Consolidated Civil Law QQR (1)

CEBALLOS BAR TRENDS mind, unless freely cohabited with the other after coming to reason; (c) Consent obtained by fraud, unless freely cohabited with the other after knowledge of fraud; (d) Consent of either party was obtained by force or intimidation, unless freely cohabited with the other after knowledge of force or intimidation; and (e) That either party was, at the time of marriage, physically incapable of entering into the married state, and such incapacity continues, and appears to be incurable.

CIVIL LAW BAR EXAMINATION QUESTIONS (TRENDING) COVERAGE – 2000 to 2014 659 QUESTIONS

I. Persons (193 times)

Property relations of the Spouses (Articles 74-148, Family Code) (32 times)

Marriage (Family Code) (55 times) Definition

Property regime without marriage

A special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. 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. (Article 1, Family Code)

Where both parties are capacitated to marry each other, and live exclusively with each other without the benefit of marriage or under a void marriage, the rules on Co-ownership will apply. Void marriage [Article 43, (2), Family Code] Where one of the parties in a void marriage acted in good faith (a) TheShare of the party in bad faith shall be forfeited in favor of their common children; (b) In case of default or waiver the vacant share shall belong to surviving descendants; and (c) In absence of descendants, the share shall belong to the innocent party.

Void and Voidable Marriage (Articles 35-38, Family Code) Void Marriages (a) Below 18;(b) Solemnizing officer had no authority to perform marriages, UNLESS marriage was contracted in good faith that the solemnizing officer had legal authority;(c) No license;(d) Bigamous, polygamous marriages not falling under Article 41 on PRESUMPTIVE DEATH (ABSENTEE SPOUSE); (e) Mistake of identity; (f) Void subsequent marriages;(g) Psychological incapacity;(h) Incestuous marriages;and(i) Void marriages by reason of public policy.

Property regimes (Article 75, Family Code)

Voidable Marriages (Article 45)

Conjugal partnership of gains (Article 106, Family Code)

a. Marriage settlement –Absolute Community of Property, Conjugal Partnership of Gains, and Complete Separation of Property b. Provisions of the Family Code: where there is NO marriage settlement; or the regime is void, absolute community of property governs. c. Local custom

(a) Subsequent marriages without judicial declaration of presumptive death; (b) Unsound

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CEBALLOS BAR TRENDS In a common fund, the proceeds, products, fruits, and income from separate properties; acquired through efforts or by chance, and, upon dissolution of the marriage.

status of an evidence. The the lifetime of on open and status.

Absolute community of property; presumption (Article 88, Family Code) At the precise moment of the celebration of the marriage: PRESUMPTION is that all properties acquired during the marriage form part of the absolute community of property, unless it be proven otherwise.

illegitimate child, or on other action must be brought within the alleged parent if it is based continuous possession of the

Grounds for impugning the legitimacy of a child (Article 166, Family Code) (a) Physical impossibility of sexual intercourse within the first 120 days of the 300 days immediately preceding the child’s birth due to (i) Physical incapacity of the husband, (ii) Living separately, or (iii) Serious illness of husband which absolutely prevented sexual intercourse;(b) Proof that the child could not have been that of the husband; and (c) In case of children conceived through artificial insemination, the authorization or ratification of either parent was obtained through fraud, mistake, violence, intimidation or undue influence.

Paternity and Filiation (25 times) Filiation of child born out of wedlock (Article 165, Family Code) (General Rule) Illegitimate EXC: (1) Children of voidable marriage; (2) Children of a void marriage in 2 instances [a. Children conceived of a subsequent void marriage; and b. Children conceived of a marriage before the judgment of annulment or nullity became final, where ground for voiding is psychological incapacity.

Adoption (17 times) Joint adoption (R.A. 8552) GR: Spouses shall adopt jointly (Article 185, Family Code); EXC: (i) Spouse adopts the legitimate child of the other, (ii) Spouse adopts his/her illegitimate child provided other spouse signifies consent, (iii) Spouses legally separated.

Filiation of child born of artificial insemination [Article 166 (3), Family Code] Legitimate children provided that (a) The artificial insemination is made on the wife, not on another woman; (b) The artificial insemination of the wife is done with the sperm of the husband, or of a donor, or both the husband and a donor; and (c) The artificial insemination has been authorized or ratified by the spouses in a written instrument executed and signed by them before the birth of the child; and (d) The written instrument aforementioned is recorded in the civil registry together with the birth certificate of the child.

Qualifications for adoption (a) Below 18, declared available for adoption; (b) Legitimate child of one spouse, by the other spouse; (c) Illegitimate child, by a qualified adopter to raise status to legitimacy; (d) Of legal age if, prior to adoption, has been considered and treated by the adopter(s) as his/her own child since minority; (e) Child whose adoption was previously rescinded; or (f) Child whose biological or adoptive parent(s) has died: Provided, no proceedings shall be initiated within six (6) months from the time of death of said parent(s).

Action for recognition of an illegitimate child (Article 173, Family Code) A child has until his lifetime to file, unless based on the open and continuous possession of

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CEBALLOS BAR TRENDS Requisites for adoption (Article 183, Family Code)

(a) Absence or Death of either parent; the surviving parent shall continue exercising parental authority; (b) Remarriage of the surviving parent shall not affect his/her parental authority over the children, unless the court appoints another person to be the guardian of the person or property of the children; (c) in separation; parental authority shall be exercised by the parent designated by the Court. Maternal preference rule applies (Article 213, Family Code); (d) Death, absence or unsuitability of parents, substitute parental authority shall be exercised by the surviving grandparents. (Article 214, Family Code)

a. Any Filipino citizen (i) Of legal age, (ii) In possession of full civil capacity and legal rights; (iii) Of good moral character, (iv) Not convicted of any crime involving moral turpitude, (v) Emotionally and psychologically capable of caring for children, (vi) At least sixteen (16) years older than the adoptee, (can be waived when adopter is the biological parent of adoptee, or spouse of adoptee's parent); and (vii) Capable of to support and care for his/her children in keeping with the means of the family. b. Any alien, with same qualifications as stated for Filipino nationals: Provided, (i) His/her country has diplomatic relations with the Philippines, (ii) He/she has been living in the Philippines for at least three (3) continuous years prior to filing of application and maintains residence until adoption decree is entered, (iii) He/she has been certified as having legal capacity to adopt in his/her country and (iv) His/her government allows adoptee to enter his/her country as his/her adopted child.

Right to exercise parental authority in default of parents (Article 216, Family Code) (a) Surviving grandparents; (b) Oldest brother or sister over 21 years of age unless unfit or disqualified; and (c) Child’s actual custodian over 21 years of age unless unfit or disqualified. Grounds for SUSPENSION (Article 228, Family Code) (a) Conviction of a crime with the penalty of civil interdiction; (b) Harsh or cruel treatment of the child; (c) Orders, counsel and example which are corrupting, given by the person exercising authority; (d) Child is compelled to beg; (e) Subjecting the child or allowing the child to be subjected to acts of lasciviousness; (f) Negligence, which is culpable, committed by the person exercising authority.

Inter-country adoption of Filipino children (R.A. 8043) Applies to inter-country adoption of Filipino children by foreign nationals and Filipino citizens permanently residing abroad.

Parental Authority(Family Code) (14 times)

Grounds for TERMINATION (Article 229, Family Code)

Parental authority and responsibility shall include (Article 209, Family Code) (a) Caring and rearing for civic consciousness and efficiency; and (b) Development of moral, mental and physical character and well-being.

(a) Death of parents; (b) Death of child; (c) Emancipation of child; (d) Adoption of child; (e) Appointment of a general guardian; (f) Judicial declaration of abandonment; (g) Final judgment of a competent court divesting the party concerned of parental authority; or (h) Judicial declaration of absence or incapacity of the person exercising parental authority.

Effect of absence, death, unsuitability, remarriage of the surviving parent or separation of the parents to the parental authority over the children (Article 212, Family Code)

Persons and Personality (12 times) 3

CEBALLOS BAR TRENDS Human Relations

Rules in ordinary presumption of death (Article 390, NCC)

1. Presumption of Survivorship (Article 43, NCC)

1. Disappearance upon or before reaching the age of seventy five (75) years

If there is doubt as to who died first between 2 or more persons called to succeed each other.

Absence of seven (7) years The absentee is presumed purposes, except succession.

dead

for

all

Absence of ten (10) years The absentee is presumed purposes, including succession.

dead

for

all

Burden of Proof: Whoever alleges the death of one prior to the other shall prove the same. Absent such proof, The Presumption is that they all died at the same time. No transmission of successional rights.

2. Disappearance at the age of seventy six (76) years or older

Conditions that warrant the application of the survivorship rule

Absence of five (5) years The absentee is presumed dead for all purposes including succession.

(a) Parties are heirs to one another; (b) No proof as to who died first; (c) Doubt as to who died first.

Note: Absentee is presumed to have died under an ordinary presumption at the end of the five, seven or ten year period as the case may be.

Presumption; Survivorship rule Presumption of simultaneity of death. Two or more persons called to succeed each other die, are presumed to have died at the same time.

Presumed dead for all purposes including the division of estate among heirs in case of extraordinary presumption of death. (Article 391, NCC)

Presumptions on survivorship under the rules of court

(a) Passenger of vessel lost during sea voyage, or airplane which is missing, and has not been heard of for four (4) years since the loss; (b) member of armed forces who has taken part in war, and missing for four (4) years; (c) was in danger of death under other circumstances and his existence has not been known for four (4) years.

The Rules of Court provide that (1) When two or more persons perish in the same calamity and(2) It is not shown who died first, and(3) There are no particular circumstances from which it can be inferred that one died ahead of the other. 2. Presumption of death

3. Personality of child (Article 40, NCC) Kinds of presumed death Birth determines personality, but the conceived child shall be considered born for all purposes that are favorable to it.

(1) Ordinary presumption-ordinary absence; absentee disappears under normal conditions without danger or idea of death; and (2) Extraordinary presumption-qualified absence; disappearance with great probability of death.

For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the mother's womb. If the fetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within

4

CEBALLOS BAR TRENDS twenty-four hours after its complete delivery from the maternal womb. (Article 41, NCC)

Unsound mind

Any time before death of either party or during a lucid interval or after regaining sanity

Fraud

Within 5 years after the discovery of fraud

VICES OF CONSENT (Force, intimidation, undue influence)

Within 5 years from the time the vice disappeared or ceased

Impotence or STD

Within 5 years after the celebration of marriage

4. Juridical Capacity vs. Capacity to act (Article 37, NCC) Juridical capacity: It is 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: It is the power to do acts with legal effect. It is acquired and may be lost.

Legal Separation (Family Code) (11 times) Grounds for legal separation(Article 55, FC)

Prescriptive period for legal separation

(i) Repeated physical violence against petitioner, common child, or child of petitioner; (ii) Compulsion to change religious or political affiliation of petitioner; (iii) Attempt to corrupt the petitioner, common child, or child of petitioner, to engage in prostitution; (iv) Imprisonment of more than six years, even if pardoned; (v) Drug addiction or habitual alcoholism; (vi) Lesbianism or homosexuality; (vii) Subsequent bigamous marriage in the Philippines or abroad; (viii) Sexual infidelity or perversion; (ix) Attempt against the life of the petitioner; or (x) Unjustifiable abandonment for more than one year.

Must be filed within five years from time of occurrence of cause. (Article 57, FC)

Support (Family Code) (8 times) Support is everything indispensable for sustenance, including the education of the person entitled to be supported until he completes his education or training for some profession, trade or vocation, even beyond the age of majority. (Article 194, FC)

Annulment

Characteristics

Nullity of marriage requires judicial declaration Note: Remarriage: nullity of a previous marriage may be invoked solely on the basis of final judicial declaration of nullity (JDN) of the previous marriage. (Article 40, FC)

(1) Personal; (2) Reciprocal on the part of those who are by law bound to support each other; (3) Intransmissible; (4) Mandatory; (5) Provisional character of support judgment; (6) Exempt from attachment or execution; and (7) Not subject to waiver or compensation.

Prescriptive period for annulment (Article 47, FC)

Use of Surnames (7 times)

Ground

When to file

No Legal Capacity to Marry

Within 5 years from attaining the age of 21

Illegitimate children shall use the surname of the mother. (Article 368, NCC)However, illegitimate children may use the surname of their father if their filiation has been expressly recognized by their father through the record of

5

CEBALLOS BAR TRENDS birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father; Provided, the father has the right to institute an action before the regular courts to prove nonfiliation during his lifetime. (Amended on March 19, 2004 by RA 9255)

Where acts, events and judicial decrees concerning the civil status of persons shall be recorded. Anything affecting the civil status of persons shall be recorded. The Family

Rights and obligations between husband and wife (Article 68-73, Family Code) (4 times)

The Family home is the dwelling house of the family and the land on which it is situated. It is deemed constituted on the house and lot occupied as a family residence. (Article 155, FC)

Essential marital obligations (a) Live together (cohabitation and copulation); (b) Observe mutual love, respect, and fidelity; and (c) Render mutual help and support; (d) Fix the family domicile;(e) Jointly support the family; (i) Expenses from the community property, (ii) Income of fruits of their separate properties(iii) Separate properties;(f) Manage household;(g) Not to neglect duties, or commit acts which tend to bring danger, dishonor, or injury to family.

The family home shall be exempt from execution, forced sale or attachment EXCEPT: (a) For nonpayment 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; and (d) For debts due to laborers, mechanics, architects, builders, material men and others who have rendered service or furnished material for the construction of the building.

Note: Either spouse may practice any legitimate profession/business, even without the consent of the other.

Guidelines in the constitution of the family home (Article 152 & 153, FC) (a) Constituted on the dwelling house of the family and the land on which the house is situated; (b) Deemed constituted from the time of actual occupation as a family residence; (c) Must be owned by the person constituting it which may be either or both spouses or the single head of a family; (d) Must be permanent; (e) Applies to valid and voidable marriages and even to common law spouses; and (f) Continues despite death of one or both spouses or unmarried head of the family for 10 years, or as long as a minor beneficiary lives therein; (g) Can constitute one (1) family home ONLY.

Absence (Article 43, Civil Code; Art.41, Family Code) (3 times) Absence is the special status of a person who has left his domicile and his whereabouts and fate are unknown, it being uncertain whether he is already dead or still alive. Kinds of absence (a) Physical Absence; and (b) Legal Absence

Civil Registrar (Arts. 407-413) (3 times)

II. SUCCESSION (85 times)

Repository of relevant facts of a person.

Testamentary 6

CEBALLOS BAR TRENDS (52 times)

Effected by operation of law in the absence or in default of a will.

Will

Theory of Concurrence

An act whereby a person is permitted to control to a certain degree the disposition of his estate to take effect after his death. (Article 783, NCC)

In addition to their legitimes, the heirs shall have equal shares in the free portion.

Extrinsic Validity

Theory of Exclusion

Viewpoint of time: laws in force at the time the will was made.

Legitimes of heirs are accorded to them and the free portion will be given exclusively to the legitimate descendants.

Viewpoint of place/country

Distribution of Inheritance

(a) Filipino, can observe Philippine law or law of the country where he executes the will; (b) Foreigner living abroad, can follow law of his domicile, law of his home country or Philippine law; and (c) Foreigner in the Philippines, either follow the law of his home country or Philippine law.

Legitime Part of testator’s property reserved by law for compulsory heirs. Common Rules (a) Nearer relatives excludes farther relatives; (b) All of the same class inherit in equal shares; (c) Legitime of surviving spouse is always from the Disposable Free Portion; (d) Legitime of illegitimate child is always from the Disposable Free Portion; (e) Remainder shall always form part of Disposable Free Portion; (f) Illegitimate grandparents and other illegitimate ascendants cannot inherit from the (illegitimate child) testator.

Transmission of Rights: from the moment of death of the decedent. (Article 777, NCC) Intrinsic Validity Viewpoint of time: law in force at the time of the testator's death governs successional rights. Viewpoint of place/country: national law of the testator, regardless of where the will was executed or where the testator died.

Priority of Compulsory Heirs

Holographic Will

Testator is a Legitimate Child

It is entirely written, dated, and signed by the hand of the testator himself; subject to no other form; may be made in or out of the Philippines; and need not be witnessed. (Artcile 810, NCC)

(1) Legitimate Children and Descendants; (2) Legitimate Parents and Ascendants; (3) Surviving Spouse; (4) Illegitimate Children and Descendants. Testator is an Illegitimate Child

Notarial will: governed by the provisions of the Civil Code.

(1) Legitimate Children and Descendants; (2) Illegitimate Children and Descendants; (3) Parents; (4) Surviving Spouse.

Legal or Intestate Succession (22 times)

[Article 888]

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CEBALLOS BAR TRENDS Survivor LC (1 or more)

Legitime 1/2

[Article 893] Survivor LPA SS

[Article 892] In legal separation, surviving spouse may inherit if deceased spouse had given cause for the same. Survivor 1LC SS

[Article 899] Survivor LPA SS IC

Legitime 1/2 1/4

[Article 897] Survivor 2 or more LC SS

Legitime 1/2 = 1 LC



Divide by the # of IC whether they survive alone or with concurring compulsory heirs Survivor IC

Legitime 1/2 1/4 or = 1LC 1/2 of 1 LC

Legitime 1/2

[Article 894] Survivor SS IC

[Article 889] Each Parent or Ascendant will equally divide thelegitime received. Survivor LPA

Legitime 1/2 1/8 1/4

[Article 901]

[Article 895, 892] Survivor LC SS IC

Legitime 1/2 ¼

Legitime 1/3 1/3

[Article 900] 1/3 if marriage in articulo mortis and the testator died within 3 months after the marriage.

Legitime 1/2

1/2 If marriage in articulo mortis and they cohabited (lived as husband and wife for more than 5 years). [Article 896] 1/2 under normal circumstances Survivor Legitime SS 1/3 or 1/2

All IC share ¼ Survivor LPA IC

Legitime 1/2 1/4

8

CEBALLOS BAR TRENDS [Article 903] Survivor IP

Illegitimate Children and Descendants; (4) Illegitimate Parents and Ascendants; (5) Surviving Spouse; (6) Collateral Relatives; (7) State.

Legitime 1/2

Intestate of an Illegitimate Child [Article 903] Survivor IP SS

(1) Legitimate Children and Descendants; Illegitimate Parents and Ascendants; Illegitimate Parents and Ascendants; Surviving Spouse; (5) Collateral Relatives; (5) State.

Legitime 1/4 1/4

[Article 190 (Family Code)]

Survivors

Survivor Adopter

Any Class Alone

Legitime 1

Provision

LC SS

[Article 190 (Family Code)] Survivor Adopter LPA/IP

Share

Legitime 1/2 1/2

2 or more LC SS

[Article 190 (Family Code)] Survivor Adopter IC SS

Legitime 1/3 1/3 1/3

Survivors LPA SS

Rights of the Legitimate Children (a) Primary compulsory heirs; (b) Excludes legitimate parents and descendants.

LPA SS IC

Preterition (Article 854), requisites (a) Omitted heir must be a compulsory heir in the direct line; (b) Complete and total omission; and (c) Omitted compulsory heir omitted survives the testator. Intestate Distribution

IP SS

SS BSNN

Intestate of a Legitimate Child (1) Legitimate Children and Descendant; (2) Legitimate Parents and Ascendants; (3)

9

Share

Provision

(2) (3) (4) and

CEBALLOS BAR TRENDS 1 LC SS IC

Art. 983 Same as in Testate Art.895

2 or more LC SS IC Testate Art.895

Who can demand partition (1) Compulsory heir; (2) Voluntary heir; (3) Legatee or devisee; and (4) Any person who acquired interest in the estate. Art. 983 Same as in

When partition cannot be demanded (1) Expressly prohibited by the testator for a period not exceeding 20 years; (2) Co-heirs agree that the estate shall not be divided for a period not exceeding 10 years, renewable for another 10 years; (3) Prohibited by law; and (4) Petitionrenders the estate unserviceable for the use for which it is intended.

General Provisions (7 times) Acceptance and Repudiation of Inheritance (Article 1041-1057, NCC)

Disinheritance (Article 915-923) Requisites

Requisites

(1) Effected only through a valid will; (2) For a cause expressly stated by law; (3) Cause must be stated in the will itself; (4) Cause must be certain and true; (5) Unconditional; (6) Total; and (7) Disinherited heir must be designated in such a manner that there can be no doubt as to his identity.

(1) Certainty of the death of the decedent; and (2) Certainty of the right to the inheritance. Acceptance: Confirmation of transmission of successional rights. Repudiation: Renders transmission ineffective [equivalent to an act of disposition and alienation; requires publicity]

Effects (a) Deprivation of compulsory heir; (b) Children/descendants of the persondisinherited shall take his or her place and shall preserve the rights of compulsory heirs with respect to the legitime; and (c) Disinherited parent shall not have the usufruct or administration of the property which constitutes the legitime.

Collation (Article 1061-1077) What to collate (a) Property or right received by gratuitous title during testator’s lifetime; (b) All that was received from the decedent during his lifetime; (c) All that their parents would have brought to collation if alive.

Common Provisions (Article 1015-1105) (4 times)

Partition and Distribution of Estate (Article 1078-1105)

Testamentary succession

Who may effect

Legitime: Predecease of an heir, representation exists if there are children or descendants; if none, the others inherit in their own right.

(1) Decedent during lifetime by an act inter vivos or by will; (2) Heirs; (3) Competent court; and (4) 3rd person designated by the decedent.

(i) Incapacity, same as in predecease; (ii) Disinheritance, same as in predecease; and (iii)

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CEBALLOS BAR TRENDS Repudiation by an heir, the others inherit in their own right.

Note: Ownership may be exercised over things or rights

Intestate succession 1. Things – corporeal property 2. Rights – real or personal, res of rights corporeal or incorporeal

(i) Predecease, representation exists if there are children or descendants; if none, the others inherit in their own right; (ii) Incapacity, same as in predecease; and (iii) Repudiation, there is always accretion.

Possession (14 times)

Capacity to succeed by will or by intestacy (Articles 1024-1040)

It is the holding of a thing or the enjoyment of a right. (Article 523, NCC)

Requisites

Elements

(1) Heir, legatee/devisee must be living or in existence at the moment the succession opens; and (2) Must not be incapacitated or disqualified by law to succeed.

(1) Holding or control; (2) possess; (3) One’s own right.

Intention

to

Classes of possession (1) In one’s own name or of another; (2) In the concept of owner or holder; (3) Good faith or bad faith

III. Property (85 times)

Modes of acquiring ownership (13 times)

Classification (Article 414) All things which are or may be the object of appropriation are considered either (1) Immovable or real, and (2) Movable or personal.

Donation (11 times) Perfection (Article 734, NCC) From the moment the acceptance by the donee.

Ownership (16 times)

donor

knows

of

Acceptance (Article 749, NCC)

It is the exclusive enjoyment and control of a thing (Article 428, NCC)

(1) Incorporated in deed of donation; or (2) via separate public instrument

Beneficial Ownership

Forms

(a) Ownership recognized by law and capable of being enforced in court; and (b) Right to enjoyment in one person, legal title is in another.

Donations of movable property (Article 748, NCC) a. Value is >P5,000, donation and acceptance must be in writing; otherwise, void. b. Value is