Civil Law Reviewer - Pfr

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

PERSONS AND FAMILY RELATIONS I. INTRODUCTION LAW – is a rule of conduct promulgated by a legitimate authority for the common good and observance of all. CLASSIFICATION OF LAW a.) Natural Law – promulgated impliedly in human body and conscience. 1. Natural Moral Law – applies to our higher faculties (do good and avoid evil). 2. Law of Nature – applies to both our higher and lower faculties (law of gravity). b.) Positive Law – promulgated expressly or impliedly. 1. Divine Positive Law – like The Ten Commandments. 2. Divine – Human Positive Law – like The Commandments of the Catholic Church. 3. Human Positive Law – like Congressional Statutes or Executive Orders. CONCEPT OF LAW AS “DERECHO” AND “LEY” Derecho is the general or abstract concept of law which defines law as the science of moral rules founded on rational nature of man, demandable and reciprocal, and governs the free activity of man for the realization of the individual and social ends.

C. According to force and effect: 1. Mandatory or Prohibitive Laws - those which have to be complied with because they are expressive of public policy. 2. Permissive or Suppletory Laws – those which may be deviated from if the individual so desires. CIVIL LAW – mass of precepts which determines and regulates the relations of assistance, authority and obedience existing among members of family as well as among members of society for the protection of private interest, family relations and property rights. CIVIL CODE – collection of laws which regulates the private relations of civil society, determining their respective rights and obligations with reference to persons, things, and civil acts. Sources of the Civil Code of the Philippines (REPUBLIC ACT NO. 386) 1. Civil Code of Spain of 1889 2. Codes and laws of other countries 3. Judicial decisions of the Supreme Court of the Philippines and of various states 4. Philippine laws and statutes 5. Works of jurists and commentators of various nations 6. Filipino customs and traditions 7. Code Commission itself Effectivity of the Civil Code of the Philippines

Ley is the specific or material concept of law which defines law as a rule of human conduct, just, obligatory, promulgated by legitimate authority, and of common observance and benefit. HUMAN POSITIVE LAW - is a reasonable rule of action, expressly or directly promulgated by competent human authority for the common good, and usually, but not necessarily, imposing a sanction in case of disobedience. Essential Elements of Human Positive Law a.) reasonable rule of action b.) due promulgation c.) promulgation by competent authority d.) a sanction imposed for disobedience. Classification of Human Positive Law A. According to whether a right is given or merely the procedure for enforcement is laid down: 1. Substantive Law – that which establishes rights and duties. 2. Remedial or Procedural Law – that which prescribes the manner of enforcing legal rights and claims. B. According to the scope or content of the law: 1. Private Law – that which regulates the relations of the members of a community with one another. (Civil and Commercial Laws ) 2. Public Law – that which governs the relations of the individual with the State or ruler or community as a whole. (Political, Criminal and Remedial Laws ) 1|P a g e

The Civil Code of the Philippines took effect on August 30, 1950. This date is exactly one year after the Official Gazette publishing the Code was released for circulation, the said release having been made on August 30, 1949. (Lara v. Del Rosario, 94 Phil 778)

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

II. EFFECT AND APPLICATION OF LAWS Not Covered By Publication Requirement EFFECTIVITY OF LAWS Laws shall take effect after 15 days following the completion of their publication in the Official Gazette, or in a newspaper of general circulation, unless otherwise provided. (Article 2, NCC as amended by E.O. 200, 18 June 1987). General Rule: Laws shall take effect after 15 days following the completion of their publication in the Official Gazette, or in a newspaper of general circulation. Exception: When the law provides for its own affectivity, less than or greater than 15 days after publication.

INTERPRETATIVE REGULATIONS AND THOSE LAWS OR RULES WHICH ARE MERELY INTERNAL IN NATURE, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so-called LOI issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties. IGNORANTIA LEGIS NON EXCUSAT Ignorance of the law excuses no one from compliance therewith. (Art. 3, NCC)

Publication Is Mandatory Concept The phrase “UNLESS OTHERWISE PROVIDED” refers to the date of effectivity and not to the requirement of publication, which cannot in any event be omitted. It does not dispense the requirement of publication. PUBLICATION is INDISPENSABLE. (Tanada v. Tuvera, 146 SCRA 446) It is the prerogative of Congress to shorten or lengthen the period of publication. HOWEVER, when the law is penal in character, the 15-day period shall not be shortened. Omission would offend DUE PROCESS insofar as it would deny the public the knowledge of the laws that are supposed to govern them. Section 6 of the Bill of Rights recognizes "the right of the people to information on matters of public concern."

This rule is a conclusive presumption of law. It is based on expediency as well as public policy and necessity. So that ignorance of the law cannot be used as a valid defense in favor of one who violated a law. The rule refers only to mistakes of the existence of a law rather than to mistakes with regard to the application and interpretation of law. The latter is called mistake of law which may be a valid defense like mistake of fact. Application: All domestic laws, mandatory or prohibitive, and whether substantive or remedial on grounds of expediency, policy, and necessity, to prevent evasion of the law.

Where Publication be Made

Exceptions: 1. Permissive or suppletory laws. 2. Foreign Laws Ignorance of foreign law is not ignorance of the law but ignorance of fact because foreign laws must be alleged and proved as matters of fact, there being, as a rule, no judicial notice of said foreign laws.

In the Official Gazette or in a newspaper of general circulation, it is NOT required that laws be published in both.

Processual Presumption - if the foreign law is not properly alleged and proved, the presumption is that it is the same as our law.

How Publication be Made PUBLICATION MUST BE IN FULL or it is no publication at all since its purpose is to inform the public of the contents of the laws.

What Must be Published LEX PROSPICIT, NON RESPICIT Laws of general application especially those penal or punitive in character whether in the form of statutes, Presidential Decrees, Executive Orders, Administrative Rules and Regulations. Rules and regulations must also be published if their purpose is to ENFORCE or IMPLEMENT EXISTING LAW.

Laws shall have no retroactive effect, unless the contrary is provided. (Art. 4, NCC) GENERAL RULE: Laws are prospective, not retroactive.

The circulars issued by the MONETARY BOARD must be published if they are meant not merely to interpret but to "FILL IN THE DETAILS" of the Central Bank Act.

REASON: If the rule was that laws were retroactive, grave injustice would occur as they would punish individuals for violations of laws not yet enacted. While ignorance of the law does not serve as an excuse, such ignorance refers only to laws that have already been enacted.

The charter of a city must be published notwithstanding that it applies to only a portion of the national territory and directly affects only the inhabitants of that place. Local Ordinances passed by local legislative bodies must also be published.

EXCEPTIONS: PIERCER  PENAL statutes favorable to the accused and that the accused is not a habitual delinquent and that the law does not provide for its nonretroactive application.

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Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

 INTERPRETATIVE statutes  statute EXPRESSLY provides for retroactivity (e.g. Art 256 of the Family Code) Limitations:  Ex post facto law  Impairment of obligation and contracts Illustration: FACTS: Illegitimate children, born before the effectivity of the FC were claiming illegitimate filiation with the putative deceased father under the old civil law stating that the right to be recognized vests from the moment of birth and succession vests from the moment of death of the owner of property. The legal heirs of the dececeased countered that their action is already barred by the FC because the action for illegitimate filiation based on open and continuous possession of the status of illegitimate children shall be filed during the lifetime of the putative father. HELD: The action is not barred because the rights of the illegitimate children were already vested under the old Civil Code. Rights of the illegitimate children already vested under the old civil code shall not be impaired. (Aruego, Jr. v. CA, 254 S 711; Bernabe v. Alejo, 21 January 2002)  REMEDIAL statutes, as there is no vested right in procedural laws. NO retroactive effect, however, if it disturbs final judgments or if it is more onerous to party litigants.  CURATIVE statutes, that is to cure defects or imperfections in judicial or administrative proceedings.  EMERGENCY laws as they are authorized by the police power of the state.  If a substantive RIGHT be declared for the first time, unless vested rights are impaired. (e.g. Law that allows the illegitimates to use the surname of the father) MANDATORY / PROHIBITORY LAWS Acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity. (Art. 5, NCC) Effect of Violation of Mandatory or Prohibitory Laws: GENERAL RULE: Acts executed against the provisions of mandatory or prohibitory laws shall be VOID. EXCEPTIONS: a.) When the law itself authorizes their validity. (e.g. lotto, sweepstakes) b.) When the law makes the act merely voidable. Thus, subject to ratification. c.) When the law makes the act valid but subjects the wrongdoer to liability. (e.g. marriage 3|P a g e

solemnized by a person without legal authority; W who got married within 300 days after death of H) d.) When the law makes the act itself void but recognizes legal effects flowing therefrom. (e.g. children of void marriage are illegitimates but they have rights recognized under the law) WAIVER OF RIGHTS Rights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law. (Art. 6, NCC) Rules for the Waiver of Rights General rule: Rights can be waived. Exception: CPAN 1. When the waiver is Contrary to law, public order, public policy, morals, or good customs. 2. If the waiver is Prejudicial to a 3rd person with a right recognized by law. 3. Alleged rights which do not yet exist. 4. If the right is a Natural right such as right to be supported, political rights, future inheritance when intended to prejudice creditors. RIGHTS – the power or privilege given to one person and as a rule demandable of another. It may be: a. Real Rights (jus in rem) – enforceable against the whole world. (Absolute rights) b. Personal Rights (jus in personam) – enforceable against a particular individual. (Relative Rights) Note: Inherent, constitutional or fundamental rights are, as a rule, not subject to contractual waivers. Constitutional rights to be waived must comply with the constitutional requirements. Statutory rights are subject to waivers. WAIVER – the intentional or voluntary relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right. Requisites of Valid Waiver CCA-FORNO 1. The person waiving must be Capacitated to make the waiver. 2. The waiver must be made Clearly, but not necessarily express. 3. The person waiving must Actually have the right which he is renouncing. 4. In certain instances, the waiver must comply with certain FORmalities. 5. The waiver must NOt be contrary to law, public order, public policy, morals or good customs, or prejudicial to others with a right recognized by law. Illustration: HELD: There was a void waiver in this case because there was nothing to be waived. By the time the right was waived, no definite relationship between the children vis-à-vis deceased. Assuming the waiver is valid, mother has no authority to waive such rights of children because she did not avail of judicial approval. (Guy vs. CA, 502 SCRA 151)

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

JUDICIAL APPLICATION AND INTERPRETATION OF LAWS Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines. (Art. 8, NCC) Are Judicial Decisions Laws? Judicial decisions, though not laws, are evidence, however, of what the laws mean and this is why they are part of the legal system of the Philippines. The interpretation placed upon the written law by competent court has the force and effect of law. RULES ON APPLICATION INTERPRETATION OF LAWS

The judge must impose death penalty though contrary to his personal/religious belief. (Pp. v. Veneracion, 249 S 251) 2. If the Law is not so Clear In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail. (Art. 10, NCC) “Interpret not by the letter that kill but by the spirit that gives life” Cessante Ratione Cessat Ipsa Lex in Criminal Law - When the reason for the law ceases, the law automatically ceases to be one.

AND

No judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws. (Art. 9, NCC) Duty of the Court to Render Judgment The court must give a decision, even if the law is silent, obscure, or insufficient. Stare Decisis Non Quieta Movere (adherence to precedents) – once a case has been decided one way, then another case, involving exactly the same point at issue, should be decided in the same manner. Judicial decisions interpreting the law shall form part of the legal system of the Philippines. Only SC can establish stare decisis or legal doctrines. CA may in rare cases establish stare decisis

Computation of Periods 1 day – 24 hours; 1 month – actual number of days; 1 year – be computed based on 12 calendar months. (Art. 13, NCC as Repealed by Administrative Code; CIR v Primetown, Aug 28, 2007) Calendar month: if months are designated by their name, they shall be computed by the number of days which they respectively have. Computation of periods: the first day shall be excluded, and last day included, unless the latter is a Sunday or a legal holiday, in which event, the time shall run until the end of the next day which is neither a Sunday or a legal holiday. NOTE: When the act and the period are CONTRACTUAL, the act must be done on the last day, even if the latter is a Sunday or a legal holiday.

Ratio Decidendi – final judgment which states the reason for such judgment. Obiter Dictum – opinions not necessarily to the determination of a case. They are not binding and cannot have the force of judicial precedents. Effect of Silence, Obscurity or Insufficiency of Laws The court may apply any rule he desires as long as the rule chosen is in harmony with general interest, order, morals and public policy. Judicial Aids a. Customs which are not contrary to law, public order, and public policy; b. Equity and justice; c. Decisions of foreign and local courts on similar cases; d. Opinions of highly qualified writers and professors; e. Rules of statutory construction; f. Principles laid down in analogous instances.

APPLICABILITY OF CUSTOMS (Arts. 11 and 12, NCC) Custom - is a rule of human action/conduct established by repeated acts and uniformly observed or practiced as a rule of society, thru the implicit approval of the lawmakers, and which is obligatory and legally binding. Requisites: a. A custom must be proved as a fact, according to the rules of evidence. b. The custom must not be contrary to law, public order or public policy. c. There must be a number of repeated acts (plurality of use). d. The repeated acts must have been uniformly performed. e. There must be a juridical intention to make a rule of social conduct. f. There must be a sufficient lapse of time. Custom Propter Legem v. Custom Contra Legem

Rules on Interpretation of Laws Custom propter legem – not contrary to law. 1. If the Law is Clear – apply the law as it is. Dura Lex Sed Lex - “The law may be hard, but it is still the law.”

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Custom contra legem – contrary to law

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

HOW LAWS LOSE THEIR EFFECTIVITY (Art. 7, NCC)

General Rule: Laws are enforceable within the territorial jurisdiction of the Philippines.

1. Lapse of a Law - laws which, without any repeal, cease to have effect because they lapse by their own terms. A law may expressly provide that it shall be effective only for a fixed period.

Exceptions: 1. Ex-territoriality- When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution. 2. Extra-territoriality – laws of the Philippines is applicable outside its territory. (e.g. Art. 2, RPC)

2. Repeal - annulment of a law by a subsequent one. Express Repeal and Implied Repeal Express Repeal – when the subsequent law expressly provides that the prior law is repealed (there is repealing clause). Implied repeal – when there are inconsistencies or irreconcilable differences between the prior and the subsequent law. Note: In both cases, the later enactment prevails. Effect of Repeal of Repealing Law on Law First Repealed 1. When a law which expressly repeals a prior law is itself repealed, the repeal of the repealing law does not revive the first law repealed, unless expressly so provided. 2. When a law which impliedly repeals a prior law is itself repealed, the repeal of the repealing law revives the prior law, unless the language of the repealing law provides otherwise. 3. Declaration of Unconstitutionality Generally, an unconstitutional law confers no right, creates no office, affords no protection and justifies no acts performed under it, there are instances when the operation and effects of the declaration of its unconstitutionality may be relaxed or qualified because the actual existence of the law prior to such declaration is an operative fact and may have consequences which cannot justly be ignored. Constitution – the fundamental law of the land to which all other laws must conform. Supremacy of the Constitution When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. It is not supremacy of the Supreme Court but supremacy of the Constitution. This is pursuant to judicial power of the court. BINDING EFFECT OF LAWS (Art. 14, in relation to Art. 2, Revised Penal Code) Territoriality - Penal laws and those of public security and safety shall be enforceable throughout the territorial jurisdiction of the Philippines, subject to the principles of public international law and to treaty stipulation.

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Generality - Penal laws and those of public security and safety shall be obligatory upon all who live or sojourn in Philippine territory, subject to the principles of public international law and to treaty stipulation. General Rule: Laws are binding upon those who live or sojourn in the Philippines. Exceptions: a. Principles of Public International Law. b. Treaty stipulations (e.g. VFA) c. Laws of preferential application (e.g. those under RA 75) THEORY OF STATUTES/CONFLICT OF LAW RULES Persons: NATIONALITY PRINCIPLE Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad. (Art. 15, NCC) Nationality/Personal Theory - the status and capacity of an individual are generally governed by the law of his nationality. Status - the sum total of a person’s rights, duties, and capacities. Characteristics of Status: a. It is inalienable. b. It is imprescriptible. c. It cannot be the object of compromise. d. The action to claim it cannot be renounced. e. The rights arising from it cannot be exercised by creditors. Legal Capacity – power to do acts with legal effects. Protective Principle - prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. (Art. 17, par. 3, NCC) Domiciliary Theory - The basis for determining personal law of an individual is his domicile.

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

Renvoi - It literally means a “referring back”. It arises when one state follows the nationality theory and the other the domiciliary theory, the problem may be referred back to the law of the first state. (See Discussion in Private International Law) Property: LEX REI SITAE (Mobilia Sequntur Personam abandoned) General Rule: Real property as well as personal property is subject to the law of the country where it is situated. (Art. 16 par 1, NCC) Exception: Intestate and testamentary SUCCESSION (capacity to succeed), order of succession, amount of successional rights; and intrinsic validity of testamentary provisions shall be regulated by the NATIONAL LAW of the person whose succession is under consideration, whatever maybe the nature of the property and regardless of the country wherein said property may be found. (Art 16 Par 2, NCC) Thus, the property of a deceased Filipino shall be included in his estate. Forms and Solemnities of Contracts and Wills: LEX LOCI CELEBRATIONIS It is a principle which applies the law of the place where the contract was executed as far as the formalities and solemnities (extrinsic validity) are concerned. General Rule: The forms and solemnities of contracts, wills and other public instruments shall be governed by the laws of the country in which they are executed. (Art. 17, NCC) Exceptions: a. Lex loci voluntatis - The intrinsic validity of contracts shall be governed by the law of the place voluntarily selected. In case of controversy, the court shall apply the court of the forum. b. Lex loci intentionis - The intrinsic validity of contracts shall be governed by the law of the place intended by the parties to the contract. Lex Nationalis Art 15 Basis: Nationality Covers: family rights and duties, status, condition and legal capacity Exception: Art 26 par 2, FC

Lex rae sitae Art 16 Basis: Law of the place where the property is situated Covers: Real and personal properties Exceptions: Art 16 par 2, NCC

SUPPLETORY APPLICATION CODE OF THE PHILIPPINES

Lex loci Celebrationis Art. 17 Basis: Law of the place where the contract was executed Covers: forms and solemnities (extrinsic validity) Exception: Art 26 par 1, FC OF

THE

CIVIL

In matters which are governed by the Code of Commerce and special laws, their deficiency shall be supplied by the provisions of this Code. (Art. 18, NCC) 6|P a g e

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

III. HUMAN RELATIONS FUNDAMENTAL HUMAN RIGHTS a. right to life b. right to liberty c. right to property CHARACTERISTICS/ATTRIBUTES OF HUMAN RIGHTS a. inalienable – it cannot be passed by the State or through certain contract. b. Inherent – innate to human existence. c. Indivisible STANDARDS/NORMS OF HUMAN RIGHTS (Art 19, NCC) Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. (Article 19, NCC) NOTE: It is considered as cardinal law on human conduct. It abolished the old rule which states that: “He who uses a right injures no one.” Principle of Abuse of Right He who acts with abuse, his right ceases, and his act becomes illicit, giving rise to liability. The term refers to acts which are not illegal but nevertheless make the actor liable for damages.

2. Where a person exercises his rights but does so arbitrarily or performs his duties in a manner that is not in keeping with honesty and good faith, he opens himself to liability. INJURY - It refers to the legal wrong to be redressed. DAMAGE - It refers to the amount of money awarded by the court to compensate for the loss or injury suffered. Purpose: It is awarded to compensate the plaintiff for the loss or damage that he suffered, not to enrich him, or to impose a penalty on the wrongdoer. Kinds: (MANTLE) a. moral damages b. actual or compensatory damages c. nominal damages d. temperate damages e. liquidated damages f. exemplary damages LIABILITY EX-MALEFICIO OR EX-DELICTO (Art. 20 in rel. to Art. 100 of the Revised Penal Code) Every person who, contrary to law, willfully (dolo) or negligently (culpa) causes damage to another, shall indemnify the latter for the same. (Article 20, NCC)

Elements of Abuse of Right 1. there is a legal right or duty (what right has been abused?); 2. the exercised of such right is in bad faith (Bad faith does not only connote bad judgment or negligence; it imparts a dishonest purpose and conscious doing of wrong); and 3. there is an intent to prejudice or injure others (what is the intention?).

Negligence – failure to observe for the protection of the interest of another person that degree of care, precaution and vigilance which the circumstances greatly demand.

Standards to be Observed to Avoid Abuse of Rights: 1. to act with justice 2. to give everyone his due 3. to observe honesty and good faith

Civil Liability for Delict

Justice – acts must be done in accordance with law. Honesty – careful regard for other’s rights and property. Good Faith – honest intention to avoid taking undue advantage of another. Some Rules Observe Under Article 19 1. Where a person exercises his rights or performs his duties, observing the standards under Article 19, but still causes damage to another. a. actor benefited – liable but not beyond such benefit and damage by virtue of equity. b. actor did not benefit – no liability is created by virtue of damnum absque injuria (damage but no legal injury).

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Willful Act – if it is done with knowledge of its injurious effect. It is not required that the act be done purposely to produce the injury. The act need not be committed against the person injured.

Every person criminally liable for a felony is also civilly liable. (Art. 100, RPC) Civil liability for Quasi-delict Whoever by act or omission causes damage to another, there being fault or negligence, but no preexisting contractual relation between the parties, is obliged to pay for the damage done (Art. 2176, NCC). ACTS CONTRARY TO MORALS, CUSTOMS OR PUBLIC POLICY

GOOD

Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. (ARTICLE 21, NCC) Note: This refers to acts “CONTRA BONUS MORES.” Coverage: Any act or omission not contrary to law but contrary to morals, good customs and public policy.

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

Elements of Contra Bonus Mores 1. there must be an act which is legal; 2. the act must be contrary to morals, good customs, public order or public policy; and 3. the act is done willfully with intent to injure. Kinds 1. Breach Of Promise To Marry General rule: Not an actionable wrong. Exceptions: When there has been sexual intercourse a. The aggrieved party becomes pregnant and subsequently delivers, she may ask the other to RECOGNIZE THE CHILD, should there be one, and PROVIDE SUPPORT to said child. She can also recover compensatory damages and hospitalization expenses as well as attorney’s fees. b. Sue for MORAL DAMAGES if there be criminal or moral seduction, but not if the intercourse was due to mutual lust; if the cause be the promise to marry, and the effect be the carnal knowledge, there is criminal or moral seduction. c. Sue for MORAL DAMAGES if the act of the defendant constitutes a tort under Art 21. d. Sue for ACTUAL DAMAGES, should there be any, such as advanced money or property upon the faith of the promise to marry or expenses for the wedding preparations on the ground that no person can enrich himself unjustly at the expense of another. When there was no sexual intercourse a. Sue for MORAL DAMAGES in case there has been a deliberate desire to inflict loss or injury or there has been an evident abuse of right. b. Sue for MORAL DAMAGES if the act of the defendant constitutes a tort under Art 21. c. Sue for ACTUAL DAMAGES, should there be any, such as advanced money or property upon the faith of the promise to marry or expenses for the wedding preparations on the ground that no person can enrich himself unjustly at the expense of another Notes: Moral seduction, although not punishable, connotes the idea of deceit, enticement, superior power or abuse of confidence on the part of the seducer to which the woman has yielded (Gashem Shokat Baksh vs CA) Sexual intercourse is not by itself a basis for recovery; damages could only be awarded if the sexual intercourse is not a product of voluntariness or mutual desire. Civil seduction is different from criminal seduction. In civil seduction, age of the victim is immaterial. Moral fault is something that works inside of a man. Thus, it is not an actionable wrong. 8|P a g e

Qualified Seduction vs Simple Seduction a. In qualified seduction there is a moral ascendancy, while in simple seduction there is no moral ascendancy. b. In the first the victim is virgin, while in the second the victim is no longer virgin but has a high reputation. 2. Malicious Prosecution Malicious Prosecution is one that is instituted just to vex and humiliate the defendant despite the absence of a cause of action or probable cause against him. Malicious prosecution in criminal cases, elements c. the fact of the prosecution and the further fact that the defendant was himself the prosecutor, and that the action was finally terminated with acquittal; d. that in bringing the action, the prosecutor acted without probable cause; and e. the prosecutor was actuated or impelled by legal malice. Malicious prosecution in civil cases, elements a. the defendant previously filed a civil action against the plaintiff; b. the action was dismissed for being lack of merit or for being baseless, unfounded and malicious; c. the defendant who filed the previous complaint as plaintiff was motivated by ill-will or sinister design; d. the present plaintiff suffered injury or damage by reason of the previous complaint against him. Misconduct - implies a wrongful intention and not merely error in judgment. Article 20 and Article 21, Distinguished Article 20 The act is contrary to law The act is done either willfully or negligently

Article 21 The act is contrary to morals, good customs or public policy The act is done willfully

UNJUST ENRICHMENT Basis: Equity Article 22. Every person who through an act or performance by another, or any other means, acquires or comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him. Stated in another way, “No person shall unjustly enrich himself at the expense of another.” One has the duty to return what was acquired unjustly or illegally EXCEPT when there is a legal right or entitlement thereto (final judgment) or when there is no causal relation between the one’s enrichment and the other’s impoverishment.

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

Unjust enrichment and quasi-contracts have a merger. Under Art. 22, the enrichment of the defendant must acquire or come into possession of something at the expense of another. Unjust enrichment not due to acquisition or delivery of something may still be recovered under quasicontract.

Extent of Liability Indemnify the damage caused to the extent of enrichment. The indemnity does not include unrealized profits because defendant’s enrichment is the limit of his liability. Plaintiff has the burden of proving the extent of the benefit or enrichment of the defendant.

Enrichment is every patrimonial physical or moral advantage, so long as appreciable in money.

UNFAIR COMPETITION

Requisites of accion in rem verso 1. One party must be enriched; 2. The other party suffered a loss; 3. There must be a causal relation between the two; 4. The enrichment must not be justifiable; otherwise, there can be no recovery; 5. There must be no other way to recover such as those based on contract, quasi-contract or quasi-delict; and 6. The indemnity cannot exceed the loss or enrichment, whichever is less.

ARTICLE 24. protection of the underdog: In all contractual, property or other relations, when one of the parties is at a disadvantage on account of his moral dependence, ignorance, indigence, mental weakness, tender age of other handicap, the courts must be vigilant for his protection. NOTE: Such protection is only applicable in case of DOUBT as to the interpretation of law governing the conflict between parties where one is at the disadvantage. Rationale of the Article

NOTES:  The incapacity of the defendant to enter into contracts does not bar the accion in rem verso, so long as he has been unjustly enriched.  The indemnity does not include unrealized profits because defendant’s enrichment is the limit of his liability.  Just or legal cause is always presumed, the plaintiff has the burden of proving its absence.  If a plaintiff delayed his action under the contract, quasi-contract, crime or quasi-delict and prescription had barred the action, he could no longer have recourse to accion in rem verso. Classification of Unjust Enrichment 1. Enrichment through the act of the injured party (e.g. payment of a debt which does not exist; payment by virtue of a contract which is void) 2. Enrichment without the act of the injured party (e.g. defendant stealing the plaintiff’s property) Accion in Rem Verso and Solutio Indebiti, Distinguished In accion in rem verso there is NO mistake; while in the quasi-contract of solution indebiti (undue payment) it is essential that there is mistake. Under Article 2154, “If something is received and there is no right to demand it, and it was duly delivered through mistake, the obligation to return it arises.” In case of solution indebiti, the remedy is Restitution, that is, to return the thing acquired by mistake or without legal ground to possess. ARTICLE 23. Even when an act or event causing damage to another’s property was not due to the fault or negligence of the defendant, the latter shall be liable for indemnity if through the act or event, he was benefited. NOTE: This pertains to the duty of a person to indemnify even without fault provided he benefited. The basis of which is equity.

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The law is intended to protect the weak and ignorant in the face of rigid and classical principle of equality before the law. The government acts as parent of the people which is in consonance with the promotion of social justice. Doctrine Of Parens Patriae Literally means father or parent of his country. It refers to the inherent power of the state and authority of the State to provide protection of the person and property of a person non sui juris. It is the sovereign power of the state in safeguarding the rights of person under disability. It is the obligation to minimize the risk to those who, because of their disability, are as yet unable to take care of themselves. Vigilant for his Protection - means that in case of doubt, the doubt must be resolved in favor of the underdog. ARTICLE 28. Prohibited competition: Unfair competition in agricultural, commercial or industrial enterprises or in labor through the use of force, intimidation, deceit, machination or any other unjust, oppressive or high-handed method shall give rise to a right of action by the person who thereby suffers damages. Rationale of the Article To promote free enterprise and to avoid monopoly in business through unjust means. Characteristics 1. it must involve an injury to a competitor or trade rival; and 2. it must involve acts which are characterized as “contrary to good conscience” or unlawful. Test of Unfair Competition Whether certain goods have been intentionally clothed with an appearance which is likely to deceive the ordinary purchaser exercising ordinary care.

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

Principle of Cutthroat Competition, Not Allowed It exists when a person starts an opposing place of business, not for the sake of profit to himself, but regardless of loss, and for the sole purpose of driving his competitor out of business so that later on, he can take advantage of the effects of his malevolent purpose.

a. Appropriation for the defendant’s benefit, of the plaintiff’s name or likeness; b. Intrusion upon the plaintiff’s solitude as by invading his home; c. Public disclosure of private facts, consisting of a cause of action in publicity, of a highly objectionable kind, given to private information about the plaintiff, even though it is true and no action would lie to defamation; d. Publicity which places the plaintiff in a false light in the public eye.

THOUGHTLESS EXTRAVAGANCE ARTICLE 25. Thoughtless extravagance in expenses for pleasure or display during a period of acute public want or emergency may be stopped by order of the courts at the instance of any government or private charitable institution. Rationale of the Article Thoughtless extravagance during emergencies may incite the passions of those who cannot afford to spend. Remedy: Injunction Filed by: Charitable Institution (either government or private) RESPECT FOR PERSONALITY AND DIGNITY OF OTHERS

Spheres of Privacy: a. person b. home/dwelling/residence c. papers and effects d. correspondence e. bank deposits 2. Meddling with or disturbing the private life or family relations of another. A stranger would be liable irrespective of his good motives, if he interferes with family relations, whereas a parent or close relative would not be liable unless there is malice proven by the plaintiff. A distant relative could escape liability if he proves good faith and honest motives. It includes alienation of the affections of the husband or the wife. Alienation of Affection, When Actionable

ARTICLE 26. Rights protected: Every person shall respect the personal dignity, personality, privacy, peace of mind, personal security, family relations, and social intercourse. Remedies In Case Of Violation: damages; prevention; other relief. The action may be dependent upon a criminal action like in defamation. It may be independent action as it is covered by quasi-delict. Prohibited Acts: PMI-VO 1. Prying into the privacy of another’s residence. Includes respect for one’s name, picture or personality EXCEPT insofar as is needed for publication of information and pictures of legitimate news value. PRIVACY - is the right of an individual to be alone or to be free from unwarranted publicity, or to live without unwarranted interference by the public in matters which the public is not necessarily concerned. Limitations on Privacy a. The right to privacy is limited whenever the circumstances show a reasonable interest on the part of the public in the conduct or affairs of persons who have become public characters. b. Also, the right to privacy is limited by the privilege similar to that of “fair comment” in the law of defamation. Torts Invading the Right to Privacy 10 | P a g e

When the following elements concur: a. Wrongful conduct of the defendant. The defendant should have done acts calculated to alienate affections of the husband or wife. In a sense, the defendant must be a pursuer, not merely the pursued. b. Loss of affection or consortium. c. Causal connection between such conduct and loss. 3. Intriguing to cause another to be alienated from his friends. 4. Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition. 5. Other similar acts. Some Acts Against Personal Security 1. Assault - an intentional, unlawful offer of physical injury to another by force unlawfully directed toward the person of another, under such circumstances as will create a well-founded fear of imminent peril, coupled with the apparent present ability to effectuate the attempt if not prevented. 2. Battery - actual infliction of any unlawful or unauthorized violence on the person of another, irrespective of its degree. NEGLECT OR REFUSAL OF PUBLIC SERVANT ARTICLE 27. Non-feasance: Any person suffering material or moral loss because a public servant or employee refuse or neglects, without just cause, to

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

perform his official duty may file an action for damages and other relief against the latter, without prejudice to any disciplinary administrative action that may be taken. Reason for the Article To promote public office as a public trust. Requisites for Action 1. The defendant is a public official charged with the performance of official duties. 2. The public servant or employee refuses or neglects to perform his official duty; 3. There is no valid reason for the refusal or neglect to perform official duty. 4. There is injury suffered by the plaintiff. Non-feasance, Distinguished

Misfeasance,

Malfeasance – is the performance of some act which ought not to be done. Excuses for non-performance 1. impossibility of performance; 2. contributory negligence of the plaintiff; 3. ministerial officer acting in obedience to orders of superiors; 4. officer with discretionary function, UNLESS, he acted in arbitrary manner or with gross neglect. NOTE: Good faith or absence of malice is not a defense for non-performance. It is only a mitigating factor. DEPENDENT CIVIL ACTIONS / ACTIONS FOR DAMAGES BASED ON CRIME/DELICT 1. ARTICLE 29. Civil action not barred by acquittal: When the accused in a criminal prosecution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted. Reason: Difference in the proceedings. Basis Parties involved

Criminal action State v. defendant

Rules involved

Criminal procedure/penal code Proof beyond reasonable doubt For punishment of the offender

Civil action Offended party v. defendant Civil procedure/ci vil code Prepondera nce of evidence For reparation of damages

Filing Of Bond: Upon motion of the defendant, the court may require the plaintiff to file a bond, 11 | P a g e

Kinds of Acquittal a. Acquittal based on reasonable doubt – when the guilt of the accused has not been proven beyond reasonable doubt. b. Acquittal based on innocence – when the accused is not the author of the crime; c. Acquittal when the crime complained of did not exist. Effects of Acquittal

Misfeasance – is the improper performance of some act which might lawfully be done.

Purpose

Duty Of The Court: If in a criminal case, the judgment of acquittal is based upon reasonable doubt, the court shall so declare. In the absence of any declaration to that effect, it may be inferred from the text of the decision whether or not the acquittal is due to that ground.

Malfeasance,

Non-feasance – is the omission of some act which ought to be performed; total neglect of duty.

Quantum of evidence

to answer for damages in case the complaint should be found to be malicious.

a. Acquittal which Bars Civil Action 1. whenever the accused has been found to be not the author of the act; 2. that the supposed act attributed to the accused did not exist; 3. if there is a finding that in the final judgment in the criminal action that the act or omission from which the civil liability may arise did not exist. (Note: Republic v. Patanao: Tax liability is not a mere civil liability arising from a crime that could be wiped out by the judicial declaration of non-existence of the criminal acts charged). 4. If due to justifying circumstances, civil liability is extinguished. Except: Avoidance of greater evil, in which case, civil liability remains. (State of Necessity) Note: Acquittal in a criminal case bars prosecution for the same offense, thus appeal assailing the verdict of acquittal is not warranted because of double jeopardy. However, the civil aspect of the crime may be appealed or even the subject of a separate civil action provided the acquittal is based on reasonable doubt. b. Acquittal which Does not Bar Civil Action 1. the acquittal is based on reasonable doubt, if the civil case has been reserved; if there is reservation, the judgment shall make a finding on the civil liability of the accused; 2. if the decision contains a declaration that the liability of the accused is not criminal but only civil in nature; 3. the civil liability is not derived from or based on the criminal act of which the accused is acquitted. 4. If due to exempting circumstances, civil liability remains. Except: Paragraphs 4 (injury by mere accident) and 7 (lawful cause) of Article 12. 2. ARTICLE 20 (see discussion above) 3. ARTICLE 30 (civil action even if there is no criminal action instituted)

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

When a separate civil action is brought to demand civil liability arising from a criminal offense, and no criminal proceedings are instituted during the pendency of the civil case, a preponderance of evidence shall likewise be sufficient to prove the act complained of. 4. ARTICLE 35 (civil action even if there is no independent civil action and criminal action instituted) When a person, claiming to be injured by a criminal offense, charges another with the same, for which no independent civil action is granted in this Code or any special law, but the court finds no reasonable grounds to believe that a crime has been committed, or the prosecutor refuses or fails to institute criminal proceedings, the complainant may bring a civil action for damages against the alleged offender. If during the pendency of the civil action, an information should be presented by the prosecutor, the civil action shall be suspended until the termination of the criminal proceedings. Upon motion of the defendant, the court may require the plaintiff to file a bond, to answer for damages in case the complaint should be found to be malicious. Rule 111, Section 1, 2000 Rules of Criminal Procedure: When the criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted UNLESS the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action. Suspension of Separate Civil Action: Rule 111, Section 2, 2000 Rules of Criminal Procedure After the criminal action has been commenced, the separate civil action arising therefrom cannot be instituted until final judgment has been entered in the criminal action. If the criminal action is filed after the said civil action has already been instituted, the latter shall be suspended in whatever state it may be found before judgment on the merits. The suspension shall last until final judgment is rendered in the criminal action… During the pendency of the criminal action, the running period of prescription of the civil action which cannot be instituted separately or whose proceeding has been suspended shall be tolled. The extinction of the penal action does not carry with it extinction of the civil action. However, the civil action based on delict shall be deemed extinguished if there is a finding in a final judgment in the criminal action that the act or omission from which the civil liability may arise did not exist. 12 | P a g e

INDEPENDENT CIVIL ACTIONS Concept and Rationale It is one that is brought distinctly and separately from a criminal case allowed for considerations of public policy regardless of the result of the criminal case. It is for the purpose of allowing the citizen to enforce his rights in a private action. Evidence Required: Preponderance of Evidence. Independent and Distinguished INDEPENDENT Not based on delict. No reservation required.

dependent

is

Can proceed simultaneously and separately from the criminal action regardless of the outcome of the latter. It may be filed before the institution of the criminal action and it cannot be suspended when the latter is instituted.

Civil

Actions,

DEPENDENT Based on delict. Reservation is upon the discretion of the offended party. Can proceed simultaneously with the criminal action ONLY when no waiver, reservation, or prior filing of the civil action is done. It may be filed prior to the institution of the criminal action but it will be suspended once the criminal action is instituted until final judgment in the criminal action has been rendered.

1. ARTICLE 31. When the civil action is based on an obligation not arising from the act or omission complained of as a felony, such civil action may proceed independently of the criminal proceedings and regardless of the result of the latter. Civil Action Based on Other Sources of Obligation Other than Delict – law, contract, quasi-contract, quasi-delict 2. ARTICLE 32. Breach Of Constitutional Rights / Civil Liability for Violation of Constitutional Rights Persons Liable 1. any public officer or employee 2. any private individual even if in good faith Limited liability / When Demandable from a Judge

Responsibility

General Rule: The responsibility herein set forth is not demandable from a judge. Exception: Unless his act or omission constitutes a violation of the Penal Code or other penal laws (see Art. 204 – 207 of the Revised Penal Code). NOTES:  It is not necessary that the defendant should have acted with malice/bad faith to be liable. Although the same normally involves

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato





intentional acts, it can be committed through negligence. Public officer who is a defendant cannot escape liability under the doctrine of state immunity; the said doctrine applies only if acts involved are done by officers in the performance of their official duty within the ambit of their powers. It only requires a preponderance of evidence and the aggrieved party may ask for moral and exemplary damages but in the latter case, it depends upon the discretion of the court.

3. Art. 33. Civil Liability for Defamation, Fraud, Physical Injuries (In generic sense). In cases of defamation, fraud, and physical injuries, a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party. Defamation – is an invasion of the interest in reputation and good name, by communication to others which tend to diminish the esteem in which the plaintiff is held, or to excite adverse feelings or opinion against him. It is any act, writing or utterance which tend to prejudice or humiliate another. It includes libel and slander. Physical Injuries – covers all kinds of physical injuries including attempted, frustrated or consummated homicide. If resulted because of negligence or imprudence, they are already covered by Article 2176 of the Civil Code. Fraud - intentional deception to induce another to part with something of value or to surrender a legal right, like, estafa or swindling. 4. Art. 34. Civil Liability of Member of Municipal or City Police Primary liability: When a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property, such police officer shall be primarily liable for damages. Requisites 1. there is danger to life or property of a person; 2. a member of a city or municipal police force who is present in the scene refused or failed to render aid or protection to the person; 3. damages are caused to the person or property. Subsidiary liability: The city or municipal government shall be subsidiarily responsible in case of insolvency of said police officer. Note: The defense of exercise of due diligence in the selection and supervision of its employees, as provided under Art. 2180, cannot be used as this is available only to private employers. 5. Art. 2176. QUASI-DELICT. “Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between 13 | P a g e

the parties, is called a quasi-delict and is governed by the provisions of this Chapter.” Note: It is not limited to culpa-aquiliana cases but covers also intentional acts. Defenses that can be interposed in quasidelict: a. Doctrine of Last Clear Chance - where both parties are negligent but the negligent of one succeeds that of the other by an appreciable interval of time, the one who has the last reasonable opportunity to avoid the impending harm and fails to do so, is chargeable with the consequences, without reference to the prior negligence of the other b. Contributory Negligence - the defendant may claim that plaintiff’s own negligence contributed to the injury. This defense will merely mitigate the award of damages. c. Proximate Cause of the Loss or Injury is the Negligence of Plaintiff. d. Defense of Due Diligence in the Selection and Supervision of Employees: Only applicable in culpa aquiliana. e. Assumption of Risk: It will absolve the defendant from liability. Requisites: a. there must be knowledge as to the existence of the danger b. there must be an understanding and appreciation of the risk of such danger by the plaintiff. c. the plaintiff voluntarily expose himself to such danger. f. Prescription: If the action is filed beyond four years from loss or injury. Res Ipsa Loquitor - The thing speaks for itself. A Rule of Evidence. The fact of the injury is prima facie evidence of negligence. It can not be used with contributory negligence. Requisites: a. the accident is one of a kind which does not ordinarily occur unless someone is negligent, b. that the instrumentality or agency which caused the injury was under the exclusive control of the person charged with negligence, c. that the injury suffered must not have been due to any voluntary action or contribution on the part of the person injured. PREJUDICIAL QUESTIONS (Art 36, NCC) Prejudicial question - one which must be decided before any criminal prosecution may be instituted or may proceed, because a decision therein is vital to the judgment in the criminal case. It is a question which arises in a case, the resolution of which is a logical antecedent of the issue involved in said case, and the cognizance of which pertains to another tribunal. Petition for Suspension by reason of prejudicial question, Where Filed

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

A petition for suspension of the criminal action based upon the pendency of a prejudicial question in a civil action may be filed in the office of the prosecutor or the court conducting the preliminary investigation. When the criminal action has been filed in court for trial, the petition to suspend shall be filed in the same criminal action at any time before the prosecution rests. (Rule 111, Sec. 6 of 2000 Rules of Criminal Procedure) Elements: 1. The previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action. 2. The resolution of such issue determines whether or not the criminal action may proceed. 3. The jurisdiction to try said question must be lodged in another tribunal. (See Rule 111, Sec. 7 of 2000 Rules of Criminal Procedure) Effect: It will suspend the proceeding in the criminal action. NOTE: Prejudicial questions shall be governed by the Rules of Court which the Supreme Court shall promulgate and which shall not be in conflict with the Civil Code. Illustrations: a. FACTS: H and W1 are separated in fact. H contracted a subsequent marriage with W2. W1 filed a case for bigamy against H. H filed a civil action for the declaration of nullity of the 2 nd marriage on the ground of lack of license. HELD: NO prejudicial question because the 2nd marriage is ostensibly valid. Besides, the 1st marriage still exists. b. FACTS: Same with the first but this time, the civil action filed by the husband is for the declaration of nullity of the 1st marriage for lack of license. HELD: NO prejudicial question because of violation of Art 40 of FC. c. FACTS: H and W are legally married. H has an illegal affair with GF. W filed a criminal case for concubinage. H filed a civil action for the declaration of nullity of the marriage on the ground of lack of license. HELD: NO prejudicial question because the marriage is presumed to be valid and existing. d. FACTS: H and W are legally married. H contracted a subsequent marriage with GF. W filed a criminal case foe bigamy. H filed an action for annulment of the 2nd marriage on the ground that his consent was vitiated. HELD: There is prejudicial question because the civil case is determinative of whether the criminal action will prosper.

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Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

IV. PERSONS AND PERSONALITY

PERSON - Any being, natural or artificial, capable of possessing legal rights and obligations.

CIVIL PERSONALITY - the aptitude of being the subject, active or passive, of rights and obligations.

Classes of Persons

Juridical Capacity and Capacity to Act (Art. 37, NCC)

1. NATURAL PERSONS - human beings created by God through the intervention of parents.

JURIDICAL CAPACITY - the fitness to be the subject of legal relations; it is inherent in every natural person and is lost only through death. CAPACITY TO ACT - the power to do acts with legal effect; it can be acquired and may be lost. Juridical capacity Passive Inherent Lost only through death Can exist even without capacity to act Unlimited/cannot be restricted

Capacity to act Active Acquired (upon reaching the age of majority) Lost through death and other means Always exist with juridical capacity Limited/can be restricted by circumstances

THEORIES OF CAPACITY TO ACT Theory of General Theory of Special Capacities Capacities Applies to natural Applies to juridical persons persons One has the ability to act Powers of juridical with legal effects except persons limited to those when capacity to act is expressly conferred and restrained those which can be implied therefrom or incidental thereto. Restrictions or Modifications on Capacity to Act (Arts. 38 – 39, NCC) MIS-PC-FAAIT a. Minority (below 18) b. insanity or imbecility Note: There is a need for judicial declaration of insanity because sanity is presumed. If there is declaration of insanity, the capacity to act is possessed by the guardian. c. state of being deaf-mute d. prodigality (state of squandering money or property to the prejudice of another) e. civil interdiction f. family relations g. alienage h. absence i. insolvency Note: There declaration.

is

also

a

need

for judicial

When Insolvency Reckoned 1. Involuntary Insolvency – from the time of adjudication and not from the time of filing by the creditors. 2. Voluntary Insolvency – at the time of filing by the instant debtor. j. trusteeship 15 | P a g e

Personality: a. Presumptive Personality (Art. 40, NCC) Personality begins at conception; the conceived child shall be considered born for all purposes that are favorable to it, provided it be born later with the conditions specified in Art. 41. 

The personality in this case is essentially limited and it is provisional or conditional.

b. Actual personality - Personality begins at birth. Birth - the removal of the foetus from the mother’s womb who must be alive at the time of complete separation; before birth, the foetus is not a person, but merely a part of the internal organs of the mother. However, because of the expectancy that it may be born, the law protects it and reserves its rights, making its legal existence, if it should be born alive, retroact to the moment of its conception. Legal Conditions (Art 41, NCC): 1. Ordinary Birth - with an intra-uterine life of at least seven months. For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the mother’s womb. 2. Extra-ordinary Birth: with an intrauterine life of less than seven months. For civil purposes, it is not deemed born if it dies within 24 hours after its complete delivery from the maternal womb. Elements: a. Child must be alive at the time of complete separation; and b. Must be alive within 24 hours thereafter. Note: Only one with juridical personality can die. Thus, the aborted child never died because it never acquired a juridical personality. Hence, the action for damages under Art 2206 of NCC by the husband will not prosper. At most, he can recover damages arising from frustration of parental expectation. (Geluz v. CA, 2 S 801) Extinguishment of Civil Personality Death - refers to natural or physical death. It extinguishes civil personality. (Art. 42, NCC)

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

The effect of death upon civil personality is determined by law, contract or will. Note: The rule that death extinguishes civil personality is not absolute. The estate of a deceased is a person that may continue the personality of the deceased for the purpose of settling debts. Thus, the estate is an extension of civil personality of a decedent which comes into being at the moment of his death. There is no need of judicial declaration to that effect. Once the liabilities of the estate have been settled and distribution of the residue to the heirs has been effected, the estate ceases to exist ipso facto. Corpse is not a person because juridical personality is extinguished by death. Effects of Death On Rights Upon the death of a person, the subject of legal relations disappears. Some of his rights and obligations are completely extinguished, while others are transmitted to his successors. Illustrations:  FACTS: X, charged with the crime of Rape. Pending trial, he died. HELD: His criminal liability and his civil liability arising from crime are extinguished. (Pp. v. Bayotas, 236 S 239)  FACTS: In the same problem, supposed there has been judgment convicting X of the crime of rape. Pending appeal, he died. HELD: His criminal liability and civil liability arising from crime are extinguished.  FACTS: In the same set of facts, supposed the judgment of conviction becomes final and executor for failure of X to appeal. During service of sentence, X died. HELD: The criminal liability is extinguished but the civil liability is not extinguished, thus, may be recovered against the estate of the deceased on the basis of the final judgment. Rule on Survivorship under Art. 43, NCC Burden of proof: If there is a doubt, as between 2 or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same. Presumption: In the absence of proof, it is presumed that they died at the same time. Effect of presumption: There shall be no transmission of rights from one to the other. Elements of Art 43: a. There is no proof which of 2 persons died first; and b. They are called to succeed each other. Rule 131(jj)and (kk) of the Revised Rules of Court on presumptions on survivorship. (jj) When two persons perish in the same calamity, such as wreck, battle, or conflagration, and it is not shown who died 16 | P a g e

first, and there are no particular circumstances from which it can be inferred, the survivorship is presumed from the probabilities resulting from the strength and age of the sexes, according to the following rules: 1. If both were under the age of fifteen years, the older is presumed to have survived; 2. If both were above the age of sixty, the younger is presumed to have survived; 3. If one is under fifteen and the other above sixty, the former is presumed to have survived; 4. If both be over fifteen and under sixty, and the sexes be different, the male is presumed to have survived; if the sexes be the same, then the older; 5. If one be under fifteen or over sixty, and the other between those ages, the latter is presumed to have survived. (kk) If there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, it is presumed that they died at the same time. Elements On Survivorship under the Rules of Court a. There is no proof which of 2 persons died first; b. They must have died during a calamity; and c. They are not called to succeed each other.

2. JURIDICAL PERSONS: Theory of Special Capacities CORPORATION - It is an artificial being created by operation of law, having the right of succession and the powers, attributes, and properties expressly authorized by law or incident to its existence. Classification (Art 44, NCC): 1. The State and its political subdivisions governed by the laws creating or recognizing them. (Art. 45, NCC) 2. Juridical persons for public interest or purpose, created by law - their personality begins as soon as they have been constituted according to law; governed by the laws creating or recognizing them. (Art. 45, NCC) In case of dissolution, their property and other assets shall be disposed of in pursuance of law or the charter creating them. If nothing has been specified on this point, the property and other assets shall be applied to similar purposes for the benefit of the LGUs which during the existence of the institution derived the principal benefits from the same. (Art. 47, NCC) 3. Juridical persons for private interest or purpose - their personality begins from the

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

moment a certificate of incorporation is granted and issued by the SEC; Regulated by laws of general application on the subject. (Art. 45, NCC) Partnerships and associations for private interest or purpose are governed by the provisions of this Code concerning partnerships. (Art. 45, NCC) In case of dissolution, see the Corporation Code. 4. The Roman Catholic Church. 5. The estate of a deceased person. Governing Law (Art. 45, NCC) Nationality test - The nationality of a corporation is generally determined by the place of its incorporation. Control test - The nationality of a corporation is determined by the nationality of the controlling stockholders. For the grant of the rights in the Constitution to the operation of public utilities, and for the acquisition of land and other natural resources, a corporation, even if incorporated in the Philippines, cannot acquire said rights unless 60% of its capital be Philippine-owned. During war, for the purpose of determining an enemy corporation, by piercing the veil of corporate entity, and going to the very nationality of the controlling stockholders, regardless of where the incorporation had been made. Rights and obligation of a juridical person (Art. 46, NCC): Juridical persons may: a. acquire and possess property of all kinds, (subject to limitations under Art. 12, Sections 2-3 of the 1987 Constitution) b. incur obligations c. bring civil or criminal actions.

17 | P a g e

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

V. DOMICILE DOMICILE - place of a person’s habitual residence. Domicile more or less permanent a person can have generally only one domicile denotes a fixed permanent residence to which when absent, one has the intention of returning (legal relation to a place) domicile is residence coupled with the intention to remain for an unlimited time

Residence more or less temporary a person can have several places of residence denotes a place of abode (physical relation to a place)

Domicile of natural persons residence is not domicile

Note: Residence as used in the Constitution must be understood to mean domicile. Kinds of Domicile  Domicile Of Origin - it is assigned to him by the law at the moment of birth. In case of a foundling, his domicile is the country where he was found. Can a person be devoid of domicile? NO, because a person always have domicile of origin which is granted at the moment of birth. No natural person must ever be without a domicile.  Constructive Domicile/Domicile By Operation Of Law - it is assigned to him by the law after birth on account of a legal disability caused for instance by minority, insanity or marriage in case of a woman.  Domicile Of Choice - the place freely chosen by a person so that whenever he is absent, he intends to return. Elements: 1. Physical presence in a fixed place. 2. Intention to remain permanently (animus manendi). 3. Intention to abandon the old domicile (animus non revertendi). Intention without physical presence or physical presence without intention will not suffice for the acquisition of domicile, but will be sufficient for the retention of an existing domicile. Who Can Establish a Domicile One who has the legal capacity. Thus, a person with civil interdiction or suffering from penalty of law cannot establish domicile because his act is limited. Domiciliary Theory – the status, condition, rights, obligations and capacity of a person should be governed by the law of his domicile.

18 | P a g e

Illustration: FACTS: X, a former Filipino, went to US and became a naturalized US citizen. Because he violated a law in US, X was denaturalized. He came back to the Phils and started to establish his residence here. He ran for mayor and won. His wife filed a civil case involving personal rights and obligations. X contended that national shall not be applied because he is a stateless person. HELD: Domiciliary theory is called upon to operate because X is a stateless person. Nationality principle cannot be applied. Thus, X is still liable under Philippine Law.

For the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is the place of their habitual residence. (Art. 50, NCC) Domicile of juridical persons The domicile of juridical persons is i. the place provided for in the law creating or recognizing them or in their articles of agreement; ii. when the law creating or recognizing them, or any other provision does not fix the domicile of juridical persons, the same shall be understood to be the place where their legal representation is established or where they exercise their principal functions. (Art. 51, NCC) Domicile vs Citizenship/Nationality Domicile is a place of abode. While citizenship/nationality indicates ties, allegiance and loyalty to the government. Q: Can a Person be Devoid of Nationality or citizenship? A: Yes, because citizenship is merely a privilege which can be taken anytime on valid grounds. Besides, there are those stateless persons whose nationality or citizenship was taken from them.

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

VI. MARRIAGE REQUISITES OF A VALID MARRIAGE The Family Code of the Philippines Essential Requisites (Art 2, FC): Effectivity Date: 3 August 1988 Retroactive Application The code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws. (Article 256) MARRIAGE - is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code. (Art 1, FC)

1. Legal Capacity of the contracting parties who must be a male and a female. Includes: a. Age – at least 18 years of age at the time of celebration of marriage. Be it remembered that formerly, the marriageable age was 14 years for females and 16 years for males. Note: With the SC’s decision in CIR vs Primetown amending Art 13 of NCC, did you really become 18 years old at your 18 th birthday? b. Sex – must be a male and a female. Illustration: FACTS: X, a Filipino male. In his certificate of live birth, it was indicated that he is male. Later, he publicly represented himself as a woman. Eventually, he underwent sex reassignment. He now anatomically possessed of genetalia of a woman. He then filed a petition for the correction of entry so that male will be change to female so that he could marry another male. Will the petition for correction of entry be granted? HELD: NO, because there is no mistake of entry to speak of. The law does not recognize correction of entries on the ground of sex reassignment, otherwise, such may disturb public interest and policy. Besides, there is no law regulating sex reassignment. (Silverio vs. Republic, October 22, 2007)

Marriage vs. Ordinary Contract 1. Marriage is a special contract; and ordinary contract is just a mere contract. 2. Marriage is governed by law on marriage; an ordinary contract is governed by law on contacts. 3. Marriage is an inviolable institution; an ordinary contract is not. 4. Marriage is not subject to stipulation except only with regard to marriage settlement which the parties may agree upon before the marriage; an ordinary contract is subject to stipulation. 5. In marriage, the contracting parties must only be 2, one is a male and the other is a female; in ordinary contract, there can be 2 or more parties and the difference of gender is not material. 6. Marriage is terminated by death or annulment due to legal cause, i.e., it cannot be terminated without the consent of the state; an ordinary contract is terminated upon expiration of the term of the contract, upon fulfillment of the condition for which it was entered into, rescission, mutual agreement of the parties or through other causes.

Note: Civil Registry – historical record of all acts, events, judicial decrees that affects rights, duties, status, condition, and legal capacity of persons. Birth Certificate is a historical record of facts at birth. What may be changed are clerical or typographical errors, ridiculous name, etc. c.

Presumption in Favor of Existence and Validity of Marriage A man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage. This legal presumption may be rebutted by evidence showing that marriage did not actually take place. Elements of Presumption of Marriage 1. Cohabitation of man and woman 2. Accompanied with intent to dispose marital obligations 3. Public deportment or representation as husband and wife. Proof to Disprove the Presumption The fact that there was no record of the marriage is not sufficient to prove that there is no marriage. To overcome the presumption, one or both are in fact married to another. 19 | P a g e

Absence of legal impediment Examples of Legal Impediment c.1. Prior subsisting marriage c.2. Relationship - Incestuous marriages (Art. 37) and Quasi-incestuous marriages (Art. 38) c.3. Public Policy (e.g. last par of Art 38)

Legal Capacity to Contract Marriage by Foreigners, Stateless Persons, Refugees When either or both of the contracting parties are CITIZENS OF A FOREIGN COUNTRY, it shall be necessary for them before a marriage license can be obtained, to submit a CERTIFICATE OF LEGAL CAPACITY TO CONTRACT MARRIAGE, issued by their respective diplomatic or consular officials. (A21, FC)

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

STATELESS PERSONS OR REFUGEES FROM OTHER COUNTRIES shall, in lieu of the certificate of legal capacity herein required, submit an AFFIDAVIT SHOWING SUCH CAPACITY TO CONTRACT MARRIAGE. (A21, FC) The legal capacity of a foreigner to marry, as determined by the law of the country of which he is a citizen, is recognized by our laws. This is in accordance with the nationality theory under Article 15 of the Civil Code. Under Article 35(1): a marriage contracted by any party below 18 years of age EVEN with the consent of parents or guardians shall be void ab initio. 2. Consent freely given in the presence of the solemnizing officer. Freely given before a solemnizing officer and in the presence of at least two witnesses of legal age. The consent is real and not vitiated or rendered defective by any of the vices of consent. It must be free, voluntary, intelligent and personally given. Consent need not be expressed in any special manner or particular form so long as there is a manifestation that the contracting parties take each other as husband and wife. Total absence of consent makes the marriage void ab initio. Hence, the marriage may be annulled if the consent of either party was obtained by fraud, (Art. 45, par. 3), or if the consent of either party was obtained by force, intimidation or undue influence (Art. 45, par. 4). Formal Requisites (Art 3, FC): 1. Authority of the solemnizing officer.

Requisites for authority of a priest to solemnize marriage: a. He must have written authority to solemnize marriages given by his church or religious sect. b. He must be registered in the office of the Civil Registrar General (not the local civil registrar). c. He must act within the limits of such authority. d. Both or one of the parties to the marriage must belong to his church or sect. c. Any ship captain or airplane chief (only in cases mentioned in Art 31) Requisites: 1. the marriage must ne in articulo mortis (at least 1 is at the point of death) 2. the marriage must be between passengers or crew members; 3. generally, the ship must be at sea or the plane must be in flight. Notes: Assistant pilot has no authority. Marriages may be solemnized stopovers at ports of call.

during

d. Any military commander of a unit (only in cases mentioned in Art 32) Requisites: 1. he/she must be a military commander of a unit; 2. he/she must be a commissioned officer (his/her rand should start from a second lieutenant); 3. he/she must be assigned to such unit; 4. the said chaplain must be absent at the time of marriage; 5. the marriage must be one in articulo mortis; 6. the contracting parties, whether members of the armed forces or civilians must be within the zone of military operation.

It is not the absence or presence of the solemnizing officer which constitute a formal requirement but it is the absence or presence of authority.

Notes: The authority of the chaplain to solemnize is based on Art 7.

Marriage may be solemnized by (Art 7, FC):

Of course, other people like a judge or a consul, can perform a marriage in articulo mortis.

a. Any incumbent member of the judiciary within the court’s jurisdiction. Conditions: i. during incumbency If on leave – still have the authority On Sundays, Saturdays, holidays – still have the authority. ii. within territorial jurisdiction b. Any priest, rabbi, imam or minister of any church or religious sect

20 | P a g e

e. Any consul-general, consul, or viceconsul. Marriages between Filipino citizens abroad may be solemnized by a consul-general, consul or vice-consul of the Philippines. (A10, FC) The duties of the solemnizing officer with regard to the celebration of marriage shall be performed by the consular official. (A10, FC) Notes: Only if the contracting parties are both Filipino citizens. If one is foreigner, marriage is void.

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

g. They don’t have authority to solemnize marriage within the territory of the Phils. f.

Incumbent Mayor of a city/municipality (See secs. 444 and 445 of the Local Government Code). Conditions: i. During incumbency ii. Within territorial jurisdiction Note: It has been held that the Vice Mayor has the authority to solemnize marriages because if the vice mayor assumes the powers and duties of the office of the mayor, when proper, it is immaterial whether he is the Acting Mayor or merely acting as mayor, for in both cases, he discharges all the duties and wields the powers appurtenant to said office. (Pp. vs Bustamante, 105 P 64)

Degree of relationship of the contracting parties; h. Full name, residence, and citizenship of the father; i. Full name, residence, and citizenship of the mother; and j. Full name, residence and citizenship of the guardian or person having charge, in case the contracting party has neither father nor mother and is under the age of twenty-one years. NOTE: The applicants, their parents or guardians shall not be required to exhibit their residence certificates in any formality in connection with the securing of the marriage license.

Effect if Solemnizing Officer NO Authority; Exception (Effect of Good Faith)

2. Original birth certificates or, in default thereof, the baptismal certificates of the contracting parties or copies of such documents duly attested by the persons having custody of the originals. (A12 par 1, FC)

The marriage shall be VOID if it shall be 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. (A35[2], FC)

These certificates or certified copies of the documents by this Article need not be sworn to and shall be exempt from the documentary stamp tax. The signature and official title of the person issuing the certificate shall be sufficient proof of its authenticity. (A12 par 1, FC)

2. A valid marriage license EXCEPT in the cases provided for in Articles 27, 28, 31 – 34. Purpose of the Marriage License It is the best proof of the presence of legal capacity of the contracting parties. Where to apply? A marriage license shall be issued by the Local Civil Registrar of the city or municipality where either contracting party habitually resides except in marriages where no license is required in accordance with Chapter 2 of this Title. (A9, FC) If a marriage between Filipino citizens will be celebrated abroad to be solemnized by a consulgeneral, consul or vice-consul of the Republic of the Philippines, the issuance of the marriage license shall be performed by said consular official. (A10, FC) Requirements for Application 1. Separate sworn application which shall specify the ff.: (Art. 11, FC) a. b. c. d. e. f. 21 | P a g e

Full name of the contracting party; Place of birth; Age and date of birth; Civil status; If previously married, how, when and where the previous marriage was dissolved or annulled; Present residence and citizenship;

When Original Birth Certificate Baptismal Certificate Need Not Presented

or be

The presentation of birth or baptismal certificate shall not be required if the parents of the contracting parties appear personally before the local civil registrar concerned and swear to the correctness of the lawful age of said parties, as stated in the application, or when the local civil registrar shall, by merely looking at the applicants upon their personally appearing before him, be convinced that either or both of them have the required age. (A12 par 3, FC) 3. If either of the contracting parties is unable to produce his birth or baptismal certificate or a certified copy of either because of the destruction or loss of the original or if it is shown by an affidavit of such party or of any other person that such birth or baptismal certificate has not yet been received though the same has been required of the person having custody thereof at least fifteen days prior to the date of the application, such party may furnish in lieu thereof his CURRENT RESIDENCE CERTIFICATE or an instrument drawn up and sworn to before the local civil registrar concerned or any public official authorized to administer oaths. Such instrument shall contain the sworn declaration of two witnesses of lawful age, setting forth the full name, residence and citizenship of such contracting party and of his or her parents, if known, and the place and date of birth of such party. The nearest of kin of the contracting parties shall be

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

preferred as witnesses, or, in their default, persons of good reputation in the province or the locality. (A12 par 2, FC) 4. In case either of the contracting parties has been previously married, the applicant shall be required to furnish, instead of the birth or baptismal certificate required in the last preceding article, the DEATH CERTIFICATE of the deceased spouse or the (authentic) JUDICIAL DECREE OF THE ABSOLUTE DIVORCE, or the (authentic) JUDICIAL DECREE OF ANNULMENT or DECLARATION OF NULLITY of his or her previous marriage. (A13 par 1, FC) In case the death certificate cannot be secured, the party shall make an affidavit setting forth this circumstance and his or her actual civil status and the name and date of death of the deceased spouse. (A13 par 2, FC) Note: In case there is a valid divorce decree, there must first be a Petition For Recognition Of Divorce Decree because our courts do not take judicial notice of foreign judgments for they must be alleged and proved.

advice has been sought, together with the written advice given, if any, shall be attached to the application for marriage license. (it can be manifested in writing or actual presence of the parents and such shall be noted by the LCR) Should the parents or guardian refuse to give any advice, this fact shall be stated in the sworn statement. If they do not obtain such advice, or if it be unfavorable, the marriage license shall not be issued till after 3 months following the completion of the publication of the application therefor. 7. Marriage counseling (A16, FC) In the cases where parental consent or parental advice is needed, the party or parties concerned shall, in addition to the requirements of the preceding articles, attach a certificate issued by a priest, imam or minister authorized to solemnize marriage under Article 7 of this Code or a marriage counsellor duly accredited by the proper government agency to the effect that the contracting parties have undergone MARRIAGE COUNSELLING.

5. Parental Consent When Necessary (A14, FC) In case either or both of the contracting parties, not having been emancipated by a previous marriage, are between the ages of 18 and 21, shall exhibit to the local civil registrar, the consent to their marriage of their father, mother, surviving parent or guardian, or persons having legal charge of them, in the order mentioned. Such consent shall be manifested in writing by the interested party, who personally appears before the proper local civil registrar, or in the form of an affidavit made in the presence of two witnesses and attested before any official authorized by law to administer oaths. The personal manifestation (by parents) shall be recorded in both applications for marriage license, and the affidavit, if one is executed instead, shall be attached to said applications. Note: Absence of consent will render the marriage voidable. It is submitted that parental consent is required if any or both parties are between the ages of 18, 19, and 20. 6. Parental Advice

Failure to attach said certificates of marriage counselling shall suspend the issuance of the marriage license for a period of 3 months from the completion of the publication of the application. Issuance of the marriage license within the prohibited period shall subject the issuing officer to administrative sanctions but shall not affect the validity of the marriage. Should only one of the contracting parties need parental consent or parental advice, the other party must be present at the counselling referred to in the preceding paragraph. Publication/Posting Requirement (A17, FC) The local civil registrar shall prepare a notice which shall contain the full names and residences of the applicants for a marriage license and other data given in the applications. The notice shall be POSTED for 10 consecutive days on a bulletin board outside the office of the local civil registrar located in a conspicous place within the building and accessible to the general public. This notice shall request all persons having knowledge of any impediment to the marriage to advise the local civil registrar thereof.

When Necessary (A15, FC) Any contracting party between the age of 21 and 25 shall be obliged to ask their parents or guardian for advice upon the intended marriage. A sworn statement by the contracting parties to the effect that such 22 | P a g e

The marriage license shall be issued after the completion of the period of publication. Duties of Local Civil Registrar 1. Receive the application license.

for

marriage

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

2. Require the presentation of original birth/baptismal certificates except when presentation of this certificates shall not be required. 3. Require to furnish, instead of this certificate, the death certificate of the deceased spouse or the judicial decree of annulment or declaration of nullity of his or her previous marriage. In case of default, an affidavit for such matter shall suffice. 4. In case of default to present such birth certificates, such party may furnish in lieu thereof his current residence certificate or an affidavit for such matter. Such instrument shall contain the sworn declaration of 2 witnesses of lawful age. 5. The local civil registrar shall prepare a notice and post the same for 10 consecutive days. 6. In case of any impediment known to the local civil registrar or brought to his attention, he shall note down the particulars thereof and his findings thereon in the application for a marriage license, but shall nonetheless issue said license after the completion of the period of publication, UNLESS ordered otherwise by a competent court at his own instance or that of any interested party (the oppositor may file an injunctive action because LCR has only ministerial function). No filing fee shall be charged for the petition nor a corresponding bond required for the issuance of the order. (A18, FC) 7. The local civil registrar shall require the payment of the fees prescribed by law or regulation before the issuance of the marriage license. No other sum shall be collected in the nature of a fee or tax of any kind for the issuance of said license. It shall, however, be issued free of charge to indigent parties, that is, those who have no visible means of income or whose income is insufficient for their subsistence, a fact established by their affidavit or by their oath before the local civil registrar. (A19, FC) 8. Prepare the documents required and to administer oaths to all interested parties without any charge in both cases. The documents and affidavits filed in connection with the applications for marriage licenses shall be exempt from documentary stamp tax. 9. The local civil registrar concerned shall enter all applications for marriage licenses filed with him in a registry book strictly in the order in which the same are received. 10. Issue the License after publication unless ordered otherwise by a competent court. 11. Proper receipts shall be issued by the LCR to the solemnizing officer transmitting copies of the marriage certificate. Note: If Marriages between Filipino citizens abroad be solemnized by a consul-general, consul or vice-consul of the Philippines, The duties of the local civil registrar with regard to the celebration of marriage shall be performed by the consular official. (A10, FC)

Suspension of the Issuance of the Marriage License If parental advice is required and the parties do not obtain such advice, or if it be unfavorable, the marriage license shall not be issued till after 3 months following the completion of the publication of the application therefor. Failure to attach certificates of marriage counseling, if required, shall suspend the issuance of the marriage license for a period of 3 months from the completion of the publication of the application. Enforceability/Validity of the License (A20, FC) The license shall be valid in any part of the Philippines for a period of 120 days from the DATE OF ISSUE, and shall be deemed automatically cancelled at the expiration of said period if the contracting parties have not made use of it. The expiry date shall be stamped in bold characters on the face of every license issued. The date of issue is the date of signing of the marriage license by the Local Civil Registrar An expired license is a void license. A void license cannot validate a marriage. 3. A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than 2 witnesses of legal age. (A3, FC) Form – No prescribed form or religious rite for the solemnization of the marriage is required. It shall be necessary, however, for the contracting parties to appear personally before the solemnizing officer and DECLARE in the presence of not less than 2 witnesses of legal age that they take each other as husband and wife. This declaration shall be contained in the marriage certificate which shall be signed by the contracting parties and attested by the solemnizing officer. (A6 par 1, FC) In case of a marriage in articulo mortis, when the party at the point of death is unable to sign the marriage certificate, it shall be sufficient for one of the witnesses to the marriage to write the name of said party, which fact shall be attested by the solemnizing officer. (A6 par 2, FC) Authorized Venues for Marriages GENERAL RULE: The marriage shall be solemnized publicly, and not elsewhere: 1. In the chambers of the judge; 2. In open court; 3. In the church, chapel or temple; 4. In the office of the consul-general, consul or vice consul, and not elsewhere. EXCEPT:

23 | P a g e

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

1. In marriages contracted at the point of death; 2. In remote places; 3. Marriage at a house or place designated by the parties in a sworn statement upon their written to the solemnizing officer. 4. 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 void foreign marriages. (A8, FC) Marriage by proxy: a. If performed here in the Philippines, the marriage is void because physical presence of both parties is required. b. If performed abroad, whether between Filipinos or foreigners or mixed, and valid there as such, the marriage should be considered valid in the Philippines as mentioned under Art. 26. MARRIAGE CERTIFICATE – proof of marriage in which the parties declare that they take each other as husband and wife. Contents of Marriage Certificate The marriage certificate, in which the parties shall declare that they take each other as husband and wife, shall also state: (1) The full name, sex and age of each contracting party; (2) Their citizenship, religion and habitual residence; (3)

The date and precise time of the celebration of the marriage;

(4)

That the proper marriage license has been issued according to law, except in marriage provided for in Chapter 2 of this Title;

(5)

That either or both of the contracting parties have secured the parental consent in appropriate cases;

(6)

That either or both of the contracting parties have complied with the legal requirement regarding parental advice in appropriate cases; and

(7)

That the parties have entered into marriage settlement, if any, attaching a copy thereof. (A22, FC)

Duties Of The Solemnizing Officer: 1. To prepare marriage certificate: the original for the contracting parties (either of them); 2 (duplicate and triplicate) for the LCR not later than 15 days after the celebration of the marriage; one (quadruplicate) shall be retained by the solemnizing officer. 2. In the cases provided under Art. 27 (marriage in articulo mortis) and 28 (marriage in remote places), the solemnizing officer shall state in an affidavit executed before the local civil registrar or any other person legally authorized to administer oaths that the marriage was performed under such circumstances stated in said articles, and that the officer took the necessary steps to ascertain the ages and relationship of the contracting parties and the absence of a legal impediment to the marriage. The affidavit of the solemnizing officer required by this article takes the place of the marriage license and constitutes an assurance that the parties are of the proper ages and that there is no impediment to their marriage. 3. The original of the affidavit required above, together with a legible copy of the marriage contract, shall be sent by the person solemnizing the marriage to the LCR of the place where it was performed within the period of 30 days after the performance of the marriage. LCR has the duty to record the marriage certificate. Failure to record will not invalidate the marriage because it is merely an administrative requirement. 4. For marriages involving ratification of marital cohabitation, the solemnizing officer shall state under oath that he ascertained the qualifications of the contracting parties and found no legal impediment to the marriage. Distinguished From Marriage License 1. Marriage license is a formal requisite of marriage, while marriage certificate is not. 2. Marriage license is issued before celebration of marriage, while marriage certificate is issued after the celebration of marriage. 3. Marriage license shows the authority to contract marriage, while marriage certificate shows facts of celebration. 4. Absence of marriage license renders the marriage void, while absence of marriage certificate will not invalidate marriage.

Purpose and Value of Marriage Certificate The primary or best evidence of a marriage is the marriage contract or marriage certificate.

ABSENCE, DEFECT OR IRREGULARITY IN THE REQUISITES

Since marriage certificate is neither an essential nor a formal requisite, an unsigned or unattested marriage certificate does not invalidate the marriage.

Effect of ABSENCE of Essential and Formal Requisites

Who Issues Marriage Certificate: Solemnizing Officer

24 | P a g e

GENERAL RULE: The absence of any of the essential or formal requisites shall render the marriage void ab initio. (A4 par 1, FC)

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

Absence is a mere ground for declaration of nullity of marriage. Thus, if there is no judicial declaration of nullity of marriage, the marriage is presumed valid and existing. Instances of Absence of Legal Capacity a. Any or both contracting parties are below 18 at the time of celebration of marriage. (Art 35 par 1, FC) This is true notwithstanding the fact that the marriage was celebrated abroad and valid there as such, shall not be valid in the Philippines because it falls under the exception of lex loci celeracionis. (Art 26, par 1, FC) b. Bigamous/Polygamous marriages (Art 35 par 4, FC) – see Discussion Below c.

Void marriage because of no compliance with Art 53 (Art 35[6], FC) – see Discussion Below

Lack of Marriage Ceremony EXCEPT: Lex Loci Celebrationis Illustration: FACTS: H and W got married in the Philippines. W went to Canada where she obtained a divorce. H contracted subsequent marriage with W2. H then filed a petition for declaration of nullity of his 1st marriage on the ground of the existence of divorce and that there was no marriage ceremony. The fiscal charged him with bigamy for which he was convicted. Pending appeal of the judgment of conviction, the marriage was declared void in the petition for declaration of nullity on the ground that there was no marriage ceremony took place. CA affirmed the conviction. HELD: SC reversed the judgment. H cannot be held liable for bigamy because the 1st marriage is not ostensibly valid. (Morigo vs Pp, 422 S 376) Effect of Defect in Essential Requisites

d. Incestuous Marriages (Art 37, FC) e. Quasi-Incestuous Marriages/Void Marriages by Reason of Public Policy (Art 38, FC) Instances of Absence of Consent a. If one or both are suffering from psychological incapacity at the time of marriage even if becomes manifest after the celebration. (Art 36, FC; see discussion below) b. When there is mistake of identity (Art 35 [5], FC) c. Marriage by proxy (no consent/no declaration) EXCEPT when celebrated abroad and valid there as such. No Authority of the Solemnizing Officer – the marriage is void, provided both parties are in bad faith, that is, they did not intend to be bound by the marriage, thus marriage is a sham. EXCEPT: 1. Either or both parties believing in good faith that the solemnizing officer had the legal authority to do so; (A35[2], FC) 2. Lex Loci Celebrationis Lack of Marriage License - Marriage license is a prerequisite to the celebration of marriage, thus absence of which renders the marriage void. EXCEPT: 1. Lex Loci Celebrationis Marriages solemnized outside the Philippines where no marriage license is required by the country where it is solemnized and valid there as such, shall also valid here. 2. Marriages Under Exceptional Circumstances (A27-34, FC; See discussion below)

25 | P a g e

A defect in any of the essential requisites shall render the marriage voidable as provided in Art. 45. (A4 par 2, FC) Effect of Irregularity in Formal Requisites An irregularity in the formal requisites shall not affect the validity of the marriage but the party or parties responsible for the irregularity shall be held civilly, criminally or administratively liable. (A4 par 3, FC) This is a three-fold liability. Examples of Irregularity of in Formal Requisites: 1. Marriage solemnized outside territorial jurisdiction of the judge – irregularity of the formal requisite of authority of the solemnizing officer. 2. Marriage solemnized in places other than those authorize venues – irregularity in marriage ceremony. 3. A marriage contracted by a party who is 21-25 years old without parental advice – irregularity in securing a valid marriage license. 4. Failure to post the application for marriage license – irregularity in securing a valid marriage license. 5. Absence of 2 witnesses of legal age – irregularity in marriage ceremony. 6. Absence of marriage certificate. 7. Unsworn application for marriage license. MARRIAGES PHILIPPINES

CELEBRATED

OUTSIDE

THE

GENERAL RULE: 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 (LEX LOCI CELEBRATIONIS). (A26 par 1, FC) EXCEPTIONS: a. Either or both parties did not have the legal capacity to get married. (A35[1], FC)

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

Art 15 of NCC provides that laws relating to legal capacity of persons are binding upon citizens of the Phils, even though living abroad. Art. 26 of FC and Art 15 of NCC express the extraterritorial effect of the exception. Moreover, Art 17 par 3 of NCC provides that prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. b. The marriage is immoral being bigamous or polygamous not falling under Art 41. (A35[4], FC) c. Consent of one party is lacking because of mistake as to the identity of the other. (A35[5], FC) d. Subsequent marriages which are considered void due to lack of recording under Art. 53. (A35[6], FC) e. One of the parties is psychologically incapacitated at the time of the marriage. (A36, FC) f. Incestuous marriage. (A37, FC) g. Void marriages by reason of public policy. (A38, FC) Note: Common-law marriages obtained abroad by Filipinos are also not valid in the Philippines.

spouse capacitating him or her to remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine law. (A26 par 2, FC, as amended by EO 227) Note: This is a limited recognition of divorce. REQUISITES: 1. Marriage between a Filipino citizen and a foreigner is validly celebrated (textually mixed marriage); 2. Alien spouse obtained a divorce against the Filipino spouse; 3. Divorce is VALID under the national law of the alien spouse; 4. The divorce dissolves the marital bonds; 5. The divorce capacitates the alien spouse to remarry. TRADITIONAL RULE: Art 26 par 2 applies when parties at the time of celebration are a Filipino and an alien. BUT UNDER RECENT JURIPRUDENCE, a divorce obtained by a former Filipino who had been naturalized in another country after his naturalization is NOW recognized. The validity of divorce is determined by the nationality of the party who obtained it. (San Luis vs. San Luis, February 2007) Mitigation of Consequences Principle

FOREIGN DIVORCES Absolute Divorce by a Filipino Spouse Divorce initiated by a Filipino is against public policy, thus, cannot be recognized. Art 15 of NCC provides that laws relating to family rights and duties or to status, condition and legal capacity of persons are binding upon citizens of the Phils, even though living abroad. Moreover, Art 17 par 3 of NCC provides that prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. A Filipino is governed by his national law wherever he goes. HOWEVER, insofar as the foreigner is concerned, the divorce obtained by the Filipino spouse will be recognized because of the Philippine’s adherence to the nationality rule. Thus, the foreigner spouse cannot claim that he/she still has an interest in the property acquired by the Filipino after the divorce. As to the foreigner, he/she shall be considered divorced. Foreigner cannot also file a criminal case of adultery/concubinage against the Filipino spouse because while the latter is considered married to him/her, the foreign spouse is no longer married to the Filipino. (Van Dorn vs Romillo, 139 S 139; Pilapil Case) Divorce by Foreigner Spouse Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien 26 | P a g e

For as long as divorce is valid and even if the Philippines does not recognized it, nevertheless, it would mitigate the effects of divorce in favor of the Filipino spouse. The intent of said provision (Art 26, par 2, FC) is to avoid the absurd situation where the Filipino spouse remains married to the alien spouse, who after obtaining a divorce, is no longer married to the Filipino spouse. Taking into consideration the legislative intent, the provision should be interpreted to include cases involving parties who, at the time of celebration of the marriage, were Filipino citizens, but later one of them becomes naturalized as a foreign citizen and obtains a divorce decree. The Filipino spouse should likewise be allowed to remarry as if the other party was a foreigner at the time of the solemnization of the marriage. To rule otherwise would be to sanction absurdity and injustice. (Republic v Obrecido, Oct 5, 2005; Republic v Iyoy, Sept 21, 2005) The other reason for this is the application of nationality theory for a former Filipino is no longer governed by Philippine Law. MARRIAGES UNDER CIRCUMSTANCES

EXCEPTIONAL

a. Marriage in Articulo Mortis Art. 27: marriage in articulo mortis; remains valid even if the ailing party subsequently survives.

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

Duty of the Solemnizing Officer The solemnizing officer shall state in an AFFIDAVIT executed before the LCR or any other person legally authorized to administer oaths that the marriage was performed in articulo mortis. (A29, FC) The original of the affidavit required together with the legible copy of the marriage contract, shall be sent by the person solemnizing the marriage to the LCR of the municipality where it was performed within the period of 30 days after the performance of the marriage. (A30, FC) Art. 31: marriage in articulo mortis between passengers or crew while the ship is at sea or the plane is at flight, and during stopovers at ports of call. Art. 32: marriages in articulo mortis between persons within the zone of military operation, whether members of the armed forces or civilians. Who May Solemnize All those authorized under Article 7 of the Family Code and the Mayor. Compliance with other requirements before they can solemnize is necessary b. Marriages in Remote Place Art. 28: marriage in remote places (no means of transportation to personally appear to the LCR).

d. Convalidation of Cohabitation/Ratification of Marital Cohabitation Art. 34: Marriage of a man and a woman who have lived together as husband and wife for at least five years and without any legal impediment to marry each other. Requisites of ratification of marital cohabitation: 1. The contracting parties must have been living together as husband and wife for at least 5 years before the marriage. 2. The parties must have no legal impediment to marry each other during the cohabitation. 3. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. 4. The solemnizing officer shall also state under oath that he ascertained the qualifications of the contracting parties are found no legal impediment to the marriage. Status of the Marriage The marriage is valid even if celebrated without marriage license. Marriages solemnized without license are void from the beginning, except those Marriages under exceptional circumstances. (A35[3], FC) Marriage license is a formal requisite of marriage EXCEPT those marriages under exceptional circumstances. (A3[2], FC)

Duty of the Solemnizing Officer

VOID AB INITIO MARRIAGES

The solemnizing officer shall state in an affidavit executed before the local civil registrar or any other person legally authorized to administer oaths that the residence of either party, specifying the barrio or barangay, is so located that there is no means of transportation to enable such party to appear personally before the LCR and that the officer took the necessary steps to ascertain the ages and relationship of the contracting parties and the absence of legal impediment to the marriage. (A29, FC)

VOID MARRIAGES – marriage which is not valid from its inception.

The original of the affidavit required together with the legible copy of the marriage contract, shall be sent by the person solemnizing the marriage to the LCR of the municipality where it was performed within the period of 30 days after the performance of the marriage. (A30, FC) c. Marriages among Muslims or among Members of the ethnic cultural communities. Art. 33: Marriages among Muslims or among members of the ethnic cultural communities provided that they are solemnized in accordance with their customs, rites or practices.

27 | P a g e

Declaration of Nullity Cause of nullification exists from the beginning of marriage. One recognized in the Phils which allows the parties to remarry.

Divorce Cause exists after the marriage. Not recognized in the Phils EXCEPT when obtained by foreigners and valid in their country.

Void Marriages Under the FC: 1. Between minors (below 18) even with consent of parents or guardians. (A35[1], FC) 2. Solemnized by unauthorized officer, EXCEPT good faith of one or both of the parties. (A35[2], FC) 3. Solemnized without marriage license, except under Art. 27, 28, 31–34(marriages exempt from marriage license). (A35[3], FC) 4. Bigamous/polygamous Requisites of Bigamy a. There is a prior subsisting marriage; b. Prior marriage not validly terminated; c. Spouse contracted a 2nd or subsequent marriage;

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

d. 2nd or subsequent marriage would have been valid were it not for prior subsisting one.

actual physical search of the places where the absent spouse is possibly be. c.

GENERAL RULE: A marriage contracted by any person during the subsistence of a previous marriage is VOID. EXCEPTIONS: a. Code of Muslim Personal Laws Muslim men in the Philippines are allowed maximum of 4 marriages even if the prior marriage/s are still subsisting. Such privilege is not granted among Muslim women. b. Art. 41: a marriage contracted by any person during the subsistence of a previous marriage in cases where the prior spouse had been absent; (A35[4], FC) Valid Bigamous Marriage - before the celebration of the subsequent marriage, the prior spouse had been absent for 4 consecutive years and the spouse present had 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 under Art. 391 of the Civil Code, an absence of only 2 years shall be sufficient. For the purpose of contracting the subsequent marriage, the spouse present must institute a summary proceeding for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse: this provision is intended to protect the present spouse from a criminal prosecution for bigamy because with the judicial declaration that the missing spouse is presumptively dead, the good faith of the present spouse in contracting a second marriage is already established.

Spouse present must institute a summary proceeding (NOT a special proceeding) for the judicial declaration of presumptive death (by way of petition) of the absentee, without prejudice to the effect of reappearance of the absent spouse. Note: Courts usually refuses to make judicial declaration of presumptive death because it is not conclusive. Unlike in Arts 390 and 391, NCC, it is only in Art 41 of FC that a judicial declaration of presumptive death is mandatorily required for the purpose of capacitating the present spouse to remarry. It is also required in cases of settlement of estate. RECENT JURISPRUDENCE ruled that the judicial declaration of presumptive death is immediately final and executory, thus not subject to appeal. The judicial declaration registered with the LCR.

must

be

Effect of registration: a. The effects of 1st marriage is merely suspended. b. 2nd marriage is conditional, that is, dependent on the confirmation of death and reappearance. Effects of Subsequent Marriage IF BOTH PARTIES IN GOOD FAITH – marriage is valid. If the absent spouse reappeared and he/she or any interested person does not file an affidavit with the civil registrar of the fact of reappearance, 2 valid marriages exist (valid bigamous marriage).

Requisites (A41, FC): a. Before the celebration of the subsequent marriage, the prior spouse had been absent for FOUR consecutive years (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);

IF BOTH SPOUSES OF THE SUBSEQUENT MARRIAGE ACTED IN BAD FAITH – marriage shall be void ab initio (for being bigamous) and all donations by reason of marriage and testamentary dispositions made by one in favor of the other are revoked by operation of law. (A44, FC) An example of this is when both parties to the 2nd or subsequent marriage know the whereabouts of the absent spouse.

b. the spouse present has a WELLFOUNDED BELIEF that the absent spouse was already dead.

Cause of Termination of Subsequent Marriage

In Republic vs Nolasco, this requirement is satisfied if serious and diligent efforts is exerted to locate the whereabouts of the absent spouse. If there is police assistance, thus the disappearance must be reported to the police. There must also be sending of letters to the relatives or known acquaintances of the absent spouse. And there must be 28 | P a g e

The subsequent marriage shall be automatically terminated (terminated ipso facto) by the recording of the affidavit of reappearance of the absent spouse (constitute as a notice in rem, UNLESS there is a judgment annulling the previous marriage or declaring it void ab initio. A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the residence

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

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. (A44, FC) This is the only instance where a marriage is terminated extra-judicially EXCEPT when reappearance is disputed. Effects of Termination of Subsequent Marriage The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects (Art. 43, FC): (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.

Exception to the Exception: If both the spouses of the subsequent marriage acted in bad faith, such marriage is void ab initio. (Art 44) c.

Art 26 par 2, FC – Valid Foreign Divorce (see Discussion Above)

5. Contract by Mistake In identity – the mistake here is with regard to the physical identity of one of the parties and not with regard merely to the character, health, rank, fortune, or chastity of one party to the marriage. This is tantamount to absence or lack of consent which makes the marriage void. (A35[5], FC)

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6. Subsequent marriages in violation of Arts 40, 52 and 53 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. Pp vs Aragon, Feb 28, 1957 – no need of judicial declaration. Gomez vs Lipana, June 30, 1970 – there was a need for a judicial declaration. Odayat vs Amante, June 2, 1977 – no need for judicial delaration. Weigel vs. Sempio Diy, Aug 19, 1986 – there was a need for judicial declaration. Yap vs CA, Oct 28, 1986 – no need for a judicial declaration. Family Code, Aug 3, 1988 – there is a need for judicial declaration. Purpose/Aim of Art 40 The aim is to do away with any continuing uncertainty on the status of the 2nd marriage. The 2nd marriage shall likewise be void. The parties to a marriage should not be allowed to assume that there marriage is void even if such be the fact but must first secure a judicial declaration of the nullity of their marriage. Before such declaration, the person who marries again can be charged with bigamy. (Mercado Case) Distinguished From Bigamous Void Marriage In bigamous void marriage, the subsisting first marriage is valid, while in Art 40, the subsisting marriage is void. Thus, if a person remarries without a judicial declaration of nullity of the first marriage, the subsequent marriage is void not because it is bigamous but because it violates Art 40. Distinguished From Criminal Bigamy The crime of bigamy contemplates a situation where the first marriage is valid, or at least annullable and not void from the beginning. HOWEVER, in the case of Mercado vs. Mercado, Aug 1, 2000, SC held that bigamy is committed for as long as a subsequent marriage was contracted without judicial declaration of nullity of the first marriage pursuant to Art 40 in relation to Arts 52 and 53 of FC. (But see dissenting opinion of Justice Vitug) This ruling, in effect, states that criminal bigamy is determined not by the fact that the first marriage is really legally void but by the fact that no judicial declaration of nullity of the first marriage was obtained prior to the subsequent marriage. Note: Although the first marriage is judicially declared void, any subsequent marriage may

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

still be considered void because of the failure to comply with Arts. 52 and 53. 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.

average couple existing under ordinary circumstances of life and work. b. Juridical Antecedent - if the roots of the trouble can be traced to the history of the subject before the marriage although its overt manifestations appear only after the wedding. c. It must Permanent and Incurable - if treatments required exceed the ordinary means of the subject, or involve time and expense beyond the reach of the subject.

Final Judgment of Nullity of Marriage is binding only between the parties, the effect of which is terminating the marriage bond.

Jurisprudential Guidelines in Interpreting and Applying Article 36 – BREIGOIC (Republic v. Molina)

GENERAL RULE: against 3rd persons.

EXCEPT: When there is registration of the judgment.

a. The burden of proof to show the nullity of the marriage belongs to the plaintiff, and any doubt must be resolved in favor of the existence of the marriage and against its nullity.

Where to Register: Appropriate civil registry and registries of property.

b. The root cause of incapacity must be:

Judgment

NOT

binding

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. Note: The recording is NECESSARY to bind 3 rd persons and for the parties to be able to validly contract a subsequent marriage. The fact of registration restores legal capacity to contract a subsequent marriage. 7. Art. 36: Those contracted by a party who at the time of the celebration of marriage was psychologically incapacitated to comply with the marital obligations even if such incapacity becomes manifest only after its solemnization. Psychological incapacity - the condition of a person who does not have the mind, will, and heart for the performance of essential marital/parental obligations. It is the inability to understand the marital obligations leading to non-performance of the same. It has no exact definition but is restricted to psychological incapacity to comply with the essential marital obligations of marriage. It involves a senseless, protracted, and constant refusal to comply with the essential marital obligations by one or both of the spouses although he/she or they are physically capable of performing such obligations. (Chi Ming Tsoi vs CA) It must be adjudged on a case to case basis. It should refer to no less than a mental (not physical) incapacity. General characteristics of psychological incapacity: a. It must be Grave - if the subject cannot carry out the normal and ordinary duties of marriage and family, shouldered by any 30 | P a g e

the

psychological

1. Medically or clinically identified 2. Alleged in the complaint It has been relaxed, thus it need not be alleged in the complaint. 3. Sufficiently proven by experts In the case of Marcos vs Marcos, October 19, 2000, it is not indispensable to undergo psychiatric evaluation, it is sufficient that one is assessed by expert for purposes of the petition. Expert testimony indispensable.

is

no

longer

Under present jurisprudence, the incapacity must be proven based on the totality of evidence presented. In Ferraris vs Ferraris, 495 SCRA 396, SC held that the marriage cannot be voided on the ground of psychological incapacity because of the failure to prove the existence of the same. SC also discussed in this case the probative weight of the expert testimony to the effect that the doctor failed to prove the existence of mixed personality disorder of the husband. The testimonies of the doctor were just her assumptions and based on what the plaintiff confined to her, thus hearsay. There was failure to obtain collateral information. However, if there are independent evidence to show the incapacity, then the marriage may be declared void. Expert testimony is only indispensable when no other evidence was presented, otherwise, such will only be considered cumulative or corroborative.

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

4. Clearly explained in the decision c.

The incapacity must be proven to be existing at the time of the celebration of the marriage although the manifestation need not be perceivable at such time.

d. The incapacity must also be shown to be medically or clinically permanent or incurable, although the incurability may be relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. Incurability may be absolute as when the incapacity persists in all relationships. It may also be relative as when the incapacity is only with the present spouse. e. Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. This means that there must be a serious mental and personality disorder which renders him or her incapable of understanding his/her marital obligations. If the mental disorder is not connected with the failure to perform marital obligations, it is considered merely as a difficulty. f.

The essential marital obligations must be those embraced by Arts. 68 –71 and Arts. 220 - 225 of the Family Code, with regard to parents and children. Such noncompliance must also be state in the petition, proven by evidence, and included in the text of the decision. Essential marital obligations: Art. 68: the husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support. Art. 220: parental authority over the person of their unemancipated children. Art. 225: parental authority over the property of their unemancipated children.

g. Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church, while not controlling, should be given great respect by our courts. When the marriage is annulled by the NAMT, still, the marriage under the civil law is valid and existing. h. The trial court must order the fiscal and the Solicitor general to appear as counsel for the State. No decision shall be handed down unless the Solicitor general issues a certification, which will be quoted in the decision, briefly stating his reasons for his agreement or opposition to the petition. The Solicitor General and the fiscal shall submit such certification to the court within 15 days from the date the case is submitted for resolution. 31 | P a g e

Note: The favorable recommendation of OSG has been relaxed. There must be an independent judgment of the court. The Following Do Not Constitute Psychological Incapacity 1. Drunkenness / habitual alcoholism 2. Joblessness 3. Mere sexual infidelity or perversion 4. Abandonment 5. Immaturity 6. Irresponsibility 7. Refusal to give support 8. Infliction of physical violence Note: While these may not constitute psychological incapacity, they may be considered as manifestations. 8. Incestuous Marriages (Art 37, FC) Marriages between the following are incestuous and void from the beginning, whether the relationship between the parties be legitimate or illegitimate: 1. Between ascendants and descendants of any degree. 2. Between brothers and sisters, whether of the full or half-blood. Rationale for the Ban on Incestuous Marriage In the first place, they are abhorrent to the nature, not only of civilized men, but of barbarous and semi-civilized people and, in the second place, tend to the confusion of rights and duties incident to family relations. Also, a child of incestuous union creates a special problem of social placement, because its status is so confused, as is that of its parents. In addition, science and experience have established beyond cavil that such intermarriages very often result in deficient and degenerate offspring, which if occurring to any great extent, would amount to a serious deterioration of the race. Finally, social prohibitions against incest promote solidarity of the nuclear family. 9. Quasi-incestuous Marriages / Void Reason of Public Policy (ART 38, FC)

by

These marriages are void from the beginning for reasons of public policy: 1. Between collateral blood, whether legitimate or illegitimate, up to the fourth civil degree. 2. Between step-parents and step-children. 3. Between parents-in-law and children-in-law. 4. Between the adopting parent and the adopted child. 5. Between the surviving spouse of the adopting parent and the adopted child. 6. Between the surviving spouse of the adopted child and the adopter. 7. Between an adopted child and a legitimate child of the adopter. 8. Between adopted children of the same adopter. 9. Between parties where one, with the intention to marry the other, killed that other person’s spouse, or his or her own

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

spouse; in this case, there is no need for conviction of the guilty party. Reasons for the Prohibition They are against public policy. It is the policy of the state to foster a normal, peaceful and wholesome integral nuclear family unit which would constitute the very foundation of society. Other relationships which are not impediments to marriage: 1. Brother-in-law and sister-in-law 2. Stepbrother and stepsister 3. Guardian and ward 4. Adopted and illegitimate child of the adopter 5. Adopted son of the husband, and adopted daughter of the wife NOTE: RA 6995 (Mail Order Bribe Act) declares as unlawful the practice of matching Filipino women for marriage to foreign nationals on a mail order basis and other similar practices including the advertisement, publication, printing or distribution of brochures, fliers and other propaganda materials in furtherance thereof. Action For Declaration Of Nullity Of Marriage Who may Bring A petition for the declaration of absolute nullity of void marriage may be filed SOLELY by the husband or the wife.” (S2[a], AM 02-11-10-SC) Petition for declaration of nullity of marriage, in the case of Catalan vs CA, February 2, 2007, is considered as an ordinary civil action, thus any proper party who has legal interest may file the petition. In this case, SC recognized the legal capacity of the 1st wife to institute the petition.

Where to File: The petition shall be filed in the Family Court of the province or city where the petitioner or the respondent has been residing for at least 6 months prior to the date of the filing or in the case of nonresident respondent, where he may be found in the Philippines, at the election of the petitioner. (S2[b], AM 02-11-10-SC) Prescriptive Period The action or defense for the declaration of absolute nullity of a marriage shall not prescribe. (Art 39, FC; S2[c], AM 02-11-10-SC) Note: RA 8533 amended Art. 39, eliminating the second sentence thereof which states the prescriptive period of 10 years in case of marriages celebrated before the affectivity of FC which fall under Art 36 . Appearance of the State/Prohibition vs. Default Judgment 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. If the defendant fails to answer within 15 days from receipt of the summons, he or she cannot be declared in default unlike in ordinary civil cases, and the court will order the full-blown (not summary) hearing of the case.

Petition for declaration or annulment of marriage shall be filed by the aggrieved spouse and such is personal to him/her while he/she is still living. After death, the heirs may assail the validity of marriage in the settlement proceedings. (Enrico Case, 534 SCRA 418) In effect, the settlement court can decide on the validity of marriage whose decision is final and inappealable.

If the answer admits the allegations of the petition, judgment on the pleadings cannot be decreed. Material facts alleged in the petition shall always be proved.

Moreover, in the case of Ninal vs Bayadog, March 14, 2000, SC recognized the right of the heirs of the deceased father assailing the validity of his marriage with their step-mother in a settlement proceeding. They have legal interest to determine their successional right to the exclusion of the stepmother.

Reason for the Appearance of the State

The pleading may be in the form of petition or complaint where all grounds must be alleged. In one case, there was a petition filed for declaration of nullity of marriage under Art 36. The court dismissed the case. On appeal, one new ground is included which is lack of license. SC held that the new ground should be disregarded. All grounds must be alleged. Further, SC held that the judgment can no longer be reversed because parties are estopped from citing the new ground. Neither the party can file a 2 nd petition for nullity by reason of res judicata. 32 | P a g e

Note: Appearance of the OSG is no longer indispensable if the State is already protected by the appearance of the prosecutor.

The reason for the duty is because marriage is not just a contract between the parties but a social institution, in the preservation of which, the State is interested. COLLUSION – one which occurs where, for purposes of getting an annulment or nullity decree, the parties come up with an agreement making it appear that the marriage is defective due to the existence of any of the grounds for annulment or nullity and agreeing to represent such false or nonexistent cause of action before the proper court with the objective of facilitating the issuance of a decree of annulment of nullity of marriage. The Following Warrants the Conduct of Investigation a. If defendant does not tender an answer. b. If there is an answer but no further appearance.

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

c.

If either of the parties withdraw from the case.

If there is collusion, dismissal of the petition is warranted. HOWEVER, even if there is an agreement to file the annulment or nullity case, collusion will not exist if the grounds relied upon truly exist and are not just concocted. STIPULATION OF FACTS – admission by both parties made in court agreeing to the existence of the act constituting the ground for annulment or nullity. CONFESSION OF JUDGMENT – admission made in court by the defendant admitting fault as invoked by the plaintiff to sever the marriage ties. Right To Support And Custody During The Pendency Of The Action Art. 49. During the pendency of the action and in the absence of adequate provisions in a written agreement between the spouses, the Court shall provide for the support of the spouses and the custody and support of their common children. The Court shall give paramount consideration to the moral and material welfare of said children and their choice of the parent with whom they wish to remain as provided to in Title IX (See Art 213). It shall also provide for appropriate visitation rights of the other parent. 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. No child under 7 shall be separated from the mother, unless the court finds compelling reasons to order otherwise. Necessity of Final Judgment / Requirement for Remarriage (Art 40 in rel to Arts. 52 and 53 – see discussion above) Effects of Declaration of Nullity 1. No more marriage ties between the parties. No obligation to support one another. Duty to perform marital obligations is extinguished. 2. Children conceived and born during the marriage is downgraded to the status of illegitimate. The finality of judgment makes the children illegitimate ipso facto. An exception to this rule id Art 35[6] and Art 36 of the FC. 3. Children are entitled to support. If the matter of custody is not yet resolved, apply the rules on custody. There is grant of physical custody to be exercised by one party and visitation rights to be exercised by the other. 4. There is dissolution and liquidation of co-owned property under the rule on co-ownership under Art 147. The property will be divided in equal share unless there is proof to the contrary.

33 | P a g e

Liquidation only happens after finality of judgment. In US, they call it “bifurcated process.” The liquidation is subject to the rule on forfeiture. Thus, 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.(Art 43 [2], FC) SC held that in bigamous marriages along with adulterous relationships, relationships in a state of concubinage, relationships with prior existing marriages, or multiple marriages of married man, Article 148 of the FC on Rule of Limited Co-ownership shall apply. In such case, there is no presumption of equal sharing. Thus, coownership extends during relationship upon proof of actual acquisition. (Atienza vs De Castro) 5. 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. (Art 43 [3], FC) 6. 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; (Art 43 [4], FC) and 7. The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession. (Art 43 [5], FC) 8. 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. (Art 44, FC) NOTES:  The final judgment in such cases shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of third presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings. (A51, FC) 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. 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 7 years are deemed to have chosen the mother, unless the

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

Court has decided otherwise. In case there is no such majority, the Court shall decide, taking in to consideration the best interests of said children.  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. Note: As a rule, in void marriages, delivery of presumptive legitimes is not required EXCEPT only in void subsequent marriage resulting from non-compliance with Art 40 in relation to Arts 52 and 53. This is because the rules on coownership shall govern the partition and liquidation.  Art. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses and the delivery of the children's presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect third persons.  Art. 53. Either of the former spouses may marry again after compliance with the requirements of the immediately preceding Article; otherwise, the subsequent marriage shall be null and void. Status of Children born of Void Marriage GENERAL RULE: Children conceived and born outside a valid marriage or inside a void marriage are illegitimate. EXCEPTIONS: 1. Children conceived or born (after the marriage but) before the judgment absolute nullity of the marriage under Article 36 has become final and executory shall be considered legitimate. 2. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate. (A54, FC)

VOID Invalid/void from beginning. Never be ratified.

the

Children, illegitimate EXCEPT Arts. 36 & 53. Liquidation of property, co-ownership under Art 147 and if bigamous marriage Art 148. Can be collaterally attacked EXCEPT for purposes of remarriage, or revocation of donation propter nuptias. Nullification is imprescriptible. Any party who has legal interest may impugn the validity of marriage. Judicial decree of nullity is necessary for purposes of remarriage.

VOIDABLE Valid until annulled. Susceptible ratification. Children, legitimate. Based regime.

on

of

property

Direct attack.

There is prescription. Parties are only those provided by law. Judicial declaration necessary.

is

Grounds for the annulment of marriage (Art 45 – the grounds are exclusive): The marriage may be annulled for any of the following causes, existing AT THE TIME OF THE MARRIAGE: LIV-VIA 1. Lack of Parental Consent - That the party in whose behalf it is sought to have the marriage annulled was 18 years of age or over but below 21, 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 21, such party freely cohabited with the other and both lived together as husband and wife. 2. Insanity - That either party was of unsound mind, unless such party, after coming to reason, freely cohabited with the other as husband and wife. INSANITY – a manifestation, in language or conduct, of disease or defect of the brain, or a more or less permanently diseased or disordered condition of the mentality, functional or organic, and characterized by perversion, inhibition, or disordered function of the sensory or the intellective faculties, or by impaired or disordered volition. Test of Unsoundness of Mind

ANNULLABLE

The test is whether the party was deprive of reason. Insanity which occurred after the celebration of marriage cannot constitute a cause of nullity.

VOIDABLE MARRIAGE - is valid until it is annulled. Before annulment, the voidable marriage must be regarded as valid. One cannot just take the law into his own hands. He must go to court.

Drunkenness – may be considered insanity depending on the degree of drunkenness which deprives a person of his reason.

VOIDABLE MARRIAGES MARRIAGES

34 | P a g e

/

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

Somnambulism (sleep-walking) – deprivation of reason, thus insanity.

there

is

Hypnotism – considered insanity provided there is deprivation of reason. Comatose – considered insanity. It is not the disease that is considered but the effect of the disease.

FORCE – there is actual physical coercion and serious or irresistible force is employed. INTIMIDATION - when one of the contracting parties is compelled by a reasonable and wellgrounded fear of imminent and grave evil upon his person or property, or upon the person or property of his spouse, descendants or ascendants, to give his consent.

Presumption of the Law The general presumption of the law is in favor of sanity. He who alleges unsoundness of mind has the burden of proof.

The marriage cannot be annulled on the ground of intimidation if the threat is to enforce one’s claim, which is just or legal, through competent authority. To be considered a ground, the threat must be unjust or illegal.

Insanity vs Psychological Incapacity Insanity is a restriction of the capacity to act, while psychological incapacity is the incapacity to comply with marital obligations. 3. Vitiated Consent through Fraud - 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. Fraud constitutes (Art 46): a. Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude. Note: In determining whether a crime involves moral turpitude, it is the nature of the offense is considered. Negligence cases under the Revised Penal Code do not involve moral turpitude EXCEPT if it is so reckless amounting to malicious conduct. Crimes under Special Laws also involve moral turpitude like violation of BP 22, vote buying, election offenses. b. Concealment (there must be bad faith) by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband. c.

Concealment of a STD, regardless of its nature, existing at the time of the marriage.

d. Concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism, existing at the time of the marriage.

UNDUE INFLUENCE - when a person takes improper advantage of his power over the will of another, depriving the latter of a reasonable freedom of choice. 5. Impotency - That either party was physically incapable of consummating the marriage with the other and such incapacity continues and appears to be incurable. Requisites for physical incapacity: a. That the incapacity exists at the time of the celebration of the marriage. b. That such incapacity continues to the time when the case for annulment is being tried. c. That it appears to be incurable. d. It must be unknown to the other contracting party. The physical incapacity referred to by law as a ground for annulment of marriage is Impotency. IMPOTENCY – inability of the male or female organ of copulation to perform its proper function. It is the physical condition of the husband or the wife in which sexual intercourse with a normal person of the opposite sex is impossible. It is the lack of power to copulate, the absence of the functional capacity for the sexual ac. Test of Impotency It is the inability to copulate and not the inability to procreate. Impotentia Generandi

Copulandi

vs

Impotentia

Note: 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.

Impotentia Copulandi is the physical impotency or inability to copulate and considered as a ground for annulment of a voidable marriage. Impotentia Generandi on the other hand is known as sterility or the inability to procreate. In sterility, there is capacity to copulate which is absent in impotency.

4. Vitiated Consent by Force, Intimidation or Undue influence - 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.

Relative/Temporary impotency – is where a person is impotent with respect to his or her spouse but not with another woman or man. Under the Family Code, relative impotency may be invoked as ground for annulment of marriage in view of the physical incapability of one party to consummate said marriage with the other.

35 | P a g e

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

b. In marriage where one is of unsound mind – after coming to reason

Potency is presumed Potency is presumed unless the person is too old for normal sexual activity. Impotency being an abnormal conditions should not be presumed. Burden of Proof He who claims impotency must prove the claim because the presumption is in favor of potency. Doctrine of triennial cohabitation - if the wife remains virgin after living together with her husband for 3 years from the time of marriage, the presumption is that the husband is impotent, and he will have to overcome this presumption. Note: NO ratification by free cohabitation in cases of absolute impotency because there could be no cohabitation as consummation of the marriage is not possible. However, estoppel is applicable. Knowledge of impotency at the time of marriage will negate annulment of marriage. 6. Affliction of STD - That either party was afflicted with a STD (Sexually-transmissible disease) found to be serious and appears to be incurable (e.g. Hepatitis B and C are STD and serious while Hepatitis A is not STD) Requisites: a. Disease must be existing at the time of marriage b. The disease must be STD c. STD must be Serious d. STD appears to be incurable Affliction of STD as a ground for annulment Under Article 45 (6) v. Affliction of STD as constituting fraud under Article 46 (3). Art. 45 (6) One party is afflicted with a STD found to be serious and appears to be incurable The disease is present at the time of the marriage Concealment is immaterial; the disease may be known to the other party

c.

In marriage where consent is obtained by fraud – after having full knowledge of the facts constituting fraud

d. In marriage where the consent is obtained by force, intimidation – after force, intimidation or undue influence has disappeared. Cohabitation, How Proven a. After knowledge of the defect, the party who is entitled to file an action, freely discharges his/her marital obligations. b. Consummation of marriage, after knowledge of the defect. Effects of Ratification – extinguishment of the right of action for annulment of a voidable marriage. Note: If the ground is impotency or affliction of STD, there is no ratification to speak of since the defect is permanent. They can be convalidated only by prescription. 2. Prescription (See the Table Below) Action for Annulment of Marriage Who May Bring and Within What Period (Art 47; AM 02-11-10-SC) Grounds Lack of parental consent Lack of parental consent

Art. 46 (3) One party is afflicted with a STD regardless of its nature The disease is present at the time of the marriage There is concealment

Note: No ratification by free cohabitation STD.

Insanity Insanity

Insanity

Persons who may sue The party who lacks parental consent The parent, legal guardian or person having substitute parental authority who did not give consent, in that order Sane spouse (no knowledge of the ground) Relatives, guardians or person having legal charge of the insane Insane spouse Injured party

Fraud

in

Ratification/Convalidation of Voidable Mariiage, Modes

Force, intimidation or undue influence Physical incapability

1. Free Cohabitation To What Marriages Applicable a. In marriage where there is lack of parental consent – after attaining the age of 21

Affliction of STD

Injured party

Prescriptive period Within 5 years after reaching the age of 21 At anytime before the party who lacks parental consent reaches 21

At anytime before the death of either party At anytime before the death of either party During sanity or lucid interval Within 5 years after the discovery of the fraud Within 5 years from the time the grounds stated ceased

Injured party. If both are impotent, no one can file because there is no injured party.

Within 5 years after the marriage

Injured party

Within 5 years after the marriage

When Actions for Annulment will not Prosper 36 | P a g e

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

a. If persons other than those specified by law filed the case. b. When the action was filed after prescription had set in. c. When the injured party freely cohabited with the other as husband and wife.

Status of Children Born of Voidable Marriage Children conceived OR born before the judgment of annulment shall be considered legitimate.

Where to File the Petition

LEGAL SEPARATION

The petition shall be filed in the Family Court of the province or city where the petitioner or the respondent has been residing for at least 6 months prior to the date of the filing or in the case of nonresident respondent, where he may be found in the Philippines, at the election of the petitioner.

LEGAL SEPARATION - the marriage bond between the husband and wife is not severed. The parties are merely separated from bed and board.

Appearance of the State (Art 48 – See Discussion Above, Same in Declaration of Nullity of Marriage)

A Vinculo Matrimonii or Absolute divorce is a separation of the spouses for a cause authorized by law by a judgment of competent court where the marriage tie is dissolved leaving the parties free to contract a new marriage. A Mensa et Thoro or Relative Divorce, on the other hand is the separation of the spouses from bed and board for a cause authorized by law by the judgment of a competent court but the marriage tie subsists and the parties are not allowed to marry again. Under the Family Code, relative divorce is known as LEGAL SEPARATION.

Right to Support and Custody During Pendency of Action (Same in Declaration of nullity of marriage) Necessity of Final Judgment / Requirements for Remarriage (Same in declaration of Nullity of marriage) Art 40 which speaks of absolute nullity includes annulment of marriage. Thus, the necessity of judicial declaration for purposes of remarriage. When Decree of Annulment of Marriage be Issued by the Court (same in declaration of nullity marriage) The court shall issue the decree after: 1. Registration of the entry of judgment granting the petition for declaration of nullity or annulment of marriage in the Civil Registry where the marriage was celebrated and in the Civil Registry of the place where the Family Court is located. 2. Registration of the approved partition and distribution of the properties of the spouses in the proper Register of Deeds where the real properties are located. 3. The delivery of the children’s presumptive legitimes in cash, property or sound securities. (S22, A.M. No. 02-18-10-SC) Note: The Decree in the Civil Registry where the marriage was registered, the Civil Registry of the place where the Family is situated, and in the National Census and Statistics Office is the vest evidence to prove declaration of absolute nullity or to serve as notice to 3rd person concerning the properties of the spouses as well as presumptive legitimes delivered to the common children. If there are no properties of the spouses which could be the subject of liquidation, partition and distribution, there is NO need for the recording of the judgment in the appropriate registries of property. Our governing laws do not require such judgment to be furnished and recorded in the proper registries of property. Effects of Annulment (Same in Nullity) 37 | P a g e

A Vinculo Matrimonii and A Mensa et Thoro, Distinguished

History of Divorce and Legal Separation  Siete Partidas, during the Spanish regime, provided for relative divorce/legal separation in the Philippines, not Absolute Divorce. This was our law until Act 2710, which allowed only absolute divorce.  The Divorce Law (Act 2710) recognized only two grounds for absolute divorce and implicitly ruled out relative divorce. The two grounds were: Adultery on the part of the wife; Concubinage on the part of the husband.  Executive Order 141 enlarged the grounds for divorce under Act 2710 by adding 8 more grounds – during the Japanese regime.  Oct 23, 1944, EO 141 was repealed and Act 2710 was revived.  Act 2710 (the Old Divorce Law) was repealed by the New Civil Code on Aug 30, 1950. Today, with the exception of Moslem divorces and the implicit absolute divorce law allowed under Article 36 (Psychological incapacity) of the Family Code, we only have relative divorce or legal separation in the Philippines Rules for Absolute Divorce TODAY both under the Civil Code and the Family Code (without prejudice to Muslim Code of Personal Laws)  If the action is brought HERE in the Philippines b. Between Filipinos-will NOT prosper EXCEPT divorces between Filipino Muslims c. Between foreigners-will NOT prosper d. Between a Filipino and a foreigner-will NOT prosper. 

If the action is brought in a FOREIGN COURT 1.) Between Filipinos-will NOT be recognized here even if allowed by said foreign court, and even if the ground be either adultery on the part of the wife or concubinage on the part of the husband.

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

2.) Between foreigners-foreign decree will be RECOGNIZED here only if the following two conditions concur: a.) The foreign court has jurisdiction to grant the absolute divorce. b.) Said divorce is recognized as valid by the personal law of the parties involved, that is, if valid according to their national law or the law of their domicile depending upon the theory adopted by their countries. 3.) Between a Filipino and a foreigner-If obtained by the foreigner and valid according to his personal law-valid for both foreigner and Filipino under Art 26. Absolute Divorce Personal Laws

Under

Muslim

Code

of

For a period of 20 years from June 17, 1949, absolute divorce in accordance with Mohammedan customs and practices is recognized for Mohammedans residing in non-Christian provinces. This law, in turn, is now superseded by the Muslim Code of Personal Laws, wherein absolute divorce in accordance with Muslim customs and practices is also recognized. Legal Separation vs. Separation of Property (Arts. 134 – 136, FC) Legal Separation Must be done thru the court.

Always involves separation of property. Thus, may be considered as a cause of separation of property. Cannot be granted on mere stipulation of facts, or confession of judgment or agreement of the parties.

The spouses are necessarily separated.

Separation of Property 1.) If one prior to marriage-may be done thru the marriage settlement. 2.) If done during the existence of the marriage-must be done thru the courts. May exist with or without legal separations. Thus, May be considered as one of the effects of legal separation. Can be effected by agreement of the spouses during the marriage subject to court approval. If done before the marriage, it can be effected thru marriage settlement. The spouses are NOT necessarily separated.

Legal Separation (Art. 55) vs. Separation De Facto (Art. 100-101) 1. In legal separation, the separation is the result of judicial decree. While in de facto separation, the spouses are just living separately irrespective of the period but the absent spouse has no clear intention of deserting the conjugal dwelling (as distinguished from abandonment where there is no intention to return and there is a period of time required to lapsed before abandonment can be considered). 38 | P a g e

2. In legal separation, the law provides for certain consequences like separation of property, dissolution of the absolute or conjugal property regime, disqualification to inherit from the innocent spouse in intestate succession, and cessation of the right to cohabitation. In de facto separation (like in abandonment), there is no judicial intervention and no dissolution of the conjugal partnership or absolute community of property, thus the husband and wife are still heirs of each other, their property relations remain, unless the innocent party disinherits the guilty party in his will or her will. 3. In both cases, the spouses live separately. The absent spouse is not entitled to support and the marriage remains intact which presupposes that the obligation of mutual fidelity remains, violation of which subjects the violator to criminal prosecution such as for adultery and concubinage. In separation de facto, 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 and; 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. Legal Separation vs. Annulment of Marriage Legal Separation Marriage is not defective. Grounds arise only after the marriage. Spouses are still married to each other and cannot remarry. There are 10 grounds.

Annulment of marriage Marriage is defective. Grounds must exist at the time of or before the marriage. Spouses are no longer married to each other, thus they can remarry. There are only 6 grounds.

Grounds for legal separation (Art 55): RPFADALACS 1. Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner. Illustration: FACTS: 5 years after celebration of the marriage, H, in several occasions, inflicted upon W injuries. The latter filed a criminal case for serious physical injuries. W also filed a civil action for the issuance of a decree of legal separation. H filed a motion to suspend the civil case contending that it should wait for the judgment in the criminal case. HELD: The motion should not be granted because legal separation is a separate proceeding and conviction by final judgment in the criminal case is not necessary for the civil case to prosper. 2. Physical violence or moral pressure to compel the petitioner to change religious or political affiliation.

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

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 respondent;

or

homosexuality

of

the

NOTE: The extent of drug addiction, habitual alcoholism, lesbianism or homosexuality is the same as those in annulment. However, in annulment, they are instances of fraud which must exist at the time of the celebration of marriage. In legal separation, such grounds exist even after the marriage ceremony. 7. Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad. Bigamy, as a ground for legal separation does not require a prior conviction for as long as there is proof of subsequent bigamous marriage. 8. Sexual infidelity or perversion. SEXUAL INFIDELITY – includes adultery, concubinage and other acts short of adultery and concubinage for as long as such acts constitute a clear betrayal of the trust of his/her spouse. In case of concubinage as a ground for annulment of a voidable marriage, there is no need of conviction by final judgment for such can be proven by preponderance of evidence. SEXUAL PERVERSION – can refer to any abnormal or pervert act or turning from the true end or proper purpose of sexual organs. 9. Attempt by the respondent against the life of the petitioner. The attempt must come from an evil design. There is no need of conviction. Such attempt can be proven by preponderance of evidence. 10. Abandonment of petitioner by respondent without justifiable cause for more than one year. ABANDONMENT – refusal or failure to comply with the marital obligations. It does not only refer to desertion of the conjugal dwelling without intention of returning. (Art 101, FC) Constructive Abandonment – where one spouse, without just cause, forcibly ejects the other from their home and refuses to allow her to return and that will constitute abandonment. Presumption of abandonment: 1. When the spouse who has left the conjugal dwelling for a period of no less than 3 months; or 39 | P a g e

2. When he/she has failed within the same period to give any information as to his or her whereabouts. (Art 101, FC) Effects of Abandonment without just cause a. Possible legal separation b. Petition for Receivership, Judicial Separation of Property, Sole Administration of the Absolute Community or conjugal partnership (subject to precautionary conditions). These remedies are also available in case of failure to comply with obligations to the family. The obligations to the family mentioned refer to marital, parental or property relations. (Art 101, FC) c. One who abandoned not entitled to support. Defenses Against Legal Separation (Art 56) 1. Condonation / Pardon Where the aggrieved party has condoned the offense or act complained of. CONDONATION – this is forgiveness, express or implied, after the commission of the offense or act complained of and not before. Forms: a. Express b. Implied - Implied condonation may come in the form of voluntary sexual intercourse after knowledge of the cause. “Each sexual intercourse of the wife outside marriage is a separate act of adultery. Therefore, condonation of one act does not necessarily imply condonation of the others”. (People v Zapata and Bondoc, L-3047, May 16, 1951) “Where the wife left the conjugal home after her adulterous acts were discovered, the fact that the husband did not actively search for her is not condonation. It was not the duty of the husband to search for the wife under the circumstances. On the contrary, hers was the duty to return to the conjugal home”. (De Ocampo v. Florenciano, L-13553, Feb. 23, 1960) Condonation must be given by the aggrieved party after full knowledge of the marital offense committed. It must be subsequent of the commission of the marital offense. Effect of Conditional Condonation/Pardon If the aggrieved party expressly forgives the guilty spouse subject to the condition that the latter should not commit the marital offense again. Should the guilty spouse commits another marital offense, there is no compliance with the condition. Thus, the basis of legal separation can be the previous marital offense because non-compliance with the condition amounts to no condonation at all and the subsequent marital offense. 2. Consent Where the aggrieved party has consented to the commission of the offense or act complained of.

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

CONSENT – acquiescence or permission or willingness to agree to the commission of the act complained of. Forms: a. Express b. Implied. Consent vs. Condonation Consent is prior to the act of commission of marital offense, while condonation comes after the commission of marital offense. To make use of either, the same must be BEFORE the filing of the complaint. “An agreement between a husband and wife whereby each could live with others, have carnal knowledge of them, without interference from the other, constitutes consent”. (People v. Schneckenburger) While such agreement is void for being contrary to public policy, the policy being that the nature and consequence of marriage is not subject to stipulation, it can still be used as a defense to negate the action of nullity.

Where there is collusion between the parties to obtain decree of legal separation. COLLUSION - This is an agreement to commit marital offense or an agreement whereby one will pretend to have committed the ground relied upon. A legal separation obtained thru collusion is void. 6. Prescription Prescriptive period An action for legal separation shall be filed within 5 years from the time of the occurrence of the cause. (Art 57) In certain acts of adultery, each adulterous act is a separate cause for legal separation. Each one is subject to a separate prescriptive period. The law should be interpreted to mean within 5 years from the time of discovery of the cause. Action for Legal Separation

Consent must be distinguished from entrapment. Therefore, if the purpose is to merely catch the wife, this is not consent even if the husband deliberately went away only to come back and trap the wife. 3. Connivance

Procedure (AM 02-11-11-SC) Who May File The petition may be filed only by the husband or wife.

Where there is connivance between the parties in the commission of the offense or act constituting the ground for legal separation.

Where to file (Same in nullity and annulment)

CONNIVANCE – this is a tacit permission to the commission of the act complained of. Not both spouses are parties to the connivance but only one spouse with a third person.

Respondent’s Answer/Failure to File an Answer, Effects (Same in nullity and annulment)

If a husband hires a detective to spy on his wife, and tells him to have sexual intercourse with her in order to have evidence, this will be a case of Connivance. The husband here is unworthy or that he himself is guilty. This is similar to instigation in the criminal as distinguished fro entrapment. 4. Mutual guilt Where both parties have given ground for legal separation;

Summons shall be serve to the respondent

Appearance of the State (Same in nullity and annulment) If there is no finding of collusion, the hearing of the petition shall proceed. If there is collusion, the petition will be dismissed motu proprio. Motion to Dismiss No motion to dismiss the petition shall be allowed except on the ground of lack of jurisdiction over the subject matter or over the parties. Mandatory COOLING-OFF period

MUTUAL GUILT/RECRIMINATION - both parties are in pari delicto, there is no offended spouse who deserves to bring the action. This is true even if one of the parties has been pardoned but the other has not. The reason for this lies in the equitable maxim that “He who comes to court must come with clean hands.” Also, it is also a rule that, when 2 persons acted in bad faith, they should be considered as having acted in good faith. 5. Collusion 40 | P a g e

An action for legal separation shall in no case be tried before 6 months shall have elapsed since the filing of the petition. (Art 58, FC) REASON: To make between the spouses.

a

possible

reconciliation

NOTE: There is no cooling-off period if the ground alleged are those under RA 9262 (Violence Against Women and Children). Art 19 of said law provides: “In cases of legal separation, where violence as specified in this act is alleged, Art 58 of FC will not

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

apply. The court shall proceed in the main case and other incidents of the case as soon as possible. The hearing on any application for a protection order filed by the petitioner must be conducted within the mandatory period specified in this Act.

declaration of nullity of marriage, the spouses and their children shall be supported from the property regime. After the final judgment granting the petition, the obligation of mutual support between the spouses ceases. However, in cases of legal separation, the Court may order that the guilty spouse shall give support to the innocent one.

Duty of Court to Effect Reconciliation No legal separation may be decreed unless the court has taken steps toward the reconciliation of the spouses and is fully satisfied, despite such efforts, that reconciliation is highly improbable. (Art 59, FC) Necessity of Trial and Intervention of State No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment. In any case, the Court shall order the prosecuting attorney or fiscal assigned to it to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed. (Art 60, FC) Effects Legal Separation Pendente Lite 1. After the filing of the petition for legal separation, the spouses shall be entitled to live separately from each other. (Art 61 par 1, FC) 2. The administration of the absolute community property or conjugal partnership may be agreed upon in writing between them. 3. 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. (Art 61 par 2, FC) 4. The wife is suable alone without impleading the husband. 5. When the consent of one spouse is needed in any transaction, judicial authorization is necessary. 6. 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.

Effects of DECREE of Legal Separation (after the lapse of the period to appeal) 1. The spouses are entitled to live separately, but the marriage bonds shall not be severed. (Art 63 [1], FC) 2. Innocent spouse is entitled to support from the guilty spouse not vice-versa. 3. The status and condition of children are not affected. 4. The property regime shall be dissolved and liquidated but the offending party shall have no right to any share of the net profits earned by the property regime, and shall be forfeited in favor of the common children or, if none, the children of the guilty spouse by a previous marriage or, in default of children, the innocent spouse [this is in accordance with Art. 43 (2)]. (Art 63 [2], FC) 5. The custody of the minor children shall be awarded to the innocent spouse subject to the provisions of Art 213. (Art 63 [3], FC) 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 7 years of age, unless the parent chosen is unfit. No child under 7 years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. 6.

NOTES:  If, however, the offended spouse executes another will in favor of the offending spouse after the decree of legal separation, the will shall be valid.  The conviction of the wife of adultery does not disqualify her to inherit from the offended husband, if there is no decree of legal separation between them. Accordingly, the guilty spouse shall not be disqualified from inheriting unless the innocent spouse files a case for legal separation.

During the pendency of the action, the Court shall provide for the support of the spouses and the custody and support of their common children. The court shall give paramount consideration to the moral and material welfare of said children and their choice of the parent with whom they wish to remain. It shall also provide for appropriate visitation rights of the other parent. (Art 49) 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. During the proceedings for legal separation or for annulment of marriage, and for 41 | P a g e

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.

7.

Art. 64: the innocent spouse may revoke the donations made by him or her in favor of the offending spouse, as well as the designation of the guilty party as a beneficiary in any insurance policy, even if such designation be stipulated as irrevocable. The revocation shall be recorded in the registry of property in the places where the properties are located. Alienations, liens and

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

encumbrances registered in good faith before the recording of the revocation shall be respected. The revocation of or change in the designation in any insurance beneficiary shall take effect upon written notification to the insured. The action to revoke donation must be brought within 5 years from the time the decree of legal separation has become final. Reconciliation This is a mutual agreement of the spouses to resume their marital relationship, thus putting an end to their marital differences.

NOTES: Reconciliation has no retroactive effect. The order of the court ordering the termination of the legal separation proceeding and the setting aside of the decree of legal separation shall be registered in the proper civil registries for the guidance of all interested parties RIGHTS AND OBLIGATIONS HUSBAND AND WIFE (Arts 68 – 73)

BETWEEN

Obligations Of Spouses: FLORM 1. To live together

Requirements in Case of Reconciliation Should the spouses reconcile, the corresponding joint manifestation under oath duly signed by them shall be filed with the Court in the same proceeding for legal separation. (Art 65) Effects of reconciliation (Art 66): 1. The legal separation proceedings, if still pending, shall thereby be terminated in whatever stage. 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 agreement to revive the former property regime shall be executed under oath and shall specify (Art 67): a. The properties to be contributed anew to the restored regime. b. Those to be retained as separated properties of each spouse. c. The names of all their known creditors, addresses and corresponding credits. 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 take measures to protect the interest of creditors and such order shall be recorded in the proper registry of property. Notice to creditors: The recording of the order in the registries of property shall not prejudice any creditor not listed or not notified, unless the debtor-spouse has sufficient separate property to satisfy the creditor’s claim. In other words, the revival of the old property regime between the parties is without prejudice to vested rights already acquired by creditors prior to such revival. In effect, a legal lien is created in favor of unsecured creditors. Thus: a. Contractual lien holders retain their liens. b. Creditors without liens are given a legal lien. c. In case of insufficiency of property to settle the debts, the future shares of debtorspouse in the property regime will answer his personal obligations. 42 | P a g e

The duty to live together includes cohabitation or consortium and sexual intercourse. Spouses are obliged to live together. But such is not absolute. Thus a spouse may be exempted by the court from living with the other spouse: 1. If the latter should live abroad; or 2. there are other valid and compelling reasons for the exemption; like the following where the wife may refuse to live with the husband: a. If the place chosen by the husband as family residence is dangerous to her life. b. If the husband subjects her to maltreatment or abusive conduct or insults, making common life impossible. c. If the husband compels her to live with his parents, but she cannot get along with her mother-in-law and they have constant quarrels. d. Where the husband continuously carried illicit relations for 10 years with different women and treated his wife roughly and without consideration. e. Where the husband spent his time in gambling, giving no money, and at the same time insulting his wife and laying hands on her. f. If the husband has no fixed residence and lives a vagabond life as a tramp. g. When the husband is carrying on a shameful business at home. h. If the husband is immoderate or barbaric in his demands for sexual intercourse. NOTE: However, such exemption shall not apply if the same is not compatible with the solidarity of the family. In cases where a husband or a wife abandons the conjugal home without justifiable cause, neither the other spouse can compel him or her to come home under the pain of contempt of court. Cohabitation is a purely personal obligation, and to compel a spouse to comply with such obligation would be a violation of his/her personal liberty as well as his/her freedom of abode which are guaranteed by the Constitution. But the present spouse has the following remedies: a. To withhold support or ask for support. b. To recover moral damages. c. To seek legal separation if proper.

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

d. To ask the Court to admonish his wife to return, but she cannot be held in contempt in case of non-performance; also, no mandamus or injunction will lie. e. To seek separation of property. f. To apply for sole administration of the property. g. To ask the court for other relief. 2. To observe mutual love, respect and fidelity These duties are personal to the spouses and go into their intimate relations, so that they must be performed voluntarily by them. Accordingly, some consequences of the duties are the following: a. The unfaithful spouse may be charged criminally with adultery or concubinage. (proof of having an illegitimate child is not a proof of concubinage; each act of adultery is a separate offense) b. Sexual infidelity and perversion are also grounds for legal separation, and so is repeated physical violence or grossly abusive conduct directed against a spouse by the other, which shows lack of love and respect for the former. c. Both spouses to administer the family property, and they also have joint parental authority over their minor children, both over their persons and property. d. If one spouse commits acts which tend to bring danger, dishonor, or injury to the other, the aggrieved spouse may apply to the Court for relief. RULE 130, Rules of Evidence on Marriage Privilege Rule and Marital Communication Rule Disqualification By Reason Of Marriage Or The Marital Disqualification Rule GENERAL RULE: During the marriage neither spouse ( i.e. the witness spouse) may testify for or against the other (i.e. the Party spouse) without the consent of the affected spouse ( i.e. the party spouse). EXCEPTIONS: 1. In a civil case filed by one against the other. Examples: cases of annulment, legal separation, support, declaration of mental incompetency, separation of property. 2. In a criminal case for a crime (i) committed by one against the other such as those involving physical assault and violence; Violation of RA 9262; economic abuse or (ii) against the direct ascendant or descendant of the other. (Problem: If the husband raped his daughter, can the wife who witnessed the rape testify against the husband? YES. The husband cannot invoke Marital Disqualification Rule in order to serve the end of justice) 3. When the reason for the law has ceased. Where the marital and domestic relations are so strained that there is no more harmony to be preserved, nor peace and tranquility which maybe disturbed, the reasons based on such harmony and 43 | P a g e

tranquility no longer apply. In such cases, the identity of interest disappears and the consequent danger of perjury based on identity of interest disappears. (The law ceases when the reason for the law ceases) The Marital Privileged Communication Disqualification Rule (Spousal Privilege) GENERAL RULE: The husband or wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage. EXCEPTIONS: Same Disqualification Rule.

in

the

Marital

3. To render mutual help and support The spouses are jointly responsible for the support of the family (both spouses and children) and the management of the household. The expenses for such support and other conjugal obligations shall be paid from: a. the community property; b. in the absence thereof, from the income or fruits of their separate properties; and c. In case of insufficiency or absence of said income fruits, such obligations shall be satisfied from their separate properties. (Art. 70, FC) 4. To Manage the household 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. (Art 71) 5. To Fix the family domicile In case of disagreement, the court shall decide. (Art 69) Relief Against Breach Of Duties When one of the spouses neglects his or her duties to the conjugal union or commit 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. Note: Injury contemplated: not economic or financial injury but physical, moral, emotional or psychological injury. Exercise Of Profession/Business (Art 73) General rule: 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. Exception: In case of disagreement, the Court shall decide whether or not: a. The objection is proper. b. Benefit has accrued to the family prior to the objection or thereafter. If the benefit accrued prior to the objection, the resulting obligation

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

shall be enforced against the community property. If benefit accrued thereafter, such obligation shall be enforced against the separate property of the spouse who has not obtained consent (even if redounded to the benefit of the family). Notes: The foregoing provisions shall not prejudice the rights of creditors who acted in good faith. Creditors in good faith are those who have no knowledge of the objection or no knowledge of absence of consent.

If the party executing the settlement needs parental consent, the persons designated in Art.14 to give consent must be made parties to the agreement (Art 78) If the Party to Marriage Settlement Under Civil Interdiction If the party executing the marriage settlement is under civil interdiction or subject to any other disability (like imbecility), the guardian appointed by a competent court must be made a party thereto (Art 79) His capacity is restricted by law.

PROPERTY RELATIONS BETWEEN SPOUSES Binding Effect of Marriage Settlement Marriage settlement/Ante Nuptial Agreement Definition and Purpose It is the contract entered into by a man and a woman who intend or plan to get married fixing the property regime that will govern their present and future properties during their marriage. The future spouses may, in the marriage settlements, agree upon the regime of absolute community property, 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 property shall govern (Art 75).

GENEREAL RULE: Binding only between the parties. EXCEPTION: Binding to 3rd persons IF the marriage settlement is registered with the LCR where the marriage contract is recorded as well as in the proper Registries Of Property where the property is located. (Art 77) Effectivity of Marriage Settlement The marriage settlement shall take effect upon the celebration of marriage. Modifications In The Marriage Settlement

The property relations between husband and wife shall be governed in the following order (Art 74): a. Marriage Settlements – agreement of future spouses before the marriage upon the regime of ACP, CPG, complete separation of property, or any other regime. b. Family Code – if there is no marriage settlement or when the marriage settlement is void, the system of ACP shall govern. c. Local Customs (provided not contrary to law, good morals, good customs, public order, and public policy) Note: A minor cannot enter into a marriage settlement even with the consent of his/her parents. Only those who are of legal/majority age (at least 18 years of age) can do so. Forms and Essential Elements 1. In writing (Need not be in a public instrument) 2. Signed by the parties 3. Executed before the celebration of the marriage (Art 77) 4. To fix the terms and conditions of their property relations Terms, Conditions and Stipulations The future spouses may agree what property regime that will govern their present and future properties. Such terms, conditions and stipulations shall not be contrary to law, morals, good customs and public policy If the Party to the Marriage Settlement Needs Parental Consent 44 | P a g e

1. Before Marriage In order that any modification in the marriage settlements may be valid, it must be made before the celebration of the marriage. Any modification thereof shall be in writing, signed by the parties and executed before the celebration of the marriage. They shall not prejudice 3rd persons unless they are registered in the LCR where the marriage contract is recorded as well as in the proper registries of property. (Art 77) 2. After Celebration of Marriage There must be an order of a competent court in appropriate proceedings. Some instances where modification is proper are: in case of reconciliation; abandonment; in case there is a ground for judicial separation; or in case of joint filing. Governing Law (Art 80) In the absence of a contrary stipulation in the marriage settlements, 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.

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

3. With respect to the extrinsic validity of contracts entered into in the Philippines but affecting property situated in a foreign country whose laws required different formalities for their extrinsic validity. Effect if Marriage Does not Take Place (Art 81) GENERAL RULE: Everything stipulated in the settlements or contracts referred to 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.

YES. There is no prohibition. As to what form, follow the rules on ordinary donations. Who can Donate in Donation Propter Nuptias Any of the future spouses in favor of the other OR by a 3rd person in favor of one or both of the future spouses. Prohibition against Donation to Each Other 1. Before Marriage (Art 84, FC)

REASON: Marriage is a condition precedent to the effectivity of the marriage settlement.

GENERAL RULE: cannot donate to each other in their marriage settlements more than 1/5 of their present property. Any excess shall be considered void.

EXCEPTION: Stipulations that do not depend upon the celebration of the marriage shall be valid (e.g. Acknowledgment by the prospective husband of a natural child in the marriage settlement and acknowledgment of previous subsisting indebtedness of one to the other).

Requisites: a. Made before the celebration of marriage b. In celebration of marriage c. In favor of one or both future spouses EXCEPTION: If they are governed by ACP.

Donations By Reason Of Marriage Donation of future property Donation Propter Nuptias / Donations By Reason Of Marriage - are those which are made before marriage celebration, in consideration of the same, and in favor of one or both of the FUTURE spouses. (Art 82) Requisites: 1. Must be made before the celebration of the marriage. 2. Must be made in consideration of the marriage. 3. Must be made in favor of one or both of the future spouses. Donation propter nuptias Does not require express acceptance May include future property provided donation mortis causa If present property is donated and property regime is not absolute community, limited to 1/5 Grounds for revocation are found in Art. 86 of FC

Governed by the rules on donations except donations of future property which are governed by provisions on testamentary succession and the formalities of wills

Ordinary donations Express acceptance is necessary Cannot include future property No limit to donation of present property provided legitimes are not impaired Grounds for revocation are found in law on donations: Art 760 (birth and reappearance of children), Art 764 (nonperformance of condition) and Art 765 (acts of ingratitude) Governed by the ordinary rules on donations except donations mortis causa which is governed by the formalities of wills

May a Marriage Settlement Contain a Donation Propter Nuptias? If yes, in what form?

45 | P a g e

While donations of future property are not allowed in ordinary donations, they are allowed in donations propter nuptias. Donations propter nuptias of future property shall be governed by the provisions on testamentary succession and the formalities of wills. Is the will which contains a donation propter nuptias revocable? General Rule: Yes, it is revocable. (unlike in donations of present properties in the marriage settlements which cannot be revoked except if the marriage does not take place, since marriage settlements cannot be modified much less revoked after the marriage) Exception: Donation cannot be revoked if the marriage already took place. Donations Of Property With Encumbrance Donations by reason of marriage of property subject to encumbrance shall be valid. In case of foreclosure of the encumbrance and the property is sold for less than the total amount of the obligation secured, the donee shall not be liable for the deficiency. If the property is sold for more than the total amount of said obligation, the donee shall be entitled to the excess. 2. During Marriage (Art 87) GENERAL RULE: Every donation or grant of gratuitous advantage, direct or indirect, between the spouses during the marriage shall be VOID. The prohibition shall also apply to person living together as husband and wife without a valid marriage (see Matabuena v. Cervantes, 38 SCRA 284). REASONS: a. To prevent the weaker spouse form being influenced by the stronger spouse, whether

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

by abuse of affection or by threats or violence. b. To protect creditors. c. To prevent an indirect modification of the marriage settlement during the marriage. EXCEPTIONS: a. moderate gifts (and beneficiary in an insurance policy) which the spouses may give each other on the occasion of any family rejoicing. b. Donation mortis causa.

If it is with a resolutory condition and the condition is complied with

Effectivity / Commencement of Donation Propter Nuptias It shall take effect upon the celebration of marriage. Who may question validity of donation? Only a person prejudiced thereby, like the donor or his heirs. An heir may question the donation made on the ground of inofficiousness if it can impair his legitime. Revocation of Donation; Grounds Prescribed Period to Revoke (Art 86) Grounds If the marriage is not celebrated (except donations contained in the marriage settlement which are automatically rendered void if the marriage does not take place) If judicially declared void for non-compliance with Art 40 in rel to Arts 52-53 and Art 44

If judicially declared void on grounds other than Art 40 in rel to Arts 52-53 and Art 44 When the marriage takes place without the consent of parents or guardian as required by law When the marriage is annulled, and the donee acted in bad faith

Upon legal separation, the donee being the guilty spouse 46 | P a g e

and

Prescriptive Period 5 years (Art 1149, NCC) from the time marriage is not solemnized on the fixed date.

When the donee has committed an act of ingratitude

final EXCEPT when the ground is sexual infidelity in the form of adultery and concubinage because in the latter case, the donation is void. 5 years from the happening of the condition If donation was made by the spouse in favor of the other, no prescription because under Art 1109, prescription does not run between husband and wife, even though there be separation of property agreed upon in the marriage settlement. Art. 765: 1 year from donor’s knowledge of the fact of ingratitude

Absolute Community of Property Concept ABSOLUTE COMMUNITY OF PROPERTY (ACP) – there is merger of all the properties of the husband and the wife owned by them at the time of the celebration of the marriage or those acquired thereafter. When Mandatory

By operation of law if done-spouse contracted subsequent void marriage in bad faith If both of them are in good faith, 5 years from the finality of judicial declaration of nullity 5 years from the finality of judicial declaration of nullity 5 years from the time of knowledge that the needed consent was not obtained by the party/parties 5 years from finality of decree (if we follow the rule that Art 86[3], the latest provision shall prevail over Art 43[3], the prior provison) If we follow Art 43[3] in keeping with the spirit of the law, the donation is revoked by operation of law. 5 years from the time the decree of legal separation has become

When there is no marriage settlement or when there is but it is void. This is so because it is more in keeping with Filipino culture. Commencement of ACP 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. Effect of Waiver of Rights 1. Before the Marriage – Waiver is valid. 2. During the Marriage GENERAL RULE: 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

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

extent of the amount sufficient to cover the amount of their credits.

by a former marriage, and the fruits as well as the income, if any, of such property.

3. After Dissolution of Marriage – Waiver is valid for then it is considered assignment of rights, interests, shares, and effects in the absolute community of property.

REASON: To protect the presumptive legitimes of the legitimate descendants. The rule will not apply if the descendants are illigetimate.

Co-Ownership 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. ACP is a special type of co-ownership as the spouses are co-owners of their communal properties. Property Included Art. 91. Unless otherwise provided in this Chapter or in the marriage settlements, the community property shall consist of all the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter. Also, winnings in gambling are included. NOTE: 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. Registration of property in the name of “X married to Y” is no proof that the properties were acquired during their marriage. The property could have been acquired by X while he was still a bachelor but registered after his marriage. Nonetheless, the presumption is not rebutted by the mere fact that the deed of sale or certificate of title is in the name of only one spouse. Property Excluded (Art 92) 1. Property excluded from ACP in the marriage settlement. 2. 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. Note: Donation propter nuptias made by 1 future spouse in favor of the other shall not form part of the ACP because the property donated was acquired during the marriage (the donation propter nuptias took affect upon celebration of marriage) by gratuitous title, thus separate property of the done. 3. Property for personal and exclusive use of either spouse. However, jewelry shall form part of the community property. e.g. clothes, shoes, eyeglasses and the like 4. Property acquired before the marriage by either spouse who has LEGITIMATE DESCENDANTS 47 | P a g e

Charges and Community

Obligations

of

the

Absolute

Art. 94. The absolute community of property shall be liable for: (SADD-E2VAT2) (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 administratorspouse 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. What if the obligation contracted did not redound to the benefit of the Family? Is the ACP still liable? According to Jurado, yes, the ACP is still liable. It is submitted that the provision of Art 122 of the FC is applicable by analogy, but subject to the following requisites: first, lack of exclusive property of the spouse who contracted the obligation; and second, satisfaction of the basic obligations under Art 94 of the FC. Once the obligation has been paid, the latter spouse becomes a debtor of the ACP and at the time of the liquidation, he shall be charged for what has been paid. Such debts shall be included for the following reasons: a. if the assets cannot be made liable, creditors who have extended credit relying on the existence of such assets would be unduly prejudiced. b. Debts contracted during the marriage are certainly more pressing than those contracted before such marriage. It is, however, necessary, as a matter of justice, that all or most of such conjugal assets should have been acquired through the effect or industry of the spouse-debtor. Otherwise, Art 122 of the FC shall be applied literally and the ACP cannot then be held liable. (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.

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

(6) Expenses to enable either spouse to commence or complete a professional or vocational course, or other activity for self-improvement.

These powers do not include: Disposition or encumbrance without authority of the court or the written consent of the other spouse.

(7) Antenuptial 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 selfimprovement.

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.

(9) Antenuptial 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 debtor-spouse, the payment of which shall be considered as advances to be deducted from the share of the debtor-spouse upon liquidation of the community.

Disposition by Will Art. 97. Either spouse may dispose by will of his or her interest (not specific property because of co-ownership) in the community property. Donation of Communal Property, Prohibited

(10) Expenses of litigation between the spouses unless the suit is found to be groundless.

GENERAL RULE: Art. 98. Neither spouse may donate any community property without the consent of the other. (This rule applies to commom-law spouses)

NOTES: 1. 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.

If with the consent of the other, the donation is valid subject to revocation or reduction if it turns out to be inofficious or if it infringes the legitimes of compulsory heirs.

2. 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.

REASON: To protect the spouse from the prodigality of a reckless or faithless spouse. EXCEPTIONS: Either spouse may, without the consent of the other: a. make moderate donations from the community property for charity; b. make moderate donations from the community property on occasions of family rejoicing or family distress.

The winnings derived from a ticket gratuitously given to a spouse shall not form part of the community property since such is considered as donation, thus excluded from the ACP as well as the fruits and income thereof. Ownership, Administrative, Enjoyment Disposition of the Community Property

NOTE: What is moderate depends upon the financial and social standing of the family and must not at all substantially affect the value of the communal assets.

and

GENERAL RULE: Art. 96. The administration and enjoyment of the community property shall belong to both spouses JOINTLY.

Dissolution and Liquidation of Absolute Community Regime, Grounds (Art. 99) The absolute community terminates:

EXCEPTIONS: 1. In case of disagreement, the husband's decision shall prevail.

(1)

NOTE: After the dissolution comes the liquidation and partition. The surviving spouse must liquidate the ACP within 1 year from death of the deceased. After the lapse of 1 year without liquidation, any disposition involving the community property shall be void.

Remedies in Case of Disagreements Wife’s recourse is go to court for proper remedy, which must be availed of within 5 years from the date of the contract implementing such decision. 2. 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. 48 | P a g e

Upon the death of either spouse;

(2) (3)

When there is a decree of legal separation; When the marriage is annulled or declared void (only in cases falling under Art 40 in rel to Arts 52 and 53);

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

(4)

In case of judicial separation of property during the marriage under Article 134 to 138.

(5)

Termination of a subsequent marriage by filing an affidavit of reappearance under Art 41, ACP of the subsequent marriage is dissolved. (Art 43)

Effects of Separation De Facto SEPARATION DE FACTO - The spouses are no longer living together. Their cohabitation or common life under the same roof is terminated, although there is no legal separation between them. 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.

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. 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. Liquidation of ACP in case Termination of Marriage is by Death Art. 103. Upon the termination of the marriage by death: a. The community property shall be liquidated in the same proceeding for the settlement of the estate of the deceased. b. If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the community property either judicially or extrajudicially within 1 year from the death of the deceased spouse. If upon the lapse of 1 year period, no liquidation is made, any disposition or encumbrance involving the community property of the terminated marriage shall be void. Effects if the ACP is Not Liquidated After 1 Year from Death of Deceased Spouse

Liquidation of the Absolute Community Assets and Liabilities, Procedure 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 49 | P a g e

a. Any disposition or encumbrance involving the community property of the terminated marriage shall be void. b. 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. (Art 103, FC) Liquidation of ACP of 2 or more Marriages Contracted by the Same Person before the Effectivity of FC 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 following procedure shall be applied in the absence of agreement of all the heirs: a. 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. b. In case of doubt as to which community the existing properties belong, the same shall be between the different communities in proportion to the capital and duration of each. Conjugal Partnership of Gains Concept

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato Purpose

CONJUGAL PARTNERSHIP OF GAINS – it is a partnership established through the marriage of a man and a woman who as partners place in a common fund – (a) the proceeds, products, fruits and income from their separate properties; (b) those acquired by either or both spouses through their efforts; or (3) those acquired 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. (Art. 106)

Management

Division of gains

Distinctions between Conjugal Partnership of Gains & Absolute Community Property Basis As to Basis

As to Retention of Property

As to Dissolution

As to method of liquidation

CPG Exclusive property of spouses are kept entirely separate and distinct from the benefits which they acquired during the marriage. This is not primarily based on mutual trust and confidence of the spouses and does not enhance the presumption of solidarity between them. Each spouse retains his/her properties acquired prior to the marriage but the fruits and income of such properties form part of the conjugal properties during marriage. Exclusive properties of the spouses are returned upon dissolution of the partnership.

Entails identification and return of exclusive properties of the spouses.

ACP All properties acquired by the spouses even before marriage become community property. The basis is essentially trust and confidence between the spouses which will, thus, foster unity between them.

Spouses do not retain any property acquired before marriage and all properties they own at the time of marriage become part of the community property. There are no exclusive properties to be returned and upon dissolution of the ACP, the spouses or their heirs equally divide the net remainder of the properties. Easier to liquidate since its net remainder is merely divided equally between the spouses or their heirs.

Distinctions between Conjugal Partnership of Gains & Ordinary Partnership Basis Creation

Conjugal Partnership Created by operation of law

Governing law

Generally governed by law

Commencement

At the moment of celebration of marriage Not a juridical person

Legal Personality

50 | P a g e

Ordinary Partnership Created by agreement of the parties Generally governed by stipulations of the parties On the date agreed upon by the parties It is a juridical person with personality separate and distinct from the personality of the partners

Causes dissolution

for

Liquidation of Net Gains

Not created for profits but regulates property relations of husband and wife during the marriage Right of management is joint; in case of disagreement, decision of husband prevails without prejudice to the wife’s remedy to question the decision. Equally divided irrespective of the amount of contribution unless otherwise agreed upon in the marriage settlement Death of either party; decree of legal separation; annulment or declaration of nullity of marriage; judicial separation of property during marriage No liquidation until the partnership is dissolved.

Created for profits

Rights of management are the same to all as individual partners except when one or more partners are designated as managers. Depends upon the agreement of the parties; in the absence thereof upon the amount of capital contributed by each partner Death, insolvency; civil interdiction; termination of the term; express will of any partner; and others listed in Arts 1830 and 1831. Liquidation may be made without dissolution of the partnership.

Distinctions between Conjugal Partnership of Gains & Co-Ownership Basis CPG Co-Ownership Creation

Created by operation of law

Purpose

Not created for profits but regulates property relations of husband and wife during the marriage Right of management is joint; in case of disagreement, decision of husband prevails without prejudice to the wife’s remedy to question the decision. Equally divided irrespective of the amount of contribution unless otherwise agreed upon in the marriage settlement Spouses cannot dispose of their shares even with the consent of the spouses No power to demand partition save by virtue of judicial order

Management

Division of profits

Disposition shares

of

Power to demand partition

Effect of death

Partnership dissolved

is

Dissolution

Different from coownership

Created by law, contract, succession, fortuitous event, or occupancy Common enjoyment of the thing or right owned in common Vested in the coowners who represent the controlling interest

Shares of coowners shall be proportional to their respective interest

Co-owners can dispose of their shares even without the consent of the other co-owners Each co-owner may demand anytime the partition of the thing owned in common Existence of coownership is not affected Different form CPG

When Applicable 1. Art. 105. In case the future spouses agree in the marriage settlements that the regime of

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

conjugal partnership gains shall govern their property relations during marriage. 2. When CPG were already established between spouses before the effectivity of the FC, without prejudiced to vested rights already acquired in accordance with the NCC or other laws as provided in Art 256 of the FC.

NOTE: 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. (Art 119)

Applicability of Ordinary Partnership Rules 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.

REASON: Interest is considered a fruit derived from a particular property. c.

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 by law. Note: The provisions of CPG in the Family Code shall be of supplementary application to the agreement of the parties. (Art 105) Immutability of Matrimonial Property Regime The provisions of the Chapter on CPG shall also apply to conjugal partnerships of gains already established between spouses before the effectivity of FC, without prejudice to vested rights already acquired in accordance with the Civil Code or other laws, as provided in Article 256. In other words, the original regime of property relations is maintained. Commencement of the CPG - same as in ACP Effect of Waiver of Rights, interest, share or effects; rights of creditor as to such waiver same as in ACP

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. Hidden treasure found by the spouses on the property of either of them is conjugal.

d. Those acquired through occupation such as fishing or hunting. e. Livestock existing upon the dissolution of the partnership in excess of the number of each kind brought to the marriage by either spouse. f.

Those which are acquired by chance such as winnings from gambling or betting. However, losses therefrom shall be borne exclusively by the loser-spouse.

g. Property bought on installments paid partly from exclusive funds of either or both spouses and partly from conjugal funds belongs to the conjugal partnership if such ownership was vested during the marriage. Belongs to the buyer or buyers if full ownerships was vested before the marriage.

Property Included The following are conjugal partnership properties (Art 117):

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. (Art 118)

By Direct Acquisition a. Those obtained from the labor, industry, work or profession of either or both of the spouses. Teacher’s gratuity under special law, being remuneratory, is not conjugal. b. 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 (net fruits – after deducting the expenses for administration and preservation). If fruits were pending on separate property of spouse at the time of the marriage, the harvest collected during the marriage is conjugal, and the conjugal partnership is not bound to pay the expenses of cultivation to the spouse who owns the property from which the fruits were harvested, because the right of the conjugal partnership is a real right of usufruct. Therefore, the law on usufruct shall apply. 51 | P a g e

h. 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 ownerspouse, subject to the following rules: a. 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 (REVERSE ACCESSION); b. If improvement is lesser than the value of the property at the time of improvement said property shall be retained in ownership by the owner-spouse, likewise subject to

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

c.

reimbursement of the cost of the improvement (ACCESSION). 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. (Art 120) Thus, the property never ceased to be paraphernal property until reimbursement. Hence, prior to reimbursement at the time of liquidation, the conjugal partnership may use both the land and improvement, not as an owner but in the exercise of a usufruct.

By Substitution i.

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 (even place in the name of one spouse).

By Presumption j.

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. It is a condition sine qua non for the operation of the presumption to prove first the acquisition of property was made during the marriage.

determinate shares, shall pertain to the doneespouses 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 (when not prohibited by the donor). (See Art 753, NCC) 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. (the property donated though onerous is still considered exclusive property of the done-spouse) 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. THUS, if the benefits are gratuitous, they are generally considered to be exclusive properties of the spouse, and if they are onerous, they are generally considered to be conjugal. ANNUITY – The aleatory contract of life annuity binds the debtor to pay an annual pension or income during the life of one or more determine persons in consideration of a capital consisting of money or other property whose ownership is transferred to him at once with the burden of income. (Art 2021, NCC)

By Direct Acquisition

He who constitutes an annuity by gratuitous title upon his property, may provide at the time the annuity is established that the same shall not be subject to execution or attachment on account of the obligations of the recipient of the annuity. IF the annuity was constituted in fraud of creditors, the latter may ask for the execution or attachment of the property. (Art 2026, NCC)

1. That which is brought to the marriage as his or her own.

The right to the annuity is at all times considered to be exclusive property of the spouse.

A property purchased before the marriage and fully paid during the marriage, remains to be separate property. This notwithstanding the fact that there was registration of the property in the name of the owner spouse with the other spouse as co-owner. The registration of the latter merely creates a trust.

GRATUITY – this is something voluntarily given out of pure liberality, thus, exclusive property of the beneficiary.

Property Excluded/Exclusive Property of Each Spouse Art. 109. The following shall be the exclusive property of each spouse:

2. That which each acquires during the marriage by gratuitous title.

PENSIONS – given to the recipient for services rendered, thus necessarily classifies as conjugal. Special rules on life insurance: If beneficiary is the Insured Himself

Acquisitions include succession, devise or legacy, donation, gratuity, remission, free patent, unearned increment (increase in the value of the property without any effort) and other modes where no recompense is involve. The law does not include fruits and income of property received by gratuitous title as separate property. This is different from ACP. Notes: Art. 113. Property donated or left by will to the spouses, jointly and with designation of 52 | P a g e

Since a contract of insurance in onerous in character, if the beneficiary is the insured himself or his estate, the character of the proceeds will depend on the character of the premiums paid: a. If the premiums were paid with conjugal funds, the proceeds are conjugal. b. If the premiums were paid with separate funds, the proceeds are separate.

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

c.

If the premiums were paid partly with conjugal funds, and partly with separate funds, the proceeds will be partly conjugal and partly separate.

Tolentino believes, however, that we should follow the rule in Louisiana that if the policy of the insurance was taken out when the insured was still single, the proceeds thereof should go to the insured’s separate estate even if the premiums were paid out of conjugal funds, but the conjugal partnership should be refunded by the insured the amounts that it had paid as premiums. If the other spouse is the beneficiary a. An insurance taken by one spouse on his own life and with the other spouse as beneficiary belongs to the latter even if the premiums are paid out of conjugal funds, but the beneficiary-spouse, who is deemed a donee of the premiums paid, must return one-half of the premiums to the conjugal partnership. b. When the spouses are jointly insured in a single policy, the proceeds to be paid to the surviving spouse, the survivor gets the insurance proceeds even if no obligation to return any part of the premiums to the conjugal partnership, because there is deemed to be reciprocal donations thereof, which in effect constitute aleatory onerous contracts. c. When the insurance is taken by a third person with a spouse as beneficiary, the latter owns the insurance proceeds as it is deemed a gift to him or her. d. If the insurance is taken by the wife on the life of the husband or vice versa and the premiums are paid out of conjugal funds, the proceeds are conjugal property. e. If the beneficiary is somebody other than the insured or his estate, the beneficiary is the owner of the insurance indemnity regardless of whether or not the premiums were paid out of the insured’s separate property or the conjugal funds. f. If the insured made his estate as the beneficiary and the premiums were paid by conjugal funds, the proceeds of the insurance constitute conjugal property. By Substitution 3. That which is acquired by right of redemption (if conjugal fund or the fund of the other spouse is used to redeem, it must be reimbursed), by barter or by exchange (not sale because such is acquired by onerous title) with property belonging to only one of the spouses. 4. That which is purchased with exclusive money of the wife or of the husband. Note: The exclusive property of the husband is otherwise known as capital. While the exclusive property of the wife is known as paraphernal property.

Ownership, Administration, Enjoyment Disposition of Exclusive Property

And

Art. 110. The spouses retain the ownership, possession, administration and enjoyment of their exclusive properties. (Thus, a spouse cannot be restrained from selling his/her exclusive property even if such sale would deprive the conjugal partnership of its fruits) Either spouse may, during the marriage, transfer the administration of his or her exclusive property to the other (even to a stranger without the consent of the other) by means of a public instrument, which shall be recorded in the registry of property of the place the property is located. Art. 111. A spouse may mortgage, encumber, alienate or otherwise dispose of his or her exclusive property, without the consent of the other spouse, and appear alone in court to litigate with regard to the same. Art. 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. Limitation: In case of separation de facto, the spouse present may be given authority by the court to administer any separate property of the absent spouse. In case there is authority, the absent spouse cannot revoke the judicially approved administration, neither he can alienate his property without the consent of the administrator spouse or approval of the court. (Art 127) Charges Against/Obligations of CPG Art. 121. The same as in ACP, except:  Support for illegitimate children - excluded from CPG.  Fines and pecuniary indemnities arising from crime and quasi-delict – excluded from CPG but incorporated in Art 122. 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 (Art 121) 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. Art. 123. Whatever may be lost during the marriage in any game of chance or in betting,

53 | P a g e

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

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. (Same in ACP) Ownership, Possession, Administration of CPG

Enjoyment

and

GENERAL RULE: Art. 124. The administration and enjoyment of the conjugal partnership shall belong to both spouses jointly. EXCEPTIONS: a. In case of disagreement, the husband's decision shall prevail. Remedy in Case of Disagreement Recourse to the court by the wife for proper remedy, which must be availed of within 5 years from the date of the contract implementing such decision. b.

Separation in fact v. Abandonment Separation de facto is the termination of the cohabitation or common life of the spouses under the same roof, but the spouses might still be complying with their mutual duty of support, as well as their duty to support and maintain the children. Abandonment is not mere separation de facto but implies an intention never to return to the conjugal home and without providing for the needs and maintenance of one’s family. Abandonment in CPG, Concept – Same in ACP (Art 128) Procedure in Liquidation - Same as Absolute Community of Property (Arts 129-133) 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.

In case Sole Administration is Permitted 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. Donation 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.

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. Effects of Separation De Facto – Same in ACP (Art 127) 54 | P a g e

(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,

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

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 1 year from the death of the deceased spouse. If upon the lapse of the 1 year 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. 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. 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. 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. Problem: Determine whether the following properties are included in the ACP or CPG with the presumption that the marriage between the Husband and Wife was validly entered into in 1990. Parcel of purchased 1985

land in

Rental income of the parcel of land at 10K per month Parcel of land 55 | P a g e

ACP Yes.

Yes. Yes.

CPG No. If payable on installment and still unpaid during the marriage, it depends when the title/ownership is vested subject to the right of reimbursement. Yes. Net income during the marriage. No. Exclusive property of H.

inherited by H in 1988. Shares of stocks registered under W’s name in 1989. Stock dividends at 10K per year House and Lot in the name of both spouses acquired in 1995 Condo unit in the name of H acquired in 2000

Parcel of land inherited by W in 2000 Rental income of the parcel of land inherited by W at 100K per annum

Yes.

No.

Yes.

Yes. Acquired during the marriage. Yes.

Yes.

Yes.

No. No.

It depends upon the source of fund. If out of the conjugal fund, it belongs to CPG. Ownership is not acquired by registration but by law. If out of exclusive fund of the husband, condo is his exclusive property. If condo is worth 5M, 3M out of H property and the 2M is taken out from CPG. In such case only 2M belongs to the CPG. No. Yes. Net income during the marriage.

Can a spouse dispose a property co-owned without the consent of the other spouse? No, there must be written consent of the other spouse or judicial authorization. How consent manifested 1. Consent must be in writing (e.g. both spouses must be named in a deed of sale; in the name of one spouse with the marital consent of the other) 2. Special Power of Attorney given to the other spouse. When is Judicial Authorization to Dispose Property Needed 1. When one is granted sole administration of the property 2. When the other spouse is insane or otherwise incompetent Note: Lack of judicial authorization will not cure the defect of no consent. Effect of No Consent in Writing in Sale Sale is void in its entirety. The nullity does not extend to the share of the other spouse who did give consent and valid as to the share of the other who did not obtain the required consent. The sale is entirely void. Property (ACP/CPG) executed as security for the obtained loan without the consent of the other spouse to be used as capital for business. Encumbrance is valid provided there must be proof of benefit redounded to the family. Separation of Property Voluntary Separation of Property

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

During the Marriage 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.

Note: 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.

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.

Procedure: 1. 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. (Art 136, par 1) 2. 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. (Art 136 par 2) 3. 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. (Art 137 par 2) 4. 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. (Art 137 par 1) 5. After dissolution of the absolute community or of the conjugal partnership, the provisions on complete separation of property shall apply. (Art 138) 6. The petition for separation of property and the final judgment granting the same shall be recorded in the proper local civil registries and registries of property. (Art 139)

The liabilities of the spouses to creditors for family expenses shall, however, be solidary.

Note: The separation of property shall not prejudice the rights previously acquired by creditors. (Art 140)

Before the Marriage 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. 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. 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.

Judicial Separation of Property Grounds 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. 56 | P a g e

Mere agreement of the husband and wife to have a separation of property reduced in an instrument validly notarized is not valid. It must be submitted before the court for approval. It is the duty of the court to take precautionary measure to protect the children. Illustrations: FACTS: There was a judicial separation of property between H and W, which was initiated by W because of H’s infidelity. The court adjudicated all real estate located in the Phils in favor of W. H, an alien, protested claiming that he contributed to the purchased of those properties. HELD: H is not entitled to his share over the subject real properties for he is disqualified under the constitution. The only way by which he can acquire real properties in the Phils is by way of hereditary succession or if he is a former natural-born Filipino citizen. Not even equity can allow him to be entitled to reimbursement because he did not come to court with clean hands. FACTS: H in the 1st marriage has 4 children and in the 2nd marriage has another 4 children; a property is acquired during the 2nd marriage. HELD: Under the NCC, the property acquired during the 2nd marriage, the wife has only the right of usufruct. If the conjugal is terminated upon death of the wife, the property will be considered H’s property.

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

Revival 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; (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. Note: The revival of the former property regime shall be governed by Article 67. When Administration of Exclusive Property be Transferred to the Other Spouse 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. Note: 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. Summary of Grounds for Separation of Property and revival of the Former Property 57 | P a g e

Article 135 (grounds for separation of property) Civil interdiction Absentee Loss of authority Abandonment

parental

Abuse of power administration

of

Separated in fact Voluntary dissolution under Art. 136

Article 141 (revival of former property regime) When it terminates When the absentee spouse reappears When parental authority is judicially restored Resumption of common life with each other When the court authorizes the resumption of the power of administration Reconciliation and resumption of common life Revival of the former property regime (no voluntary separation of property may thereafter be granted; the revival shall be governed by Art. 67)

Effect of dissolution of ACP or CPG: a. After dissolution, the provisions on complete separation of property shall apply. b. Each spouse shall own, dispose, possess, administer and enjoy his or her own separate estate, without the 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. c. Both spouses shall bear the family expenses in proportion to their income, or in case of insufficiency or default thereon, to the current market value of their separate properties. The liability of the spouses to creditors for family expense shall be solidary. Property Regime Of Unions Without Marriage a. Void Marriages or Common-Law/Live-in Relationships – the property regime shall be governed by simple co-ownership under Art 147. There is presumption of equality of shares in the absence of contrary proof. Art. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in EQUAL SHARES and the property acquired by both of them through their work or industry shall be governed by the rules on coownership. In the absence of proof to the contrary, properties acquired while they lived together shall be PRESUMED to have been obtained by their JOINT EFFORTS, WORK OR INDUSTRY, and shall be owned by them in EQUAL SHARES. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

have contributed jointly in the acquisition thereof if the former's efforts consisted in the care and maintenance of the family and of the household. Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation. When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation. b. Bigamous, Adulterous relationships – property regime is governed limited ownership under Art 148. There is presumption of equal shares. There must proof of actual contribution.

the cono be

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. Illustration: FACTS: H is legally married to W. H has an illicit affair with A. During the marriage, H acquired a condo unit which was registered in the name of A. During the time when H and A lived together, they acquired 2 cars, they have savings account of 5M and personal properties. After sometime, H and A parted ways. A asks for her share claiming that at the time of cohabitation she was receiving salary. Is she entitled? HELD: NO. With regard to the condo unit, A is only a trustee for and in behalf of ACP or CPG. With respect to 2 cars, savings account, and personal properties, there must be proof of actual contribution. Proof of Actual Contribution 1. Receipts 58 | P a g e

2. Agreements of the parties

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

VII. THE FAMILY FAMILY - 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. (Art 149, FC) Family Relations, Coverage 1. Between husband and wife; 2. Between parents and children; 3. Among other ascendants and descendants; and 4. Among brothers and sisters, whether of the full or halfblood. (Art 150)

How Constituted The family home is deemed constituted on a house and lot from the time it is occupied as a family residence. (Art. 153, FC) Who constitutes Family Home The family home may be constituted jointly by the husband and the wife or by an unmarried head of a family. Also, under Art. 161, a person may constitute, or be the beneficiary of, only one family home. Duration

Suit Among Members of the Same Family / Necessity of Earnest Efforts toward Compromise 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. “

From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such. (Art. 153, FC)

This rules shall not apply to cases which may not be the subject of compromise under the Civil Code. (Art 151, FC)

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. (Art. 159, FC)

Prohibited Compromise

Where Family Home is Constituted

No compromise upon the following questions shall be valid: CJ-VAFF 1. Civil Status of persons (e.g action for compulsory recognition or to impugn legitimacy) 2. Validity of marriage or a legal separation 3. Any ground for legal separation 4. Future support 5. Jurisdiction of courts 6. Future legitime (Art 2035, NCC)

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.

Note: “There may be a compromise upon the civil liability arising from an offense; but such compromise shall not extinguish the public action for the imposition of the legal penalty.” (Art 2034, NCC) Q: H filed case against brothers of W. Brothers filed Motion to Dismiss on the ground of lack of cause of action (no showing of earnest effort to a compromise). Should the motion be granted?

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. (Art 156, FC) Limitation on the Actual Value of Family Home

A: No because H and brothers of W are not relatives under Art.150.

The actual value of the family home shall not exceed, at the time of its constitution, the amount of P300,000.00 in urban areas, and P200,000.00 in rural areas or such amounts as may be fixed by law. In any event, if the value of the currency changes, the value most favorable for the constitution of a family home shall be the basis of evaluation.

Note: Family relation between father and his illegitimate child shall be recognized only if there was recognition by the father that the child is his illegitimate child.

Note: Urban areas include chartered cities and municipalities whose annual income at least equals that legally required for chartered cities. All others are deemed rural areas. (Art 157, FC) Beneficiaries

Family Home Definition 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. (Art. 152, FC) 59 | P a g e

a. The husband and wife, or an unmarried person who is the head of family. b. 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. (Art 154, FC) c. A person may be the beneficiary of only one family home. (Art 161, FC)

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

Benefits of Family Home GENERAL RULE: The family home is exempt from execution, forced sale or attachment. (Art 153 and 155) EXEMPTIONS: a. For non-payment of taxes. b. For debts incurred prior to the constitution of the family home. c. For debts secured by mortgages on the premises before or after such constitution. d. For debts due to laborers, mechanics, architects, builders, material men, and others who have rendered service or furnished materials for the construction of the building. (laborer’s lien, materialmen’s lien, contractor’s lien) (Art 155, FC) e. When a creditor whose claim is not among those mentioned from a – d 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 herein, 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 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 shall be applied first to the amount fixed by law, and then to the liabilities under the judgment and the costs. The excess, if any, shall be delivered to the judgment debtor. (Art 160, FC) Q: H & W purchased house and lot which was occupied as family residence in 1995. In 2001, judgment was rendered against H&W on the case involving quasi-delict which was filed by A against H&W in 1990. Eventually, A filed Motion for Execution on the house and lot. Should the motion be granted? A: Yes. The house and lot is not exempt from execution. The debt was incurred prior to the constitution of the family home.(Art 155 [2]) Q: The house and lot was constituted as family home in 1995. In 1996, H &W obtained a P2M loan with REM on the house and lot. Is the house and lot subject to execution? A: Yes. The house and lot is not exempt from execution. The debt was secured by mortgage on the premises. (Art 155 [3]) Q: Can the Family Home be subject of expropriation proceedings?

60 | P a g e

A: No. Expropriation is a form of forced sale. Note that the family home is exempt from forced sale. Q: The house and lot was constituted as family home in 1995. In 2000, H&W obtained a P1.5 loan secured by promissory note. The creditor filed an action for collection of sum of money after H&W defaulted in payment. Judgment was rendered in favor of the creditor. Can the house and lot be subject of execution? A: Yes. The house and lot is not exempt from execution because it is more than the value required by law i.e P300,000 (urban) or P200,000 (rural) Steps to be undertaken by Judgment Creditor in case of Execution: 1. Apply for writ of execution. Allege that the value of Family Home exceeds that required by law. The value is shown by tax declaration or proven by experts (appraisers) 2. In execution sales, no bid shall be below the maximum prescribed for Family Home 3. The proceeds of sale shall be distributed as follows: a. Restore to debtor/s the value of the family home as prescribed by law, i.e. P300,000 (urban) or P200,000 (rural) b. Apply for the payment of the debt c. The excess shall be given to debtor/s

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

VIII. PATERNITY AND FILIATION PATERNITY – is the civil status of the father with respect to the child begotten by him. MATERNITY – is the civil status of the mother with respect to the child begotten by her. FILIATION – is the civil status of the child in relation to his father. Kinds of Filiation 1. Natural (legitimate or illegitimate) 2. Artificial i.e. Adoption Kinds/Status of Children 1. Legitimate 2. Illegitimate 3. Legitimated 4. Adopted LEGITIMATE CHILDREN LEGITIMATE CHILDREN - children conceived or born during the marriage of the parents are legitimate. (Art 164, FC) Take note that under Art. 54 of the FC, “children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory shall be considered legitimate. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate.” Presumption of Legitimacy In case of doubt as to the filiation of the child, legitimacy is preferred, unless, there is proof to the contrary. A child who is conceived or born during marriage of his parents is presumed legitimate and the status and filiation of the child cannot be compromised. (Baluyot vs. Baluyot, June 14, 1990) A child born during legal separation or separation de facto, is still a legitimate child because conceived or born during subsistence of valid marriage. The husband has the right to impugn such legitimacy. The presumption of legitimacy is quasi conclusive and proceeds from the sexual union in the marriage and may be refuted only by the evidence allowed by law. 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. (Art. 169, FC) The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. (Art. 167, FC) An assertion of the mother against the legitimacy of her child cannot affect the legitimacy of such child born or conceived within the valid marriage. A mother has no right to disavow a child because maternity is never uncertain.

61 | P a g e

Between the certificate of live birth which is prima facie evidence of child’s illegitimacy and the quasiconclusive presumption of his legitimacy, the latter shall prevail. Not only does it bear more weight, it is also more conducive to the best interest of the child and in consonance with the purpose of the law. (Concepcion vs CA, Aug 31, 2005) Illustrations: a. FACTS: 2 children were registered as children of H and W. S filed an action wherein he recognized the 2 children as his. S presented an affidavit of recognition to support his claim. HELD: This action shall not prosper because public policy dictates that legitimacy is preferred over illegitimacy. Besides, who can impugn the legitimate filiation of the children is the husband and only on grounds specified by law within the prescriptive periods provided by law. b. FACTS: W contracted a 2nd marriage with S, without her 1st marriage with H having been annulled or declared a nullity. W and S have a child A. Later, S learned of the subsisting marriage of W with H. S then filed a petition for declaration of nullity of marriage on the ground of bigamous marriage. The court declared the marriage of S and W null and void for being bigamous and declared A as their illegitimate child, granting custody in favor of W and visitation rights of S. W appealed questioning the grant of visitation rights and that the child’s surname appearing in his certificate of live birth be dropped. HELD: SC held that A is the legitimate child of W and H because he was conceived and born during the subsistence of a valid first marriage. W and S cannot deprive A of his legitimate status because such is against public policy. S is not entitled to visitation rights because he is not related to A. H, being the father of A, has the right to impugn the legitimacy of A. (Concepcion vs CA, Aug 31, 2005) Children by Requirements

Artificial

Insemination,

Children conceived as a result of artificial insemination (in-vitro fertilization) 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: a. both of them authorized or ratified such insemination in a written instrument; b. such written instrument must be executed and signed by them before the birth of the child. c. the instrument shall be recorded in the civil registry together with the birth certificate of the child. (Art 164, FC) NOTE: if written authorization or ratification is made after artificial insemination, the child is still legitimate. If ratification is made after recording of birth or if there is belated registration of ratification, still legitimate because legitimacy is preferred over illegitimacy to serve the best interest of the child. No criminal liability for adultery of wife artificially inseminated without the consent of the husband.

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

What is the effect surrogate mothers

of

Intervention

of

If the zygote is the result of fertilization of the wife’s ovum by her husband’s sperm, it is submitted that the child is their legitimate child, it having been sourced from their own blood. (Pineda) If in the same set of facts, the sperm of a donor is used without the consent of the husband, it is submitted that the child is illegitimate because he is not the child of the husband but that of the wife and donor. (Pineda) Action to Impugn Legitimacy Grounds (Art 166, FC) (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: (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 (e.g. husband in a state of coma or is paralyzed) (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.

Prescriptive Period The action to impugn the legitimacy of the child shall be brought within: a. 1 year from the knowledge of the birth or its recording in the civil register - if the husband or, in a proper case, any of his heirs, should reside in the city or municipality where the birth took place or was recorded. b. 2 years - 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 but they reside in the Philippines. c. 3 years – if they are residing abroad. Note: 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. Rules on the Status of Children Born When Widow contracted 2nd Marriage within 300 Days From Termination of Former Marriage (Art 168, FC) 1. Requisites: a. 1st marriage terminated b. Mother contracted subsequent marriage c. Subsequent marriage contracted within 300 days after termination of previous marriage d. Child was born e. No evidence as to the status of the child 2. Rules as To Whom the Child Belongs a. To 1st marriage – if the child born before lapse of 180 days after the solemnization of the subsequent marriage provided it be born within 300 days after the termination of the former marriage. b. To 2nd marriage – if the child born after 180 days following the celebration of the subsequent marriage even though it be born within the 300 days after the termination of the former marriage. Note: 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. (Art. 169, FC)

Who May File (Art 170, FC)

Action to Claim Legitimacy

GENERAL RULE: Only the husband may impugn.

Proof of Legitimacy/Filiation (Art. 172, FC)

EXCEPTION: 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:

GENERAL RULE: The filiation of legitimate children is established by any of the following: 1. record of birth appearing in the civil register or a final judgment

(1) If the husband should die 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. (Art 171, FC)

62 | P a g e

A birth certificate to be considered as valid proof of filiation, must be signed by the father and mother jointly, or by the mother alone if the father refuses. If the father did not intervene in the making of the birth certificate, the putting of his name by the mother or doctor or registrar is void. The signature of the father is necessary. Certificates of live birth may be disallowed as proofs of filiation if they are executed thru fraud.

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

Baptismal certificates do not fall under this category. They may be allowed as evidence as allowed by the Rules of Court. 2. admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. It is considered a judicial admission. It must also be express. Thus a card containing the praise, “I love you like my son,” and signed by the father, is not a proof of filiation. If express recognition is contained in a will, such is a valid proof of filiation even if the will is disallowed probate or even if not presented for probate or even if such will is revoked. Nullity of will shall not affect provisions which do not depend on death of testator. It still constitutes a public document or a private handwritten instrument signed by the parent concerned. If express recognition is contained in a deed of sale, still, such deed may be admitted as proof of filiation. If recognition in open court or during pre-trial, such recognition constitutes as a judicial admission, thus may be considered as proof of filiation.

Mere photographs with the putative father is not, per se, proof of filiation. Receipts indicating that the father was the one who paid all tuition fees of the child is not, per se, proof of filiation. BUT photographs, receipts plus other evidence, taken collectively, may be proof of filiation. 2. Any other means allowed by the Rules of Court and special laws. e.g. Baptismal certificates; judicial admission; family bible in which his name has been entered; common reputation respecting his pedigree; admission by silence; testimonies of witnesses. Who May File, When to File The action to claim legitimacy may be brought by the child during his or her lifetime (not the lifetime of the parents) 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. 173, FC) The action already commenced by the child shall survive notwithstanding the death of either or both of the parties.

EXCEPTIONS: 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 Under this, for an action to establish illegitimate filiation, a high standard proof is required. There must be a showing of permanent intention of the supposed father to consider the child as his own by continuous and clear manifestation of paternal affection and care. The paternal affection and care shall not be attributed to pure charity. Such acts must be of such a nature that they reveal not only the conviction of paternity but also the apparent desire to have and treat the child as such in all relations in society and in life, not accidentally, but continuously. (Jison vs CA 98 Phil 794) Continuous does not mean that the concession of status shall continue forever but only that it shall not be of an intermittent character while it is continuous. By continuous is meant uninterrupted and consistent, but does not require a particular length of time. The possession of such status means that the father has treated the child as his own, directly and not through others, spontaneously and without concealment though without publicity. The standard of proof required is founded on the principle that an order for recognition and support may create an unwholesome atmosphere or may be an irritant in the family or lives of the parties, so that it must be issued only if paternity or filiation is established by clear and convincing evidence. 63 | P a g e

Rights of Legitimate Children (Art. 174, FC) (1) To bear the surnames of the father and the mother, in conformity with the provisions of the Civil Code on Surnames. A legitimate child cannot petition the court to drop his middle name. Middle names and surnames are not subject to the will of persons because they are prescribed by law. Surname – identifies paternal lineage. Middle name – identifies maternal lineage. (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. In case of legal separation or annulment of marriages, the rights of children to support shall not be denied. The support shall be taken from separate properties of the parties because from that time the ACP or CPG has already been dissolved and liquidated. (3) To be entitled to the legitimate and other successional rights granted to them by the Civil Code. (a compulsory heir may be a voluntary heir at the same time; a legitimate child is entitled to be represented in the succession to his parents) Note: In case of legitimate minors, husband and wife exercise joint parental authority. In case of conflict, husband’s right shall prevail subject to the right of recourse by the wife before the competent court.

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

ILLEGITIMATE CHILDREN Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in this Code. (Art 165, FC)

evidence but it requires other proof recognition to establish illegitimate filiation.

of

DNA analysis is under this category. DNA Tests: Probative Value in Paternity Cases

Children born of void marriages are illegitimate (with respect to the mother only by operation of law; the child and the father are, as a rule, strangers with each other) EXCEPT children conceived or born before the judgment absolute nullity of the marriage under Article 36 has become final and executory shall be considered legitimate and children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate. (Art 54, FC) Voluntary Recognition of Illegitimate Children, How Made If due recognition is made by the putative father in the record of birth, valid will, public instrument or private handwritten instrument, it is considered as a consummated act of acknowledgment. It is no longer required to have compulsory recognition. When is Compulsory Recognition Be Made In cases where the proof of illegitimacy is either open and continuous possession of the status of a legitimate child or any other means allowed by the Rules of Court and special laws.

The court may allow the child to petition the court to have the father be subjected to DNA analysis. Such is not violative of the right of the father against selfincrimination because such is available only in criminal cases and not in civil cases. There is also no violation of privacy because the right to establish paternity and filiation is superior over the right to privacy. In DNA analysis or test, it is not enough that there is a perfect match. Such alone is not sufficient to establish filiation. The court should include probability of paternity (W), that is, the likelihood of paternity between the putative father and the child as compared to the probability of paternity of random match between 2 unrelated individuals. The W must always refer to a specific population base. Thus, because of the nature of this damnation, W will never be 100% but the chances of increasing W will be greater if the putative father, child and mother are included in the DNA analysis. This means that is there is 99.9% probability, the court should not stop there. It is required that the 99.9% is the provability of paternity based on population segment that the chance or provability comes from 1 in 5 million.

Proof of Illegitimacy (Arts 175 and 172, FC) Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. (Art. 175, FC) Thus, under 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 Even if the putative father, did not sign the birth certificate as the father but as an informant, for as long as he actively participated in the execution of the certificate, such can be used as an evidence of filiation. (2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In this case there must be an EXPRESS recognition. Admission during pre-trial that the child is his illegitimate child is a judicial admission, thus admissible, provided it was done before a court of record. 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. (2) Any other means allowed by the Rules of Court and special laws. Baptismal certificate of the child where it is signed by the putative father is admissible in 64 | P a g e

HOWEVER, when the DNA result excludes putative father from paternity, such is conclusive as to nonpaternity. There is impossible match. If W is 99.9% or higher, there is a presumption of paternity. If W is less than 99.9%, there is a rebuttable proof of paternity. What may be used to overcome the presumption of paternity or rebut the proof of paternity: Use the Vallejo Test. Vallejo Tests: The court must scrutinize the following facts: a. How the samples are collected b. How the samples were handled c. Possibility of contamination of samples d. Standard procedure used in similar test should be followed e. Competence of the person who conducted the examination. Who May File and When to File Action for Compulsory Recognition (Art. 175, par. 2, FC) The action must be brought within the same period specified in Article 173, that is within the lifetime of the child (although action is not necessary) 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. The REASON of the latter rule is to give the allege parent the chance to affirm or consent to the filiation of the child.

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

In case of nullity of marriage, children are generally considered illegitimate with respect to the mother only by operation of law. But the illegitimate filiation of the child with the father, there is a need to prove filiation. There is no problem if there is declaration in the judgment of illegitimate filiation because such can be used as proof of filiation. In the absence of declaration, there are 2 views: 1. Traditional view There must be an action for compulsory recognition because illegitimate children cannot be considered a relative of the father. 2. Liberal view

LEGITIMATED CHILDREN LEGITIMATED CHILDREN – are those conceived and born outside of wedlock who, during conception, the parents are not disqualified to marry each other, and by subsequent marriage of their parents to each other are, by legal fiction, considered legitimate. LEGITIMATION – is a process of conferring legitimate status to illegitimate children by subsequent valid marriage of the parents. Rationale

There is no more need of an action for compulsory recognition. The best interest of the child shall be taken into consideration. Having been downgraded to the status of illegitimate child, no further burden will be imposed upon the child. And it is by operation of law following the declaration of marriage that the child is considered illegitimate child of the parties.

To confer legitimate status of illegitimate children and as such legitimated children have the same rights as those of legitimate children.

Rights of Illegitimate Children (Art. 176 in rel. to R.A 9255)

Requisites 1. The child was conceived and born outside of wedlock. 2. At the time of conception of the child, the parents were not disqualified by any impediment to marry each other. 3. The parents must subsequently enter into a valid marriage.

Illegitimate children shall: 1. use the surname and shall be under the parental authority of their mother. RA 9255 which was approved on Feb 24, 2004, illegitimate children may now use the surname of their father IF their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, OR when the admission in a public document or private handwritten instrument is made by the father. PROVIDED, however, that the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime. If the child was already recognized, the surname is that of the father and the middle name is that of the mother. The purpose of recognition is to compel the father to give support and so that later the illegitimate children will be entitled to their legitime. Even after recognition, the father cannot demand custody over the child. The law explicitly confess to the mother sole parental authority over an illegitimate child. It follows that only if she defaults can the father assume custody and authority over the minor. While an illegitimate child of a woman is allowed to use the surname of his stepfather, a legitimate child is not allowed because if he is allowed it could result in confusion as to its paternity. 2. shall be entitled to support in conformity with this Code. 3. 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. 65 | P a g e

How Made Legitimation shall take place by a subsequent valid marriage between parents. (Art. 178, FC)

When Legitimation Take Effect The effects of legitimation shall retroact to the time of the child's birth. (Art. 180, FC) The legitimation of children who died before the celebration of the marriage shall benefit their descendants. (Art. 181, FC) Effect Of Annulment and Nullity of Marriage Upon Legitimated The annulment of a voidable marriage shall not affect the legitimation. (Art. 178, FC) In case of declaration of nullity of marriage, as a rule, children are considered illegitimate. Legitimation will not become operative. Rights of Legitimated Children Legitimated children shall enjoy the same rights as legitimate children. (Art. 179, FC) Action To Impugn, Who May Impugn and When Legitimation may be impugned only by those who are prejudiced in their rights, within 5 years from the time their cause of action accrues. (Art. 182, FC) Cause of action accrues from the death of the putative parent.

ADOPTED CHILDREN

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

ADOPTION – is a juridical act which creates between 2 persons a relationship similar to that which results from legitimate paternity and filiation

3.

The guardian with respect to the ward after the termination of the guardianship AND clearance of his/her financial accountabilities.

Nature of Adoption Proceedings Adoption proceedings are judicial, not administrative.

Husband and Wife, Joint Adoption

Procedure

GENERAL RULE: Husband and wife shall jointly adopt.

Who May Adopt (Sec 7, RA 8552, Domestic Adoption Act of 1998) 1. Filipino citizen who is: LPG-NEAP a. of legal age; b. in possession of full civil capacity and legal rights; c. of good moral character; d. has not been convicted of any crime involving moral turpitude; e. emotionally and psychologically capable of caring for children; d. at least sixteen (16) years older than the adoptee; and e. who is in a position to support and care for his/her children in keeping with the means of the family.

EXCEPTIONS: (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. Note: 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.

When is the requirement of 16-year difference between the age of the adopter and adoptee may be waived a. when the adopter is the biological parent of the adoptee; OR b. when the adopter is the spouse of the adoptee's parent.

HOWEVER, under INTER-COUNTRY ADOPTION LAW (RA 8043), the following may adopt:

2. Any alien who: a. possesses the same qualifications as above stated for Filipino nationals; b. whose country has diplomatic relations with the Republic of the Philippines, c. 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; d. 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 e. whose government allows the adoptee to enter his/her country as his/her adopted son/daughter:

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 adoptor is the parent by nature of the child to be adopted or the spouse of such parent:

An alien or a Filipino citizen permanently residing abroad may file an application for inter-country adoption of a Filipino child IF he/she: (Sec 9, RA 8043)

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; e) is eligible to adopt under his/her national law;

When requirements on residency and certification of the alien's qualification to adopt in his/her country may be waived (i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or

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

(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 66 | P a g e

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

i)

agency and that adoption is allowed under his/her national laws; and

danger, or exposed to gambling, prostitution and other vices.

possesses all the qualifications and none of the disqualifications provided herein and in other applicable Philippine laws.

FOUNDLING – refers to deserted or abandoned infant or child whose parents, guardian or relatives are unknown; or a child committed to an orphanage or charitable or similar institution with unknown facts of birth and parentage and registered in the Civil Register as a foundling.

Who May Be Adopted (Sec 8, RA 8552, Domestic Adoption Act of 1998) (a) Any person below eighteen (18) years of age who has been administratively or judicially declared available for adoption; 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. VOLUNTARILY COMMITTED CHILD - is one whose parent(s) knowingly and willingly relinquishes parental authority to the Department. INVOLUNTARILY COMMITTED CHILD - is one whose parent(s), known or unknown, has been permanently and judicially deprived of parental authority due to abandonment; substantial, continuous, or repeated neglect; abuse; or incompetence to discharge parental responsibilities. Who May be Administratively Or Judicially Declared Available For Adoption 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. DEPENDENT CHILD - is one who is without a parent, guardian or custodian; or one whose parents, guardian or other custodian for good cause desires to be relieved of his care and custody; and is dependent upon the public for support. NEGLECTED CHILD - is one whose basic needs have been deliberately unattended or inadequately attended, physically or emotionally, by his parents or guardinan. Neglect may occur in two ways: a) There is a physical neglect when the child is malnourished, ill clad and without proper shelter. A child is unattended when left by himself without provisions for his needs and/or without proper supervision. b) Emotional neglect exists: when children are maltreated, raped or seduced; when children are exploited, overworked or made to work under conditions not conducive to good health; or are made to beg in the streets or public places, or when children are in moral 67 | P a g e

(b) The legitimate son/daughter of one spouse by the other spouse (No need of joint adoption; if the adopter is an alien, the requirements of residency and certification are no longer applicable); (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). Illustrations: a. FACTS: H and W are legally married. Can H and W legally adopt a child of their neighbor? HELD: YES, provided the adoptee is among those qualifies. b. FACTS: If the child to be adopted is W’s illegitimate child, Can W and H adopt the child? HELD: W can adopt the child because the child is her illegitimate child. H can also adopt the child provided he is qualified and that the child is qualified as an adoptee who possesses none of the disqualifications. H and W can jointly adopt the child if they decide to do so. Alleged the qualifications of the adopters and qualifications of the adoptee in the petition for adoption. c. FACTS: If the child to be adopted is W’s legitimate child in her former marriage, W need not adopt the child because the latter is already her legitimate child. Can H, 2 nd husband adopt the child of W? Are H and W required to adopt the child jointly? HELD: H can adopt the legitimate child of W because such is allowed by law. In this case there is no need for H and W to adopt the child jointly because the child is already the legitimate child of W. This situation is also applicable if the husband is an alien and the wife is a former Filipino. d. FACTS: If H is an alien and W is a former Filipino. The child to be adopted is the illegitimate child of W. HELD: W can adopt provided she is qualified. The residency requirement can be waived because she is a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity. What about on the part of H, is residency requirement be

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

waived? NO, because W is no longer a Filipino. e. FACTS: H is married to W. H has an illegitimate child. Can H adopt his illegitimate child? HELD: H can adopt his illegitimate child even if not joined by W. The surname of the child is that of the father as the adopter. The middle name of the child is that of the mother. Although the relationship between the mother and the child is severed, it is for the benefit of the child to use the surname of his mother as his middle name.

and recommendations on the matter to the court hearing such petition. (Section 11, RA 8552) 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 is in the best interest of the child.

HOWEVER, under INTER-COUNTRY ADOPTION LAW (RA 8043), the following may be adopted: Only a child legally available for domestic adoption may be the subject of inter-country adoption. Whose Consent is Necessary to the Adoption (Sec 9, RA 8552, Domestic Adoption Act of 1998)

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.

After being properly counseled 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: c. (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; If the child to be adopted is illegitimate, consent of the father is necessary if he recognized the child as his. If no recognition, there is no need of consent because both are strangers to each other. (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. Procedure a. Hurried Decisions. - In all proceedings for adoption, the court shall require proof that the biological parent(s) has been properly counseled 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. (Section 10, RA 8552) b. 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 has made a case study of the adoptee, his/her biological parent(s), as well as the adopter(s), and has submitted the report 68 | P a g e

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 pre-adoption 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). (Section 12, RA 8552)

d. Decree of Adoption. - If, after the publication of the order of hearing has been complied with, and 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

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

which the child is to be known. (Section 13, RA 8552) e. 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. (Section 14, RA 8552) f.

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. (Section 15, RA 8552)

Effects Of Adoption a. 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). (Section 16, RA 8552) If the adopters are husband and wife, the adoptee can use the surname of the adopting father as his surname and the surname of the adopting mother as his middle name. If the father of an illegitimate whose wife is already dead, decided to adopt his own illegitimate child, the surname of the child is the surname of the father while his middle name is the surname of his biological mother. (In re: Adoption of Stephanie Garcia, 456 S 541) b. Legitimacy. - The adoptee shall be considered the legitimate son/daughter of the adopter(s) for all intents and purposes and 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. (Section 17, RA 8552) c.

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. (Section 18, RA 8552)

69 | P a g e

Notes: The adoptee has the rights as that of legitimate child, thus he has successional rights upon death of the adopter. If the biological parents of the adoptee died, it appears that the law bars the child from inheriting from his biological parents intestate by operation of law. This is one interpretation of the law. The proposition is there should be a complete severance. If not, adopted children will be placed above the legitimate children for they can inherit either from the biological parents and adopting parents. HOWEVER, in one case, if the father of an illegitimate whose wife is already dead, decided to adopt his own illegitimate child and the father dies, the child, having the rights of legitimate child, is entitled to his successional rights. If the biological mother dies, the child is also entitled to his successional rights because in that case there was allowance of using the surname of the mother as the child’s middle name the urpose of which is to identify maternal lineage and after all the child should have a mother. (In re: Adoption of Stephanie Garcia, 456 S 541) If both the adopting parents died, can the adoptee file a petition for support from the biological parents? NO, death of the adopting parents does not alter the consequences of the adoption. The biological parents are not obliged to give support. Would your answer be the same if the child is still a minor? YES, for the same reason as stated above. What if the adoptee himself died, what are the consequences of his death with respect to succession? (See Discussion in Succession) Rescission Of Adoption Grounds (Section 19, RA 8552) Upon petition of the adoptee, with the assistance of the Department if a minor or if over eighteen (18) years of age but is incapacitated, as guardian/counsel, the adoption may be rescinded on any of the following grounds committed by the adopter(s): RASA (a) repeated physical and verbal maltreatment by the adopter(s) despite having undergone counseling; (b) attempt on the life of the adoptee; (c) sexual assault or violence; or (d) abandonment and failure to comply with parental obligations. Who May File Only the adoptee can file a petition for rescission. Adoption, being in the best 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. (Section 19, RA 8552)

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

Note: If the decree of adoption was issued prior to the effectivity of the Domestic Adoption Act (1998 February 25), a petition for rescission is not allowed if such was filed after the effectivity of the said law because the policy of the present law is to favor the child. If the adoptee is still a minor, in filing the petition for rescission, he may be represented by the guardian ad litem/duly appointed by the court; or if the minor is one who is declared available for adoption, he may be represented by DSWD, orphanage or institution accredited by the DSWD. Effects of Rescission (Section 20, RA 8552) a. 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. Notes: Upon rescission, who are the parents of the adopted child? The parents of the adoptee are his biological parent(s), if known. Can the biological parents refuse to restore their legal tie with the child? NO. The biological parents have no choice because such is mandated by law. Besides, the child can be adopted again by any qualified adopter. Upon rescission, the child can use the surname of his biological father as his surname and the surname of the mother as his middle name. b. The reciprocal rights and obligations of the adopter(s) and the adoptee to each other shall be extinguished. c. Cancellation of the amended certificate of birth of the adoptee and restore his/her original birth certificate by the Civil Register as ordered by the court. d. 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. Note: 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.

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Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

X SUPPORT

Support pendente lite may be claimed in accordance with the Rules of Court. (Art. 203 par 2 and 3, FC)

Concept and Extent Exemption from Levy and Attachment SUPPORT – is that which 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. (Art 194, FC) Kinds of Support a. As to amount: 1. Natural (bare necessities of life) 2. Civil (in accordance with financial standing) b. As to source of obligations: 1. Legal (based from law) 2. Voluntary / Contractual Support agreement or from provision of a will) c.

(from

Special kind (alimony pendente lite)

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. (Art. 205, FC) Who Must Pay Support (Art 195, FC) The following are obliged to support each other: 1. The spouses; 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. (Art. 198, FC) After the final judgment granting the petition of annulment or declaration of nullity of marriage, the obligation of mutual support between the spouses ceases. (Art. 198, FC) 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. (Art. 198, FC) But the innocent spouse is not obliged to give support to the erring spouse.

Actual Need v. Capacity to Pay 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. 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. Thus, in one case, SC held that the provision for a common fund for the benefit of the child cannot be considered final and res judicata since any judgment for support is always subject to modification depending upon the needs of the child and capabilities of the parents to give support.

If both spouses are living separately, both of them have been unfaithful to each other, and the husband has been giving allowance to the wife, the latter may still file an action for maintenance because both of them are at fault. The husband cannot use as a defense the adulterous act committed by the wife. Besides, the giving of allowance to the wife is implied condonation of the adultery. In a petition for support filed by the wife, it is insufficient for the husband, as a defense to claim that the wife is guilty of adultery. There must be sufficient and competent evidence. The wife may obliged her husband to pay the fee of the lawyer who defended her in case of acquittal, BUT NOT in case of conviction. 2. Legitimate ascendants and descendants;

Who Is Entitled to Support (Art 195, FC) Those provided under Art 195 are the same persons who are entitled to support from each other. A right to support is not terminated after reaching the age of majority. Support is imprescriptible. When Demandable 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 extrajudicial demand.

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Illustration: If the husband abandoned the family to cohabit with his paramour, can the wife file a petition for support against the parents of the husband for their children and herself? Yes, but only with respect to support in favor of their children because they are their legitimate descendants, provided that inability on the part of the husband to give support be proven. W cannot ask support for herself because her relationship with the parents of her husband is by affinity and as such the parents-in-law are not obliged to give support to her. The obligation to give support in a relation by affinity is only required between husband and wife. In the same manner, W is not

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

also obliged to give support to her parents-inlaw.

3. The ascendants in the nearest degree; and 4. The brothers and sisters.

If one of the parents died, who is obliged to give support to the children? It is the surviving parent. If he/she remarries, the 2nd spouse is not obliged to give support to the children of the former in the previous marriage because of absence of relationship. In this case the support will be taken from the separate property of the surviving parent. This is why properties acquired after termination of the previous marriage shall not form part of the ACP or CPG of the subsequent marriage to answer for the support of the children although the latter may advance the support of the children but such is considered a debt subject to reimbursement.

Sources of Fund 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.

Can the illegitimate child of the husband file a petition for support against the wife of the husband? NO, because the child is not related to the wife. What if the petition is directed against the parents of the husband or the child’s grandparents, will the petition prosper? Yes, because the parents are obliged to give support in favor of their legitimate children and the legitimate and illegitimate children of the latter. 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. Notes: 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. (Art. 196, FC) In this case, the one entitled to support, it is not sufficient that the need for support is not due to his fault or negligence but there must be proof of filiation, that is, he has been recognized as an illegitimate child. Sources of Support 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. (Art. 197, FC) Order of Liability in case 2 or More Persons are Obliged to Give support (Art. 199, FC) 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; 72 | P a g e

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. (Art. 200, FC) Thus, in case of separation de facto, the wife filed a petition for support against the erring husband the amount of 35K monthly. The husband’s net income monthly is 35K. The expenses of their children as alleged is 25K monthly and the wife’s expenses is 10K monthly. The needs of the children are preferred. The excess shall be divided proportionately between the husband and the wife except when the wife is gainfully employed and able to support herself. How Support is Given 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. (Art. 203 par 3, FC) 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. (Art. 204, FC) Right of Third Persons Who Pay 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. (Art. 206, FC) 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. (Art. 207, FC)

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

Contractual Support or Support in a Will Contractual support – is an agreement to give support between parties not obliged to give support; what may be given is subject to the agreement of the parties, thus may be partial or full; it is subject to levy or attachment. As compared to legal support, the latter is one established by law; it comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family, thus to the full extent; and not subject to levy, attachment or execution. Note: 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. (Art. 208, FC) Procedure (Rule Procedure)

61,

1997

Rules

of

Civil

Section 1. Application. At the commencement of the proper action or proceeding, or at any time prior to the judgment or final order, a verified application for support pendente lite may be filed by any party stating the grounds for the claim and the financial conditions of both parties, and accompanied by affidavits, depositions or other authentic documents in support thereof. Sec. 2. Comment. A copy of the application and all supporting documents shall be served upon the adverse party, who shall have five (5) days to comment thereon unless a different period is fixed by the court upon his motion. The comment shall be verified and shall be accompanied by affidavits, depositions or other authentic documents in support thereof. Sec. 3. Hearing. After the comment is filed, or after the expiration of the period for its filing, the application shall be set for hearing not more than three (3) days thereafter. The facts in issue shall be proved in the same manner as is provided for evidence on motions. Sec. 4. Order. The court shall determine provisionally the pertinent facts, and shall render such orders as justice and equity may require, having due regard to the probable outcome of the case and such other circumstances as may aid in the proper resolution of the question involved. If the application is granted, the court shall fix the amount of money to be provisionally paid or such other forms of support as should be provided, taking into account the necessities of the applicant and the resources or means of the adverse party, and the terms of payment or mode for providing the support. If the application is denied, the principal case shall be tried and decided as early as possible. Sec. 5. Enforcement of order. If the adverse party fails to comply with an order granting support pendente lite, the court shall, motu proprio or upon motion, issue an order of execution against him, without prejudice to his liability for contempt. When the person ordered to give support pendente lite refuses or fails to do so, any third person who furnished that support to the applicant may, after due notice and hearing in the same case, obtain a writ of execution to enforce his right of reimbursement against the person ordered to provide such support. (n) Sec. 6. Support in criminal cases. In criminal actions where the civil liability includes support for the offspring as a consequence of the crime and the civil aspect thereof has not been waived, reserved or instituted prior to its filing, the accused may be ordered to provide support pendente lite to the child born to the offended party allegedly because of the crime. The application therefor may be filed successively by the offended party, her parents, grandparents or guardian and the State in the corresponding criminal case during its pendency, in accordance with the procedure established under this Rule.

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Sec. 7. Restitution. When the judgment or final order of the court finds that the person who has been providing support pendente lite is not liable therefor, it shall order the recipient thereof to return to the former the amounts already paid with legal interest from the dates of actual payment, without prejudice to the right of the recipient to obtain reimbursement in a separate action from the person legally obliged to give the support. Should the recipient fail to reimburse said amounts, the person who provided through same may likewise seek reimbursement thereof in a separate action from the person legally obliged to give such support.

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

X. PARENTAL AUTHORITY AND CUSTODY

home duly accredited by the proper government agency

PATRIA POTESTAS, CONCEPT AND EVOLUTION Who Exercises Parental Authority and Custody In the Roman and Germanic law, the patria potestas conferred on the father the power of life or death over the children which will last until the lifetime of the father. This authority is established primarily for his benefit. The modern view, manifested in our code, means that this authority is for the benefit of the children and granted to the parents as a consequence of the heavy responsibilities imposed upon them by law, which they have to discharge. PARENTAL AUTHORITY (PATRIA POTESTAS) -the sum of rights and obligations which parents have in relation to the person and property of their children, until their majority age or emancipation, and under certain circumstances. It is the natural right and duty of parents over the person and property of their unemancipated children which INCLUDES the caring for and rearing of such children for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being. (Art 209, FC) Parental authority is not limited to the rights of parents over their children because such is reciprocal. Children under parental authority are obliged to observed obedience, love, and respect towards their parents. 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. (Art 211, FC) It is for the purpose of strengthening the family as the foundation of the nation and to protect the marriage institution as the foundation of the family. (Art. XV, Sec. 3 (1) and (2), 1987 Constitution) Thus, the State shall defend: a.) Right of spouses: to found a family in accordance with their religious convictions and the demands of responsible parenthood. b.) Right of children: to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development. CHILD - refers to person below eighteen (18) years of age or those over but are unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition. (R.A 7610) It refers to a person under 18 years of age. (RA 9344) Characteristic of Parental Authority GENERAL RULE: Parental authority and responsibility may not be renounced or transferred except in the cases authorized by law. (Art 210, FC) EXCEPTIONS: GAC a. guardianship b. adoption c. commitment of the child in entities and institutions engaged in child care or in children’s 74 | P a g e

1. Legitimate children - The father and the mother shall jointly exercise parental authority over the persons of their common children. (Art. 211, FC) In this case there is no need of judicial authority. 2. Illegitimate children – it is always the mother who exercises parental authority even if the father recognized the child. Effect of Disagreement, Absence / Death, Separation or Termination of Marriage of Parents In case of DISAGREEMENT, the father's decision shall prevail, UNLESS there is a judicial order to the contrary. (Art. 211, FC) 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. (Art. 212, FC) 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 (The 2nd spouse has no right of parental authority over the child). No child under 7 years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. (Art. 213, FC) Art. 49. During the pendency of the action and in the absence of adequate provisions in a written agreement between the spouses, the Court shall provide for the support of the spouses and the custody and support of their common children. The Court shall give paramount consideration to the moral and material welfare of said children and their choice of the parent with whom they wish to remain as provided to in Title IX. It shall also provide for appropriate visitation rights of the other parent. Art. 50. The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and by Article 44 shall also apply in the proper cases to marriages which are declared ab initio or annulled by final judgment under Articles 40 and 45. The final judgment in such cases shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of third presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings. 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.

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

Art. 63. One of the effects of legal separation is that the custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of Article 213 of FC.

Whenever the appointment or a judicial guardian over the property of the child becomes necessary, the same order of preference shall be observed.

In case of legal separation, still both exercise parental authority over the child. What may be awarded in favor of one over the other is parental custody or physical company of the child and such will not divest of the right to parental authority which is broader in scope.

3. 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. (Art. 217, FC)

In case both parents died, grandparents judicially appointed by the court will exercise parental authority. Duties of Children 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. (Art 211 par 2, FC) Filial Privilege Rule No descendant shall be compelled, in a criminal case, to testify against his parents and grandparents, EXCEPT when such testimony is indispensable in a crime against the descendant or by one parent against the other. (Art 215, FC) HOWEVER, under the Rules on Evidence: “No person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants (Rule 130, sec. 25).” Thereupon, should a conflict arise between this provision and civil code provision, the latter prevails, since a procedural rule cannot impair substantive law. SUBSTITUTE PARENTAL AUTHORITY When Applicable 1. In case of death, absence or unsuitability of the parents. (Art. 214, FC) 2. In default of parents or a judicially appointed guardian. (Art. 216, FC) 3. When the best interests of the child so requires. (Art. 222, FC)

4. When the best interests of the child so requires, the one appointed by the court as a guardian of the child's property or a guardian ad litem (following the order established in Art 216). (Art. 222, FC) Extent of Authority The person exercising substitute parental authority shall have the same authority over the person of the child as the parents. (Art. 233 par 1, FC) SPECIAL PARENTAL AUTHORITY When Applicable In case of minor under supervision, instruction or custody. (Art 218, FC) Who Exercises The school, its administrators and teachers, or the individual, entity or institution engaged in child shall have special parental authority and responsibility over the minor child while under their supervision, instruction or custody. (Art 218, FC) 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. (Art 219 par 1, FC)

Who May Exercise 1. 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. (Art. 214, FC) 2. In default of parents or a judicially appointed guardian, the following person shall exercise substitute parental authority over the child in the order indicated: (Art. 216, FC)

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. (Art 219 par 2, FC)

(1) The surviving grandparent, as provided in Art. 214;

Authority and responsibility shall apply to all authorized activities whether inside or outside the premises of the school, entity or institution. (Art 218, FC)

(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. 75 | P a g e

All other cases not covered by this and the preceding articles shall be governed by the provisions of the Civil Code on quasi-delicts. (Art 219 par 3, FC) Extent of Special Parental Authority

In no case shall the school administrator, teacher of individual engaged in child care exercising special parental authority inflict corporal punishment upon the child. (Art 233 par 2, FC)

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

EFFECTS OF PARENTAL AUTHORITY UPON THE PERSONS OF THE CHILDREN The parents and those exercising parental authority shall have with the respect to their unemancipated children or wards the following rights and duties: (Art 220, FC) 1. To keep them in their company, to support, educate and instruct them by right precept and good example, and to provide for their upbringing in keeping with their means; 2. To give them love and affection, advice and counsel, companionship and understanding; 3. To provide them with moral and spiritual guidance, inculcate in them honesty, integrity, self-discipline, self-reliance, industry and thrift, stimulate their interest in civic affairs, and inspire in them compliance with the duties of citizenship; 4. To furnish them with good and wholesome educational materials, supervise their activities, recreation and association with others, protect them from bad company, and prevent them from acquiring habits detrimental to their health, studies and morals; 5. To represent them in all matters affecting their interests; 6. To demand from them respect and obedience; 7. To impose discipline on them as may be required under the circumstances; and 8. To perform such other duties as are imposed by law upon parents and guardians. Note: 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. (Art. 221, FC) Illustrations: If the child is on vacation with his grandparents and caused injury to another child, his parents may still be impleaded in an action for damages because while the child is not living in their company, the law should be interpreted to mean legal parental authority and custody and not necessarily limited to physical custody.

school. This notwithstanding the fact that the victim is not a student of the said school. In the event that the teacher who supervises the child went to bathroom, such teacher is considered negligent. He should have been substituted by another to supervise the children. The said persons may be impleaded despite the fact that the minor is rich because the consideration is the minority of the one who caused injury. The defense of the school and others who are exercising special parental authority is the exercise of due diligence as in quasi-delict. For the parents, they can say that they could not exercise due diligence in supervising their child. If the assailant and victim are no longer minors and the incident took place in the school where they are studying, the school, its administrators and teachers may be impleaded based on contract because the contract between the school and student provided that the school should provide adequate measures to protect the student. Quasi-delict may also the basis of action for damages. Schools of arts and trade included even schools which are purely academic institution (no distinction). DISCIPLINARY MEASURES 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. 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.

At the time of causing injury, the child who committed the act complained is the subject of a pending adoption proceeding. By the time the judgment is to be rendered in the civil case, the adoption decree was already issued. In this case, the adopters cannot be impleaded because the biological parents have still parental authority over the child at the time of the commission of the act complained of.

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.

The child who caused injury to a classmate is a kindergarten pupil. The incident took place within the premises of the school. Who shall be impleaded? The school, its administrators and teachers, as well as the parents of the child shall be impleaded.

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.

If the incident took place during an educational trip, the school may still be impleaded provided the educational trip is an authorized activity of the 76 | P a g e

EFFECTS OF PARENTAL AUTHORITY UPON PROPERTY OF CHILDREN

Where the market value of the property or the annual income of the child exceeds P50,000, the

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

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. 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. Notes: The property of the minor should be registered in the name of the minor because he is the owner thereof. It shall not be registered in the name of his parents. Judicial appointment is not necessary for the administration and management of the property of the child. The parents, as administrator of the property of the child can lease the property even without prior judicial authorization. If the leased is for more than 1 year, there is a need for prior judicial authorization because such amounts to encumbrance. They cannot lease for 1 year with option to buy because such amount to an act of disposition UNLESS there is a prior judicial authorization.

(4)

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. (Art. 232, FC)

Grounds for Temporary Termination 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;

(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.

SUSPENSION OF PARENTAL AUTHORITY Grounds

The parents cannot also sell the property of their minor child UNLESS there is a prior judicial authorization and provided that the sale is for the benefit of the child.

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. 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 reasonably monthly allowance in an amount not less than that which the owner would have been paid if the administrator were a stranger, unless the owner, grants the entire proceeds to the child. In any case, the proceeds thus given in whole or in part shall not be charged to the child’s legitime. TERMINATION OF PARENTAL AUTHORITY

1. Upon conviction of the parent or the person exercising the same of a crime which carries with it the penalty of civil interdiction. (Art. 230, FC) The authority is automatically reinstated upon service of the penalty or upon pardon or amnesty of the offender. 2. 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: (Art. 231, FC) a. Treats the child with excessive harshness or cruelty; b. Gives the child corrupting orders, counsel or example; c. Compels the child to beg; or d. 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.

Grounds for Permanent Termination 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.

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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.

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

XI. EMANCIPATION AND AGE OF MAJORITY Concept EMANCIPATION – is the release of a person from parental authority whereby he becomes capacitated for civil life. Effects Emancipation for any cause shall terminate parental authority over the person and property of the child who shall then be qualified and responsible for all acts of civil life. (Art. 236, FC) When Emancipation Take Place Emancipation takes place by the attainment of majority. Unless otherwise provided, majority commences at the age of 18 years. (Art 234, FC, as amemded by RA 6809)

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Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

XII. NAMES AND SURNAMES NAME OF A PERSON – describes identity of a person to distinguish him from others. Characteristics 1. Absolute (to protect a person from being confused with another) 2. Obligatory (no person can be without a name) 3. Beyond the commerce of man (intransferrable/inalienable inter vivos or even mortis causa but subject to trademarks or service marks) 4. Imprescriptible (same name even after death) 5. Fixed - may only be changed as a result of a. legal consequences – marriage, legitimation/change of status; or b. by judicial decree due to the ff. grounds: i. change of status of person ii. name is ridiculous, tainted with dishonor, or extremely difficult to pronounce or write iii. publicly known for a new name for a long period of time. iv. sincere desire to adopt Filipino name to remove all badges of foreign origin Parts of Name 1. Legitimate Child a. Given name b. Middle name – mother’s surname c. Surname/family name – father’s surname (Art 364 and 369, NCC) 2. Illegitimate child who is not recognized a. Given name b. Surname – mother’s surname (Art 368, NCC) 3. Illegitimate child who is recognized a. Given name b. Middle name – mother’s surname c. Surname/family name – father’s surname (Art 366, NCC) 4. Adopted child by husband and wife a. Given name b. Middle name – wife adopter’s surname c. Surname – husband adopter’s surname (Arts 365 and 367, NCC) 5. Adopted by Single Person (putative father) – Stephanie Case a. Given name b. Middle name – biological mother’s surname c. Surname – father’s surname 6. Adopted by a Single Person Stephanie Case a. Given Name b. Surname – adopter’s surname

other

than

Use of Surname by Women 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 370, NCC) 79 | P a g e

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. (Art 371, NCC) When LEGAL SEPARATION has been granted, the wife shall continue using her name and surname employed before the legal separation. (Art 372, NCC) A WIDOW may use the deceased husband's surname as though he were still living, in accordance with article 370. (Art 373, NCC) Similarity and Identity of Names 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 374, NCC) In case of identity of names and surnames between ascendants and descendants, the word "Junior" can be used only by a son (also to daughter, no prohibition). 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 375, NCC) Usurpation of Name / Surname in Relation to CA 142 Usurpation of a name and surname may be the subject of an action for damages and other relief. (Art 377, NCC) This is known as identity theft. There is no need of actual injury because there is already a potential harm. There can be civil and criminal liability. The unauthorized or unlawful use of another person's surname gives a right of action to the latter. (Art 378, NCC) 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 379, NCC) GENERAL RULE: No person shall use different names and surnames (USE ONLY ONE NAME). (Art 380, NCC) EXCEPT: One may use pen names or stage names, PROVIDED it is done in good faith and there is no injury to third persons. Note: In all legal transactions, use the legal name. Change of Name No person can change his name or surname without judicial authority. (Art 376, NCC; See Discussion in Special Proceedings)

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

XIII. ABSENCE ABSENCE - a legal status of a person who is not in his domicile, his whereabouts being unknown, and it is uncertain whether he is dead or alive. Stages of Absence 1. Provisional/Temporary - when a person disappears from his domicile, his whereabouts being unknown, and without leaving an agent to administer his property. (Art. 381, NCC)

4. Those who may have over the property of the absentee some right subordinated to the condition of his death. (Art 385, NCC) Effectivity Date The judicial declaration of absence shall not take effect until 6 months after its publication in a newspaper of general circulation. (Art. 386, NCC) Appointment and Powers of Administrator

Remedies 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. (Art. 381, NCC) This same rule shall be observed when under similar circumstances the power conferred by the absentee has expired. (Art. 381, NCC) The appointment referred to 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. (Art. 382, NCC) Who may be Appointed Provisional Representative 1. Present spouse - shall be preferred when no legal separation. 2. Any competent person - if the absentee left no spouse, or if the spouse present is a minor. (Art. 383, NCC) Note: No acts of dominion to be exercised but only of general power of administration except when there is court authority.

An administrator of the absentee's property shall be appointed in accordance with article 383. (Art. 387, NCC) The wife who is appointed as an administratrix of the husband's property cannot alienate or encumber the husband's property, or that of the conjugal partnership, without judicial authority. (Art. 388, NCC) Termination of Administrator 1. When the absentee appears personally or by means of an agent; 2. When the death of the absentee is proved and his testate or intestate heirs appear; 3. When a third person appears, showing by a proper document that he has acquired the absentee's property by purchase or other title. Note: In these cases the administrator shall cease in the performance of his office, and the property shall be at the disposal of those who may have a right thereto. (Art 389, NCC) 3. Definite Absence / Presumptive Death – when the absentee is presumed dead. a. Ordinary Absence (No danger of Death)

2. Normal/Declared – when a person disappears from his domicile, and 2 years having elapsed without any news about the absentee or since the receipt of the last news (if no administrator/manager is appointed), or 5 years in case the absentee has left a person in charge of the administration of his property. (Art. 384, NCC) Period

After an absence of 7 years - presumed dead for all purposes, EXCEPT for those of succession. After an absence of 10 years - presumed dead for the purpose of opening succession If he disappeared after the age of 75 years, an absence of 5 years shall be sufficient in order that his succession may be opened. (Art 390, NCC)

After 2 years - in case the absentee left no person in charge of the administration of his property.

b. Extra-ordinary Absence (there is danger of death)

After 5 years - in case the absentee has left a person in charge of the administration of his property.

After an absence of 4 years - presumed dead for ALL purposes, including the division of the estate among the heirs.

Who May File

Instances (1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane; (2) A person in the armed forces who has taken part in war, and has been missing for four years;

The following may ask for the declaration of absence: 1. The spouse present; 2. The heirs instituted in a will, who may present an authentic copy of the same; 3. The relatives who may succeed by the law of intestacy; 80 | P a g e

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

(3)

A person who has been in danger of death under other circumstances and his existence has not been known for four years. (Art 391, NCC)

ORDINARY ABSENCE a.7 YEARS, person presumed dead for all purposes except for those of opening succession b.10 YEARS, person presumed dead for purposes of opening succession except if he disappeared after the age of 75, in which case, a period of 5 years is sufficient. c. 4 YEARS, person presumed dead for purposes of remarriage of the spouse present.

EXTRAORDINARY/ QUALIFIED ABSENCE 4 YEARS, person is presumed dead for all purposes including those of opening succession; 2 YEARS for purposes of remarriage of the spouse present, under the following circumstances: a.Person on board a vessel lost during a sea voyage or an aeroplane which is missing; period is counted from the loss of the vessel or aeroplane. b.Person in the armed forces who has taken part in war

c. Person in danger of death under other circumstances and his existence has not been known.

Note: In presumptive death there is no need of judicial declaration except for purposes of remarriage. Illustrations: a. A disappeared in 1995 while there is a pending case filed by him against B for damages, who is a partner is a partnership, and he left a will instituting X and Y as testate heirs. Any interested person may file a petition to represent the absentee in the pending case. After 2 or 5 years, as the case may be, person allowed by law may file a petition to be appointed as administrator. After 7 years (ordinary absence) or 4 years (extraordinary absence), the partnership is deemed dissolved. X and Y may file a petition for probate of the will after 10 years (in case of ordinary absence or 5 years in case he is 75 at the time he disappeared) or 4 years (extraordinary absence). In the latter case, the value of the estate shall be computed on the 1st day of disappearance. b. B left a will in favor of A as devisee. C is the son of A. A disappeared in 1995. B died 2000. C must prove that A is still alive and present at the time of death of B. c.

If the father of A died, C, the grandson, shall inherit by representation. No need to prove that A is alive and present.

Contingent Rights of the Absentee a. Whoever claims a right pertaining to a person whose existence is not recognized must prove that he was living at the time his existence was necessary in order to acquire said right. (Art. 393) 81 | P a g e

b. Without prejudice to the provision of the preceding article, upon the opening of a succession to which an absentee is called, his share shall accrue to his coheirs, unless he has heirs, assigns, or a representative. They shall all, as the case may be, make an inventory of the property. (Art. 394) c. The provisions of the preceding article are understood to be without prejudice to the action of petition for inheritance or other rights which are vested in the absentee, his representatives or successors in interest. These rights shall not be extinguished save by lapse of time fixed for prescription. In the record that is made in the Registry of the real estate which accrues to the coheirs, the circumstance of its being subject to the provisions of this article shall be stated. (Art. 395) d. Those who may have entered upon the inheritance shall appropriate the fruits received in good faith so long as the absentee does not appear, or while his representatives or successors in interest do not bring the proper actions. (Art. 396) Effect of Reappearance If the absentee appears, or without appearing his existence is proved, he shall recover his property in the condition in which it may be found, and the price of any property that may have been alienated or the property acquired therewith; but he cannot claim either fruits or rents. (Art. 392, NCC)

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

XIV. CIVIL REGISTER CIVIL REGISTER – record of acts, events and judicial decrees concerning the civil status of persons. (Art. 407, NCC)

All other matters pertaining to the registration of civil status shall be governed by special laws. (Art. 413, NCC) How May be Made

It is pursuant to parens patriae to constantly monitor those what are to be recorded.

1. Judicial Proceedings (in rem – mere publication is sufficient)

What Must Be Registered (Art. 408, NCC) a. Births b. Marriages c. Deaths d. legal separations e. annulments of marriage f. judgments declaring marriages void from the beginning g. legitimations h. adoptions i. acknowledgments of natural children j. naturalization k. loss or recovery of citizenship l. civil interdiction m. judicial determination of filiation n. voluntary emancipation of a minor (no longer applicable) o. changes of name

a. Summary – reception of evidence may be done ex-parte i. correction of clerical/typographical errors (errors which are obvious to common sense)

Duty of Clerk of Court In cases of legal separation, adoption, naturalization and other judicial orders mentioned in the preceding article, the clerk of the court which issued the decree has the duty: a. to ascertain whether the same has been registered, and, b. if this has not been done, to send a copy of said decree to the civil registry of the city or municipality where the court is functioning. (Art. 409, NCC). 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)

b. Adversarial – there is full blown trial if status of petitioner is directly affected. Also when there is change of name if ground is publicly known by such name. e.g. change of sex from male to female; petition to delete the date of marriage in birth certificate of child; petition to insert date of marriage (contracted after recording of birth of child) Note: A person of alien parents cannot file a petition for change of his former citizenship to Filipino. He must file first for naturalization. If of Filipino mothers and born before the 1973 Constitution, the child shall elect Philippine citizenship. 2. Administrative Proceedings (RA 9048) a. By way of petition to be filed with the Local Civil Registrar. Copy furnished the Local Registrar General (NSO Administrator) b. Grounds i. Clerical errors ii. Name or nickname is ridiculous, tainted with dishonor or extremely difficult to write or pronounce iii. New first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by the first name or nickname in the community iv. Change will avoid confusion. Change of Name, Mere Privilege

Probative Value of Civil Register 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. (Art. 410, NCC) Liability of Civil Registrar 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. (Art. 411, NCC) Amendments / Correction of Entries No entry in a civil register shall be changed or corrected, without a judicial order. (Art. 412, NCC) 82 | P a g e

Change of name can only be made once because it is a mere privilege. Convenience cannot defeat legal purpose. SC did not allow the dropping of middle name just because in Singapore do not usually use middle name.

Saint Louis University - College of Law Comprehensive Reviewer in Persons and Family Relations By: Dick Francisco Fernandez & Claryl-Anne D. Laminato

XV. FUNERALS Duty and Right to Make Funeral Arrangements 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 199, FC. (Art. 305, NCC) Thus, the ff. is the order of preference: a. Spouses b. Descendants of the nearest degree c. Ascendants of the nearest degree d. Brothers and sisters Note: 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. 305, NCC) Every funeral shall be in keeping with the social position of the deceased. (Art. 306, NCC) 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. 307, NCC) 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. 309, NCC) Disposal of Body Organs Authorities sustain the view that mortal remains or organs of a person’s body cannot be considered property within the meaning of the law, thus they can not be the subject matter of a contract. HOWEVER, RA 349 as amended by RA 1056, a person may validly grant to a licensed physician, surgeon, known scientist, of any medical or scientific institution to detach at any time after the grantor’s death any organ of his body for medical, surgical or scientific purposes. The grant must be: a. In writing b. Specify the grantee c. Specify the purpose d. Signed by the grantor and 2 disinterested witnesses Expenses of Funeral Where Chargeable Chargeable against the property of the deceased. However, such shall be chargeable to the conjugal partnership property, if the deceased is one of the spouses. (Art. 310, NCC)

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