presumed to be her own. W/o proof that Castillo authorized Pasco to use community funds to lend money to Gabriel, presumption that she used her private funds would lie. 3.2nd & 3rd payments by loans guaranteed by mortgage: since they were made to both spouses as joint borrowers, loan thus became obligations of conjugal 19

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

partnership & loan money became part of conjugal property. Securing mortgage on wife’s paraphernal prop is mere accessory oblig w/c lenders can waive if they wish to do so w/o affecting principal debt owed by conjugal partnership & w/c creditors can enforce against latter if they so desire. If money borrowed by husband upon credit of wife’s prop became CP & when reinvested in construction of house, such became CP & was liable for husband’s debt (Palanca v. Smith Bell & Co.) then all the more that a loan obtained by both spouses should be conjugal. Court likewise ruled in Lim Queco vs. Cartagena that when wife borrows money guaranteed w/mortgage on her paraphernal prop, money loaned & property acquired w/such will still be her exclusive prop even if husband consented to such. Reason is that she is not the qualified administrator of CP. Creditor can only demand repayment from her & her properties. Palanca ruling applies, thus, property is partly paraphernal by virtue of first payment & partly conjugal by virtue of 2nd & 3rd payments. It belongs to both patrimonies – 1/6 paraphernal + 5/6 CP of Castillo & Pasco. 4.If Pasco paid mortgages with her private funds, her share is not increased. Instead, common funds can repay the amount she has advanced. Zulueta v. PANAM

The settlement entered into by Mrs. Zulueta with the defendant PANAM would not bind the conjugal partnership of the parties herein. In the case at bar the principal part in interest is the husband. Considering that the damages in question have arisen from, inter alia, a breach of plaintiff’s contract of carriage with the defendant, for which plaintiffs paid their fare with funds presumably belonging to the conjugal partnership. We hold that the said damages fall under par. (1) of Art 153 the right thereto having been “acquired by onerous title during the marriage. The rights accruing from said contract, including those resulting fro breach thereof by the defendant, are presumed to belong to the conjugal partnership of mr and mrs. Zulueta. Property bought on installment Art. 118. Property bought on installments paid partly from exclusive funds of either or both spouses and partly from conjugal funds belongs to the buyer or buyers if full ownership was vested before the marriage and to the conjugal partnership if such ownership was vested during the marriage. In either case, any amount advanced by the partnership or by either or both spouses shall be reimbursed by the owner or owners upon liquidation of the partnership.

Jovellanos V. CA Facts: Husband entered into a contract of lease and conditional sale with Philamlife over a house and lot. He was married at that time and when the wife died, he married another woman. During the subsistence of the second marriage, the lease amounts having been paid, 20

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

Philamlife executed a deed of absolute sale to the husband and the latter donated to herein petitioners all his rights, title and interest over the lot and bungalow before he died. The second wife claimed that the land belonged to the conjugal partnership. Held: The conditional sale agreement in said contract is, therefore, also in the nature of contract to sellm as contradistinguished from contract of sale. The former case, ownership is not transferred upon delivery of the property but upon full payment of the purchase price. The property belonged to the conjugal partnership of the second marriage. But since it pertained to the second wife, she is still liable to pay the corresponding reimbursements to the petitioners who helped pay the amortization of the house and lot. Remember 118 of the FCP on the property bought on installments, whre ownership vested during the marriage, such shall belong to the conjugal partnership. Alvarez v. espiritu (No digest on file) Improvements at the expense of conjugal funds or through work or industry of spouse Art. 120. The ownership of improvements, whether for utility or adornment, made on the separate property of the spouses at the expense of the partnership or through the acts or efforts of either or both spouses shall pertain to the conjugal partnership, or to the original owner-spouse, subject to the following rules:

When the cost of the improvement made by the conjugal partnership and any resulting increase in value are more than the value of the property at the time of the improvement, the entire property of one of the spouses shall belong to the conjugal partnership, subject to reimbursement of the value of the property of the owner-spouse at the time of the improvement; otherwise, said property shall be retained in ownership by the owner-spouse, likewise subject to reimbursement of the cost of the improvement. In either case, the ownership of the entire property shall be vested upon the reimbursement, which shall be made at the time of the liquidation of the conjugal partnership.

Vitug v. Montemayor Held: The principal issue is to be determined in this appeal is whether the thirty parcels of land involved in this litigation are conjugal, as claimed by the plaintiff, or paraphernal, as claimed by the defendants. If the former the relief prayed for should be granted; if the latter the action should be dismissed. the evidence shows that the funds used in purchasing the thirty parcels of land in question had come from this refundable amount, it logically follows that said properties are conjugal and should have formed part of the estate of the late Clodualdo Vitug. The fact that said properties are now registered in the exclusive name of Donata Montemayor does not destroy their nature as conjugal because they are acquired during coverture and the presumption of law created in favor of the conjugal partnership has not been overcome by clear proof to the contrary (Guingguing vs. Abuton, 48 Phil. 144) 21

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

Maramba V. Lozano Issue: WON the property was conjugal WON the construction of the house on the exclusive property of one of the spouses at the expense of the common fund makes it automatically conjugal. Held: Both issues, NO. The presumption of conjugality under Art. 160 of the civil code refers to property acquired during the marriage. But in the instant case, there is no showing as to when the property in question was acquired and hence the fact that the tile is in the wife’s name alone is determinative. Furthermore, appellant said that the property was paraphernal. The construction of a house at conjugal expense on the exclusive property of one of the spouses does not automatically make it conjugal. The ownership of the land remains the same until the value thereof is paid, and this payment can only be demanded in the liquidation of the partnership. There is no showing that there was already liquidation and so the property being separate property cannot be made to answer for the liability of the other defendant. Dominado v. Darayunan Held: Par 2 of Art. 1404 of the Civil code provides that building constructed during the marriage, on land belonging to one of the spouses, are conjugal property, but the owner shall be entitled to credit of the value of th land. The exception,

however, is limited to buildings and does not apply to crops and other improvements, with respect to which the general rule applies. Expenses incurred in making such crops and improvements are conjugal expenses, for which the conjugal partnership must be reimbursed. Caltex V. Felias Held: A lot belonging to the parents and later donated by them to their daughter belonged to the parphernal property and the building constructed thereon before the donation follows the rule accessory follows the principal. The donation transmitted to her the rights of a landowner over the building constructed on it. As such the lot and the building are not answerable for the obligations of her husband. Calimlim-Canullas v. Fortun Facts: Husband abandoned his family and was convicted for concubinage. In 1980 he sold the land he inherited from his deceased father during the marriage to his concubine. The concubine initiated a complaint to quiet title and damages against the legal wife. Held: The alienation of the property without the consent of the legal wife was not valid because the contract of sale was null and void for being contrary to morals and public policy. (Art. 1409 of the NCC) 22

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

Both the land and the building belong to the conjugal partnership but the conjugal partnership is indebted to the husband for the value of the land and so the husband is entitled for reimbursement at the time of the liquidation of the conjugal partnership. Art. 121. The conjugal partnership shall be liable for: (1) The support of the spouse, their common children, and the legitimate children of either spouse; however, the support of illegitimate children shall be governed by the provisions of this Code on Support; (2) All debts and obligations contracted during the marriage by the designated administrator-spouse for the benefit of the conjugal partnership of gains, or by both spouses or by one of them with the consent of the other; (3) Debts and obligations contracted by either spouse without the consent of the other to the extent that the family may have benefited; (4) All taxes, liens, charges, and expenses, including major or minor repairs upon the conjugal partnership property; (5) All taxes and expenses for mere preservation made during the marriage upon the separate property of either spouse; (6) Expenses to enable either spouse to commence or complete a professional, vocational, or other activity for self-improvement; (7) Ante-nuptial debts of either spouse insofar as they have redounded to the benefit of the family; (8) The value of what is donated or promised by both spouses in favor of their common legitimate children for the exclusive purpose of commencing or completing a professional or vocational course or other activity for self-improvement; and (9) Expenses of litigation between the spouses unless the suit is found to groundless. If the conjugal partnership is insufficient to cover the foregoing liabilities, the spouses shall be solidarily liable for the unpaid balance with their separate properties. Art. 123. Whatever may be lost during the marriage in any game of chance or in betting, sweepstakes, or any other kind of gambling whether permitted or

prohibited by law, shall be borne by the loser and shall not be charged to the conjugal partnership but any winnings therefrom shall form part of the conjugal partnership property.

9th Session I. Contractual Obligations either spouse

by

Art. 122. The payment of personal debts contracted by the husband or the wife before or during the marriage shall not be charged to the conjugal properties partnership except insofar as they redounded to the benefit of the family. Neither shall the fines and pecuniary indemnities imposed upon them be charged to the partnership. However, the payment of personal debts contracted by either spouse before the marriage, that of fines and indemnities imposed upon them, as well as the support of illegitimate children of either spouse, may be enforced against the partnership assets after the responsibilities enumerated in the preceding Article have been covered, if the spouse who is bound should have no exclusive property or if it should be insufficient; but at the time of the liquidation of the partnership, such spouse shall be charged for what has been paid for the purpose abovementioned.

Cases: Luzon surety V. De Garcua Conjugal partnership is only liable for such debts and obligations contracted by the husband for the benefit of the conjugal partnership, There is none in this case. This particular codal provision in question rightfully emphasized the responsibility of the husband as administrator. He is supposed o conserve and, if possible, augment the funds for conjugal partnership, not dissipate them. If out of friendship and misplaced generosity on his part the conjugal partnership would be saddled with financial burden, then the family stands to suffer. Cobb-perez v. Lantin 23

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

In the NCC, Art. 160, the party who invokes this presumption must first prove that the property in controversy was acquired during the marriage. In the case at bar, there is no evidence as to when the shares of stocks were acquired, the fact that they are registered in the name of the husband alone is an indication that the shares belong exclusively to the said spouse. Ayala V. CA FACTS: Philippine Blooming Mills (PBM) obtained P50,300,000.00 loan from petitioner Ayala Investment and Development Corporation (AIDC). Respondent Alfredo Ching, EVP of PBM, executed security agreements on December 1980 and March 1981 making him jointly and severally answerable with PBM’s indebtedness to AIDC. PBM failed to pay the loan hence filing of complaint against PBM and Ching. The RTC rendered judgment ordering PBM and Ching to jointly and severally pay AIDC the principal amount with interests. Pending the appeal of the judgment, RTC issued writ of execution. Thereafter, Magsajo, appointed deputy sheriff, caused the issuance and service upon respondent spouses of the notice of sheriff sale on 3 of their conjugal properties on May 1982.

Respondent spouses filed injunction against petitioners on the ground that subject loan did not redound to the benefit of the said conjugal partnership. CA issued a TRP enjoining lower court from enforcing its order paving way for the scheduled auction sale of respondent spouses conjugal properties. A certificate of sale was issued to AIDC, being the only bidder and was registered on July 1982. ISSUE: Whether or not the debts and obligations contracted by the husband alone is considered “for the benefit of the conjugal partnership” and is it chargeable. HELD: The loan procured from AIDC was for the advancement and benefit of PBM and not for the benefit of the conjugal partnership of Ching. Furthermore, AIDC failed to prove that Ching contracted the debt for the benefit of the conjugal partnership of gains. PBM has a personality distinct and separate from the family of Ching despite the fact that they happened to be stockholders of said corporate entity. Clearly, the debt was a corporate debt and right of recourse to Ching as surety is only 24

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

to the extent of his corporate stockholdings. Based from the foregoing jurisprudential rulings of the court, “if the money or services are given to another person or entity, and the husband acted only as a surety or guarantor, that contract cannot, by itself, alone be categorized as falling within the context of obligations for the benefit of the conjugal partnership”. The contract of loan or services is clearly for the benefit of the principal debtor and not for the surety or his family. Ching only signed as a surety for the loan contracted with AIDC in behalf of PBM. Signing as a surety is certainly not an exercise of an industry or profession, it is not embarking in a business. Hence, the conjugal partnership should not be made liable for the surety agreement which was clearly for the benefit of PBM. The court did not support the contention of the petitioner that a benefit for the family may have resulted when the guarantee was in favor of Ching’s employment (prolonged tenure, appreciation of shares of stocks, prestige enhanced) since the benefits contemplated in Art. 161 of the Civil Code must be one directly resulting from

the loan. It must not be a mere by product or a spin off of the loan itself. II.

Charges upon the partnership(ART.

Conjugal

122 (2) Carlos v. Abelardo it must be noted that payment of personal debts contracted by the husband or the wife before or during the marriage shall not be charged to the conjugal partnership except insofar as they redounded to the benefit of the family. The defendants never denied that the check of US$25,000.00 was used to purchase the subject house and lot. They do not deny that the same served as their conjugal home, thus benefiting the family. On the same principle, acknowledgment of the loan made by the defendant-wife binds the conjugal partnership since its proceeds redounded to the benefit of the family. Hence, defendant-husband and defendant-wife are jointly and severally liable in the payment of the loan. The loan is the liability of the conjugal partnership pursuant to Article 121 of the Family Code: Article 121. The conjugal partnership shall be liable for: xxx (2) All debts and obligations contracted during the marriage by the designated administrator25

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

spouse for the benefit of the conjugal partnership of gains, or by both spouses or by one of them with the consent of the other; (3) Debts and obligations contracted by either spouse without the consent of the other to the extent that the family may have been benefited; If the conjugal partnership is insufficient to cover the foregoing liabilities, the spouses shall be solidarily liable for the unpaid balance with their separate properties. Defendant-husband cannot allege as a defense that the amount of US $25,000.00 was received as his share in the income or profits of the corporation and not as a loan. Firstly, defendanthusband does not appear to be a stockholder nor an employee nor an agent of the corporation, H. L. Carlos Construction, Inc. Since he is not a stockholder, he has no right to participate in the income or profits thereof. In the same manner that as he is not an employee nor an agent of H. L. Carlos Construction, Inc., he has no right to receive any salary or commission therefrom. Secondly, the amount advanced for the purchase of the house and lot came from the personal account of the plaintiff. If, indeed, it was to be construed as defendant-husband’s share in the profits of the corporation, the checks should come from the

corporation’s account and not from the plaintiff’s personal account, considering that the corporation has a personality separate and distinct from that of its stockholders and officers. III.Administration of conjugal partnership (Art. 124-125) Art. 124. The administration and enjoyment of the conjugal partnership shall belong to both spouses jointly. In case of disagreement, the husband's decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision. In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal properties, the other spouse may assume sole powers of administration. These powers do not include disposition or encumbrance without authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors. (165a) Art. 125. Neither spouse may donate any conjugal partnership property without the consent of the other. However, either spouse may, without the consent of the other, make moderate donations from the conjugal partnership property for charity or on occasions of family rejoicing or family distress.

IV.Disolution of CPG

Art. 126. The conjugal partnership terminates: (1) Upon the death of either spouse; (2) When there is a decree of legal separation; (3) When the marriage is annulled or declared void; or (4) In case of judicial separation of property during the marriage under Articles 134 to 138. (175a) Art. 127. The separation in fact between and wife shall not affect the regime of partnership, except that: (1) The spouse who leaves the conjugal refuses to live therein, without just cause, have the right to be supported;

husband conjugal home or shall not

26

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session (2) When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding; (3) In the absence of sufficient conjugal partnership property, the separate property of both spouses shall be solidarily liable for the support of the family. The spouse present shall, upon petition in a summary proceeding, be given judicial authority to administer or encumber any specific separate property of the other spouse and use the fruits or proceeds thereof to satisfy the latter's share. (178a) Art. 128. If a spouse without just cause abandons the other or fails to comply with his or her obligation to the family, the aggrieved spouse may petition the court for receivership, for judicial separation of property, or for authority to be the sole administrator of the conjugal partnership property, subject to such precautionary conditions as the court may impose. The obligations to the family mentioned in the preceding paragraph refer to marital, parental or property relations. A spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling.

V.Liquidation Art. 129. Upon the dissolution of the conjugal partnership regime, the following procedure shall apply: (1) An inventory shall be prepared, listing separately all the properties of the conjugal partnership and the exclusive properties of each spouse. (2) Amounts advanced by the conjugal partnership in payment of personal debts and obligations of either spouse shall be credited to the conjugal partnership as an asset thereof. (3) Each spouse shall be reimbursed for the use of his or her exclusive funds in the acquisition of property or for the value of his or her exclusive property, the ownership of which has been vested by law in the conjugal partnership. (4) The debts and obligations of the conjugal partnership shall be paid out of the conjugal assets. In case of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid balance with their separate properties, in accordance with the provisions of paragraph (2) of Article 121.

(5) Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each of them. (6) Unless the owner had been indemnified from whatever source, the loss or deterioration of movables used for the benefit of the family, belonging to either spouse, even due to fortuitous event, shall be paid to said spouse from the conjugal funds, if any. (7) The net remainder of the conjugal partnership properties shall constitute the profits, which shall be divided equally between husband and wife, unless a different proportion or division was agreed upon in the marriage settlements or unless there has been a voluntary waiver or forfeiture of such share as provided in this Code. (8) The presumptive legitimes of the common children shall be delivered upon the partition in accordance with Article 51. (9) In the partition of the properties, the conjugal dwelling and the lot on which it is situated shall, unless otherwise agreed upon by the parties, be adjudicated to the spouse with whom the majority of the common children choose to remain. Children below the age of seven years are deemed to have chosen the mother, unless the court has decided otherwise. In case there is no such majority, the court shall decide, taking into consideration the best interests of said children. (181a, 182a, 183a, 184a, 185a) Art. 130. Upon the termination of the marriage by death, the conjugal partnership property shall be liquidated in the same proceeding for the settlement of the estate of the deceased. If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the conjugal partnership property either judicially or extrajudicially within six months from the death of the deceased spouse. If upon the lapse of the six-month period no liquidation is made, any disposition or encumbrance involving the conjugal partnership property of the terminated marriage shall be void. Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage. (n) Art. 131. Whenever the liquidation of the conjugal partnership properties of two or more marriages

27

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session contracted by the same person before the effectivity of this Code is carried out simultaneously, the respective capital, fruits and income of each partnership shall be determined upon such proof as may be considered according to the rules of evidence. In case of doubt as to which partnership the existing properties belong, the same shall be divided between the different partnerships in proportion to the capital and duration of each. (189a) Art. 132. The Rules of Court on the administration of estates of deceased persons shall be observed in the appraisal and sale of property of the conjugal partnership, and other matters which are not expressly determined in this Chapter. (187a) Art. 133. From the common mass of property support shall be given to the surviving spouse and to the children during the liquidation of the inventoried property and until what belongs to them is delivered; but from this shall be deducted that amount received for support which exceeds the fruits or rents pertaining to them.

Separation of Property During the Marriage (Art. 134-142) Art. 134. In the absence of an express declaration in the marriage settlements, the separation of property between spouses during the marriage shall not take place except by judicial order. Such judicial separation of property may either be voluntary or for sufficient cause. (190a) Art. 135. Any of the following shall be considered sufficient cause for judicial separation of property: (1) That the spouse of the petitioner has been sentenced to a penalty which carries with it civil interdiction; (2) That the spouse of the petitioner has been judicially declared an absentee; (3) That loss of parental authority of the spouse of petitioner has been decreed by the court; (4) That the spouse of the petitioner has abandoned the latter or failed to comply with his or her obligations to the family as provided for in Article 101; (5) That the spouse granted the power of administration in the marriage settlements has abused that power; and (6) That at the time of the petition, the spouses have been separated in fact for at least one year and reconciliation is highly improbable.

In the cases provided for in Numbers (1), (2) and (3), the presentation of the final judgment against the guilty or absent spouse shall be enough basis for the grant of the decree of judicial separation of property. (191a) Art. 136. The spouses may jointly file a verified petition with the court for the voluntary dissolution of the absolute community or the conjugal partnership of gains, and for the separation of their common properties. All creditors of the absolute community or of the conjugal partnership of gains, as well as the personal creditors of the spouse, shall be listed in the petition and notified of the filing thereof. The court shall take measures to protect the creditors and other persons with pecuniary interest. (191a) Art. 137. Once the separation of property has been decreed, the absolute community or the conjugal partnership of gains shall be liquidated in conformity with this Code. During the pendency of the proceedings for separation of property, the absolute community or the conjugal partnership shall pay for the support of the spouses and their children. (192a) Art. 138. After dissolution of the absolute community or of the conjugal partnership, the provisions on complete separation of property shall apply. (191a) Art. 139. The petition for separation of property and the final judgment granting the same shall be recorded in the proper local civil registries and registries of property. (193a) Art. 140. The separation of property shall not prejudice the rights previously acquired by creditors. (194a) Art. 141. The spouses may, in the same proceedings where separation of property was decreed, file a motion in court for a decree reviving the property regime that existed between them before the separation of property in any of the following instances: (1) When the civil interdiction terminates; (2) When the absentee spouse reappears; (3) When the court, being satisfied that the spouse granted the power of administration in the marriage settlements will not again abuse that power, authorizes the resumption of said administration; (4) When the spouse who has left the conjugal home without a decree of legal separation resumes common life with the other;

28

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

(5) When parental authority is judicially restored to the spouse previously deprived thereof; (6) When the spouses who have separated in fact for at least one year, reconcile and resume common life; or (7) When after voluntary dissolution of the absolute community of property or conjugal partnership has been judicially decreed upon the joint petition of the spouses, they agree to the revival of the former property regime. No voluntary separation of property may thereafter be granted. The revival of the former property regime shall be governed by Article 67. (195a) Art. 142. The administration of all classes of exclusive property of either spouse may be transferred by the court to the other spouse: (1) When one spouse becomes the guardian of the other; (2) When one spouse is judicially declared an absentee; (3) When one spouse is sentenced to a penalty which carries with it civil interdiction; or (4) When one spouse becomes a fugitive from justice or is in hiding as an accused in a criminal case. If the other spouse is not qualified by reason of incompetence, conflict of interest, or any other just cause, the court shall appoint a suitable person to be the administrator.

Garcia V. Manzano The Lower court did not err in dismissing the complaint on the ground that the complaint does not warrant for a separation of property. Both the old and new civil code require the separation of property shall not prevail unless expressly stipulated in marriage settlements before the union is solemnized or by formal decree during the existence of the marriage and in the latter case, it may only be ordered by the court for causes specified in Art. 191 of

the NCC. Such article must be limitative, in view of the Code’s restrictive policy. The remedy of the aggrieved spouse in case of the maladministration of the other spouse is to revoke the power granted the other and resume the administration of the community property and to conduct the affairs of the conjugal partnership. Partosa-Jo vs CA GR 82606, December 18, 1992 FACTS: The petitioner, Prima Partosa-Jo, is the legal wife of Jose Jo, herein private respondent. The latter admitted to have cohabited with 3 women and fathered 15 children. Prima filed a complaint against the husband for judicial separation of conjugal property in addition to an earlier action for support which was consolidated. RTC decision was a definite disposition of the complaint for support but none of that for the judicial separation of conjugal property. Jose elevated the decision to CA which affirmed rulings of the trial court. The complaint on the separation of property was dismissed for lack of cause of action on the ground that separation by agreement was not covered in Art. 178 of the Civil Code. Prima contested that the agreement between her and Jose was for her to temporarily live with her parents during the initial period 29

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

of her pregnancy and for him to visit and support her. They never agreed to be separated permanently. She even returned to him but the latter refused to accept her. ISSUE: WON there is abandonment on the part of Jose Jo to warrant judicial separation of conjugal property. HELD: SC is in the position that respondent court should have made the necessary modification instead of dismissing the case filed. For abandonment to exist, there must be an absolute cessation of marital relations, duties and rights, with the intention of perpetual separation. The fact that Jo did not accept her demonstrates that he had no intention of resuming their conjugal relationship. From 1968 until 1988, Jose refused to provide financial support to Prima. Hence, the physical separation of the parties, coupled with the refusal by the private respondent to give support to the petitioner, sufficed to constitute abandonment as a ground for the judicial separation of their conjugal property. Wherefore, the petition was granted and in favor of the petitioner and that the court ordered the conjugal property of

the spouses be divided between them, share and share alike. The division will be implemented after the determination of all the properties pertaining to the said conjugal partnership including those that may have been illegally registered in the name of the persons. Lacson V. Jose-Lacson We hold that the compromise agreement and the judgment of the CFI grounded on the said agreement are valid with respect to the separation of property of the spouses and the dissolution of the conjugal partnership. The law allows separation of property of the spouses and the dissolution of their conjugal partnership provided judicial sanction is secured beforehand. Thus the new Civil Code provides: In the absence of an express declaration in the marriage settlements, the separation of property between spouses during the marriage shall not take place save in virtue of a judicial order. (Art. 190, emphasis supplied) The husband and the wife may agree upon the dissolution of the conjugal partnership during the marriage, subject to judicial approval. All the creditors of the husband and of the wife, as well as 30

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

of the conjugal partnership, shall be notified of any petition for judicial approval of the voluntary dissolution of the conjugal partnership, so that any such creditors may appear at the hearing to safeguard his interests. Upon approval of the petition for dissolution of the conjugal partnership, the court shall take such measures as may protect the creditors and other third persons. (Art. 191, par. 4, emphasis supplied). In the case at bar, the spouses obtained judicial imprimatur of their separation of property and the dissolution of their conjugal partnership. It does not appeal that they have creditors who will be prejudiced by the said arrangements. However, in so approving the regime of separation of property of the spouses and the dissolution of their conjugal partnership, this Court does not thereby accord recognition to nor legalize the de facto separation of the spouses. however, that the CFI erred in depriving the mother, the respondent spouse, of the custody of the two older children (both then below the age of 7). The Civil Code specifically commands in the second sentence

of its article 363 that "No mother shall be separated from her child under seven years of age, unless the court finds compelling reasons for such measure." The rationale of this new provision was explained by the Code Commission thus: The general rule is recommended in order to avoid many a tragedy where a mother has seen her baby torn away from her. No man can sound the deep sorrows of a mother who is deprived of her child of tender age. The exception allowed by the rule has to be for "compelling reasons" for the good of the child: those cases must indeed be rare, if the mother's heart is not to be unduly hurt. If she has erred, as in cases of adultery, the penalty of imprisonment and the (relative) divorce decree will ordinarily be sufficient punishment for her. Moreover, her moral dereliction will not have any effect upon the baby who is as yet unable to understand the situation." (Report of the Code Commission, p. 12). The use of the word shall2 in article 363 of the Civil Code, coupled with the observations made by the Code Commission in respect to the said legal provision, underscores its mandatory character. It prohibits in no uncertain: terms the separation of a mother and her 31

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

child below seven years, unless such separation is grounded upon compelling reasons as determined by a court. Regime of Separation of Property Art. 143. Should the future spouses agree in the marriage settlements that their property relations during marriage shall be governed by the regime of separation of property, the provisions of this Chapter shall be suppletory. (212a) Art. 144. Separation of property may refer to present or future property or both. It may be total or partial. In the latter case, the property not agreed upon as separate shall pertain to the absolute community. (213a) Art. 145. Each spouse shall own, dispose of, possess, administer and enjoy his or her own separate estate, without need of the consent of the other. To each spouse shall belong all earnings from his or her profession, business or industry and all fruits, natural, industrial or civil, due or received during the marriage from his or her separate property. (214a) Art. 146. Both spouses shall bear the family expenses in proportion to their income, or, in case of insufficiency or default thereof, to the current market value of their separate properties. The liabilities of the spouses to creditors for family expenses shall, however, be solidary.

Unions without marriage

the consent of the other, until after the termination of their cohabitation. When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation. (144a) Art. 148. In cases of cohabitation not falling under the preceding Article, only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions. In the absence of proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money and evidences of credit. If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the absolute community or conjugal partnership existing in such valid marriage. If the party who acted in bad faith is not validly married to another, his or her shall be forfeited in the manner provided in the last paragraph of the preceding Article. The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith.

Art. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership. In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former's efforts consisted in the care and maintenance of the family and of the household.

Historical Background

Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without

Maxey v. CA

Yaptinchay v. Torres The common-law husbdan was already married and the common-law wife alleges that the house in question was common property between them. Held: She did not prove her actual contribution of the house. She must prove her contribution to prove the house was common property. The presumption does not lie in her case.

32

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

(This was a case of Common-law marriage because the military style marriage of the spouses were not recognized. There was no legal impediment for them to marry. The issue was WON The properties in question were eXCLUSIVE PROPERTIES OF THE LATE MELBOURNE MAXEY, TO THE EXCLUSION OF HIS WIFE REGINA MORALES, BECAUSE THE MENTIONED PROPERTIES WERE ACTUALLY ACQUIRED BY THE JOINT EFFORTS AND INDUSTRY OF BOTH OF THEM AND THEREFORE, THESE PROPERTIES ARE COMMON PROPERTIES) The provisions of the Civil Code are premised on the traditional and existing, the normal and customary gender roles of Filipino men and women. No matter how large the income of a working wife compared to that of her husband, the major, if not the full responsibility of running the household remains with the woman. She is the administrator of the household. The fact that the two involved in this case were not legally married at the time does not change the nature of their respective roles. It is the woman who traditionally holds the family purse even if she does not contribute to filling that purse with funds. As pointed out by Dean Irene R. Cortes of the University of the Philippines, "in the Filipino family, the wife holds the purse, husbands hand over their pay checks and get an allowance in return and the wife manages the affairs of the household. . . . And the famous

statement attributed to Governor General Leonard Wood is repeated: In the Philippines, the best man is the woman." (Cortes, "Womens Rights Under the New Constitution". WOMAN AND THE LAW, U.P. Law Center, p. 10.) The "real contribution" to the acquisition of property mentioned in Yaptinchay vs. Torres (28 SCRA 489) must include not only the earnings of a woman from a profession, occupation, or business but also her contribution to the family's material and spiritual goods through caring for the children, administering the household, husbanding scarce resources, freeing her husband from household tasks, and otherwise performing the traditional duties of a housewife. Valdes vs. RTC 260 SCRA 221 FACTS: Antonio Valdez and Consuelo Gomez were married in 1971 and begotten 5 children. Valdez filed a petition in 1992 for a declaration of nullity of their marriage pursuant to Article 36 of the Family Code, which was granted hence, marriage is null and void on the ground of their mutual psychological incapacity. Stella and Joaquin are placed under the custody of their mother while the other 3 siblings 33

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

are free to choose which they prefer. Gomez sought a clarification of that portion in the decision regarding the procedure for the liquidation of common property in “unions without marriage”. During the hearing on the motion, the children filed a joint affidavit expressing desire to stay with their father. ISSUE: Whether or not the property regime should be based on coownership. HELD: The Supreme Court ruled that in a void marriage, regardless of the cause thereof, the property relations of the parties are governed by the rules on coownership. Any property acquired during the union is prima facie presumed to have been obtained through their joint efforts. A party who did not participate in the acquisition of the property shall be considered as having contributed thereto jointly if said party’s efforts consisted in the care and maintenance of the family. Carino v. Carino In 1969 SPO4 Santiago Carino married Susan Nicdao Carino. He had 2 children with her. In 1992, SPO4 contracted a second marriage, this time with Susan Yee Carino. In 1988, prior to his second marriage, SPO4 is already bedridden and

he was under the care of Yee. In 1992, he died 13 days after his marriage with Yee. Thereafter, the spouses went on to claim the benefits of SPO4. Nicdao was able to claim a total of P140,000.00 while Yee was able to collect a total of P21,000.00. In 1993, Yee filed an action for collection of sum of money against Nicdao. She wanted to have half of the P140k. Yee admitted that her marriage with SPO4 was solemnized during the subsistence of the marriage b/n SPO4 and Nicdao but the said marriage between Nicdao and SPO4 is null and void due to the absence of a valid marriage license as certified by the local civil registrar. Yee also claimed that she only found out about the previous marriage on SPO4’s funeral. ISSUE: Whether or not the absolute nullity of marriage may be invoked to claim presumptive legitimes. HELD: The marriage between Nicdao and SPO4 is null and void due the absence of a valid marriage license. The marriage between Yee and SPO4 is likewise null and void for the same has been solemnized without the judicial declaration of the nullity of the marriage between Nicdao and SPO4. Under Article 40 of the FC, 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 34

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

void. Meaning, where the absolute nullity of a previous marriage is sought to be invoked for purposes of contracting a second marriage, the sole basis acceptable in law, for said projected marriage to be free from legal infirmity, is a final judgment declaring the previous marriage void. However, for purposes other than remarriage, no judicial action is necessary to declare a marriage an absolute nullity. For other purposes, such as but not limited to the determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime, or a criminal case for that matter, the court may pass upon the validity of marriage even after the death of the parties thereto, and even in a suit not directly instituted to question the validity of said marriage, so long as it is essential to the determination of the case. In such instances, evidence must be adduced, testimonial or documentary, to prove the existence of grounds rendering such a previous marriage an absolute nullity. These need not be limited solely to an earlier final judgment of a court declaring such previous marriage void. The SC ruled that Yee has no right to the benefits earned by SPO4 as a policeman

for their marriage is void due to bigamy; she is only entitled to properties, money etc owned by them in common in proportion to their respective contributions. Wages and salaries earned by each party shall belong to him or her exclusively (Art. 148 of FC). Nicdao is entitled to the full benefits earned by SPO4 as a cop even if their marriage is likewise void. This is because the two were capacitated to marry each other for there were no impediments but their marriage was void due to the lack of a marriage license; in their situation, their property relations is governed by Art 147 of the FC which provides that everything they earned during their cohabitation is presumed to have been equally contributed by each party – this includes salaries and wages earned by each party notwithstanding the fact that the other may not have contributed at all. 10th Session The Family As an Institution Family Code: THE FAMILY Chapter 1. The Family as an Institution Art. 149. The family, being the foundation of the nation, is a basic social institution which public policy cherishes 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. (216a, 218a) Art. 50. Family relations include those: (1) Between husband and wife; (2) Between parents and children; (3) Among brothers and sisters, whether of the full or half-blood. (217a)

35

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

Art. 151. No suit between members of the same family shall prosper unless it should appear from the verified complaint or petition that earnest efforts toward a compromise have been made, but that the same have failed. If it is shown that no such efforts were in fact made, the same case must be dismissed. This rules shall not apply to cases which may not be the subject of compromise under the Civil Code.

The Family Home Family Code: Art. 152. The family home, constituted jointly by the husband and the wife or by an unmarried head of a family, is the dwelling house where they and their family reside, and the land on which it is situated. (223a) Art. 153. The family home is deemed constituted on a house and lot from the time it is occupied as a family residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed by law. (223a) Art. 154. The beneficiaries of a family home are: (1) The husband and wife, or an unmarried person who is the head of a family; and (2) Their parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate or illegitimate, who are living in the family home and who depend upon the head of the family for legal support. (226a) Art. 155. The family home shall be exempt from execution, forced sale or attachment except: (1) For nonpayment of taxes; (2) For debts incurred prior to the constitution of the family home; (3) For debts secured by mortgages on the premises before or after such constitution; and (4) For debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered service or furnished material for the construction of the building. (243a) Art. 156. The family home must be part of the properties of the absolute community or the conjugal partnership, or of the exclusive properties of either spouse with the latter's consent. It may also be constituted by an unmarried head of a family on his or her own property. Nevertheless, property that is the subject of a conditional sale on installments where ownership is

reserved by the vendor only to guarantee payment of the purchase price may be constituted as a family home. (227a, 228a) Art. 157. The actual value of the family home shall not exceed, at the time of its constitution, the amount of the three hundred thousand pesos in urban areas, and two hundred thousand pesos in rural areas, or such amounts as may hereafter be fixed by law. In any event, if the value of the currency changes after the adoption of this Code, the value most favorable for the constitution of a family home shall be the basis of evaluation. For purposes of this Article, urban areas are deemed to include chartered cities and municipalities whose annual income at least equals that legally required for chartered cities. All others are deemed to be rural areas. (231a) Art. 158. The family home may be sold, alienated, donated, assigned or encumbered by the owner or owners thereof with the written consent of the person constituting the same, the latter's spouse, and a majority of the beneficiaries of legal age. In case of conflict, the court shall decide. (235a) Art. 159. The family home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of ten years or for as long as there is a minor beneficiary, and the heirs cannot partition the same unless the court finds compelling reasons therefor. This rule shall apply regardless of whoever owns the property or constituted the family home. (238a) Art. 160. When a creditor whose claims is not among those mentioned in Article 155 obtains a judgment in his favor, and he has reasonable grounds to believe that the family home is actually worth more than the maximum amount fixed in Article 157, he may apply to the court which rendered the judgment for an order directing the sale of the property under execution. The court shall so order if it finds that the actual value of the family home exceeds the maximum amount allowed by law as of the time of its constitution. If the increased actual value exceeds the maximum allowed in Article 157 and results from subsequent voluntary improvements introduced by the person or persons constituting the family home, by the owner or owners of the property, or by any of the beneficiaries, the same rule and procedure shall apply. At the execution sale, no bid below the value allowed for a family home shall be considered. The proceeds

36

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session shall be applied first to the amount mentioned in Article 157, and then to the liabilities under the judgment and the costs. The excess, if any, shall be delivered to the judgment debtor. (247a, 248a) Art. 161. For purposes of availing of the benefits of a family home as provided for in this Chapter, a person may constitute, or be the beneficiary of, only one family home. (n) Art. 162. The provisions in this Chapter shall also govern existing family residences insofar as said provisions are applicable. (n)

Medoquillo v. Breva MODEQUILLO VS. BREVA FACTS: On July 7, 1988, the sheriff levied on a parcel of residential land located at Poblacion Malalag, Davao del Sur containing an area of 600 square meters with a market value of P34,550.00 and assessed value of P7,570.00 per Tax Declaration No. 87008-01359, registered in the name of Jose Modequillo in the office of the Provincial Assessor of Davao del Sur; and a parcel of agricultural land located at Dalagbong Bulacan, Malalag, Davao del Sur containing an area of 3 hectares with a market value of P24,130.00 and assessed value of P9,650.00 per Tax Declaration No. 87-08-01848 registered in the name of Jose Modequillo in the office of the Provincial Assessor of Davao del Sur. A motion to quash and/or to set aside levy of execution was filed by defendant Jose Modequillo alleging therein that the residential land located at

Poblacion Malalag is where the family home is built since 1969 prior to the commencement of this case and as such is exempt from execution, forced sale or attachment under Articles 152 and 153 of the Family Code except for liabilities mentioned in Article 155 thereof, and that the judgment debt sought to be enforced against the family home of defendant is not one of those enumerated under Article 155 of the Family Code. As to the agricultural land although it is declared in the name of defendant it is alleged to be still part of the public land and the transfer in his favor by the original possessor and applicant who was a member of a cultural minority was not approved by the proper government agency. An opposition thereto was filed by the plaintiffs. In the present case, the residential house and lot of petitioner was not constituted as a family home whether judicially or extrajudicially under the Civil Code. It became a family home by operation of law only under Article 153 of the Family Code. It is deemed constituted as a family home upon the effectivity of the Family Code on August 3, 1988 not August 4, one year after its publication in the Manila Chronicle on August 4, 1987 (1988 being a leap year). ISSUE: Whether or not 37

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

the property in dispute is deemed to be a family home. HELD:The contention of petitioner that it should be considered a family home from the time it was occupied by petitioner and his family in 1969 is not well- taken. Under Article 162 of the Family Code, it is provided that "the provisions of this Chapter shall also govern existing family residences insofar as said provisions are applicable." It does not mean that Articles 152 and 153 of said Code have a retroactive effect such that all existing family residences are deemed to have been constituted as family homes at the time of their occupation prior to the effectivity of the Family Code and are exempt from execution for the payment of obligations incurred before the effectivity of the Family Code. Article 162 simply means that all existing family residences at the time of the effectivity of the Family Code, are considered family homes and are prospectively entitled to the benefits accorded to a family home under the Family Code. Article 162 does not state that the provisions of Chapter 2, Title V have a retroactive effect. Is the family home of petitioner exempt from execution of the money judgment aforecited? No. The debt or liability which was the

basis of the judgment arose or was incurred at the time of the vehicular accident on March 16, 1976 and the money judgment arising therefrom was rendered by the appellate court on January 29, 1988. Both preceded the effectivity of the Family Code on August 3, 1988. This case does not fall under the exemptions from execution provided in the Family Code. As to the agricultural land subject of the execution, the trial court correctly ruled that the levy to be made by the sheriff shall be on whatever rights the petitioner may have on the land. WHEREFORE, the petition is DISMISSED for lack of merit. No pronouncement as to costs. SO ORDERED Family Code: PATERNITY AND FILIATION Chapter 1. Legitimate Children Art. 163. The filiation of children may be by nature or by adoption. Natural filiation may be legitimate or illegitimate. (n) Art. 164. Children conceived or born during the marriage of the parents are legitimate. Children conceived as a result of artificial insemination of the wife with the sperm of the husband or that of a donor or both are likewise legitimate children of the husband and his wife, provided, that both of them authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child. The instrument shall be recorded in the civil registry together with the birth certificate of the child. (55a, 258a) Art. 165. Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in this Code. (n)

38

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session Art. 166. Legitimacy of a child may be impugned only on the following grounds:

his heirs, should reside in the city or municipality where the birth took place or was recorded.

(1) That it was physically impossible for the husband to have sexual intercourse with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child because of:

If the husband or, in his default, all of his heirs do not reside at the place of birth as defined in the first paragraph or where it was recorded, the period shall be two years if they should reside in the Philippines; and three years if abroad. If the birth of the child has been concealed from or was unknown to the husband or his heirs, the period shall be counted from the discovery or knowledge of the birth of the child or of the fact of registration of said birth, whichever is earlier. (263a)

(a) the physical incapacity of the husband to have sexual intercourse with his wife; (b) the fact that the husband and wife were living separately in such a way that sexual intercourse was not possible; or (c) serious illness of the husband, which absolutely prevented sexual intercourse; (2) That it is proved that for biological or other scientific reasons, the child could not have been that of the husband, except in the instance provided in the second paragraph of Article 164; or (3) That in case of children conceived through artificial insemination, the written authorization or ratification of either parent was obtained through mistake, fraud, violence, intimidation, or undue influence. (255a) Art. 167. The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. (256a) Art. 168. If the marriage is terminated and the mother contracted another marriage within three hundred days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary: (1) A child born before one hundred eighty days after the solemnization of the subsequent marriage is considered to have been conceived during the former marriage, provided it be born within three hundred days after the termination of the former marriage; (2) A child born after one hundred eighty days following the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage. (259a) Art. 169. The legitimacy or illegitimacy of a child born after three hundred days following the termination of the marriage shall be proved by whoever alleges such legitimacy or illegitimacy. (261a) Art. 170. The action to impugn the legitimacy of the child shall be brought within one year from the knowledge of the birth or its recording in the civil register, if the husband or, in a proper case, any of

Art. 171. The heirs of the husband may impugn the filiation of the child within the period prescribed in the preceding article only in the following cases: (1) If the husband should died before the expiration of the period fixed for bringing his action; (2) If he should die after the filing of the complaint without having desisted therefrom; or (3) If the child was born after the death of the husband. (262a) Chapter 2. Proof of Filiation Art. 172. The filiation of legitimate children is established by any of the following: (1) The record of birth appearing in the civil register or a final judgment; or (2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) The open and continuous possession of the status of a legitimate child; or (2) Any other means allowed by the Rules of Court and special laws. (265a, 266a, 267a) Art. 173. The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action. Art. 174. Legitimate children shall have the right: (1) To bear the surnames of the father and the mother, in conformity with the provisions of the Civil Code on Surnames; (2) To receive support from their parents, their ascendants, and in proper cases, their brothers and sisters, in conformity with the provisions of this Code on Support; and

39

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

(3) To be entitled to the legitimate and other successional rights granted to them by the Civil Code. (264a) Chapter 3. Illegitimate Children Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. The action must be brought within the same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent. (289a) Art. 176. Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. Except for this modification, all other provisions in the Civil Code governing successional rights shall remain in force. (287a) Chapter 4. Legitimated Children Art. 177. Only children conceived and born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other may be legitimated. (269a) Art. 178. Legitimation shall take place by a subsequent valid marriage between parents. The annulment of a voidable marriage shall not affect the legitimation. (270a)chan robles virtual law library Art. 179. Legitimated children shall enjoy the same rights as legitimate children. (272a) Art. 180. The effects of legitimation shall retroact to the time of the child's birth. (273a) Art. 181. The legitimation of children who died before the celebration of the marriage shall benefit their descendants. (274) Art. 182. Legitimation may be impugned only by those who are prejudiced in their rights, within five years from the time their cause of action accrues. (275a) REPUBLIC ACT. NO. 9858 AN ACT PROVIDING FOR THE LEGITIMATION OF CHILDREN BORN TO PARENTS BELOW MARRYING AGE, AMENDING FOR THE PURPOSE THE FAMILY CODE OF THE PHILIPPINES, AS AMENDED

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: Section 1. Article 177 of Executive Order No. 209, otherwise known as the "Family Code of the Philippines", as amended, is hereby further amended to read as follows: "Art. 177. Children conceived and born outside of wedlock of parents who, at the time of conception of the former, were not disqualified by any impediment to marry each other, or were so disqualified only because either or both of them were below eighteen (18) years of age, may be legitimated." "Art. 178. Legitimation shall take place by a subsequent valid marriage between parents. The annulment of a voidable marriage shall not affect the legitimation." Section 2. Implementing Rules. – The civil Registrar General shall, in consultation with the chairpersons of the Committee on Revision of Laws of the House of Representatives and the Committee on Youth, Women and Family Relations of the Senate, the Council for the Welfare of Children, the Department of Justice (DOJ), the Department of Foreign Affairs (DFA), the office of the Supreme Court Administrator, the Philippine Association of Civil Registrars (PACR) and the UP Law Center, issue the necessary rules/regulations for the effective implementation of this Act not later than one (1) month from its effectivity. Section 3. Repealing Clause. – All laws, presidential decrees, executive orders, proclamations and/or administrative regulations which are inconsistent with the provisions of this Act are hereby amended, modified, superseded or repealed accordingly. Section 4. Effectivity Clause. – This Act shall take effect fifteen (15) days after its complete publication in the Official Gazette or in at least two (2) newspapers of national circulation.

Tayag v. CA Facts : Petitioner argues that assuming arguendo that the action is one to compel recognition, private respondent's cause of action has prescribed for the reason that since filiation is sought to be proved by means of a private handwritten instrument signed by the parent concerned, then under paragraph 40

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

2, Article 175 of the Family Code, the action to establish filiation of the illegitimate minor child must be brought during the lifetime of the alleged putative father. In the case at bar, considering that the complaint was filed after the death of the alleged parent, the action has prescribed and this is another ground for the dismissal of the complaint. Petitioner theorizes that Article 285 of the Civil Code is not applicable to the case at bar and, instead, paragraph 2, Article 175 of the Family Code should be given retroactive effect. The theory is premised on the supposition that the latter provision of law being merely procedural in nature, no vested rights are created, hence it can be made to apply retroactively. Article 285 of the Civil Code provides: Art. 285. The action for the recognition of natural children may be brought only during the lifetime of the presumed parents, except in the following cases: (1) If the father or mother died during the minority of the child, in which case the latter may file the action before the expiration of four years from the attainment of his majority; xxx

xxx

xxx

On the other hand, Article 175 of the Family Code reads: Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. The action must be brought within the same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent. \Under the circumstances obtaining in the case at bar, we hold that the right of action of the minor child bas been vested by the filing of the complaint in court under the regime of the Civil Code and prior to the effectivity of the Family Code. 14 We herein adopt our ruling in the recent case of Republic of the Philippines vs. Court of Appeals, et al. 15 where we held that the fact of filing of the petition already vested in the petitioner her right to file it and to have the same proceed to final adjudication in accordance with the law in force at the time, and such right can no longer be prejudiced or impaired by the enactment of a new law. Even assuming ex gratia argumenti that the provision of the Family Code in question is procedural in nature, the rule that a statutory change in matters of procedure may affect pending actions and proceedings, unless the language of 41

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

the act excludes them from its operation, is not so pervasive that it may be used to validate or invalidate proceedings taken before it goes into effective, since procedure must be governed by the law regulating it at the time the question of procedure arises especially where vested rights may be prejudiced. Accordingly, Article 175 of the Family Code finds no proper application to the instant case since it will ineluctably affect adversely a right of private respondent and, consequentially, of the mind child she represents, both of which have been vested with the filing of the complaint in court. The trial court is therefore, correct in applying the provisions of Article 285 of the Civil Code and in holding that private respondent's cause of action has not yet prescribed. Benitez v. CA FACTS: Spouses Vicente Benitez and Isabel Chipongian were owners of various properties located in Laguna. Isabel died in 1982 while his husband died in 1989. Vicente’s sister and nephew filed a complaint for the issuance of letters of administration of Vicente’s estate in favor of the nephew, herein private respondent. The petitioner, Marissa Benitez-Badua, was raised and cared by the deceased spouses since childhood, though not related to them by blood, nor legally adopted. The latter to prove that she is the only legitimate child of the spouses submitted documents such as

her certificate of live birth where the spouses name were reflected as her parents. She even testified that said spouses continuously treated her as their legitimate daughter. On the other hand, the relatives of Vicente declared that said spouses were unable to physically procreate hence the petitioner cannot be the biological child. Trial court decided in favor of the petitioner as the legitimate daughter and sole heir of the spouses. ISSUE: WON petitioner’s certificate of live birth will suffice to establish her legitimacy. HELD: The Court dismissed the case for lack of merit. The mere registration of a child in his or her birth certificate as the child of the supposed parents is not a valid adoption. It does not confer upon the child the status of an adopted child and her legal rights. Such act amounts to simulation of the child's birth or falsification of his or her birth certificate, which is a public document. It is worthy to note that Vicente and brother of the deceased wife executed a Deed of Extra-Judicial Settlement of the Estate of the latter. In the notarized document, they stated that they were the sole heirs of the deceased because “she died without descendants and ascendants”. In executing such deed, Vicente effectively repudiated the Certificate of Live Birth of the petitioner 42

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

where it appeared that the was the petitioner’s father. Rodriguez v. CA A mother cannot impugn the legitimacy of the child. Can a mother testify as to the legitimacy of the child? That depends. Voluntarily, Generally, NO (Expn) Compulsory as to compel the father to recognize the child (Ex. Rape) We find that had the appellate court sanctioned the trial court's disallowance of the testimony of plaintiff's mother, private respondent would have been deprived of a speedy and adequate remedy considering the importance of said testimony and the erroneous resolution of the trial court. On the merits of his petition, petitioner contended that Felicitas Agbulos Haber should not be allowed to reveal the name of the father of private respondent because such revelation was prohibited by Article 280 of the Civil Code of the Philippines. Said Article provided: When the father or the mother makes the recognition separately, he or she shall not reveal he name of the person with whom he or she had the child; neither shall he or

she state any circumstance whereby the other party may be identified. On the other hand, private respondent argued that his mother should be allowed to testify on the identity of his father, pursuant to paragraph 4, Article 283 of the Civil Code of the Philippines and Section 30, Rule 130 of the Revised Rules of Court. Article 283 of the Civil Code of the Philippines provided: In any of the following cases, the father is obliged to recognize the child as his natural child: (1) In cases of rape, abduction or seduction, when the period of the offense coincides more or less with that of the conception; (2) When the child is in continuous possession of status of a child of the alleged father by the direct acts of the latter or of his family; (3) When the child was conceived during the time when the mother cohabited with the supposed father; (4) When the child has in his favor any evidence or proof that the defendant is his father. 43

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

Section 30, Rule 130 of the Revised Rules of Court provides: Testimony generally confined to personal knowledge; hearsay excluded. — A witness can testify only to those facts which he knows of his own knowledge, that is, which are derived from his own perception, except as otherwise provided in these rules. Private respondent cannot invoke our decision in Navarro v. Bacalla, 15 SCRA 114 (1965). While we ruled in Navarro that the testimony of the mother of the plaintiff in said case, could be used to establish his paternity, such testimony was admitted during the trial without objection and the defendant accepted the finding of the trial court that he was the father of the plaintiff. In the case at bench, petitioner timely objected to the calling of the mother of private respondent to the witness stand to name petitioner as the father of said respondent. Likewise, in Navarro we clearly stated: We are not ruling whether the mere testimony of the mother, without more, is sufficient to prove the

paternity of the child. Neither are we ruling on the scope of Art. 280, New Civil Code which enjoins the mother in making a separate and voluntary recognition of a child from revealing the name of the father, specifically, as to whether the mother's testimony identifying the father is admissible in an action to compel recognition if and when a timely objection to such oral evidence is interposed (at p. 117). Navarro, therefore, is not the end but only the beginning of our quest, which felicitously was reached with our conclusion that the prohibition in Article 280 against the identification of the father or mother of a child applied only in voluntary and not in compulsory recognition. This conclusion becomes abundantly clear if we consider the relative position of the progenitor of Article 280, which was Article 132 of the Spanish Civil Code of 1889, with the other provisions on the acknowledgement of natural children of the same Code. Article 132 was found in Section I (Acknowledgment of Natural Children), Chapter IV (Illegitimate Children), Title V (Paternity and Filiation), Book First (Persons) of the Spanish Civil Code of 1889. 44

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

The first article in said Section provided: Art. 129 — A natural child may be acknowledged by the father and mother jointly or by either of them alone. The next article provided: Art. 130 — In case the acknowledgment is made by only one of the parents, it shall be presumed that the child is a natural one if the parent acknowledging it was, at the time of the conception, legally competent to contract marriage. The article immediately preceding Article 132 provided: Art. 131 — The acknowledgment of a natural child must be made in the record of birth, in a will, or in some other public document. Article 132 of the Spanish Civil Code provided: When the acknowledgment is made separately by the father or the mother, the name of the child's other parent shall not be revealed by the parent acknowledging it, nor shall any circumstance be mentioned by which such person might be recognized.

No public officer shall authenticate any document drawn in violation of this provision and should he do so notwithstanding this prohibition shall be liable to a fine of from 125 to 500 pesetas, and the words containing such revelation shall be striken out. Article 280 of the Civil Code of the Philippines was found in Section 1 (Recognition of Natural Children), Chapter 4 (Illegitimate Children), Title VIII (Paternity and Filiation) of said Code. The whole section was repealed by the Family Code. The first article of this section was Article 276 which was a reproduction of Article 129 of the Spanish Civil Code. The second article was Article 277 which was a reproduction of Article 130 of the Spanish Civil Code. The third article was Article 278 which was a reproduction of Article 131 of the Spanish Civil Code. However, unlike in the Spanish Civil Code, wherein the progenitor of Article 280 followed immediately the progenitor of Article 278, a new provision was inserted to separate Article 280 from Article 278. The new provision, Article 279, provided:

45

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

A minor who may contract marriage without parental consent cannot acknowledge a natural child, unless the parent or guardian approves the acknowledgment, or unless the recognition is made in the will.

(1) The open and continuous possession of the status of a legitimate child; or

If the sequencing of the provisions in the Spanish Civil Code were maintained in the Civil Code of the Philippines, and Article 280 was numbered Article 279, it becomes clear that the prohibition against the identification by the parent acknowledging a child of the latter's other parent refers to the voluntary recognition provided for in Article 278. Under Article 172 of the Family Code, filiation of legitimate children is by any of the following:

Of interest is that Article 172 of the Family Code adopts the rule in Article 283 of the Civil Code of the Philippines, that filiation may be proven by "any evidence or proof that the defendant is his father."

The filiation of legitimate children is established by any of the following: (1) The record of birth appearing in the civil register or a final judgment; or (2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

(2) Any other means allowed by the Rules of Court and special laws. (265a, 266a, 267a)

WHEREFORE, the Decision of the Court of Appeals is AFFIRMED. The trial court is DIRECTED to PROCEED with dispatch in the disposition of the action for compulsory recognition. Adoption Family Code: ADOPTION Art. 183. A person of age and in possession of full civil capacity and legal rights may adopt, provided he is in a position to support and care for his children, legitimate or illegitimate, in keeping with the means of the family. Only minors may be adopted, except in the cases when the adoption of a person of majority age is allowed in this Title. In addition, the adopter must be at least sixteen years older than the 46

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

person to be adopted, unless the adopter is the parent by nature of the adopted, or is the spouse of the legitimate parent of the person to be adopted. (27a, E. O. 91 and PD 603) Art. 184. The following persons may not adopt: (1) The guardian with respect to the ward prior to the approval of the final accounts rendered upon the termination of their guardianship relation; (2) Any person who has been convicted of a crime involving moral turpitude; (3) An alien, except: (a) A former Filipino citizen who seeks to adopt a relative by consanguinity; (b) One who seeks to adopt the legitimate child of his or her Filipino spouse; or (c) One who is married to a Filipino citizen and seeks to adopt jointly with his or her spouse a relative by consanguinity of the latter. Aliens not included in the foregoing exceptions may adopt Filipino children in accordance with the rules on inter-country adoptions as

may be provided by law. (28a, E. O. 91 and PD 603) Art. 185. Husband and wife must jointly adopt, except in the following cases: (1) When one spouse seeks to adopt his own illegitimate child; or (2) When one spouse seeks to adopt the legitimate child of the other. (29a, E. O. 91 and PD 603) Art. 186. In case husband and wife jointly adopt or one spouse adopts the legitimate child of the other, joint parental authority shall be exercised by the spouses in accordance with this Code. (29a, E. O. and PD 603) Art. 187. The following may not be adopted: (1) A person of legal age, unless he or she is a child by nature of the adopter or his or her spouse, or, prior to the adoption, said person has been consistently considered and treated by the adopter as his or her own child during minority. (2) An alien with whose government the Republic of the Philippines has no diplomatic relations; and (3) A person who has already been adopted unless such adoption has been previously revoked or rescinded. (30a, E. O. 91 and PD 603) 47

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

Art. 188. The written consent of the following to the adoption shall be necessary: (1) The person to be adopted, if ten years of age or over, (2) The parents by nature of the child, the legal guardian, or the proper government instrumentality; (3) The legitimate and adopted children, ten years of age or over, of the adopting parent or parents; (4) The illegitimate children, ten years of age or over, of the adopting parent, if living with said parent and the latter's spouse, if any; and (5) The spouse, if any, of the person adopting or to be adopted. (31a, E. O. 91 and PD 603) Art. 189. Adoption shall have the following effects: (1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters and both shall acquire the reciprocal rights and obligations arising from the relationship of parent and child, including the right of the adopted to use the surname of the adopters; (2) The parental authority of the parents by nature over the adopted shall terminate and be vested in

the adopters, except that if the adopter is the spouse of the parent by nature of the adopted, parental authority over the adopted shall be exercised jointly by both spouses; and (3) The adopted shall remain an intestate heir of his parents and other blood relatives. (39(1)a, (3)a, PD 603) Art. 190. Legal or intestate succession to the estate of the adopted shall be governed by the following rules: (1) Legitimate and illegitimate children and descendants and the surviving spouse of the adopted shall inherit from the adopted, in accordance with the ordinary rules of legal or intestate succession; (2) When the parents, legitimate or illegitimate, or the legitimate ascendants of the adopted concur with the adopter, they shall divide the entire estate, one-half to be inherited by the parents or ascendants and the other half, by the adopters; (3) When the surviving spouse or the illegitimate children of the adopted concur with the adopters, they shall divide the entire estate in equal shares, one-half to be inherited by the spouse or the 48

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

illegitimate children of the adopted and the other half, by the adopters. (4) When the adopters concur with the illegitimate children and the surviving spouse of the adopted, they shall divide the entire estate in equal shares, one-third to be inherited by the illegitimate children, one-third by the surviving spouse, and one-third by the adopters; (5) When only the adopters survive, they shall inherit the entire estate; and (6) When only collateral blood relatives of the adopted survive, then the ordinary rules of legal or intestate succession shall apply. (39(4)a, PD 603) Art. 191. If the adopted is a minor or otherwise incapacitated, the adoption may be judicially rescinded upon petition of any person authorized by the court or proper government instrumental acting on his behalf, on the same grounds prescribed for loss or suspension of parental authority. If the adopted is at least eighteen years of age, he may petition for judicial rescission of the adoption on the same grounds prescribed for disinheriting an ascendant. (40a, PD 603)

Art. 192. The adopters may petition the court for the judicial rescission of the adoption in any of the following cases: (1) If the adopted has committed any act constituting ground for disinheriting a descendant; or (2) When the adopted has abandoned the home of the adopters during minority for at least one year, or, by some other acts, has definitely repudiated the adoption. (41a, PD 603) Art. 193. If the adopted minor has not reached the age of majority at the time of the judicial rescission of the adoption, the court in the same proceeding shall reinstate the parental authority of the parents by nature, unless the latter are disqualified or incapacitated, in which case the court shall appoint a guardian over the person and property of the minor. If the adopted person is physically or mentally handicapped, the court shall appoint in the same proceeding a guardian over his person or property or both. Judicial rescission of the adoption shall extinguish all reciprocal rights and obligations between the adopters and the adopted arising from the relationship of parent and child. The adopted shall likewise lose the right to use the surnames 49

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

of the adopters and shall resume his surname prior to the adoption. The court shall accordingly order the amendment of the records in the proper registries. Special Laws: REPUBLIC ACT NO. 8043

(d) Secretary refers to the Secretary of Department of Social Welfare and Development.

the

(e) Authorized and accredited agency refers to the State welfare agency or a licensed adoption agency in the country of the adopting parents which provide comprehensive social services and which is duly recognized by the Department. (f) Legally-free child means a child who has been voluntarily or involuntarily committed to the Department, in accordance with the Child and Youth Welfare Code.

. . AN ACT ESTABLISHING THE RULES TO GOVERN INTER-COUNTRY ADOPTION OF FILIPINO CHILDREN, AND FOR OTHER PURPOSES.

(g) Matching refers to the judicious pairing of the adoptive child and the applicant to promote a mutually satisfying parent-child relationship.

ARTICLE I GENERAL PROVISIONS

ARTICLE II THE INTER-COUNTRY ADOPTION BOARD Sec. 4. The Inter-Country Adoption Board. — There is hereby created the Inter-Country Adoption Board, hereinafter referred to as the Board to act as the central authority in matters relating to inter-country adoption. It shall act as the policy-making body for purposes of carrying out the provisions of this Act, in consultation and coordination with the Department, the different child-care and placement agencies, adoptive agencies, as well as non-governmental organizations engaged in child-care and placement activities. As such, it shall:

Section 1. Short Title. — This Act shall be known as the "Inter-Country Adoption Act of 1995." Sec. 2. Declaration of Policy. — It is hereby declared the policy of the State to provide every neglected and abandoned child with a family that will provide such child with love and care as well as opportunities for growth and development. Towards this end, efforts shall be exerted to place the child with an adoptive family in the Philippines. However, recognizing that inter-country adoption may be considered as allowing aliens not presently allowed by law to adopt Filipino children if such children cannot be adopted by qualified Filipino citizens or aliens, the State shall take measures to ensure that inter-country adoptions are allowed when the same shall prove beneficial to the child's best interests, and shall serve and protect his/her fundamental rights.chan robles virtual law library Sec. 3. Definition of Terms. — As used in this Act. the term: (a) Inter-country adoption refers to the socio-legal process of adopting a Filipino child by a foreigner or a Filipino citizen permanently residing abroad where the petition is filed, the supervised trial custody is undertaken, and the decree of adoption is issued outside the Philippines. chan robles virtual law library (b) Child means a person below fifteen (15) years of age unless sooner emancipated by law. (c) Department refers to the Department of Social Welfare and Development of the Republic of the Philippines.

(h) Board refers to the Inter-country Adoption Board.

(a) Protect the Filipino child from abuse, exploitation, trafficking and/or sale or any other practice in connection with adoption which is harmful, detrimental, or prejudicial to the child; chan robles virtual law library (b) Collect, maintain, and preserve confidential information about the child and the adoptive parents; (c) Monitor, follow up, and facilitate completion of adoption of the child through authorized and accredited agency; (d) Prevent improper financial or other gain in connection with an adoption and deter improper practices contrary to this Act; (e) Promote the development of adoption services including post-legal adoption; (f) License and accredit child-caring/placement agencies and collaborate with them in the placement of Filipino children; (g) Accredit and authorize foreign adoption agency in the placement of Filipino children in their own country; and

50

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

(h) Cancel the license to operate and blacklist the child-caring and placement agency or adoptive agency involved from the accreditation list of the Board upon a finding of violation of any provision under this Act. Sec. 5. Composition of the Board. — The Board shall be composed of the Secretary of the Department as ex officio Chairman, and six (6) other members to be appointed by the President for a nonrenewable term of six (6) years: Provided, That there shall be appointed one (1) psychiatrist or psychologist, two (2) lawyers who shall have at least the qualifications of a regional trial court judge, one (1) registered social worker and two (2) representatives from nongovernmental organizations engaged in child-caring and placement activities. The members of the Board shall receive a per diem allowance of One thousand five hundred pesos (P1,500) for each meeting attended by them: Provided, further, That no compensation shall be paid for more than four (4) meetings a month.chan robles virtual law library chan robles virtual law library Sec. 6. Powers and Functions of the Board. — The Board shall have the following powers and functions: (a) to prescribe rules and regulations as it may deem reasonably necessary to carry out the provisions of this Act, after consultation and upon favorable recommendation of the different agencies concerned with the child-caring, placement, and adoption; chan robles virtual law library (b) to set the guidelines for the convening of an Intercountry Adoption Placement Committee which shall be under the direct supervision of the Board; (c) to set the guidelines for the manner by which selection/matching of prospective adoptive parents and adoptive child can be made; (d) to determine a reasonable schedule of fees and charges to be exacted in connection with the application for adoption; (e) to determine the form and contents of the application for inter-country adoption; (g) to institute systems and procedures to prevent improper financial gain in connection with adoption and deter improper practices which are contrary to this Act; (h) to promote the development of adoption services, including post-legal adoption services, (i) to accredit and authorize foreign private adoption agencies which have demonstrated professionalism, competence and have consistently pursued nonprofit objectives to engage in the placement of Filipino children in their own country: Provided, That

such foreign private agencies are duly authorized and accredited by their own government to conduct inter-country adoption: Provided, however, That the total number of authorized and accredited foreign private adoption agencies shall not exceed one hundred (100) a year; (j) to take appropriate measures to ensure confidentiality of the records of the child, the natural parents and the adoptive parents at all times; (k) to prepare, review or modify, and thereafter, recommend to the Department of Foreign Affairs, Memoranda of Agreement respecting inter-country adoption consistent with the implementation of this Act and its stated goals, entered into, between and among foreign governments, international organizations and recognized international nongovernmental organizations; (l) to assist other concerned agencies and the courts in the implementation of this Act, particularly as regards coordination with foreign persons, agencies and other entities involved in the process of adoption and the physical transfer of the child; and (m) to perform such other functions on matters relating to inter-country adoption as may be determined by the President. ARTICLE III PROCEDURE Sec. 7. Inter-Country Adoption as the Last Resort. — The Board shall ensure that all possibilities for adoption of the child under the Family Code have been exhausted and that inter-country adoption is in the best interest of the child. Towards this end, the Board shall set up the guidelines to ensure that steps will be taken to place the child in the Philippines before the child is placed for inter-country adoption: Provided, however, That the maximum number that may be allowed for foreign adoption shall not exceed six hundred (600) a year for the first five (5) years.chan robles virtual law library Sec. 8. Who May be Adopted. — Only a legally free child may be the subject of inter-country adoption. In order that such child may be considered for placement, the following documents must be submitted to the Board: (a)Child study; chan robles virtual law library (b)Birth certificate/foundling certificate; (c)Deed of voluntary commitment/decree abandonment/death certificate of parents;

of

(d)Medical evaluation /history;

51

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

(e)Psychological evaluation, as necessary; and (f)Recent photo of the child. Sec. 9. Who May Adopt. — An alien or a Filipino citizen permanently residing abroad may file an application for inter-country adoption of a Filipino child if he/she: (a) is at least twenty-seven (27) years of age and at least sixteen (16) years older than the child to be adopted, at the time of application unless the adopter is the parent by nature of the child to be adopted or the spouse of such parent: chan robles virtual law library (b) if married, his/her spouse must jointly file for the adoption; (c) has the capacity to act and assume all rights and responsibilities of parental authority under his national laws, and has undergone the appropriate counseling from an accredited counselor in his/her country; (d) has not been convicted of a crime involving moral turpitude;chan robles virtual law library (e) is eligible to adopt under his/her national law; (f) is in a position to provide the proper care and support and to give the necessary moral values and example to all his children, including the child to be adopted; (g) agrees to uphold the basic rights of the child as embodied under Philippine laws, the U.N. Convention on the Rights of the Child, and to abide by the rules and regulations issued to implement the provisions of this Act; (h) comes from a country with whom the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that adoption is allowed under his/her national laws; and (i) possesses all the qualifications and none of the disqualifications provided herein and in other applicable Philippine laws. Sec. 10. Where to File Application. — An application to adopt a Filipino child shall be filed either with the Philippine Regional Trial Court having jurisdiction over the child, or with the Board, through an intermediate agency, whether governmental or an authorized and accredited agency, in the country of the prospective adoptive parents, which application shall be in accordance with the requirements as set forth in the implementing rules and regulations to be promulgated by the Board.

The application shall be supported by the following documents written and officially translated in English. (a) Birth certificate of applicant(s); chan robles virtual law library (b) Marriage contract, if married, and divorce decree, if applicable; (c) Written consent of their biological or adoptive children above ten (10) years of age, in the form of sworn statement; (d) Physical, medical and psychological evaluation by a duly licensed physician and psychologist; (e) Income tax returns or any document showing the financial capability of the applicant(s); (f) Police clearance of applicant(s); (g) Character reference from the local church/minister, the applicant's employer and a member of the immediate community who have known the applicant(s) for at least five (5) years; and (h) Recent postcard-size pictures of the applicant(s) and his immediate family; The Rules of Court shall apply in case of adoption by judicial proceedings. chan robles virtual law library Sec. 11. Family Selection/Matching. — No child shall be matched to a foreign adoptive family unless it is satisfactorily shown that the child cannot be adopted locally. The clearance, as issued by the Board, with the copy of the minutes of the meetings, shall form part of the records of the child to be adopted. When the Board is ready to transmit the Placement Authority to the authorized and accredited intercountry adoption agency and all the travel documents of the child are ready, the adoptive parents, or any one of them, shall personally fetch the child in the Philippines.chan robles virtual law library Sec. 12. Pre-adoptive Placement Costs. — The applicant(s) shall bear the following costs incidental to the placement of the child; (a) The cost of bringing the child from the Philippines to the residence of the applicant(s) abroad, including all travel expenses within the Philippines and abroad; and chan robles virtual law library (b) The cost of passport, visa, medical examination and psychological evaluation required, and other related expenses. Sec. 13. Fees, Charges and Assessments. — Fees, charges, and assessments collected by the Board in the exercise of its functions shall be used solely to process applications for inter-country adoption and to support the activities of the Board.

52

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session chan robles virtual law library Sec. 14. Supervision of Trial Custody. — The governmental agency or the authorized and accredited agency in the country of the adoptive parents which filed the application for inter-country adoption shall be responsible for the trial custody and the care of the child. It shall also provide family counseling and other related services. The trial custody shall be for a period of six (6) months from the time of placement. Only after the lapse of the period of trial custody shall a decree of adoption be issued in the said country a copy of which shall be sent to the Board to form part of the records of the child.chan robles virtual law library During the trial custody, the adopting parent(s) shall submit to the governmental agency or the authorized and accredited agency, which shall in turn transmit a copy to the Board, a progress report of the child's adjustment. The progress report shall be taken into consideration in deciding whether or not to issue the decree of adoption. The Department of Foreign Affairs shall set up a system by which Filipino children sent abroad for trial custody are monitored and checked as reported by the authorized and accredited inter-country adoption agency as well as the repatriation to the Philippines of a Filipino child whose adoption has not been approved. Sec. 15. Executive Agreements. — The Department of Foreign Affairs, upon representation of the Board, shall cause the preparation of Executive Agreements with countries of the foreign adoption agencies to ensure the legitimate concurrence of said countries in upholding the safeguards provided by this Act. ARTICLE IV PENALTIES Sec. 16. Penalties. — (a) Any person who shall knowingly participate in the conduct or carrying out of an illegal adoption, in violation of the provisions of this Act, shall be punished with a penalty of imprisonment ranging from six (6) years and one (1) day to twelve (12) years and/or a fine of not less than Fifty thousand pesos (P50,000), but not more than Two hundred thousand pesos (P200.000), at the discretion of the court. For purposes of this Act, an adoption is illegal if it is effected in any manner contrary to the provisions of this Act or established State policies, its implementing rules and regulations, executive agreements, and other laws pertaining to adoption. Illegality may be presumed from the following acts:

(1)consent for an adoption was acquired through, or attended by coercion, fraud, improper material inducement; chan robles virtual law library (2)there is no authority from the Board to effect adoption; (3)the procedures and safeguards placed under the law for adoption were not complied with; and (4)the child to be adopted is subjected to, or exposed to danger, abuse and exploitation. (b)Any person who shall violate established regulations relating to the confidentiality and integrity of records, documents and communications of adoption applications, cases and processes shall suffer the penalty of imprisonment ranging from one (1) year and one (1) day to two (2) years, and/or a fine of not less than Five thousand pesos (P5,000), but not more than Ten thousand pesos (P10,000), at the discretion of the court. chan robles virtual law library A penalty lower by two (2) degrees than that prescribed for the consummated felony under this Article shall be imposed upon the principals of the attempt to commit any of the acts herein enumerated. Acts punishable under this Article, when committed by a syndicate or where it involves two or more children shall be considered as an offense constituting child trafficking and shall merit the penalty of reclusion perpetua. Acts punishable under this Article are deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any of the unlawful acts defined under this Article.Penalties as are herein provided shall be in addition to any other penalties which may be imposed for the same acts punishable under other laws, ordinances, executive orders, and proclamations.chan robles virtual law library Sec. 17. Public Officers as Offenders. — Any government official, employee or functionary who shall be found guilty of violating any of the provisions of this Act, or who shall conspire with private individuals shall, in addition to the above-prescribed penalties, be penalized in accordance with existing civil service laws, rules and regulations: Provided, That upon the filing of a case, either administrative or criminal, said government official, employee or functionary concerned shall automatically suffer suspension until the resolution of the case. ARTICLE V FINAL PROVISIONS

53

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session Sec. 18. Implementing Rules and Regulations. — The Inter-country Adoption Board, in coordination with the Council for the Welfare of Children, the Department of Foreign Affairs, and the Department of Justice, after due consultation with agencies involved in child-care and placement, shall promulgate the necessary rules and regulations to implement the provisions of this Act within six (6) months after its effectivity. Sec. 19. Appropriations. — The amount of Five million pesos (P5,000,000) is hereby appropriated from the proceeds of the Lotto for the initial operations of the Board and subsequently the appropriations of the same shall be included in the General Appropriations Act for the year following its enactment. Sec. 20. Separability Clause. — If any provision, or part hereof is held invalid or unconstitutional, the remainder of the law or the provision not otherwise affected, shall remain valid and subsisting. Sec. 21. Repealing Clause. — Any law, decree, executive order, administrative order or rules and regulations contrary to, or inconsistent with the provisions of this Act are hereby repealed, modified or amended accordingly.chan robles virtual law library Sec. 22. Effectivity Clause. — This Act shall take effect fifteen (15) days after its publication in two (2) newspapers of general circulation. REPUBLIC ACT NO. 8552 AN ACT ESTABLISHING THE RULES AND POLICIES ON THE DOMESTIC ADOPTION OF FILIPINO CHILDREN AND FOR OTHER PURPOSES Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: ARTICLE I General Provisions SECTION 1. Short Title.- This Act shall be known as the "Domestic Adoption Act of 1998." SEC. 2. Declaration of Policies.a) It is hereby declared the policy of the State to ensure that every child remains under the care of his/her parent(s) and be provided with love, care, understanding and security towards the full and harmonious development of his/her personality. Only when such efforts prove insufficient and no appropriate placement or adoption within the child's extended family is available shall adoption by an unrelated person be considered. b) In all matters relating to the care, custody and adoption of a child, his/her interest shall be paramount consideration in accordance with the tenets set forth in the United Nations (UN) Convention on the Rights of the Child; UN Declaration

on Social and Legal Principles Relating to the Protection and Welfare of Children with Special Reference to Foster Placement and Adoption, Nationally and Internationally; and the Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption. Towards this end, the State shall provide alternative protection and assistance through foster care or adoption for every child who is neglected, orphaned or abandoned. c) It shall also be a State policy to: (i) Safeguard the biological parent(s) from making hurried decisions to relinguish his/her parental authority over his/her own child; (ii) Prevent the child from unnecessary separation from his/her biological parent(s); (iii) Protect adoptive parent(s) from attempts to disturb his/her parental authority and custody over his/her adopted child. Any voluntary or involuntary termination of parental authority shall be administratively or judicially declared so as to establish the status of the child as "legally available for adoption" and his/her custody transferred to the Department of Social Welfare and Development or to any duly licensed and accredited child-placing or child-caring agency, which entity shall be authorized to take steps for the permanent placement of the child; (iv) Conduct public information and educational campaigns to promote a positive environment for adoption; (v) Ensure that sufficient capacity exists within government and private sector agencies to handle adoption inquiries, process domestic adoption applications, and offer adoption-related services including but not limited to, parent preparation and post-adoption education and counselling; and (vi) Encourage domestic adoption so as to preserve the child's identity and culture in his/her native land, and only when this is not available shall intercountry adoption be considered as a last resort. SEC. 3. Definition of Terms.- For purposes of this Act, the following terms shall be defined as: a) "Child" is a person below eighteen (18) years of age. b) "A child legally available for adoption" refers to a child who has been voluntarily or involuntarily committed to the Department or to a duly licensed and accredited child-placing or child-caring agency, freed of the parental authority of his/her biological parent(s) or guardian or adopter(s) in case of rescission of adoption. c) "Voluntarily committed child" is one whose parent(s) knowingly and willingly relinguishes parental authority to the Department. d) "Involuntarily committed child" is one whose parent(s), known or unknown, has been permanently and judicially deprived of parental authority due to

54

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session abandonment; substantial, continuous, or repeated neglect; abuse; or incompetence to discharge parental responsibilities. e) "Abandoned child" refers to one who has no proper parental care or guardianship or whose parent(s) has deserted him/her for a period of at least six (6) continuous months and has been judicially declared as such. f) "Supervised trial custody" is a period of time within which a social worker overseas the adjustment and emotional readiness of both adopter(s) and adoptee in stabilizing their filial relationship. g) "Department" refers to the Department of Social Welfare and Development. h) "Child-placing agency" is a duly licensed and accredited agency by the Department to provide comprehensive child welfare services including, but not limited to, receiving applications for adoption, evaluating the prospective adoptive parents, and preparing the adoption home study. i) "Child-caring agency" is a duly licensed and accredited agency by the Department that provides twenty four (24) hour residential care services for abandoned, orphaned, neglected, or voluntarily committed children. j) "Simulation of birth" is the tampering of the civil registry making it appear in the birth records that a certain child was born to a person who is not his/her biological mother, causing such child to lose his/her true identity and status. ARTICLE II Pre-Adoption Services SEC. 4. Counselling Services.- The Department shall provide the services of licensed social workers to the following: a) Biological Parent(s) - Counselling shall be provided to the parent(s) before and after birth of his/her child. No binding commitment to an adoption plan shall be permitted before the birth of his/her child. a period of six (6) months shall be allowed for the biological parent(s) to reconsider any decision to relinguish his/her child for adoption before the decision becomes irrevocable. Counselling and rehabilitation services shall also be offered to the biological parent(s) after he/she has relinguished his/her child for adoption. Steps shall be taken by the department to ensure that no hurried decisions are made and all alternatives for the child's future and the implications of each alternative have been provided. b) Prospective Adoptive Parent(s) - Counselling sessions, adoption fora and seminars, among others, shall be provided to prospective adoptive parent(s) to resolve possible adoption issues and to prepare him/her for effective parenting. c) Prospective Adoptee - Counselling sessions shall be provided to ensure that he/she understands the nature and effects of adoption and is able to

express his/her views on adoption in accordance with his/her age and level of maturity. SEC. 5. Location of Unknown Parent(s).- It shall be the duty of the Department or the child-placing or child-caring agency which has custody of the child to exert all efforts to locate his/her unknown biological parent(s). If such efforts fail, the child shall be registered as a foundling and subsequently be the subject of legal proceedings where he/she shall be declared abandoned. SEC. 6. Support Services.- The Department shall develop a pre-adoption program which shall include, among others, the above mentioned services. ARTICLE III Eligibility SEC. 7. Who May Adopt.- The following may adopt: a) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral character, has not been convicted of any crime involving moral turpitude, emotionally and psychologically capable of caring for children, at least sixteen (16) years older than the adoptee, and who is in a position to support and care for his/her children in keeping with the means of the family. The requirement of sixteen (16) years difference between the age of the adopter and the adoptee may be waived when the adopter is the biological parent of the adoptee, or is the spouse of the adoptee's parent; b) Any alien possessing the same qualification as above stated for Filipino nationals: Provided, That his/her country has diplomatic relations with the Republic of the Philippines, that he/she has been living in the Philippines for at least three (3) continuous years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered, that he/she has been certified by his/her diplomatic or consular office or any appropriate government agency that he/she has the legal capacity to adopt in his/her country, and that his/her government allows the adoptee to enter his/her country as his/her adopted son/daughter: Provided, further, That the requirements on residency and certification of the alien's qualifications to adopt in his/her country may be waived for the following: (i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or (ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or (iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse; or c) The guardian with respect to the ward after the termination of the guardianship and clearance of his/her financial accountabilities.

55

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session Husband and wife shall jointly adapt, except in the following cases: (i) if one spouse seeks to adopt the legitimate son/daughter of the other; or (ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, however, That the other spouse has signified his/her consent thereto; or (iii) if the spouses are legally separated from each other. In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of the other, joint parental authority shall be exercised by the spouses. SEC. 8. Who May Be Adopted. The following may be adopted: a) Any person below eighteen (18) years of age who has been administratively or judicially declared available for adoption; b) The legitimate son/daughter of one spouse by the other spouse; c) An illegitimate son/daughter by a qualified adopter to improve his/her status to that of legitimacy; d) A person of legal age, if prior to the adoption, said person has been consistently considered and treated by the adopter(s) as his/her own child since minority; e) A child whose adoption has been previously rescinded; or f) A child whose biological or adoptive parent(s) has died: Provided, That no proceedings shall be initiated within six (6) months from the time of death of said parent(s). SEC. 9. Whose Consent is Necessary to the Adoption.- After being properly counselled and informed of his/her right to give or withhold his/her approval of the adoption, the written consent of the following to the adoption is hereby required: a) The adoptee, if ten (10) years of age or over; b) The biological parent(s) of the child, if known, or the legal guardian, or the proper government instrumentality which has legal custody of the child; c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the adopter(s) and adoptee, if any: d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter if living with said adopter and the latter's spouse, if any; and e) The spouse, if any, of the person adopting or to be adopted. ARTICLE IV Procedure SEC. 10. Hurried Decisions.- In all proceedings for adoption, the court shall require proof that the biological parent(s) has been properly counselled to prevent him/her from making hurried decisions

caused by strain or anxiety to give up the child, and to sustain that all measures to strengthen the family have been exhausted and that any prolonged stay of the child in his/her own home will be inimical to his/her welfare and interest. SEC. 11. Case Study.- No petition for adoption shall be set for hearing unless a licensed social worker of the Department, the social service office of the local government unit, or any child-placing or child-caring agency had made a case study of the adoptee, his/her biological parent(s), as well as the adopter(s), and has submitted the report and recommendations on the matter to the court hearing such petition. At the time of preparation of the adoptee's case study, the concerned social worker shall confirm with the civil Registry the real identity and registered name of the adoptee. If the birth of the adoptee was not registered with the Civil Registry, it shall be the responsibility of the concerned social worker to ensure that the adoptee is registered. The case study on the adoptee shall establish that he/she is legally available for adoption and that the documents to support this fact are valid and authentic. Further, the case study of the adopter(s) shall ascertain his/her genuine intentions and that the adoption in the best interest of the child. The Department shall intervene on behalf of the adoptee if it finds, after the conduct of the case studies, that the petition should be denied. The case studies and other relevant documents and records pertaining to the adoptee and the adoption shall be preserved by the Department. SEC. 12. Supervised Trial Custody.- No petition for adoption shall be finally granted until the adopter(s) has been given by the court a supervised trial custody period for at least six (6) months within which the parties are expected to adjust psychologically and emotionally to each other and establish a bonding relationship. During said period, temporary parental authority shall be vested in the adopter(s). The court may motu proprio or upon motion of any party reduce the trial period if it finds the same to be in the best interest of the adoptee, stating the reasons for the reduction of the period. However, for alien adopter(s), he/she must complete the six (6) month trial custody except for those enumerated in Sec. 7 (b) (i) (ii) (iii). If the child is below seven (7) years of age and is placed with the prospective adopter(s) through a preadoption placement authority issued by the Department, the prospective adopter(s) shall enjoy all the benefits to which biological parent(s) is entitled from the date the adoptee is placed with the prospective adopter(s). SEC. 13. Decree of Adoption.- If, after the publication of the order of hearing has been complied with, and

56

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session no opposition has been interposed to the petition, and after consideration of the case studies, the qualifications of the adopter(s), trial custody report and the evidence submitted, the court is convinced that the petitioners are qualified to adopt, and that the adoption would redound to the best interest of the adoptee, a decree of adoption shall be entered which shall be effective as of the date the original petition was filed. This provision shall also apply in case the petitioner(s) dies before the issuance of the decree of adoption to protect the interest of the adoptee. The decree shall state the name by which the child is to be known. SEC. 14. Civil Registry Record.- An amended certificate of birth shall be issued by the Civil Registry, as required by the Rules of Court, attesting to the fact that the adoptee is the child of the adopter(s) by being registered with his/her surname. The original certificate of birth shall be stamped "cancelled" with the annotation of the issuance of an amended birth certificate in its place and shall be sealed in the civil registry records. The new birth certificate to be issued to the adoptee shall not bear any notation that it is an amended issue. SEC. 15. Confidential Nature of Proceedings and Records.- All hearings in adoption cases shall be confidential and shall not be open to the public. All records, books, and papers relating to the adoption cases in the files of the court, the Department, or any other agency or institution participating in the adoption proceedings shall be kept strictly confidential. If the court finds that the disclosure of the information to a third person is necessary for purposes connected with or arising out of the adoption and will be for the best interest of the adoptee, the court may merit the necessary information to be released, restricting the purposes for which it may be used. ARTICLE V Effects of Adoption SEC. 16. Parental Authority.- Except in cases where the biological parent is the spouse of the adopter, all legal ties between the biological parent(s) and the adoptee shall be severed and the same shall then be vested on the adopter(s). SEC. 17. Legitimacy.- The adoptee shall be considered the legitimate son/daughter of the adopter(s) for all intents and purposes as such is entitled to all the rights and obligations provided by law to legitimate sons/daughters born to them without discrimination of any kind. To this end, the adoptee is entitled to love, guidance and support in keeping with the means of the family. SEC. 18. Succession.- In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal rights of succession without

distinction from legitimate filiation. However, if the adoptee and his/her biological parent(s) had left a will, the law on testamentary succession shall govern. ARTICLE VI Rescission of Adoption SEC. 19. Ground for Rescission of Adoption.- Upon petition of the adoptee, with the assistance of the Department if a minor or if over eighteen (18) years of age but is not incapacitated, as guardian or counsel, the adoption may be rescinded on any of the following grounds committed by the adopter(s): (a) repeated physical and verbal maltreatment by the adopter(s) despite having undergone counselling; (b) attempt on the life of the adoptee; (c) sexual assault or violence; or (d) abandonment and failure to comply with parental obligations. Adoption, being in the interest of the child, shall not be subject to rescission by the adopter(s). However, the adopter(s) may disinherit the adoptee for causes provided in Article 919 of the Civil Code. SEC. 20. Effects of Rescission.- If the petition is granted, the parental authority of the adoptee's biological parent(s), if known, or the legal custody of the Department shall be restored if the adoptee is still a minor or incapacitated. The reciprocal rights and obligations of the adopter(s) and the adoptee to each other shall be extinguished. The court shall order the Civil Registrar to cancel the amended certificate of birth of the adoptee and restore his/her original birth certificate. Succession rights shall revert to its status prior to adoption, but only as of the date of judgment of judicial rescission. Vested rights acquired prior to judicial rescission shall be respected. All the foregoing effects of rescission of adoption shall be without prejudice to the penalties imposable under the Penal Code if the criminal acts are properly proven. ARTICLE VII Violations and Penalties SEC. 21. Violations and Penalties.a) The penalty of imprisonment ranging from six (6) years and one (1) day to twelve (12) years and/or a fine of not less than Fifty thousand pesos (P50,000.00), but not more than Two hundred thousand pesos (P200,000.00) at the discretion of the court shall be imposed on any person who shall commit any of the following acts: i) obtaining consent for an adoption through coercion, undue influence, fraud, improper material inducement, or other similar acts; ii) noncompliance with the procedures and safeguards provided by the law for adoption; or iii) subjecting or exposing the child to be adopted to danger, abuse, or exploitation. b) Any person who shall cause the fictitious registration of the birth of a child under the name(s)

57

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session of a person(s) who is not his/her biological parent(s) shall be guilty of simulation of birth, and shall be punished by prison mayor in its medium period and a fine not exceeding Fifty thousand pesos (P50,000.00). Any physician or nurse or hospital personnel who, in violation of his/her oath of office, shall cooperate in the execution of the above mentioned crime shall suffer the penalties herein prescribed and also the penalty of permanent disqualification. Any person who shall violate established regulations relating to the confidentiality and integrity of records, documents, and communications of adoption applications, cases, and processes shall suffer the penalty of imprisonment ranging from one (1) year and one (1) day to two (2) years and/or a fine of not less than Five thousand pesos (P5,000.00) but not more than Ten thousand pesos (P10,000.00) at the discretion of the court. A penalty lower by two (2) degrees than that prescribed for the consummated offense under this Article shall be imposed upon the principals of the attempt to commit any of the acts herein enumerated. Acts punishable under this Article, when committed by a syndicate or when it involves two (2) or more children shall be considered as an offense constituting child trafficking and shall merit the penalty of reclusion pepetua. Acts punishable under this Article are deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any of the unlawful acts defined under this Article. Penalties as are herein provided, shall be in addition to any other penalties which may be imposed for the same acts punishable under other laws, ordinances, executive orders, and proclamations. When the offender is an alien, he/she shall be deported immediately after service of sentence and perpetually excluded from entry to the country. Any government official, employee or functionary who shall be found guilty of violating any of the provisions on this Act, or who shall conspire with private individuals shall, in addition to the aboveprescribed penalties, be penalized in accordance with existing civil service laws, rules and regulations: Provided, That upon filing of a case, either administrative or criminal, said government official, employee, or functionary concerned shall automatically suffer suspension until the resolution of the case. SEC. 22. Rectification of Simulated Births.- A person who has, prior to the effectivity of this Act, simulated the birth of a child shall not be punished for such act: Provided, That the simulation of birth was made for the best interest of the child and that he/she has

been consistently considered and treated by that person as his/her own son/daughter: Provided, further, That the application for correction of the birth registration and petition for adoption shall be filed within five (5) years from the effectivity of this Act and completed thereafter: Provided, finally, That such person complies with the procedure as specified in Article IV of this Act and other requirements as determined by the Department. ARTICLE VIII Final Provisions SEC. 23. Adoption Resource and Referral Office.There shall be established an Adoption Resources and Referral Office under the Department with the following functions: (a) monitor the existence, number, and flow of children legally available for adoption and prospective adopter(s) so as to facilitate their matching; (b) maintain a nationwide information and educational campaign on domestic adoption; (c) keep records of adoption proceedings; (d) generate resources to help child-caring and childplacing agencies and foster homes maintain viability; and (e) do policy research in collaboration with the Intercountry Adoption Board and other concerned agencies. The office shall be manned by adoption experts from the public and private sectors. SEC. 24. Implementing Rules and Regulations.Within six (6) months from the promulgation of this Act, the Department, with the Council for the Welfare of Children, the Office of the Civil Registry General, the Department of Justice, Office of the Solicitor General, and two (2) private individuals representing child-placing and child-caring agencies shall formulate the necessary guidelines to make the provisions of this Act operative. SEC. 25. Appropriations.- Such sum as may be necessary for the implementation of the provisions of this Act shall be included in the General Appropriations Act of the year following its enactment into law and thereafter. SEC. 26. Repealing Clause.- Any law, presidential decree or issuance, executive order, letter of instruction, administrative order, rule or regulation contrary to, or inconsistent with the provisions of this Act is hereby repealed, modified, or amended accordingly. SEC. 27. Separability Clause.- If any provision of this Act is held invalid or unconstitutional, the other provisions not affected thereby shall remain valid and subsisting. SEC. 28. Effectivity Clause.- This Act shall take effect fifteen (15) days following its complete publication in any newspaper of general circulation or in the Official Gazette. Republic Act No. 9523

March 12, 2009

AN ACT REQUIRING CERTIFICATION OF DEPARTMENT OF SOCIAL WELFARE

THE AND

58

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session DEVELOPMENT (DSWD) TO DECLARE A "CHILD LEGALLY AVAILABLE FOR ADOPTION" AS A PREREQUISITE FOR ADOPTION PROCEEDINGS, AMENDING FOR THIS PURPOSE CERTAIN PROVISIONS OF REPUBLIC ACT NO. 8552, OTHERWISE KNOWN AS THE DOMESTIC ADOPTION ACT OF 1998, REPUBLIC ACT NO. 8043, OTHERWISE KNOWN AS THE INTERCOUNTRY ADOPTION ACT OF 1995, PRESIDENTIAL DECREE NO. 603, OTHERWISE KNOWN AS THE CHILD AND YOUTH WELFARE CODE, AND FOR OTHER PURPOSES Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:: Section 1. Declaration of Policy. – It is hereby declared the policy of the State that alternative protection and assistance shall be afforded to every child who is abandoned, surrendered, or neglected. In this regard, the State shall extend such assistance in the most expeditious manner in the interest of full emotional and social development of the abandoned, surrendered, or neglected child. It is hereby recognized that administrative processes under the jurisdiction of the Department of Social Welfare and Development for the declaration of a child legally available for adoption of abandoned, surrendered, or neglected children are the most expeditious proceedings for the best interest and welfare of the child. Section. 2. Definition of Terms. – As used in this Act, the following terms shall mean: (1) Department of Social Welfare and Development (DSWD) is the agency charged to implement the provisions of this Act and shall have the sole authority to issue the certification declaring a child legally available for adoption. (2) Child refers to a person below eighteen (18) years of age or a person over eighteen (18) years of age but is unable to fully take care of him/herself or protect himself/herself from abuse, neglect, cruelty, exploitation, or discrimination because of physical or mental disability or condition. (3) Abandoned Child refers to a child who has no proper parental care or guardianship, or whose parent(s) have deserted him/her for a period of at least three (3) continuous months, which includes a founding. (4) Neglected Child refers to a child whose basic needs have been deliberately unattended or inadequately attended within a period of three (3)

continuous months. Neglect may occur in two (2) ways: (a) There is physical neglect when the child is malnourished, ill-clad, and without proper shelter. A child is unattended when left by himself/herself without proper provisions and/or without proper supervision. (b) There is emotional neglect when the child is maltreated, raped, seduced, exploited, overworked, or made to work under conditions not conducive to good health; or is made to beg in the streets or public places; or when children are in moral danger, or exposed to gambling, prostitution, and other vices. (5) Child Legally Available for Adoption refers to a child in whose favor a certification was issued by the DSWD that he/she is legally available for adoption after the fact of abandonment or neglect has been proven through the submission of pertinent documents, or one who was voluntarily committed by his/her parent(s) or legal guardian. (6) Voluntarily Committed Child is one whose parent(s) or legal guardian knowingly and willingly relinquished parental authority to the DSWD or any duly accredited child-placement or child-caring agency or institution. (7) Child-caring agency or institution refers to a private non-profit or government agency duly accredited by the DSWD that provides twenty-four (24) hour residential care services for abandoned, neglected, or voluntarily committed children. (8) Child-placing agency or institution refers to a private non-profit institution or government agency duly accredited by the DWSD that receives and processes applicants to become foster or adoptive parents and facilitate placement of children eligible for foster care or adoption. (9) Petitioner refers to the head or executive director of a licensed or accredited child-caring or childplacing agency or institution managed by the government, local government unit, nongovernmental organization, or provincial, city, or municipal Social Welfare Development Officer who has actual custody of the minor and who files a certification to declare such child legally available for adoption, or, if the child is under the custody of any other individual, the agency or institution does so with the consent of the child's custodian. (10) Secretary refers to the Secretary of the DSWD or his duly authorized representative.

59

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session (11) Conspicuous Place shall refer to a place frequented by the public, where by notice of the petition shall be posted for information of any interested person. (12) Social Case Study Report (SCSR) shall refer to a written report of the result of an assessment conducted by a licensed social worker as to the social-cultural economic condition, psychosocial background, current functioning and facts of abandonment or neglect of the child. The report shall also state the efforts of social worker to locate the child's biological parents/relatives. Section 3. Petition. – The petition shall be in the form of an affidavit, subscribed and sworn to before any person authorized by law to administer oaths. It shall contain facts necessary to establish the merits of the petition and shall state the circumstances surrounding the abandonment or neglect of the child. The petition shall be supported by the following documents: (1) Social Case Study Report made by the DSWD, local government unit, licensed or accredited childcaring or child-placing agency or institution charged with the custody of the child; (2) Proof that efforts were made to locate the parent(s) or any known relatives of the child. The following shall be considered sufficient: (a) Written certification from a local or national radio or television station that the case was aired on three (3) different occasions; (b) Publication in one (1) newspaper of general circulation; (c) Police report or barangay certification from the locality where the child was found or a certified copy of a tracing report issued by the Philippine National Red Cross (PNRC), National Headquarters (NHQ), Social Service Division, which states that despite due diligence, the child's parents could not be found; and (d) Returned registered mail to the last known address of the parent(s) or known relatives, if any. (3) Birth certificate, if available; and (4) Recent photograph of the child and photograph of the child upon abandonment or admission to the agency or institution. Section 4. Procedure for the Filing of the Petition. – The petition shall be filed in the regional office of the DSWD where the child was found or abandoned.

The Regional Director shall examine the petition and its supporting documents, if sufficient in form and substance and shall authorize the posting of the notice of the petition conspicuous place for five (5) consecutive days in the locality where the child was found. The Regional Director shall act on the same and shall render a recommendation not later than five (5) working days after the completion of its posting. He/she shall transmit a copy of his/her recommendation and records to the Office of the Secretary within forty-eight (48) hours from the date of the recommendation. Section 5. Declaration of Availability for Adoption. – Upon finding merit in the petition, the Secretary shall issue a certification declaring the child legally available for adoption within seven (7) working days from receipt of the recommendation. Said certification, by itself shall be the sole basis for the immediate issuance by the local civil registrar of a foundling certificate. Within seven (7) working days, the local civil registrar shall transmit the founding certificate to the National Statistic Office (NSO). Section 6. Appeal. – The decision of the Secretary shall be appealable to the Court of Appeals within five (5) days from receipt of the decision by the petitioner, otherwise the same shall be final and executory. Section 7. Declaration of Availability for Adoption of Involuntarily Committed Child and Voluntarily Committed Child. – The certificate declaring a child legally available for adoption in case of an involuntarily committed child under Article 141, paragraph 4(a) and Article 142 of Presidential Decree No. 603 shall be issued by the DSWD within three (3) months following such involuntary commitment. In case of voluntary commitment as contemplated in Article 154 of Presidential Decree No. 603, the certification declaring the child legally available for adoption shall be issued by the Secretary within three (3) months following the filing of the Deed of Voluntary Commitment, as signed by the parent(s) with the DSWD. Upon petition filed with the DSWD, the parent(s) or legal guardian who voluntarily committed a child may recover legal custody and parental authority over him/her from the agency or institution to which such child was voluntarily committed when it is shown to the satisfaction of the DSWD that the

60

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session parent(s) or legal guardian is in a position to adequately provide for the needs of the child: Provided, That, the petition for restoration is filed within (3) months after the signing of the Deed of Voluntary Commitment. Section 8. Certification. – The certification that a child is legally available for adoption shall be issued by the DSWD in lieu of a judicial order, thus making the entire process administrative in nature. The certification, shall be, for all intents and purposes, the primary evidence that the child is legally available in a domestic adoption proceeding, as provided in Republic Act No. 8552 and in an intercountry adoption proceeding, as provided in Republic Act No. 8043. Section. 9. Implementing Rules and Regulations. – The DSWD, together with the Council for Welfare of Children, Inter-Country Adoption Board, two (2) representatives from licensed or accredited childplacing and child-caring agencies or institution, National Statistics Office and Office of the Civil Registrar, is hereby tasked to draft the implementing rules and regulations of this Act within sixty (60) days following its complete publication. Upon effectivity of this Act and pending the completion of the drafting of the implementing rules and regulations, petitions for the issuance of a certification declaring a child legally available for adoption may be filled with the regional office of the DSWD where the child was found or abandoned. Section 10. Penalty. – The penalty of One hundred thousand pesos (P100,000.00) to Two hundred thousand pesos (P200,000.00) shall be imposed on any person, institution, or agency who shall place a child for adoption without the certification that the child is legally available for adoption issued by the DSWD. Any agency or institution found violating any provision of this Act shall have its license to operate revoked without prejudice to the criminal prosecution of its officers and employees. Violation of any provision of this Act shall subject the government official or employee concerned to appropriate administrative, civil and/or criminal sanctions, including suspension and/or dismissal from the government service and forfeiture of benefits. Section 11. Repealing Clause. – Sections 2(c)(iii), 3(b), (e) and 8(a) of Republic Act No. 8552, Section 3(f) of Republic Act No. 8043, Chapter 1 of Title VII, and VIII of Presidential Decree No. 603 and any law, presidential decree, executive order, letter of instruction, administrative order, rule, or regulation

contrary to or inconsistent with the provisions of this Act are hereby reprealed, modified or amended accordingly. Section 12. Separability Clause. – If any provision of this Act is held invalid or unconstitutional, the other provisions not affected thereby shall remain valid and subsisting. Section 13. Effectivity. – This Act shall take effect fifteen (15) days following its complete publication in two (2) newspapers of general circulation or in the Official Gazette.

Republic v. CA and the spouses James and Lenita Hughes Facts: James Hughes, a natural born citizen of the United States of America, married Lenita Mabunay, a Filipino Citizen, who herself was later naturalized as a citizen of that country. The spouses jointly filed a petition with the RTC to adopt the minor niece and nephews of Lenita, who had been living with the couple even prior to the filing of the petition. The minors, as well as their parents, gave consent to the adoption. The RTC rendered a decision granting the petition. Issue: Can the spouses adopt the minors? Held: While James Anthony unquestionably is not permitted to adopt under any of the exceptional cases enumerated in paragraph (3) of the aforequoted article, Lenita, however, can qualify pursuant to paragraph (3)(a). Lenita may not thus adopt alone since Article 185 requires a joint adoption by the husband and the wife, a condition that must be read along together with Article 184.Art 185 provides: Art. 185. Husband and wife must jointly adopt, 61

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

except in the following cases: (1) When one spouse seeks to adopt his own illegitimate child; or (2) When one spouse seeks to adopt the legitimate child of the other. As amended by Executive Order 91, Presidential Decree No. 603, had thus made it mandatory for both the spouses to jointly adopt when one of them was an alien. The law was silent when both spouses were of the same nationality. The Family Code has resolved any possible uncertainty. Article 185 thereof now expresses the necessity for joint adoption by the spouses except in only two instances: (1) When one spouse seeks to adopt his own legitimate child; or (2) When one spouse seeks to adopt the legitimate child of the other. It is in the foregoing cases when Article 186 of the Code, on the subject of parental authority, can aptly find governance. Article 186. In case husband and wife jointly adopt or one spouse adopts the legitimate child of the other, joint parental authority shall be exercised by the spouses in accordance with this Code. Family Code: SUPPORT Art. 194. Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family. The education of the person entitled to be supported referred to in the preceding paragraph shall include his schooling or training for some profession, trade or vocation, even beyond the age of majority. Transportation shall include expenses in going to and from school, or to and from place of work. (290a)

Art. 105. Subject to the provisions of the succeeding articles, the following are obliged to support each other to the whole extent set forth in the preceding article: (1) The 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; and (5) Legitimate brothers and sisters, whether of full or half-blood (291a) Art. 196. Brothers and sisters not legitimately related, whether of the full or half-blood, are likewise bound to support each other to the full extent set forth in Article 194, except only when the need for support of the brother or sister, being of age, is due to a cause imputable to the claimant's fault or negligence. (291a) Art. 197. In case of legitimate ascendants; descendants, whether legitimate or illegitimate; and brothers and sisters, whether legitimately or illegitimately related, only the separate property of the person obliged to give support shall be answerable provided that in case the obligor has no separate property, the absolute community or the conjugal partnership, if financially capable, shall advance the support, which shall be deducted from the share of the spouse obliged upon the liquidation of the absolute community or of the conjugal partnership. (n) Art. 198. 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. After the final judgment granting the petition, the obligation of mutual support between the spouses ceases. However, in case of legal separation, the court may order that the guilty spouse shall give support to the innocent one, specifying the terms of such order. (292a) Art. 199. Whenever two or more persons are obliged to give support, the liability shall devolve upon the following persons in the order herein provided: (1) The spouse; (2) The descendants in the nearest degree; (3) The ascendants in the nearest degree; and

62

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session (4) The brothers and sisters. (294a) Art. 200. When the obligation to give support falls upon two or more persons, the payment of the same shall be divided between them in proportion to the resources of each. However, in case of urgent need and by special circumstances, the judge may order only one of them to furnish the support provisionally, without prejudice to his right to claim from the other obligors the share due from them. When two or more recipients at the same time claim support from one and the same person legally obliged to give it, should the latter not have sufficient means to satisfy all claims, the order established in the preceding article shall be followed, unless the concurrent obligees should be the spouse and a child subject to parental authority, in which case the child shall be preferred. (295a) Art. 201. The amount of support, in the cases referred to in Articles 195 and 196, shall be in proportion to the resources or means of the giver and to the necessities of the recipient. (296a) Art. 202. Support in the cases referred to in the preceding article shall be reduced or increased proportionately, according to the reduction or increase of the necessities of the recipient and the resources or means of the person obliged to furnish the same. (297a)chan robles virtual law library Art. 203. The obligation to give support shall be demandable from the time the person who has a right to receive the same needs it for maintenance, but it shall not be paid except from the date of judicial or extra-judicial demand. Support pendente lite may be claimed in accordance with the Rules of Court. Payment shall be made within the first five days of each corresponding month or when the recipient dies, his heirs shall not be obliged to return what he has received in advance. (298a) Art. 204. The person obliged to give support shall have the option to fulfill the obligation either by paying the allowance fixed, or by receiving and maintaining in the family dwelling the person who has a right to receive support. The latter alternative cannot be availed of in case there is a moral or legal obstacle thereto. (299a) Art. 205. The right to receive support under this Title as well as any money or property obtained as such support shall not be levied upon on attachment or execution. (302a)

Art. 206. When, without the knowledge of the person obliged to give support, it is given by a stranger, the latter shall have a right to claim the same from the former, unless it appears that he gave it without intention of being reimbursed. (2164a) Art. 207. 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 right of reimbursement from the person obliged to give support. This Article shall particularly apply when the father or mother of a child under the age of majority unjustly refuses to support or fails to give support to the child when urgently needed. (2166a) Art. 208. In case of contractual support or that given by will, the excess in amount beyond that required for legal support shall be subject to levy on attachment or execution. Furthermore, contractual support shall be subject to adjustment whenever modification is necessary due to changes of circumstances manifestly beyond the contemplation of the parties. (n)

11th Session Parental Authority PARENTAL AUTHORITY Chapter 1. General Provisions Art. 209. Pursuant to the natural right and duty of parents over the person and property of their unemancipated children, parental authority and responsibility shall include the caring for and rearing them for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being. (n) Art. 210. Parental authority and responsibility may not be renounced or transferred except in the cases authorized by law. (313a) Art. 211. The father and the mother shall jointly exercise parental authority over the persons of their common children. In case of disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary. Children shall always observe respect and reverence towards their parents and are obliged to obey them as long as the children are under parental authority. (311a) chan robles virtual law library

63

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session Art. 212. In case of absence or death of either parent, the parent present shall continue exercising parental authority. The remarriage of the surviving parent shall not affect the parental authority over the children, unless the court appoints another person to be the guardian of the person or property of the children. (n) Art. 213. In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit. (n) Art. 214. In case of death, absence or unsuitability of the parents, substitute parental authority shall be exercised by the surviving grandparent. In case several survive, the one designated by the court, taking into account the same consideration mentioned in the preceding article, shall exercise the authority. (355a) Art. 215. No descendant shall be compelled, in a criminal case, to testify against his parents and grandparents, except when such testimony is indispensable in a crime against the descendant or by one parent against the other. (315a) Chapter 2. Substitute and Special Parental Authority Art. 216. In default of parents or a judicially appointed guardian, the following person shall exercise substitute parental authority over the child in the order indicated: (1) The surviving grandparent, as provided in Art. 214; (2) The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified; and (3) The child's actual custodian, over twenty-one years of age, unless unfit or disqualified. Whenever the appointment or a judicial guardian over the property of the child becomes necessary, the same order of preference shall be observed. (349a, 351a, 354a) Art. 217. In case of foundlings, abandoned neglected or abused children and other children similarly situated, parental authority shall be entrusted in summary judicial proceedings to heads of children's homes, orphanages and similar institutions duly accredited by the proper government agency. (314a) Art. 218. The school, its administrators and teachers, or the individual, entity or institution engaged in child are shall have special parental authority and

responsibility over the minor child while under their supervision, instruction or custody. Authority and responsibility shall apply to all authorized activities whether inside or outside the premises of the school, entity or institution. (349a) Art. 129. Those given the authority and responsibility under the preceding Article shall be principally and solidarily liable for damages caused by the acts or omissions of the unemancipated minor. The parents, judicial guardians or the persons exercising substitute parental authority over said minor shall be subsidiarily liable. The respective liabilities of those referred to in the preceding paragraph shall not apply if it is proved that they exercised the proper diligence required under the particular circumstances. All other cases not covered by this and the preceding articles shall be governed by the provisions of the Civil Code on quasi-delicts. (n) Chapter 3. Effect of Parental Authority Upon the Persons of the Children Art. 220. The parents and those exercising parental authority shall have with the respect to their unemancipated children on wards the following rights and duties: (1) To keep them in their company, to support, educate and instruct them by right precept and good example, and to provide for their upbringing in keeping with their means; (2) To give them love and affection, advice and counsel, companionship and understanding; (3) To provide them with moral and spiritual guidance, inculcate in them honesty, integrity, selfdiscipline, self-reliance, industry and thrift, stimulate their interest in civic affairs, and inspire in them compliance with the duties of citizenship; (4) To furnish them with good and wholesome educational materials, supervise their activities, recreation and association with others, protect them from bad company, and prevent them from acquiring habits detrimental to their health, studies and morals; (5) To represent them in all matters affecting their interests; (6) To demand from them respect and obedience; (7) To impose discipline on them as may be required under the circumstances; and

64

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session (8) To perform such other duties as are imposed by law upon parents and guardians. (316a) Art. 221. Parents and other persons exercising parental authority shall be civilly liable for the injuries and damages caused by the acts or omissions of their unemancipated children living in their company and under their parental authority subject to the appropriate defenses provided by law. (2180(2)a and (4)a ) Art. 222. The courts may appoint a guardian of the child's property or a guardian ad litem when the best interests of the child so requires. (317) Art. 223. The parents or, in their absence or incapacity, the individual, entity or institution exercising parental authority, may petition the proper court of the place where the child resides, for an order providing for disciplinary measures over the child. The child shall be entitled to the assistance of counsel, either of his choice or appointed by the court, and a summary hearing shall be conducted wherein the petitioner and the child shall be heard. However, if in the same proceeding the court finds the petitioner at fault, irrespective of the merits of the petition, or when the circumstances so warrant, the court may also order the deprivation or suspension of parental authority or adopt such other measures as it may deem just and proper. (318a) Art. 224. The measures referred to in the preceding article may include the commitment of the child for not more than thirty days in entities or institutions engaged in child care or in children's homes duly accredited by the proper government agency. The parent exercising parental authority shall not interfere with the care of the child whenever committed but shall provide for his support. Upon proper petition or at its own instance, the court may terminate the commitment of the child whenever just and proper. (391a) Chapter 4. Effect of Parental Authority Upon the Property of the Children Art. 225. The father and the mother shall jointly exercise legal guardianship over the property of 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. Where the market value of the property or the annual income of the child exceeds P50,000, the parent concerned shall be required to furnish a bond in such amount as the court may determine, but not 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. A verified petition for approval of the bond shall be filed in the proper court of the place where the child resides, or, if the child resides in a foreign country, in the proper court of the place where the property or any part thereof is situated. The petition shall be docketed as a summary special proceeding in which all incidents and issues regarding the performance of the obligations referred to in the second paragraph of this Article shall be heard and resolved. The ordinary rules on guardianship shall be merely suppletory except when the child is under substitute parental authority, or the guardian is a stranger, or a parent has remarried, in which case the ordinary rules on guardianship shall apply. (320a) Art. 226. The property of the unemancipated child earned or acquired with his work or industry or by onerous or gratuitous title shall belong to the child in ownership and shall be devoted exclusively to the latter's support and education, unless the title or transfer provides otherwise. The right of the parents over the fruits and income of the child's property shall be limited primarily to the child's support and secondarily to the collective daily needs of the family. (321a, 323a) Art. 227. If the parents entrust the management or administration of any of their properties to an unemancipated child, the net proceeds of such property shall belong to the owner. The child shall be given a reasonable monthly allowance in an amount not less than that which the owner would have paid if the administrator were a stranger, unless the owner, grants the entire proceeds to the child. In any case, the proceeds thus give in whole or in part shall not be charged to the child's legitime. (322a) Chapter 5. Suspension or Termination of Parental Authority Art. 228. Parental authority terminates permanently: (1) Upon the death of the parents; (2) Upon the death of the child; or (3) Upon emancipation of the child. (327a) Art. 229. Unless subsequently revived by a final judgment, parental authority also terminates: (1) Upon adoption of the child; (2) Upon appointment of a general guardian;

65

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session (3) Upon judicial declaration of abandonment of the child in a case filed for the purpose; (4) Upon final judgment of a competent court divesting the party concerned of parental authority; or (5) Upon judicial declaration of absence or incapacity of the person exercising parental authority. (327a) Art. 230. Parental authority is suspended upon conviction of the parent or the person exercising the same of a crime which carries with it the penalty of civil interdiction. The authority is automatically reinstated upon service of the penalty or upon pardon or amnesty of the offender. (330a) Art. 231. The court in an action filed for the purpose in a related case may also suspend parental authority if the parent or the person exercising the same: (1) Treats the child with excessive harshness or cruelty; (2) Gives the child corrupting orders, counsel or example; (3) Compels the child to beg; or (4) Subjects the child or allows him to be subjected to acts of lasciviousness. The grounds enumerated above are deemed to include cases which have resulted from culpable negligence of the parent or the person exercising parental authority. If the degree of seriousness so warrants, or the welfare of the child so demands, the court shall deprive the guilty party of parental authority or adopt such other measures as may be proper under the circumstances. The suspension or deprivation may be revoked and the parental authority revived in a case filed for the purpose or in the same proceeding if the court finds that the cause therefor has ceased and will not be repeated. (33a) Art. 232. If the person exercising parental authority has subjected the child or allowed him to be subjected to sexual abuse, such person shall be permanently deprived by the court of such authority. (n) Art. 233. The person exercising substitute parental authority shall have the same authority over the person of the child as the parents.

In no case shall the school administrator, teacher of individual engaged in child care exercising special parental authority inflict corporal punishment upon the child. (n) Republic Act No. 6809

December 13, 1989

AN ACT LOWERING THE AGE OF MAJORITY FROM TWENTY-ONE TO EIGHTEEN YEARS, AMENDING FOR THE PURPOSE EXECUTIVE ORDER NUMBERED TWO HUNDRED NINE, AND FOR OTHER PURPOSES Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:: Section 1. Article 234 of Executive Order No. 209, the Family Code of the Philippines, is hereby amended to read as follows: "Art. 234. Emancipation takes place by the attainment of majority. Unless otherwise provided, majority commences at the age of eighteen years." Section 2. Articles 235 and 237 of the same Code are hereby repealed. Section 3. Article 236 of the same Code is also hereby amended to read as follows: "Art. 236. Emancipation shall terminate parental authority over the person and property of the child who shall then be qualified and responsible for all acts of civil life, save the exceptions established by existing laws in special cases. "Contracting marriage shall require parental consent until the age of twenty-one. "Nothing in this Code shall be construed to derogate from the duty or responsibility of parents and guardians for children and wards below twenty-one years of age mentioned in the second and third paragraphs of Article 2180 of the Civil Code." Section 4. Upon the effectivity of this Act, existing wills, bequests, donations, grants, insurance policies and similar instruments containing references and provisions favorable to minors will not retroact to their prejudice. Section 5. This Act shall take effect upon completion of its publication in at least two (2) newspapers of general circulation. Approved: December 13, 1989 SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW Chapter 1. Prefatory Provisions

66

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

Art. 238. Until modified by the Supreme Court, the procedural rules provided for in this Title shall apply as regards separation in fact between husband and wife, abandonment by one of the other, and incidents involving parental authority. (n) Chapter 2. Separation in Fact Art. 239. When a husband and wife are separated in fact, or one has abandoned the other and one of them seeks judicial authorization for a transaction where the consent of the other spouse is required by law but such consent is withheld or cannot be obtained, a verified petition may be filed in court alleging the foregoing facts. The petition shall attach the proposed deed, if any, embodying the transaction, and, if none, shall describe in detail the said transaction and state the reason why the required consent thereto cannot be secured. In any case, the final deed duly executed by the parties shall be submitted to and approved by the court. (n) Art. 240. Claims for damages by either spouse, except costs of the proceedings, may be litigated only in a separate action. (n) Art. 241. Jurisdiction over the petition shall, upon proof of notice to the other spouse, be exercised by the proper court authorized to hear family cases, if one exists, or in the regional trial court or its equivalent sitting in the place where either of the spouses resides. (n) Art. 242. Upon the filing of the petition, the court shall notify the other spouse, whose consent to the transaction is required, of said petition, ordering said spouse to show cause why the petition should not be granted, on or before the date set in said notice for the initial conference. The notice shall be accompanied by a copy of the petition and shall be served at the last known address of the spouse concerned. (n) Art. 243. A preliminary conference shall be conducted by the judge personally without the parties being assisted by counsel. After the initial conference, if the court deems it useful, the parties may be assisted by counsel at the succeeding conferences and hearings. (n) Art. 244. In case of non-appearance of the spouse whose consent is sought, the court shall inquire into the reasons for his failure to appear, and shall require such appearance, if possible. (n) Art. 245. If, despite all efforts, the attendance of the non-consenting spouse is not secured, the court may

proceed ex parte and render judgment as the facts and circumstances may warrant. In any case, the judge shall endeavor to protect the interests of the non-appearing spouse. (n) Art. 246. If the petition is not resolved at the initial conference, said petition shall be decided in a summary hearing on the basis of affidavits, documentary evidence or oral testimonies at the sound discretion of the court. If testimony is needed, the court shall specify the witnesses to be heard and the subject-matter of their testimonies, directing the parties to present said witnesses. (n) Art. 247. The judgment of the court shall be immediately final and executory. (n) Art. 248. The petition for judicial authority to administer or encumber specific separate property of the abandoning spouse and to use the fruits or proceeds thereof for the support of the family shall also be governed by these rules. (n) Chapter 3. Incidents Involving Parental Authority Art. 249. Petitions filed under Articles 223, 225 and 235 of this Code involving parental authority shall be verified. (n) Art. 250. Such petitions shall be verified and filed in the proper court of the place where the child resides. (n) Art. 251. Upon the filing of the petition, the court shall notify the parents or, in their absence or incapacity, the individuals, entities or institutions exercising parental authority over the child. (n) Art. 252. The rules in Chapter 2 hereof shall also govern summary proceedings under this Chapter insofar as they are applicable. (n) FINAL PROVISIONS Art. 254. Titles III, IV, V, VI, VIII, IX, XI, and XV of Book 1 of Republic Act No. 386, otherwise known as the Civil Code of the Philippines, as amended, and Articles 17, 18, 19, 27, 28, 29, 30, 31, 39, 40, 41, and 42 of Presidential Decree No. 603, otherwise known as the Child and Youth Welfare Code, as amended, and all laws, decrees, executive orders, proclamations, rules and regulations, or parts thereof, inconsistent herewith are hereby repealed. Art. 255. If any provision of this Code is held invalid, all the other provisions not affected thereby shall remain valid. Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or impair vested or

67

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session acquired rights in accordance with the Civil Code or other laws. Art. 257. This Code shall take effect one year after the completion of its publication in a newspaper of general circulation, as certified by the Executive Secretary, Office of the President. Done in the City of Manila, this 6th day of July, in the year of Our Lord, nineteen hundred and eighty-seven.

New Civil Code Provisions Art. 363. In all questions on the care, custody, education and property of children the latter's welfare shall be paramount. No mother shall be separated from her child under seven years of age, unless the court finds compelling reasons for such measure.

Cases: Luna v. IAC The SC rules that in all questions relating to the care, custody and education and property of the children, the latter’s welfare is paramount. This means that the best interest of the minor can override procedural rules and even the rights of the parents to the custody of their children. The desire and preference of the child to stay with her grandparents instead of her biological parents and who had signified her intention to kill herself and run away from home if she should be separated from her grandparents and forced to live with her biological parents should prevail over procedural rules. Leouel Santos vs. Court of Appeals and Santos GR No. 112019 / 58 SCAD 17

Januray 4, 1995 FACTS: Lt. Leouel Santos married private respondent Julia Bedia on Sept. 20, 1986 in Illoilo MTC and later by church wedding. They lived with the latter’s parents and eventually gave birth to Leouel Santos, Jr. on July 18, 1987. The relationship turned sour when they began quarelling over frequent interferrence of Julia’s parents and the issue of liveing independently from the in-laws. On May 18, 1988, Julia left for the United States (US) to work as nurse despite Leouel’s protestations. Seven months thereafter or on January 1, 1989, she called up from the US with the promise of returning home soon, but she never did. Given the chance, Leouel went to the US for a training program sponsored by the Armed Forces of the Philippines (AFP) from April to August 1990. He desperately tried to locate her there but failed. He then filed with the Regional Trial Court (RTC) for the nullification of their marriage under Article 36 of the Family Code, on the ground of psychological incapacity. 68

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

Summons was served by publication in a newspaper of general circulation in Negros Oriental. In her answer, Julia claimed that it was Leouel who was irresponsible and incompetent. The RTC in November 1991 dismissed the case for lack of merit. On appeal, the Court of Appeals (CA) affirmed the RTC decision. ISSUE: Whether or not the marriage may be declared a nullity prusuant to Artcile 36 of the Family Code. HELD: Article 36 cannot be taken and construed independently, but must stand in conjunction with existing precepts of laws on marriage. Thus correlated, “psychological incapacity” should refer no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed by Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support. There is hardly any doubt that the

intendment of the law has been to confine the meaning of psychological incapacity 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. The law does not evidently envision an inability of the spouse to have sexual relations with the other. This conclusion is implicit under Article 54 of the Family Code which considers children conceived prior to the judicial declaration of nullity of the void marriage to be legitimate. The well-considered opinions of psychiatrists, psychologists and persons with expertise in psychological disciplines might be helpful or even desirable in establishing the parameters of psychological incapacity. Marriage is not just and adventure but a lifetime commitment. We should continue to be reminded that innate in our society, then enshrined in the Civil Code, and even now still indelible in Section 1 of the Family Code…the Constitution is no less emphatic. The latter’s wealth is not a deciding factor particularly that there is no proof 69

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

that 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 3 years when he took the boy fro his in-laws without permission, should not be sufficient reason to strip him of his permanent right to the child’s custody.

Section 1. Title. – This Act shall be known as the "Organ Donation Act of 1991". Section 2. Definition of Terms. – As used in this Act the following terms shall mean: (a) "Organ Bank Storage Facility" - a facility licensed, accredited or approved under the law for storage of human bodies or parts thereof. (b) "Decedent" - a deceased individual, and includes a still-born infant or fetus. (c) "Testator" - an individual who makes a legacy of all or part of his body.

NCC: Title X. - FUNERALS (n) Art. 305. The duty and the right to make arrangements for the funeral of a relative shall be in accordance with the order established for support, under Article 294. In case of descendants of the same degree, or of brothers and sisters, the oldest shall be preferred. In case of ascendants, the paternal shall have a better right. Art. 306. Every funeral shall be in keeping with the social position of the deceased. Art. 307. The funeral shall be in accordance with the expressed wishes of the deceased. In the absence of such expression, his religious beliefs or affiliation shall determine the funeral rites. In case of doubt, the form of the funeral shall be decided upon by the person obliged to make arrangements for the same, after consulting the other members of the family. Art. 308. No human remains shall be retained, interred, disposed of or exhumed without the consent of the persons mentioned in articles 294 and 305. Art. 309. Any person who shows disrespect to the dead, or wrongfully interferes with a funeral shall be liable to the family of the deceased for damages, material and moral. Art. 310. The construction of a tombstone or mausoleum shall be deemed a part of the funeral expenses, and shall be chargeable to the conjugal partnership property, if the deceased is one of the spouses. Republic Act No. 7170

January 7, 1992

AN ACT AUTHORIZING THE LEGACY OR DONATION OF ALL OR PART OF A HUMAN BODY AFTER DEATH FOR SPECIFIED PURPOSES Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled::

(d) "Donor" - an individual authorized under this Act to donate all or part of the body of a decedent.1awphilŸalf (e) "Hospital" - a hospital licensed, accredited or approval under the law, and includes, a hospital operated by the Government. (f) "Part" - includes transplantable organs, tissues, eyes, bones, arteries, blood, other fluids and other portions of the human body. (g) "Person" - an individual, corporation, estate, trust, partnership, association, the Government or any of its subdivisions, agencies or instrumentalities, including government-owned or -controlled corporations; or any other legal entity. (h) "Physician" or "Surgeon" - a physician or surgeon licensed or authorized to practice medicine under the laws of the Republic of the Philippines. (i) "Immediate Family" of the decedent - the persons enumerated in Section 4(a) of this Act. (j) "Death" - the irreversible cessation of circulatory and respiratory functions or the irreversible cessation of all functions of the entire brain, including the brain stem. A person shall be medically and legally dead if either:1awphilŸalf (1) In the opinion of the attending physician, based on the acceptable standards of medical practice, there is an absence of natural respiratory and cardiac functions and, attempts at resuscitation would not be successful in restoring those functions. In this case, death shall be deemed to have occurred at the time these functions ceased; or (2) In the opinion of the consulting physician, concurred in by the attending physician, that on the basis of acceptable standards of medical practice, there is an irreversible cessation of all brain functions; and considering the absence of such

70

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session functions, further attempts at resuscitation or continued supportive maintenance would not be successful in resorting such natural functions. In this case, death shall be deemed to have occurred at the time when these conditions first appeared. The death of the person shall be determined in accordance with the acceptable standards of medical practice and shall be diagnosed separately by the attending physician and another consulting physician, both of whom must be appropriately qualified and suitably experienced in the care of such parties. The death shall be recorded in the patient's medical record. Section 3. Person Who May Execute A Legacy. – Any individual, at least eighteen (18) years of age and of sound mind, may give by way of legacy, to take effect after his death, all or part of his body for any purpose specified in Section 6 hereof. Section 4. Person Who May Execute a Donation. – (a) Any of the following, person, in the order of property stated hereunder, in the absence of actual notice of contrary intentions by the decedent or actual notice of opposition by a member of the immediate family of the decedent, may donate all or any part of the decedent's body for any purpose specified in Section 6 hereof: (1)

Spouse;

(2)

Son or daughter of legal age;

(3)

Either parent;

(4)

Brother or sister of legal age; or

(5) Guardian over the person of the decedent at the time of his death. (b) The persons authorized by sub-section (a) of this Section may make the donation after or immediately before death. Section 5. Examination of Human Body or Part Thereof . – A legacy of donation of all or part of a human body authorizes any examination necessary to assure medical acceptability of the legacy or donation for the purpose(s) intended. For purposes of this Act, an autopsy shall be conducted on the cadaver of accident, trauma, or other medico-legal cases immediately after the pronouncement of death, to determine qualified and healthy human organs for transplantation and/or in furtherance of medical science.

Section 6. Persons Who May Become Legatees or Donees. – The following persons may become legatees or donees of human bodies or parts thereof for any of the purposes stated hereunder: (a) Any hospital, physician or surgeon - For medical or dental education, research, advancement of medical or dental science, therapy or transplantation; (b) Any accredited medical or dental school, college or university - For education, research, advancement of medical or dental science, or therapy; (c) Any organ bank storage facility - For medical or dental education, research, therapy, or transplantation; and (d) Any specified individual - For therapy or transplantation needed by him. Section 7. Duty of Hospitals. – A hospital authorized to receive organ donations or to conduct transplantation shall train qualified personnel and their staff to handle the task of introducing the organ donation program in a humane and delicate manner to the relatives of the donor-decedent enumerated in Section 4 hereof. The hospital shall accomplish the necessary form or document as proof of compliance with the above requirement. Section 8. Manner of Executing a Legacy. – (a) Legacy of all or part of the human body under Section 3 hereof may be made by will. The legacy becomes effective upon the death of the testator without waiting for probate of the will. If the will is not probated, or if it is declared invalid for testamentary purposes, the legacy, to the extent that it was executed in good faith, is nevertheless valid and effective. (b) A legacy of all or part of the human body under Section 3 hereof may also be made in any document other than a will. The legacy becomes effective upon death of the testator and shall be respected by and binding upon his executor or administrator, heirs, assigns, successors-in-interest and all members of the family. The document, which may be a card or any paper designed to be carried on a person, must be signed by the testator in the presence of two witnesses who must sign the document in his presence. If the testator cannot sign, the document may be signed for him at his discretion and in his presence, in the presence of two witnesses who must, likewise, sign the document in the presence of the testator. Delivery of the document of

71

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session legacy during the testator's lifetime is not necessary to make the legacy valid.

(b) The physician attending to the receipt of the organ to be removed; nor

(c) The legacy may be made to a specified legatee or without specifying a legatee. If the legacy is made to a specified legatee who is not available at the time and place of the testator's death, the attending physician or surgeon, in the absence of any expressed indication that the testator desired otherwise, may accept the legacy as legatee. If the legacy does not specify a legatee, the legacy may be accepted by the attending physician or surgeon as legatee upon or following the testator's death. The physician who becomes a legatee under this subsection shall not participate in the procedures for removing or transplanting a part or parts of the body of the decedent.

(c) The head of hospital or the designated officer authorizing the removal of the organ.

(d) The testator may designate in his will, card or other document, the surgeon or physician who will carry out the appropriate procedures. In the absence of a designation, or if the designee is not available, the legatee or other persons authorized to accept the legacy may authorize any surgeon or physician for the purpose. Section 9. Manner of Executing a Donation. – Any donation by a person authorized under subsection (a) of Section 4 hereof shall be sufficient if it complies with the formalities of a donation of a movable property. In the absence of any of the persons specified under Section 4 hereof and in the absence of any document of organ donation, the physician in charge of the patient, the head of the hospital or a designated officer of the hospital who has custody of the body of the deceased classified as accident, trauma, or other medico-legal cases, may authorize in a public document the removal from such body for the purpose of transplantation of the organ to the body of a living person: Provided, That the physician, head of hospital or officer designated by the hospital for this purpose has exerted reasonable efforts, within forty-eight (48) hours, to locate the nearest relative listed in Section 4 hereof or guardian of the decedent at the time of death. In all donations, the death of a person from whose body an organ will be removed after his death for the purpose of transplantation to a living person, shall be diagnosed separately and certified by two (2) qualified physicians neither of whom should be: (a) A member of the team of medical practitioners who will effect the removal of the organ from the body; nor

Section 10. Person(s) Authorized to Remove Transplantable Organs. – Only authorized medical practitioners in a hospital shall remove and/or transplant any organ which is authorized to be removed and/or transplanted pursuant to Section 5 hereof. Section 11. Delivery of Document of Legacy or Donation. – If the legacy or donation is made to a specified legatee or donee, the will, card or other document, or an executed copy thereof, may be delivered by the testator or donor, or is authorized representative, to the legatee or donee to expedite the appropriate procedures immediately after death. The will, card or other document, or an executed copy thereof, may be deposited in any hospital or organ bank storage facility that accepts it for safekeeping or for facilitation or procedures after death. On the request of any interested party upon or after the testator's death, the person in possession shall produce the document of legacy or donation for verification. Section 12. Amendment or Revocation of Legacy or Donation. – a) If he will, card or other document, or an executed copy thereof, has been delivered to a specific legatee or donee, the testator or donor may amend or revoke the legacy or donation either by: (1) The execution and delivery to the legatee or donee of a signed statement to that effect; or (2) An oral statement to that effect made in the presence of two other persons and communicated to the legatee or donee; or (3) A statement to that effect during a terminal illness or injury addressed to an attending physician and communicated to the legatee or donee; or (4) A signed card or document to that effect found on the person or effects of the testator or donor. (b) Any will, card or other document, or an executed copy thereof, which has not been delivered to the legatee or donee may be revoked by the testator or donor in the manner provided in subsection (a) of this Section or by destruction, cancellation or mutilation of the document and all executed copies thereof.

72

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

Any legacy made by a will may also be amended or revoked in the manner provided for amendment or revocation of wills, or as provided in subsection (a) of this Section. Section 13. Rights and Duties After Death. – (a) The legatee or donee may accept or reject the legacy or donation as the case may be. If the legacy of donation is of a part of the body, the legatee or donee, upon the death of the testator and prior to embalming, shall effect the removal of the part, avoiding unnecessary mutilation. After removal of the part, custody of the remainder of the body vests in the surviving spouse, next of kin or other persons under obligation to dispose of the body of the decedent. (b) Any person who acts in good faith in accordance with the terms of this Act shall not be liable for damages in any civil action or subject to prosecution in any criminal proceeding of this Act. Section 14. International Sharing of Human Organs or Tissues. – Sharing of human organs or tissues shall be made only through exchange programs duly approved by the Department of Health: Provided, That foreign organ or tissue bank storage facilities and similar establishments grant reciprocal rights to their Philippine counterparts to draw organs or tissues at any time. Section 15. Information Drive. – In order that the public will obtain the maximum benefits from this Act, the Department of Health, in cooperation with institutions, such as the National Kidney Institute, civic and non-government health organizations and other health related agencies, involved in the donation and transplantation of human organs, shall undertake a public information program. The Secretary of Health shall endeavor to persuade all health professionals, both government and private, to make an appeal for human organ donation. Section 16. Rules and Regulations. – The Secretary of Health, after consultation with all health professionals, both government and private, and non-government health organizations shall promulgate such rules and regulations as may be necessary or proper to implement this Act. Section 17. Repealing Clause. – All laws, decrees, ordinances, rules and regulations, executive or administrative orders, and other presidential

issuance inconsistent with this Act, are hereby repealed, amended or modified accordingly. Section 18. Separability Clause. – The provisions of this Act are hereby deemed separable. If any provision hereof should be declared invalid or unconstitutional, the remaining provisions shall remain in full force and effect. Section 19. Effectivity. – This Act shall take effect after fifteen (15) days following its publication in the Official Gazette or at least two (2) newspapers of general circulation. Approved: January 7, 1992

Use of Surnames

Title XIII. - USE OF SURNAMES (n) Art. 364. Legitimate and legitimated children shall principally use the surname of the father. Art. 365. An adopted child shall bear the surname of the adopter. Art. 366. A natural child acknowledged by both parents shall principally use the surname of the father. If recognized by only one of the parents, a natural child shall employ the surname of the recognizing parent. Art. 367. Natural children by legal fiction shall principally employ the surname of the father. Art. 368. Illegitimate children referred to in Article 287 shall bear the surname of the mother. Art. 369. Children conceived before the decree annulling a voidable marriage shall principally use the surname of the father. Art. 370. A married woman may use: (1) Her maiden first name and surname and add her husband's surname, or (2) Her maiden first name and her husband's surname or (3) Her husband's full name, but prefixing a word indicating that she is his wife, such as "Mrs." Art. 371. In case of annulment of marriage, and the wife is the guilty party, she shall resume her maiden name and surname. 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: (1) The court decrees otherwise, or (2) She or the former husband is married again to another person.

73

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session Art. 372. When legal separation has been granted, the wife shall continue using her name and surname employed before the legal separation. Art. 373. A widow may use the deceased husband's surname as though he were still living, in accordance with Article 370. Art. 374. In case of identity of names and surnames, the younger person shall be obliged to use such additional name or surname as will avoid confusion. Art. 375. In case of identity of names and surnames between ascendants and descendants, the word "Junior" can be used only by a son. Grandsons and other direct male descendants shall either: (1) Add a middle name or the mother's surname, or (2) Add the Roman Numerals II, III, and so on. Art. 376. No person can change his name or surname without judicial authority. Art. 377. Usurpation of a name and surname may be the subject of an action for damages and other relief. Art. 378. The unauthorized or unlawful use of another person's surname gives a right of action to the latter. Art. 379. The employment of pen names or stage names is permitted, provided it is done in good faith and there is no injury to third persons. Pen names and stage names cannot be usurped. Art. 380. Except as provided in the preceding article, no person shall use different names and surnames.

Cases:

Republic v. CA and Maximo Wong In the Wong case, therein petitioner Maximo Wong sought the change of his surname which he acquired by virtue of the decree of adoption granted in favor of spouses Hoong Wong and Concepcion Ty Wong. Upon reaching the age of majority, he filed a petition in court to change his surname from Wong to Alcala, which was his surname prior to the adoption. He adduced proof that the use of the surname Wong caused him embarrassment and

isolation from friends and relatives in view of a suggested Chinese ancestry when in reality he is a Muslim Filipino residing in a Muslim community, thereby hampering his business and social life, and that his surviving adoptive mother consented to the change of name sought. This Court granted the petition and regarded the change of the surname as a mere incident in, rather than the object of, the adoption. It should be noted that in said case the change of surname, not the given name, and the legal consequences thereof in view of the adoption were at issue. That it was sought in a petition duly and precisely filed for that purpose with ample proof of the lawful grounds therefor only serves to reinforce the imperative necessity of seeking relief under and through the legally prescribed procedures. Llanet v. Agrava Teresita's mother, one Atanacia Llaneta, was once married toSerafin Ferrer with whom she had but one child named Victoriano Ferrer. In1942 Serafin Ferrer died, and about four years later Atanacia had relationswith another man out of which Teresita was born. Shortly after Teresita'sbirth, Atanacia brought her and Victoriano to Manila where all of them livedwith Atanacia's mother-in-law, 74

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

Victoria vda. de Ferrer. Teresita was raisedin the household of the Ferrer's, using the surname of Ferrer in all herdealings and throughout her schooling. When she was about twenty yearsold, she applied for a copy of her birth certificate in Sorsogon, where shewas born, as she was required to present it in connection with ascholarship granted to her by the Catholic Charities. It was then that shediscovered that her registered surname is Llaneta not Ferrer and that sheis the illegitimate child of Atanacia and an unknown father.On the ground that her use thenceforth of the surname Llaneta,instead of Ferrer which she had been using since she acquired reason,would cause untold difficulties and confusion, Teresita petitioned the courtfor change of her name from Teresita Llaneta to Teresita Llaneta Ferrer.Issue:Whether or not petitioner be allowed to change her surname basedon her alleged facts.Ruling: The petition of Teresita Llaneta for change of her name to TeresitaLlaneta Ferrer is hereby granted. The petitioner has established that shehas been using the surname Ferrer for as long as she can remember. Asudden shift at this time by the petitioner to the name Teresita Llaneta inorder to conform to that appearing in her birth certificate would result inconfusion among the persons and entities she deals with and entailendless and vexatious explanations of the circumstances of her new surname.

Silva v. Peralta In view of the non-existence of appellee’s marriage with Saturnino Silva, and the latter’s actual marriage to plaintiff Ledesma, it is not proper for Esther to continue representing herself as the wife of Saturnino. Art. 370 of the Civil Code of the Philippines authorizes a married woman to use the surname of her husband; impliedly excludes others from doing otherwise. Calderon v. Republic A petition to change the name of the infant to the surname of her stepfather, as in this case, should be granted where to do so is clearly for the best interest of the child it appearing that such change would promote the personality of the child and remove the stigma of illegitimacy as long as it does not cause prejudice or injury to the interest of the State or of other persons. The stepfather already agreed. Naldoza v. Republic We hold that the trial court did not err in denying the petition for change of name. The reasons adduced for eliminating the father's surname are not substantial enough to justify the petition. To allow the change of surname would cause confusion as to the minors' parentage and might create the impression that the minors are illegitimate since they would carry the maternal surname only. That would be inconsistent with their 75

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

legitimate status as indicated in their birth records. (Desirous of obliterating any connection between her two minor children and the scrapegrace father is not a good reason. The crime of the father is not ground to change the surname.) 12th Session Absence Title XIV. - ABSENCE CHAPTER 1 PROVISIONAL MEASURES IN CASE OF ABSENCE Art. 381. When a person disappears from his domicile, his whereabouts being unknown, and without leaving an agent to administer his property, the judge, at the instance of an interested party, a relative, or a friend, may appoint a person to represent him in all that may be necessary. This same rule shall be observed when under similar circumstances the power conferred by the absentee has expired. (181a) Art. 382. The appointment referred to in the preceding article having been made, the judge shall take the necessary measures to safeguard the rights and interests of the absentee and shall specify the powers, obligations and remuneration of his representative, regulating them, according to the circumstances, by the rules concerning guardians. (182) Art. 383. In the appointment of a representative, the spouse present shall be preferred when there is no legal separation. If the absentee left no spouse, or if the spouse present is a minor, any competent person may be appointed by the court. (183a)

Rules of Court RULE 107 ABSENTEES Sec. 1. Appointment of representative. - When a person disappears from his domicile, his whereabouts being unknown, and without having left an agent to administer his property, or the power conferred upon the agent has expired, any interested party, relative or friend, may petition the Court of First Instance of the place where the absentee

resided before his disappearance for the appointment of a person to represent him provisionally in all that may be necessary. In the City of Manila, the petition shall be filed in the Juvenile and Domestic Relations Court. chan robles virtual law library Sec. 2. Declaration of absence; who may petition. After the lapse of two (2) years from his disappearance and without any news about the absentee or since the receipt of the last news, or of five (5) years in case the absentee has left a person in charge of the administration of his property, the declaration of his absence and appointment of a trustee or administrator may be applied for by any of the following: (a) The spouse present; (b) The heirs instituted in a will, who may present an authentic copy of the same; (c) The relatives who would succeed by the law of intestacy; and (d) Those who have over the property of the absentee some right subordinated to the condition of his death. Sec. 3. Contents of petition. - The petition for the appointment of a representative, or for the declaration of absence and the appointment of a trustee or an administrator, must show the following: (a) The jurisdictional facts; (b) The names, ages, and residences of the heirs instituted in the will, copy of which shall be presented, and of the relatives who would succeed by the law of intestacy; (c) The names and residences of creditors and others who may have any adverse interest over the property of the absentee; (d) The probable value, location and character of the property belonging to the absentee. chan robles virtual law library Sec. 4. Time of hearing; notice and publication thereof. - When a petition for the appointment of a representative, or for the declaration of absence and the appointment of a trustee or administrator, is filed, the court shall fix a date and place for the hearing thereof where all concerned may appear to contest the petition. Copies of the notice of the time and place fixed for the hearing shall be served upon the known heirs, legatees, devisees, creditors and other interested persons, at least ten (10) days before the day of the hearing, and shall be published once a week for three (3) consecutive weeks prior to the time designated for the hearing, in a newspaper of general circulation

76

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session in the province or city where the absentee resides, as the court shall deem best.chanrobles virtua law library Sec. 5. Opposition. - Anyone appearing to contest the petition shall state in writing his grounds therefor, and served a copy thereof on the petitioner and other interested parties on or before the date designated for the hearing. Sec. 6. Proof at hearing; order. - At the hearing, compliance with the provisions of section 4 of this rule must first be shown. Upon satisfactory proof of the allegations in the petition, the court shall issue an order granting the same and appointing the representative, trustee or administrator for the absentee. The judge shall take the necessary measures to safeguard the rights and interests of the absentee and shall specify the powers, obligations and remuneration of his representative, trustee or administrator, regulating them by the rules concerning guardians. In case of declaration of absence, the same shall not take effect until six (6) months after its publication in a newspaper of general circulation designated by the court and in the Official Gazette. Sec. 7. Who may be appointed. - In the appointment of a representative, the spouse present shall be preferred when there is no legal separation. If the absentee left no spouse, or if the spouse present is a minor or otherwise incompetent, any competent person may be appointed by the court. In case of declaration of absence, the trustee or administrator of the absentee's property shall be appointed in accordance with the preceding paragraph. Sec. 8. Termination of administration. - The trusteeship or administration of the property of the absentee shall cease upon order of the court in any of the following cases: (a) When the absentee appears personally or by means of an agent; (b) When the death of the absentee is proved and his testate or intestate heirs appear; (c) When a third person appears, showing by a proper document that he has acquired the absentee's property by purchase or other title. In these cases the trustee or administrator shall cease in the performance of his office, and the property shall be placed at the disposal of those who may have a right thereto.

Lukban v. Republic The wife intends to remarry and alleged a well founded belief that her husband is dead (husband left after huge quarrel and was gone for 20 years) The SC held that the petition to declare absence is denied. Back then, there was no law about absentism and so absentism must be based on well grounded belief which was not established in this case. Aboitiz v. Pepito We go deep into the recitals of the notice and claim for compensation. It simply says that while thevessel was navigating, "the herein deceased was lost or reported missing". This claim was filed onJanuary 12, 1962, or barely 42 days after the event took place. At that time, no presumption existed thatDemetrio Pepito was dead. The boat was not lost. This opens up a number of possibilities. Becausenothing is certain. Nobody knows what has happened to him. He could have transferred to another vessel or watercraft. He could even have swam to safety. Or he could have died. Or worse, he couldhave taken his own life. Legal implications such as right to compensation, succession, the legal statusof the wife are so important that courts should not so easily be carried to the conclusion that the man isdead. 77

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

2 The result is that death cannot be taken as a fact.Non-controversion in compensation cases, as in the case of pleadings in ordinary civil cases, 3 simplymeans admission of facts, not conclusions of law.As applied to the case before us, the mere failure to controvert the statement that Demetrio Pepito isbelieved to be "dead" or "deceased" because he "was lost" or was "reported missing", does not importan admission that the man is actually dead, but that he was just lost or missing. Eastern Shipping v. Lucero Wife claims she can still clain monthly allotments and allowances because 4 years have not yet lapsed to declare absence but there was evidence to show the ship had sunk and that persons aboard had perished with it. Held: Where the facts, known to be knowable, from which a rational conclusion can be made, the presumption of absence does not step in, and the rule of preponderance of evidence controls. Reyes v. Alejandro Considering that neither the petition alleges, nor the evidence shows, that Roberto L. Reyes has any rights, interest or property in the Philippines, there is no

point in judicially declaring him an absentee. ... For the purposes of the civil marriage law, it is not necessary to have the former spouse judicially declared an absentee. The declaration of absence made in accordance with the provisions of the Civil Code has for its sole purpose to enable the taking of the necessary precautions for the administration of the estate of the absentee. For the celebration of civil marriage, however, the law only requires that the former spouse has been absent for seven consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse to he living, that such former spouse is generally reputed to be dead and the spouse present so believes at the time of the celebration of the marriage (section III, paragraph 2, General Orders, No. 68). (On page 183). The need to have a person judicially declared an absentee is when he has properties which have to be taken cared of or administered by a representative appointed by the Court (Article 384, Civil Code); the spouse of the absentee is asking for separation of property (Article 191, Civil Code) or his wife is asking the Court that the administration of an 78

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

classes of property in the marriage be transferred to her (Article 196, Civil Code). The petition to declare the husband an absentee and the petition to place the management of the conjugal properties in the hands of the wife may be combined and adjudicated in the same proceedings, Peyer vs. Martinez, 88 Phil. 72, 80). NCC: Title XVI. - CIVIL REGISTER Art. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register. (325a) Art. 408. The following shall be entered in the civil register: (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 (16) changes of name. (326a) Art. 409. In cases of legal separation, adoption, naturalization and other judicial orders mentioned in the preceding article, it shall be the duty of the clerk of the court which issued the decree to ascertain whether the same 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. (n) Art. 410. The books making up the civil register and all documents relating thereto shall be considered public documents and shall be prima facie evidence of the facts therein contained. (n) Art. 411. Every civil registrar shall be civilly responsible for any unauthorized alteration made in any civil register, to any person suffering damage thereby. However, the civil registrar may exempt himself from such liability if he proves that he has

taken every reasonable precaution to prevent the unlawful alteration. (n) Art. 412. No entry in a civil register shall be changed or corrected, without a judicial order. (n) Art. 413. All other matters pertaining to the registration of civil status shall be governed by special laws. (n)

ROC: RULE 108 CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY Sec. 1. Who may file petition. - 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. 2. Entries subject to cancellation or correction. Upon good and valid grounds, the following entries in the civil register may be cancelled or corrected: (a) births; (b) marriages; (c) deaths; (d) legal separations; (e) judgments of annulments of marriage; (f) judgments declaring marriages void from the beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of natural children; (j) naturalization (k) election, loss or recovery of citizenship (l) civil interdiction; (m) judicial determination of filiation; (n) voluntary emancipation of a minor; and (o) changes of name. Sec. 3. Parties. - When cancellation or correction of an entry in the civil register is sought, the civil registrar and all persons who have or claim any interest which would be affected thereby shall be made parties to the proceeding.chanrobles virtua law library Sec. 4. Notice and publication. - Upon the filing of the petition, the court shall, by an order, fix the time and place for the hearing of the same, and cause reasonable notice thereof to be given to the persons named in the petition. The court shall also cause the order to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province. Sec. 5. Opposition. - The civil registrar and any person having or claiming any interest under the entry whose cancellation or correction is sought may, within fifteen (15) days from notice of the petition, or

79

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session from the last date of publication of such notice, file his opposition thereto. Sec. 6. Expediting proceedings. - The court in which the proceeding is brought may make orders expediting the proceedings, and may also grant preliminary injunction for the preservation of the rights of the parties pending such proceedings. Sec. 7. Order. - 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. Article 7. Non-disclosure of Birth Records. - The records of a person's birth shall be kept strictly confidential and no information relating thereto shall be issued except on the request of any of the following: (1) The person himself, or any person authorized by him; (2) His spouse, his parent or parents, his direct descendants, or the guardian or institution legally incharge of him if he is a minor; (3) The court or proper public official whenever absolutely necessary in administrative, judicial or other official proceedings to determine the identity of the child's parents or other circumstances surrounding his birth; and (4) In case of the person's death, the nearest of kin. Any person violating the prohibition shall suffer the penalty of imprisonment of at least two months or a fine in an amount not exceeding five hundred pesos, or both, in the discretion of the court. (PD 603)

Republic v. Macliing The principal ground relied upon in this appeal is that Rule 108 of the Rules of Court upon whichprivate respondents anchor their Petition is applicable only to changes contemplated in Article 412of the Civil Code, which are clerical or innocuous errors, or to corrections that are notcontroversial and are supported by indubitable evidence. (Tiong v. Republic, 15 SCRA

262[1965]).It is true that the change from Esteban Sy to Sy Piao would necessarily affect the Identity of thefather. (Barillo v. Republic, 3 SCRA 725 [1961]) In that sense, it can be said to be substantial.However, we find indubitable evidence to support the correction prayed for. . . .xxx xxx xxxIn the case of Ty Kong Tin v. Republic, 94 Phil. 321 (1954), as well as subsequent casespredicated thereon, we forbade only the entering of material corrections in the record of birth byvirtue of a judgment in a summary action. the proceedings below, although filed under Rule 108of the Rules of Court, were not summary. The Petition was published by order of the lower Courtonce a week for three consecutive weeks in a newspaper of general circulation in accordance withlaw. The Solicitor General was served with copy of the Petition as well as with notices of hearings.He filed his Opposition to the Petition. The Local Civil Registrar of the City of Baguio was likewiseduly served with copy of the Petition. A Fiscal was always in attendance at the hearings inrepresentation of the Solicitor General. He participated actively in the proceedings, particularly, inthe cross-examination of witnesses. 80

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

And, notwithstanding that all interested persons were cited toappear to show cause why the petition should not be granted, no one appeared to oppose exceptthe State through the Solicitor General. But neither did the State present evidence in support of its Opposition.To follow the petitioner's argument that Rule 108 is not an appropriate proceeding without in anyway intimating what is the correct proceeding or if such a proceeding exists at all, would result inmanifest injustice. FACTS: 'tn this case, the father wanted to correct the bi r th certificates of bis sons In one bi r th certificate, the father's name is being corrected f rom 'Esteban Sy" to "Sy Piao" whi le in another bi r th certificate. the son's name is being cor rected from "Noe" to "Joe" RULING: ' In the case of Ty Kong Tin vs· Republic, 94 Phi l 321 (7954), as wel l as subsequent cases predicated thereon, we forbade only the enter ing of mater ial corrections in the record of bi r th by vi r tue of a judgment in a summary action The proceedings below, although filed under Rule 108 of the Rules of Cour t , were not summary The Petition was published by order of the lower cour t

once a week for three consecutive weeks in a newspaper of general circulation in accordance wi th law The Solici.. tor General was served wi th the copy of the Petition as wel l as the notices of hearings He filed his opposi t ion to the Petition The Local Civil Registrar of the City of Baguio was likewise duly served a copy of the Petition. A Fiscal was always in at tendance at the hearings in representat ion of the Solicitor General. He par t icipated actively in the proceedings, particularly. in the cross examination of wi tnesses And, notwi thstanding that all interested persons were ci ted to appear to show cause why the petit ion should not be granted, no one appeared to oppose except the State through the Sol ici tor General But neither did the State present evidence in suppor t of its opposition" [po 371] Republic V. Valencia FACTS: In this case, the pet i t ioner wish to correct the following in her children's bi r th certificates: citizenship from Chinese to Filipino; status f rom legi t imate to illegitimate; and mother 's status f rom married to single.

81

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

"It is undoubtedly t rue that i f the subject mat ter of a petition is not for correction of clerical error of a harmless and innocuous nature but one involving nationality or citizenship, which is indisputably substantial as wel l as controverted, af f i rmat ive relief cannot be granted in a proceedings summary in nature, However. it is also true that a f ight in law may be enforced and a wrong may be remedied as long as the appropr iate remedy is used Where SC held that even substantial errors in a civil registry may be corrected and the true facts established under Rule 108 provided the parties aggrieved by the error avail themselves of the appropriate adversary proceeding. An appropriate adversary suit or proceeding is one where the trial court has conducted proceedings where all relevant facts have been fully and properly developed, where opposing counsel have been given opportunity to demolish the opposite party’s case, and where the evidence has been thoroughly weighed and considered. Kumala v. Abubakar FACTS: The correction sought here was to change the ent ry of the sex f rom' M" to 'F" in the bi r th certificate of the minor female

RULING: "'Nor would i t be the first t ime that a procedure, of this character did suf f ice for the correction of an error in the records of Civil Registrar In Mal icden vs. Republic [1964] , this Court ruled that test imonial evidence may override an erroneous entry Thereafter, in Alioso vs Lastimoso [1965) , this cour t ruled that an unauthorized false ent ry may be cancelled by the Court through an act ion of this nature Mat ias vs .. Republic [1969] , the opinion being penned by then Act ing Chief Justice J ..BL Reyes. is even more in point " Thus: "Granting that the supplying of a name that was lef t in blank in the original recording of the bi r th does not const i tute, as contended by the Solicitor General a rect i f icat ion of a mere clerical error. i t is wel l to observe that the doct r ine of the case of Ty King Tin vs. Republic 94 Phil 321. and subsequent adjudicat ions predicated thereon. forbade only the entering of material corrections or amendments in the record of bi r th by vi r tue of a judgment in a summary action against the Civil Registrar In the case of the pet i t ioner herein. 82

Civil Law (outline) Reviewer of Atty. Steve Dicdican By: Marian Jane C. Alumbro Session: 5th-12th Session

however, the proceedings were not summary. considerIng the publ icat ion of the pet i t ion made by order of the cour t in order to give not ice to any person that might be interested. including direct service on the Solicitor General himsel f " [528-529] Leonor v. CA Facts: Husband gave grounds for cancellation of the registration of the marriage because it was a nullity due to the non-observance of the legal requirements of a valid marriage. (Registration of the marriage license was not a formal nor essential requisite for marriage) Held: The only errors that can be cancelled or corrected under Rule 108 of the Rules of Court are typographical or clerical errors, not material or substantial ones like the validity or nullity of a marriage. “A clerical error is one which is visible to the eyes or obvious to the understanding; error made by a clerk or a transcriber; a mistake in copying or writing (Black vs. Republic, L-10869, Nov. 28, 1958); or some harmless and innocuous change such as a correction of name that is clearly misspelled or of a mis-statement of the occupation of the parent. Where the effect of a correction in a civil registry will change the civil status of petitioner and her children from legitimate to illegitimate, the same cannot be granted except only in an adversarial proceeding.

The summary procedure under Rule 108, and for that matter under Art. 412 of the Civil Code, cannot be used by Mauricio to change his and Virginia’s civil status from married to single and of their three children from legitimate to illegitimate. Neither does the trial court, under said Rule, have any jurisdiction to declare their marriage null and void and as a result thereof, to order the local civil registrar to cancel the marriage entry in the civil registry. Further, the respondent trial judge gravely and seriously abused his discretion in unceremoniously expanding his very limited jurisdiction under such rule to hear evidence on such a controversial matter as nullity of a marriage under the Civil Code and/or Family Code, a process that is proper only in ordinary adversarial proceedings under the Rules.

83