LEV Civil Law Reviewer

Civil Law Reviewer Art. 19. 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. Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same. Art. 21. Any person who wilfully 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. 1. The principle of abuse of rights is based upon the famous maxim suum jus summa injuria (the abuse of right is the greatest possible wrong). In order to be actionable, the following elements must be present: (1) There is a legal right or duty; (2) which is exercised in bad faith; and (3) for the sole intent of prejudicing or injuring another. (ALBENSON ENTERPRISES CORP. vs. CA) 2. Distinguish the coverage of Article 20 and 21 Article 20 speaks of the general sanction for all other provisions of law which do not especially provide for their own sanction. Thus, anyone who, whether willfully or negligently, in the exercise of his legal right or duty, causes damage to another, shall indemnify his victim for injuries suffered thereby. Article 21 deals with acts contra bonus mores, and has the following elements: 1) There is an act which is legal; 2) but which is contrary to morals, good custom, public order, or public policy; 3) and it is done with intent to injure. 3. While it is true that a person who is aggrieved may have recourse against the person or entity responsible, still if a person has not been damaged in any way by another’s act, the former has no cause of action against the latter. Thus, a warehouse operator who has not been damaged by the act of an entity in taking delivery of certain goods from the warehouse thru an alleged forged permit has no right to go after said entity. Only those who have suffered loss because of such “misdelivery’’ have the right to complain. (See Consolidated Terminals, Inc. v. Artex Development Co., Inc., L-25748, Mar. 10, 1975). 4. If someone be damaged, he does not necessarily have the right to be indemnified. It is essential that some right of his be impaired. Albetz Investments, Inc. v. Court of Appeals FACTS: Having won a case in a fi nal and executory judgment, the winning party, in having the judgment executed, did not give the occupants of a house (sought

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to be demolished) suffi cient time to remove their personal belongings. Are said occupants entitled to damages? HELD: Since no reasonable time was given, and the belongings were damaged, the demolition of the house may be said to have been carried out in a manner not consistent with justice and good faith, as required by Art. 19 of the Civil Code. Damages may therefore be awarded in view of this abuse of aright. Phil. Nat. Bank v. CA, et al. The refusal of a bank to approve the lease of sugar quotas simply because of a P200 difference in the rental is contrary to Art. 19 of the Civil Code, particularly when it is considered that hardly anybody was willing to lease at the higher rate and that as a consequence of said refusal, a bank client suffered. Bar Questions: 1. A, a married man, and B, an unmarried woman, entered into a written agreement to marry each other when A becomes a widower. After becoming a widower, A married another woman. Can B sue A for breach of promise? ANSWER: No, insofar as moral damages are concerned. (See above discussion.) Moreover, to engage in such a promise during the lifetime of another’s spouse would be contrary to good morals and good customs, and the agreement, even on that ground alone, must be considered void. [NOTE: Had there been carnal knowledge, the matter would even be worse. Thus, it has been held that a promise of marriage founded on carnal intercourse has an unlawful consideration, and no suit on such promise can possibly prosper. (Inson v. Belzunce, 32 Phil. 342; Dalistan v. Armas, 32 Phil. 648). 2. In an action based on a breach of promise to marry, what rights has the aggrieved party in cases: (a) When there has been carnal knowledge? (b) When there has been NO carnal knowledge? ANSWER: (a) When there has been carnal knowledge, the aggrieved party may: 1) ask the other to recognize the child, should there be one, and give support to said child. 2) sue for moral damages, if there be criminal or moral seduction, but not if the intercourse was due to mutual lust. (Hermosisima v. Court of Appeals, L-14628, Sep. 30, 1960) (In other words, if the CAUSE be the promise to marry, and the EFFECT be the carnal knowledge, there is a chance that there was criminal or moral seduction, hence, recovery of moral damages will prosper. If it be the other way around, there can be no recovery of moral damages, because here mutual lust has intervened). However, moral damages may be recovered by the girl if the man, in his effort to make the girl withdraw a suit for support of the child, deliberately calls the attention of the girl’s employer to her condition as an unwed mother — a maneuver causing her mental anguish and even physical illness and suffering. (Ledesma Silva, et al. v. Peralta, L-13114, Nov. 25, 1960). 2 | Page

3) sue for ACTUAL damages, should there be any, such as the expenses for the wedding preparations. (See Domalagan v. Bolifer, 33 Phil. 471). (b) When there has been NO carnal knowledge, there may be an action for actual and moral damages under certain conditions, as when there has been a deliberate desire to inflict loss or injury, or when there has been an evident abuse of a right. Thus, a man who deliberately fails to appear at the altar during the scheduled wedding simply because it was his intention to embarrass or humiliate the girl no doubt inflicts irreparable injury to her honor and reputation, wounds her feelings, and leads the way for her possible social ostracism. The girl in such a case can recover not only actual but also moral and exemplary damages. (See Victorino v. Nora, CA 13158-R, Oct. 26, 1955). Art. 14. Penal laws and those of public security and safety shall be obligatory upon all who live or sojourn in the Philippine territory, subject to the principles of public international law and to treaty stipulations. G.R.: Penal law follows the theory of territoriality and generality regardless of nationality. EXC.: 1. Principles of Public International Law on diplomatic immunity. 2. Presence of treaty stipulations. Exterritoriality – territorial jurisdiction of one state forms an extension of the territory of another state. Example: Embassy Extraterritoriality – exemption by virtue of treaty stipulation. Example: Ambassador Schneckenburger vs. Moran, 31 July 1936 Facts: Petitioner was duly accredited honorary consul of Uruguay at Manila. He was charged in the CFI of Manila with the crime of falsification of a private document. He objected to the jurisdiction of the court on the ground that both under the constitutions of U.S. and the Philippines, the court below had no jurisdiction to try him. Issue: W/N a consul is immune from suit. Held: A consul is not entitled to the privileges and immunities of an ambassador or minister but is subject to the laws and regulations of the country to which he is accredited. A consul is not exempt from criminal prosecution for violations of the laws of the country where he resides. Art. 15. 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. 1. Family Rights and Duties 3 | Page

Philippine laws relating to family rights and duties are binding upon citizens of the Philippines, even though living abroad. For example, Article 68 of the Family Code provides that “the husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support.” Suppose, Maria and Jose, Filipino couple, are residing in Switzerland. Assuming that under Swiss laws, the spouses are not obliged to support each other, may Jose refuse to support Maria? ANSWER: NO. Since they are Filipino citizens, they are still governed by the Family Code even though they are living abroad. Under the Family Code, the spouses are obliged to support each other. 2. Status and Condition Philippine laws relating to status and condition are binding upon citizens of the Philippines, even though living abroad. Divorce Between Filipinos, Not Valid: Philippine law does not provide for absolute divorce; hence, our courts cannot grant it. A marriage between two Filipinos cannot be dissolved even by a divorce obtained abroad, because of Articles 15 and 17 of the Civil Code. Van Dorn vs. Romillo, Jr. 139 SCRA 139 (1985) FACTS: Alice Reyes, a Filipino citizen was married in Hongkong to Richard Upton, a U.S. citizen, but established their residence in the Philippines and begot two children. The couple acquired conjugal properties in the Philippines. The couple went to Nevada to obtain a divorce. Thereafter, Alice Reyes remarried with Theodore Van Dorn. Richard Upton filed a suit against Alice Reyes Van Dorn for an accounting of their conjugal property and for a declaration that he should manage said property. Alice Van Dorn moved to dismiss the suit on the ground that the cause of action was barred by the judgment in the divorce proceedings in Nevada. In said divorce proceeding, Upton acknowledged that he and Alice had no community property. Upton contended that the divorce decree issued by the Nevada Court is contrary to the public policy and has no legal validity in the Philippines because the Nevada Court proceedings divested the jurisdiction of the Philippine courts. The Supreme Court ruled that the divorce decree is valid insofar as Upton is concerned. The Court explained: “There is no question as to the validity of that Nevada divorce in any of the States of the United States. The decree is binding on private respondent as an American citizen. For instance, private respondent cannot sue petitioner, as her husband, in any State of the Union. What he is contending in this case is that the divorce is not valid and binding in this jurisdiction, the same being contrary to local law and public policy. It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorces the same being considered contrary to our concept of public policy and morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law. In this case, the divorce in Nevada released private respondent from the marriage from the standards of American law, under which divorces dissolves the marriage. xxx

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xxx xxx xxx Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no standing to sue in the case below as petitioner’s husband entitled to exercise control over conjugal assets. As he is bound by the Decision of his own country’s Court, which validly exercise jurisdiction over him, and whose decision he does not repudiate, he is estopped by his own representation before said Court from asserting his right over the alleged conjugal property. To maintain, as private respondent does, that, under our laws, petitioner has to be considered still married to private respondent and still subject to a wife’s obligations under Article 109, of the Civil Code cannot be just. Petitioner should not be obliged to live together with, observe respect and fidelity, and render support to private respondent. The latter should not continue to be one of the heirs with possible rights to conjugal property. She should not be discriminated against in her own country if the ends of justice are to be served. Art. 16. Real property as well as personal property is subject to the law of the country where it is stipulated.

However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found.

General Rule: Lex rei sitae Exception: Intestate and testamentary succession: (a) Order of succession (b) Amount of successional right (c) Intrinsic validity of will (Art. 16) (d) Legal capacity to succeed

Bellis vs. Bellis 20 SCRA 358

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FACTS: Amos G. Bellis was a citizen and resident of Texas at the time of his death. Before he died, he had made two wills, one disposing of his Texas properties, the other disposing of his Philippine properties. In both wills, his recognized illegitimate children were not given anything. Texas has no conflict rules governing successional rights. Furthermore, under Texas law, there are no compulsory heirs and therefore no legitimes. The illegitimate children opposed the wills on the ground that they have been deprived of their legitimes to which they should be entitled, if Philippine law were to apply. RULING: Said children are not entitled to their legitimes for under Texas Law (which is the national law of the deceased), there are no legitimes. The renvoi doctrine cannot be applied. Said doctrine is usually pertinent where the decedent is a national of one country, and a domiciliary of another. A provision in a foreigner’s will to the effect that his properties shall be distributed in accordance with Philippine law and not with his national law, is illegal and void for his national law, in this regard, cannot be ignored. Illustrative Problem “A,” an American citizen, executed a will in Canada leaving his property located in the Philippines to “B,” his friend. What law shall govern (1) “A’s” capacity to execute the will, (2) the formality of execution, (3) the capacity of “B” to inherit from “A,” (4) the intrinsic validity of the testamentary provision? ANSWER: (1) A’s capacity to execute the will is governed by his national law. (2) The laws of Canada shall govern the formalities of the execution of the will. (3) The national law of the decedent (A) shall govern B’s capacity to succeed. (4) The national law of the decedent (A) shall govern the intrinsic validity of the testamentary provisions. Art. 17. 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.

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.

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.

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1. Formalities or Extrinsic Validity Under the first paragraph of Article 17, the forms and solemnities of contracts, wills and other public instruments are governed by the laws of the country in which they are executed under the principle of “lex loci celebrationis.” 2. Intrinsic Validity of Contracts The intrinsic validity of a contract is governed by the proper law of the contract or “lex contractus,” which may either be the law of the place voluntarily agreed upon by the contracting parties (“lex loci voluntatis”) or the law of the place intended by them expressly or impliedly (“lex loci intentionis”). 3. Intrinsic Validity of Wills The intrinsic validity of the provisions of a will, however, shall be governed by the national law of the decedent. 4. Illustrative Problem Juan, a Filipino citizen, enters into an ordinary contract with Joe, an American citizen. The contract was executed in Canada. What law shall govern: (1) formal validity of the contract? (2) the legal capacities of the parties to enter into such contract? (3) the intrinsic validity of the contract? ANSWER: (1) Canadian law, under the principle of lex loci celebrationis. (2) Their respective national laws. (3) The proper law of the contract (lex contractus), which may either be the law of the place voluntarily agreed upon by the contracting parties (lex loci voluntatis) or the law of the place intended by them expressly or impliedly (lex loci intentionis). BAR Questions: Appilicable Laws; laws governing contracts (1992) X and Y entered into a contract in Australia, whereby it was agreed that X would build a commercial building for Y in the Philippines, and in payment for the construction, Y will transfer and convey his cattle ranch located in the United States in favor of X. What law would govern: a) The validity of the contract? b) The performance of the contract? c) The consideration of the contract? SUGGESTED ANSWER: (a) The validity of the contract will be governed by Australian law, because the validity refers to the element of the making of the contract in this case. (b) The performance will be governed by the law of the Philippines where the contract is to be performed. (c) The consideration will be governed by the law of the United States where the ranch is located. Applicable Laws; Arts 15, 16 & 17 (1998) Juan is a Filipino citizen residing in Tokyo, Japan. State what laws govern: 1 His capacity to contract marriage in Japan, [ 1%] 2 His successional rights as regards his deceased Filipino father's property in Texas, U.S.A. [1%]

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3 The extrinsic validity of the last will and testament which Juan executed while sojourning in Switzerland. [2%] 4 The intrinsic validity of said will. (1%) SUGGESTED ANSWER: 1. Juan's capacity to contract marriage is governed by Philippine law -i.e., the Family Code -pursuant to Art.15, Civil Code, which provides that our laws relating to, among others, legal capacity of persons are binding upon citizens of the Philippines even though living abroad. 2. By way of exception to the general rule of lex rei sitae prescribed by the first paragraph of Art. 16. Civil Code, a person's successional rights are governed by the national law of the decedent (2nd par.. Art. 16). Since Juan's deceased father was a Filipino citizen, Philippine law governs Juan's successional rights. 3. The extrinsic validity of Juan's will is governed by (a) Swiss law, it being the law where the will was made (Art. 17. 1st par. Civil Code), or (b) Philippine law, by implication from the provisions of Art. 816, Civil Code, which allows even an alien who is abroad to make a will in conformity with our Civil Code. 4. The intrinsic validity of his will is governed by Philippine law, it being his national law. (Art. 16, Civil Code) Applicable Laws; Arts 15, 16, 17 (2002) Felipe and Felisa, both Filipino citizens, were married in Malolos, Bulacan on June 1, 1950. In 1960 Felipe went to the United States, becoming a U.S. citizen in 1975. In 1980 they obtained a divorce from Felisa, who was duly notified of the proceedings. The divorce decree became final under California Law. Coming back to the Philippines in 1982, Felipe married Sagundina, a Filipino Citizen. In 2001, Filipe, then domiciled in Los Angeles, California, died, leaving one child by Felisa, and another one by Sagundina. He left a will which he left his estate to Sagundina and his two children and nothing to Felisa. Sagundina files a petition for the probate of Felipe’s will. Felisa questions the intrinsic validity of the will, arguing that her marriage to Felipe subsisted despite the divorce obtained by Felipe because said divorce is not recognized in the Philippines. For this reason, she claims that the properties and that Sagundina has no successional rights. A. Is the divorce secured by Felipe in California recognizable and valid in the Philippines? How does it affect Felipe’s marriage to Felisa? Explain. (2%). B. What law governs the formalities of the will? Explain. (1%) C. Will Philippine law govern the intrinsic validity of the will? Explain. (2%) SUGGESTED ANSWER: A. (1.) The divorce secured by Felipe in California is recognizable and valid in the Philippines because he was no longer a Filipino at that time he secured it, Aliens may obtain divorces abroad which may be recognized in the Philippines provided that they are valid according to their national law (Van Dorn V. Romillo, Jr., 139 SCRA 139 [1985]). (2). With respect to Felipe the divorce is valid, but with respect to Felisa it is not. The divorce will not capacitate Felisa to remarry because she and Felipe were 8 | Page

both Filipinos at the time of their marriage. However, in DOJ Opinion No. 134 series of 1993, Felisa is allowed to remarry because the injustice sought to be corrected by Article 26 also obtains in her case. B. The foreigner who executes his will in the Philippines may observed the formalities described in: 1. The Law of the country of which he is a citizen under Article 817 of the New Civil Code, or 2. the law of the Philippines being the law of the place of execution under Article 17 of the New Civil Code. C. Philippine law will not govern the intrinsic validity of the will. Article 16 of the New Civil Code provides that intrinsic validity of testamentary provisions shall be governed by the National Law of the person whose succession is under consideration. California law will govern the intrinsic validity of the will. Art. 37. Juridical capacity, which is the fitness to be the subject of legal relations, is inherent in every natural person and is lost only through death. Capacity to act, which is the power to do acts with legal effect, is acquired and may be lost. Art. 40. Birth determines personality; but the conceived child shall be considered born for all purposes that are favorable to it, provided it be born later with the conditions specified in the following article. Art. 41. For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the mother's womb. However, if the fetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb. 1. Definition of ‘Juridical Capacity’ — the fitness to be the subject of legal relations. 2. Definition of ‘Capacity to Act’ — the power to do acts with legal effect. 3. Differences Between ‘Juridical Capacity’ and ‘Capacity to Act’ Juridical Capacity (a) Passive (b) Inherent (c) Lost only through death restricted by (d) Can exist without capacity to act capacity

4. Beginning of Personality

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Capacity to Act (a) Active (b) Merely acquired (c) Lost through death and may be other causes (d) Exists always with juridical

Personality does not begin at birth; it begins at conception. This personality at conception is called presumptive personality. It is, of course, essential that birth should occur later, otherwise the fetus will be considered as never having possessed legal personality. From, of course, another viewpoint, we may say that personality (actual personality) really commences at birth, for conception may in certain cases, be already considered birth. 5. Two Kinds of Children (a) Ordinary — with an intra-uterine life of at least seven months. (Mere birth is sufficient here.) (b) Extraordinary — if the intra-uterine life be less than seven months. (Here the child must have lived for at least 24 hours) Bar Questions: Juridical Capacity vs. Capacity to Act (1996) Distinguish juridical capacity from capacity to act SUGGESTED ANSWER: JURIDICAL CAPACITY is the fitness to be the subject of legal relations while CAPACITY TO ACT is the power or to do acts with legal effect. The former is inherent in every natural person and is lost only through death while the latter is merely acquired and may be lost even before death (Art. 37, NCC). Juridical Capacity; Natural Persons (1999) Elated that her sister who had been married for five years was pregnant for the first time, Alma donated 100,000.00 to the unborn child. Unfortunately, the baby died one hour after delivery. May Alma recover the P100.000.00 that she had donated to said baby before it was born considering that the baby died? Stated otherwise, is the donation valid and binding? Explain. (5%) SUGGESTED ANSWER: The donation is valid and binding, being an act favorable to the unborn child, but only if the baby had an intra-uterine life of not less than seven months and provided there was due acceptance of the donation by the proper person representing said child. If the child had less than seven months of intra-uterine life, it is not deemed born since it died less than 24 hours following its delivery, in which ease the donation never became effective since the donee never became a person, birth being determinative of personality. Art. 363. In all questions on the care, custody, education and property of children the latter's welfare shall be paramount. No mother shall be separated from her child under seven years of age, unless the court finds compelling reasons for such measure. 1. “The mother sorrows allowed

general rule is recommended in order to avoid many a tragedy where a has seen her baby torn away from her. No man can sound the deep of a mother who is deprived of her child of tender age. The exception by the rule as to be for “compelling reasons’’ for the good of the child;

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those cases must indeed be rare, if the mother’s heart is not to be unduly hurt. If she has erred, as in cases of adultery, the penalty of imprisonment and the (relative) divorce decree will ordinarily be sufficient punishment for her. Moreover, her moral dereliction will not have any effect upon the baby who is as yet unable to understand the situation.’’ (Report of the Code Commission, p. 12). Bar Questions: Parental Authority; Child under 7 years of age (2006) Under Article 213 of the Family Code, no child under 7 years of age shall be separated from the mother unless the court finds compelling reasons to order otherwise.

(1) Explain the rationale of this provision. (2.5%) SUGGESTED ANSWER: The rationale of the 2nd paragraph of Article 213 of the Family Code is to avoid the tragedy of a mother who sees her baby torn away from her. It is said that the maternal affection and care during the early years of the child are generally needed by the child more than paternal care (Hontiveros v. IAC, G.R. No. 64982, October 23, 1984). The general rule is that a child below 7 years old shall not be separated from his mother due to his basic need for her loving care (Espiritu v. C.A., G.R. No. 115640, March 15,1995). (2) Give at least 3 examples of "compelling reasons" which justify the taking away from the mother's custody of her child under 7 years of age. (2.5%) SUGGESTED ANSWER: 1. The mother is insane; 2. The mother is sick with a disease that is communicable and might endanger the health and life of the child; 3. The mother has been maltreating the child; 4. The mother is engaged in prostitution; 5. The mother is engaged in adulterous relationship; 6. The mother is a drug addict; 7. The mother is a habitual drunk or an alcoholic; Family Code

Art. 1. 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. Distinguished From Ordinary Contract Marriage is a contract sui generis, differing in notable respects from ordinary contracts. It is a contract of peculiar character and subject to peculiar principles, 11 | P a g e

being usually accorded more dignity than ordinary contracts, and the rules applicable to ordinary contracts are not ordinarily applicable to marriage contracts because of the nature of marriage relation and for reasons of public policy. The following are the distinctions between marriage and an ordinary contract: (a) The marriage contract cannot be revoked, dissolved or otherwise terminated by the parties, but only by the sovereign power of the state; (b) The nature, consequences and incidents of marriage are governed by law and not subject to agreement; while in ordinary contract, the parties are free to establish such clauses, terms and conditions provided the same are not contrary to law, morals, good customs, public order or public policy; (c) Only two persons of opposite sex may enter into a contract of marriage, and but one such contract may exist at the same time; while ordinary contracts may be entered into by any number of persons, whether of the same or different sex; (d) Marriage is not just a contract; it is likewise a social institution. Doctrine: Semper praesumitur pro matrimonio — Always presume marriage. Proof of Marriage (Trinidad vs. Court of Appeals, et. Al) (a) testimony of a witness to the matrimony; (b) the couple’s public and open cohabitation as husband and wife after the alleged wedlock; (c) the birth and baptismal certificate of children born during such union; and (d) the mention of such nuptial in subsequent documents. Adong vs. Cheong Seng Gee Persons dwelling together in apparent matrimony are presumed, in the absence of counter-presumption or evidence special to the case, to be in fact married. The reason is that such is the common order of society, and if the parties were not what they thus hold themselves out as being, they would be living in the constant violation of decency and of law. A presumption established by our Code of Civil Procedure is ‘that a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage.’ Art. 2. No marriage shall be valid, unless these essential requisites are present: (1) Legal capacity of the contracting parties who must be a male and a female; and (2) Consent freely given in the presence of the solemnizing officer. Art. 3. The formal requisites of marriage are:

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(1) Authority of the solemnizing officer; (2) A valid marriage license except in the cases provided for in Chapter 2 of this Title; and (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 two witnesses of legal age. Art. 4. The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35(2). A defect in any of the essential requisites shall render the marriage voidable as provided in Article 45. 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 civilly, criminally and administratively liable. Bar Question (1999): Q: What is the status of the following marriages and why? a) A marriage between two 19-year olds without parental consent b) A marriage between two 21-year olds without parental advice c) A marriage between two Filipino first cousins in Spain where such marriage is valid d) A marriage between two Filipinos in Hong Kong before a notary public e) A marriage solemnized by a town mayor three towns away from his jurisdiction Suggested Answer: a) The marriage is voidable. Under the law, if a party to a marriage is already eighteen years old but below twenty-one, his or her consent is not sufficient; the parents or guardians must, in addition, give their consent. b) The marriage is valid. The absence of parental advice is only an irregularity as it affects the issuance of the marriage license. Thus, the validity of the marriage is not affected; however, the Civil Registrar who issued the marriage license notwithstanding the absence of such parental advice or prior to the three-month suspension period will be liable civilly, criminally or administratively. c) The marriage is void because of public policy. Under Article 38(1), marriage between collateral blood relatives, whether legitimate or illegitimate, up to fourth civil degree are void ab initio by reason of public policy. In this case, the marriage is between Filipino citizens who are first cousins which are related up to fourth civil degree of consanguinity. Though the marriage between first cousins are 13 | P a g e

valid in Spain still under Article 15 of the New Civil Code personal laws are binding upon citizens of the Philippines, even though they are living abroad. d) The marriage will be valid only if the marriage before a notary public is valid in Hong Kong and provided the marriage does not fall under the prohibited marriages in Art. 26 e) The marriage is void. This involves an absence, not mere irregularity of a formal requisite, which is the authority of the solemnizing officer. The case of Navarro vs Dumagtoy is a mere obiter dicta and does not set a valid precedent. Art. 7. Marriage may be solemnized by: (1) Any incumbent jurisdiction;

member

of

the

judiciary

within

the

court’s

(2) Any priest, rabbi, imam, or minister of any church or religious sect duly authorized by his church or religious sect and registered with the civil registrar general, acting within the limits of the written authority granted him by his church or religious sect and provided that at least one of the contracting parties belongs to the solemnizing officer’s church or religious sect; (3) Any ship captain or airplane chief only in the cases mentioned in Article 31; (4) Any military commander of a unit to which a chaplain is assigned, in the absence of the latter, during a military operation, likewise only in the cases mentioned in Article 32; or (5) Any consul-general, consul or vice-consul in the case provided in Article 10. Note: Mayors are included by R.A. 7160 Judges and Mayors have the authority to solemnize marriages only “within their jurisdiction.” Marriage in Good Faith The absence of authority of the solemnizing officer shall render the marriage void from the beginning except if the marriage is contracted “with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so.” Bar Question: If a judge solemnized a marriage outside of his territorial jurisdiction, may the marriage be nonetheless considered as valid because either or both of the contracting parties believed in good faith that the judge had the legal authority to solemnize the marriage? 14 | P a g e

Suggested Answer: The marriage is void ab initio if the good faith of the parties consists in their mistaken belief that a judge has the authority to solemnize marriages outside of his court’s jurisdiction. This is clearly a case of ignorance of law for which the parties may not be excused following the rule in Article 3 of the New Civil Code that “ignorance of the law excuses no one from compliance therewith.” Alternative Answer: If their good faith, however, consists in their mistaken belief that the solemnizer is a judge of the locality where the marriage is celebrated, then good faith may be invoked in this case since this is a clear case of ignorance of fact and can, therefore, be a basis of good faith. Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38. (17a) Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. (As amended by Executive Order 227) Following the principle of lex loci celebrationis, “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.” Historical Background During the Spanish Occupation, only relative divorce (a mensa et thoro) was allowed in the Philippines under the Las Siete Partidas. During the American Occupation, Act No. 2710, otherwise known as the Divorce Law, was enacted by the Philippine Legislature. E.O. 141 repealed Act No. 2710 and the same permitted absolute divorce on eleven liberal grounds. The draft of the new Civil Code submitted by the Code Commission provided for both absolute and relative divorce. During the discussion of the Code in the Congress, absolute divorce was eventually eliminated and the phrase “relative divorce” was changed to “legal separation.” Under existing laws, therefore, the rule is that divorce is not recognized as valid in the Philippines. However, in the situation contemplated in Article 26 of the Family Code, and only in that instance, the effect of divorce, which is the severance of the marriage ties, is allowed to benefit the Filipino spouse who is thereby given capacity to remarry under Philippine law. Republic vs. Orbecido III

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The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry. Bar Question (2005): In 1985, Sonny and Lulu, both Filipino citizens, were married in the Philippines. In 1987, they separated and Sonny went to Canada where he obtained a divorce in the same year. He then married another Filipina Auring in Canada on January 1, 1988. They had two sons, James and John. In 1990, after failing to hear from Sonny, Lulu married Tirso, by whom she had a daughter Verna. In 1991, Sonny visited the Philippines where he succumbed to heart attack. 1) Discuss the effect of the divorce obtained by Sonny in Canada. 2) Explain the status of the marriage between Sonny and Auring. 3) Explain the status of the marriage between Lulu and Tirso 4) Explain the respective filiation of James, John and Verna 5) Who are the heirs of Sonny? Explain Suggested Answer: 1) The divorce is valid. In the case of Republic v. Orbecido III, 472 SCRA 114, the Supreme Court held that taking into consideration the legislative intent and applying the rule of reason, par. 2 of Article 26 should be interpreted to include cases involving parties who are at the time of the celebration of the marriage were Filipino Citizens, but later on, one of them becomes naturalized as a foreign citizen and obtains a divorce decree. In such case, the Filipino spouse should likewise be allowed to remarry as if the other party were a foreigner at the time of the solemnization of the marriage, for the rule otherwise would be sanction to absurdity and injustice. The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry. 2) Since the decree of divorce obtained by Lulu and Sonny in Canada is valid and now recognized in the Philippines, the marriage of Sonny and Auring is therefore, valid. The Supreme Court held that the intent of par 2 Article 26 is to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who after obtaining a divorce decree is no longer married to a Filipino spouse. Where the interpretation of a statute according to its exact and literal import would lead to mischievous results or contravene the clear purpose of the legislature, it should be construed according to its spirit and reason, disregarding as far as necessary the letter of the law. A statute may therefore be extended to cases not within the literal meaning of its terms, so long as they come within its spirit or intent.

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3) The marriage of Lulu and Tirso is also valid. The Supreme Court held that if we are to give meaning to the legislative intent 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, then the instant case must be deemed as coming within the contemplation of par 2 Article 26 of the NCC. 4) James, John and Verna are legitimate children since their parents are validly married. Under Article 164 of the Family Code, children born or conceived during the marriage of the parents are legitimate. 5) Sonny’s heirs include Auring, John and James. Article 887 of the New Civil Code provides for the compulsory heirs of the deceased are among others, his widow and his legitimate children. Marriages Exempted from the License Requirement (Art. 27-34) The following marriages are exempt from the requirement of procuring a marriage license: (1) in cases where either or both of the contracting parties are at the point of death by the ship captain or airplane chief while in transit (even during stopovers) or by the military commander within the zone of military operations in case of assigned chaplain’s absence; (2) if the residence of either party is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar; (3) marriages among Muslims or among members of ethnic cultural communities provided the same are solemnized according to their customs, rites or practices; (4) marriages 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. Niñal vs. Bayadog The “nature of a perfect union that is valid under the law but rendered imperfect only by the absence of the marriage contract” and “characterized by exclusivity — meaning no third party was involved at anytime within the 5 years and continuity — that is unbroken.”

Void Marriages (1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians; (2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so; 17 | P a g e

(3) Those solemnized without license, except those covered by the preceding Chapter; (4) Those bigamous or polygamous marriages not failing under Article 41; (5) Those contracted through mistake of one contracting party as to the identity of the other; and (6) Those subsequent marriages that are void under Article 53. (Art 35) (7) Those marriages with parties who were psychologically incapacitated. (Art. 36) (8) Those Incestuous marriages between ascendants and descendants of any degree or between brothers and sisters, whether of the full or half blood. (Art. 37) (9) Those void by reason of public policy. (Art. 38) a) Between collateral blood relatives, whether legitimate or illegitimate, up to the fourth civil degree; b) Between step-parents and step-children; c) Between parents-in-law and children-in-law; d) Between the adopting parent and the adopted child; e) Between the surviving spouse of the adopting parent and the adopted child; f) Between the surviving spouse of the adopted child and the adopter; g) Between an adopted child and a legitimate child of the adopter; h) Between adopted children of the same adopter; and i) Between parties where one, with the intention to marry the other, killed that other person’s spouse, or his or her own spouse Lex Nationalis – Nationality Principle: In a mixed marriage where the Filipino is 18 years old but the foreigner is below 17 years of age. The status of the marriage depends if the national law of the foreigner recognizes 17 year old persons to be capacitated to marry, then their marriage is valid, otherwise it is void. Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. (As amended by Executive Order 227) Characteristics of Psychological Incapacity 1. Juridical antecedence – must be rooted in the history of the party antedating the marriage, although overt manifestations may arise only after such marriage. 2. Gravity – grave enough to bring about the disability of the party to assume the essental marital obligations. 3. Permanence or incurability – must be incurable. If curable, the cure should be 18 | P a g e

Guidelines for Art 36 (1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. (2)Must specifically allege the complete facts showing that either or both parties were psychologically incapacitated from complying with the essential marital obligations of marriage at the time of the celebration of marriage even if such incapacity becomes manifest only after its celebration. (3)The incapacity must be proven to be existing at the time before the marriage. (4)Such incapacity must also be shown to be medically or clinically permanent or incurable. (5)Such illness must be grave enough to bring about the disability of the party to assume essential obligations of marriage. (6)Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision (7)Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given respect in our courts. (Republic of the Philippines vs. Court of Appeals and Molina) Leouel Santos vs. Court of Appeals 240 SCRA 20 (1995) (En Banc) FACTS: Leouel and Julia got married. The couple lived with Julia’s parents. In 1987, Julia gave birth to a baby boy. Soon thereafter, the couple started quarrelling over a number of things. In 1988, Julia finally left for the United States of America to work as a nurse despite Leouel’s pleas to so dissuade her. Seven months after her departure, Julia called Leouel for the first time by long distance telephone. She promised to return home upon the expiration of her contract in July 1989. She never did. When Leouel got a chance to visit the United States, where he underwent a training program under the auspices of the Armed Forces of the Philippines sometime in 1990, he desperately tried to locate, or to somehow get in touch with Julia but all his efforts were of no avail. Having failed to get Julia to somehow come home, Leouel filed with the Regional Trial Court of Negros Oriental a complaint for “Voiding of marriage Under Art. 36 of the Family Code.” HELD: Denied. His alleged psychological illness was traced only to said period and not to the inception of the marriage. Equally important, there is no evidence showing that his condition is incurable. Article 36 of the Code has not been meant to comprehend all such possible cases of psychoses. The factual settings in the case at bench, in no measure at all, can come close to the standards required to decree a nullity of marriage. Undeniably and understandably, Leouel stands aggrieved, even desperate, in his present situation. Regrettably, neither law nor society itself can always provide all the specific answers to every individual problem.

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Bar Question (2002): A. Give a brief definition or explanation of the term “psychological incapacity” as a ground for the declaration of nullity of marriage B. If existing at the inception of marriage, would the state of being of unsound mind or the concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism be considered indicia of psychological incapacity? Explain. C. If drug addiction, habitual alcoholism, lesbianism or homosexuality should occur only during the marriage, would these constitute grounds for a declaration of nullity, or for legal separation, or would they render the marriage voidable? Suggested Answer: A. “Psychological Incapacity” is a mental disorder of the most serious type showing the incapability of one or both spouses to comply the essential marital obligations of love, respect cohabitation, mutual help and support, trust and commitment. It must be characterized by juridical antecedence, gravity and incurability and its root causes must be clinically identified or examined. (Santos v. CA 240 SCRA 20, G.R. No. 112019, January 4, 1995) B. In the case of Santos v. CA (240 SCRA 20, 1995), the Supreme Court held that being of unsound mind, drug addiction, habitual alcoholism, lesbianism or homosexuality may be indicia of psychological incapacity, depending on the degree of severity of the disorder, however, the concealment of drug addiction, habitual alcoholism, lesbianism or homosexuality is a ground for annulment of marriage. C. In accordance with law, if drug addiction, habitual alcoholism, lesbianism or homosexuality should occur only during the marriage, they will not constitute as grounds for declaration of nullity or for rendering the marriage voidable but they constitute as grounds for legal separation. 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. “A judicial declaration of nullity of a previous marriage is necessary before a subsequent one can be legally contracted”375 and that “one who enters into a subsequent marriage without first obtaining such judicial declaration is guilty of bigamy.” Domingo vs. Court of Appeals 226 SCRA 572 (1993) FACTS: In 1976, Delia Soledad Domingo and Roberto Domingo were married. Unknown to Delia, Roberto had a previous marriage with one Emerlinda dela Paz in 1969. She came to know of the prior marriage only sometime in 1983 when Emerlinda dela Paz sued them for bigamy. 20 | P a g e

In 1991, Delia filed a petition before the Regional Trial Court of Pasig entitled “Declaration of Nullity of Marriage and Separation of Property” against Roberto. But Roberto contends that since the marriage is void ab initio, the petition for the declaration of its nullity is superfluous and unnecessary. Furthermore, under his own interpretation of Article 40 of the Family Code, he submits that a petition for declaration of absolute nullity of marriage is required only for purposes of remarriage. Since the petition contains no allegation of Delia’s intention to remarry, said petition should, therefore, be dismissed. HELD: Judge Diy stated that the word “only” in Art 40 refers to “final judgment.” Justice Puno suggested that they say “on the basis only of a final judgment.” Undoubtedly, one can conceive of other instances where a party might well invoke the absolute nullity of a previous marriage for purposes other than remarriage, such as in case of an action for liquidation, partition, distribution and separation of property between the erstwhile spouses, as well as an action for the custody and support of their common children and the delivery of the latter’s presumptive legitimes. In such cases, evidence needs must be adduced, testimonial or documentary, to prove the existence of grounds rendering such a previous marriage an absolute nullity. These need not be limited solely to an earlier final judgment of a court declaring such previous marriage void. Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present had a wellfounded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient. For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. Art. 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio. A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed. Generally, any marriage contracted by any person during the subsistence of a previous marriage shall be null and void.

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XPN: Under Article 41 of the Family Code, a subsequent bigamous marriage may exceptionally be considered valid if the following conditions concur: (a) The prior spouse of the contracting party must have been absent for four consecutive years, or two years where there is danger of death under the circumstances stated in Article 391 of the Civil Code at the time of disappearance; (b) The spouse present has a well-founded belief that the absent spouse is already dead; and (c) There is a judicial declaration of presumptive death of the absentee for which purpose the spouse present can institute a summary proceeding in court to ask for that declaration. Requisites for the issuance of a judicial declaration of presumptive death (Republic vs. Nolasco) (a) That the absent spouse has been missing for four consecutive years, or two consecutive years if the disappearance occurred where there is danger of death under the circumstances laid down in Article 391, Civil Code; (b) That the present spouse wishes to remarry; (c) That the present spouse has a well-founded belief that the absentee spouse is dead; and (d) That the present spouse files a summary proceeding for the declaration of presumptive death of the absentee. Strict Standard Test- The investigation to find the absentee spouse must be adequate to engender well-founded belief that said spouse is already dead. There must be some information leading to such a conclusion. This Court has been consistent in its strict application of Article 41 of the Family Code. So a strict scrutiny must be placed to protect state, present spouse (possibility of bigamy), and sanctity of marriage. Bar Question: May a marriage be terminated extrajudicially? Suggested Answer: Yes. The recording of the affidavit of reappearance of the absent spouse in the civil registry of the residence of the parties to the subsequent marriage shall automatically terminate the terminable bigamous marriage unless there is a judgment annulling the previous marriage or declaring it void ab initio. (Art. 42) In Art 42, FC, no judicial proceeding to annul a subsequent marriage contracted under Art. 41 is necessary. Also, the termination of the subsequent marriage by affidavit provided for in Art. 42 does not preclude the filing of an action in court

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to prove the reappearance of the absentee and obtain a declaration of dissolution or termination of the subsequent marriage. Bar Question (2008: Ana Rivera had a husband, a Filipino citizen like her, who was among the passengers on board a commercial jet plane which crashed in the Atlantic Ocean ten (10) years earlier and had never been heard of ever since. Believing that her husband had died, Ana married Adolf Cruz Staedler, a divorced German national born of a German father and a Filipino mother residing in Stuttgart. To avoid being required to submit the required certificate of capacity to marry from the German Embassy in Manila, Adolf stated in the application for marriage license stating that Adolf was a Filipino, the couple got married in a ceremony officiated by the Parish Priest of Calamba, Laguna in a beach in Nasugbu, Batangas, as the local parish priest refused to solemnize marriage except in his church. Is the marriage valid? Explain fully. Suggested Answer : The issue hinges on whether or not the missing husband was dead or alive at the time of the second marriage. If the missing husband was in fact dead at the time the second marriage was celebrated, the second marriage was valid. Actual death of a spouse dissolves the marriage ipso facto whether or not the surviving spouse had knowledge of such fact. A declaration of presumptive death even if obtained will not make the marriage voidable because presumptive death will not prevail over the fact of death. If the missing husband was in fact alive when the second marriage was celebrated, the second marriage was void ab initio because of a prior subsisting marriage. Had Ana obtained a declaration of presumptive death, the second In both cases, the fact that the German misrepresented his citizenship to avoid having to present his Certificate of Legal Capacity, or the holding of the ceremony outside the church or beyond the territorial jurisdiction of the solemnizing officer, are all irregularities which do not affect the validity of the marriage. Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage: (1) That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over but below twenty-one, and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife; (2) That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife;

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(3) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife; (4) That the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife (5) That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or (6) That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable. Characteristics of Voidable Marriages (1) It is valid until otherwise declared by the court; (2) In a voidable marriage, the defect which serves as ground for annulment must be in existence at the time of the celebration of the marriage; (3) A voidable marriage cannot be assailed collaterally except in a direct proceeding; (4) A voidable marriage can be assailed only during the lifetime of the parties and not after death of either, in which case the parties and their offspring will be left as if the marriage had been perfectly valid; (5) Only the parties to a voidable marriage can assail it; (6) The action for annulment is subject to prescription; (7) The defect in a voidable marriage is generally subject to ratification except for the grounds mentioned in paragraphs (5) and (6) of Article 45, which are not subject to ratification. Subject to Ratification A marriage that is annullable is subject to ratification or confirmation. (1) the contract should be tainted with a vice which is susceptible of being cured; (2) the confirmation or ratification should be effected by the person who is entitled to do so under the law; (3) it should be effected with knowledge of the vice or defect of the contract; and (4) the cause of the nullity or defect should have already disappeared. Bar Question (1997):

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Under what conditions, respectively, may drug addiction be a ground, if at all, for the declaration of nullity of marriage, annulment of marriage, and legal separation? Suggested Answer: 1. Declaration of nullity of marriage: a. The drug addiction must amount to psychological incapacity to comply with the essential obligations of marriage; b. It must be antecedent (existing at the time of marriage), grave and incurable: 2. Annulment of marriage: a. The drug addiction must be concealed; b. It must exist at the time of marriage; c. There should be no cohabitation with full knowledge of the drug addiction; d. The case is filed within five (5) years from discovery. 3. Legal separation: a. There should be no condonation or consent to the drug addiction; b. The action must be filed within five (5) years from the occurrence of the cause. c. Drug addiction arises during the marriage and not at the time of marriage. Art. 54. 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. Status of Children Since a voidable marriage is considered valid prior to the judgment of annulment, children conceived or born before the judgment of annulment has become final and executory are considered legitimate. Children born of void marriages are considered illegitimate except those born of void marriages under Articles 36 and 53 of the Family Code, which are exceptionally considered legitimate. Thus, if the marriage is judicially declared an absolute nullity, the Family Court shall order the local civil registrar to issue an amended birth certificate indicating the new civil status of the children affected, except in the case of children under Articles 36 and 53 of the Family Code. Legal Separation; grounds (Art. 55) PALFAC SILA: 1. Repeated Physical violence or grossly abusive conduct against petitioner, common child, child of petitioner; 2. Attempt to corrupt or induce petitioner, common child, child of petitioner to engage in prostitution, or connivance in such corruption or inducement; 3. Attempt by respondent against Life of petitioner; 4. Final judgment sentencing respondent to imprisonment of more than 6 years; 25 | P a g e

5. Drug Addiction or habitual alcoholism of respondent; Note: It must exist after celebration of marriage 6. Physical violence or moral pressure to Compel petitioner to change religious or political affiliation; 7. Bigamous marriage Subsequently contracted by respondent in the Philippines or abroad 8. Sexual Infidelity or perversion; 9. Lesbianism/homosexuality of respondent; Note: It must exist after celebration of marriage 10. Abandonment of petitioner by respondent without justifiable cause for more than 1 year. Distinguished Legal Separation from annulment and absolute divorce Legal separation is to be distinguished from annulment and absolute divorce in that in the former, the marriage bond is not severed; whereas, in annulment and absolute divorce, the marriage bond is severed or terminated, thus allowing the parties thereto to remarry. The cause giving rise to legal separation must necessarily exist only after the celebration of the marriage. This is likewise true in the case of absolute divorce. In annulment, however, the grounds thereof must necessarily exist at the time of the marriage. Bar Question: Lucita left the conjugal dwelling and filed a petition for legal separation due to the physical violence, threats, intimidation and grossly abusive conduct she had suffered at the hands of Wiliam, her husband. William denied such and claimed that since it was Lucita who had left the conjugal abode, then the decree of legal separation should not be granted, following Art.56 (4) of the FC which provides that legal separation shall be denied when both parties have given ground for legal separation. Should legal separation be denied on the basis of William’s claim of mutual guilt? Suggested Answer: No. Art. 56 (4) of the FC does not apply since the abandonment that is a ground for legal separation is abandonment without justifiable cause for more than one year. In this case, Lucita left William due to his abusive conduct. Such act does not constitute the abandonment contemplated in the said provision. Since this is so, there is no mutual guilt between them as there is only one erring spouse. (Ong Eng Kiam v. CA, GR No. 153206, Oct. 23, 2006) Art. 68. The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support. Q: May the performance of essential marital obligations be compelled by court? 26 | P a g e

A: GR: Performance of EMO under Art. 68 cannot be compelled by court because it will be a violation of personal liberty. XPN: Giving support (Arroyo v. Arroyo, G.R. No. L‐17014, Aug. 11, 1921) Art. 84. If the future spouses agree upon a regime other than the absolute community of property, they cannot donate to each other in their marriage settlements more than one-fifth of their present property. Any excess shall be considered void. Donations of future property shall be governed by the provisions on testamentary succession and the formalities of wills While ordinary donations cannot comprehend future property, donations propter nuptias of future property between future spouses are not prohibited. However, such donations shall be governed by the provisions on testamentary succession and the formalities of wills.48 In other words, donations propter nuptias of future property between future spouses are in the nature of donations mortis causa, which are effective only upon the death of the donor spouse. Bar Question (1996): On the occasion of Digna’s marriage to George, her father gave her a donation propter nuptias of a car. Subsequently, the marriage was annulled because of the psychological immaturity of George. May Digna’s father revoke the donation and get back the car? Explain. Suggested Answer: No, Digna’s father may not revoke the donation because Digna was not in bad faith, applying Article 86 (3) of the Family Code. Liability of property of spouses Art. 94. The absolute community of property shall be liable for: (1) The support of the spouses, their common children, and legitimate children of either spouse; however, the support of illegitimate children shall be governed by the provisions of this Code on Support; (2) All debts and obligations contracted during the marriage by the designated administrator-spouse for the benefit of the community, or by both spouses, or by one spouse with the consent of the other; (3) Debts and obligations contracted by either spouse without the consent of the other to the extent that the family may have been benefited; (4) All taxes, liens, charges and expenses, including major or minor 27 | P a g e

Art. 121. The conjugal partnership shall be liable for: (1) The support of the spouses, their common children, and the legitimate children of either spouse; however, the support of illegitimate children shall be governed by the provisions of this Code on Support; (2) All debts and obligations contracted during the marriage by the designated administrator-spouse for the benefit of the conjugal partnership of gains, or by both spouses or by one of them with the consent of the other; (3) Debts and obligations contracted by either spouse without the consent of the other to the extent that the family may have been benefited; (4) All taxes, liens, charges, and expenses, including major or minor

repairs, upon the community property; (5) All taxes and expenses for mere preservation made during marriage upon the separate property of either spouse used by the family; (6) Expenses to enable either spouse to commence or complete a professional or vocational course, or other activity for self-improvement; (7) 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 self-improvement; (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; and (10) Expenses of litigation between the spouses unless the suit is found to be groundless. If the community property is insufficient to cover the foregoing liabilities, except those falling under paragraph (9), the spouses shall be solidarily liable for the unpaid balance with their separate properties.

repairs upon the conjugal partnership property; (5) All taxes and expenses for mere preservation made during the marriage upon the separate property of either spouse; (6) Expenses to enable either spouse to commence or complete a professional, vocational, or other activity for selfimprovement; (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 self-improvement; and (9) Expenses of litigation between the spouses unless the suit is found to be groundless. If the conjugal partnership is insufficient to cover the foregoing liabilities, the spouses shall be solidarily liable for the unpaid balance with their separate properties.

Art. 96. The administration and enjoyment of the community property shall belong to both spouses jointly. In case of disagreement, the husband’s decision shall prevail, subject to recourse to the court by the 28 | P a g e

wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision. In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the common properties, the other spouse may assume sole powers of administration. These powers do not include the powers of 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. Effects of Separation De Facto In general, (1) the spouses retained their right of consortium because in the eyes of the law, they are not entitled to live separately from each other, unlike in legal separation where the spouses enjoy the right to live separately from each other; (2) the separation de facto does not likewise affect the regimes of absolute community172 or conjugal partnership of gains; (3) the spouses continue to be the legal heir of each other in intestate succession; and (4) there is neither a guilty spouse nor an innocent spouse. In case of abandonment, the following effects are added: (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) the aggrieved spouse may petition the court for receivership, for judicial separation of property or for authority to be the sole administrator of the absolute community or of the conjugal partnership, subject to such precautionary conditions as the court may impose; and (3) the aggrieved spouse may petition for legal separation if the abandonment lasts for more than one (1) year. Villaranda vs. Villaranda Any disposition of the spouse’s respective shares or interest in the absolute community shall be void since such right to one-half of the community assets does not vest until the liquidation of the absolute community. Nemo dat qui non habet. No one can give what he has not. The legal prohibition against the disposition of the community property (or conjugal property) by one spouse without the consent of the other has been established for the benefit, not of third persons, but only of the other spouse for whom the law desires to save the absolute community (or the conjugal partnership) from damages that might be caused. Bar Question (1995):

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On 10 September 1988 Kevin, a 26-year old businessman, married Karla, a winsome lass of 18. Without the knowledge of their parents or legal guardians, Kevin and Karla entered into an antenuptial contract the day before their marriage stipulating that conjugal partnership of gains shall govern their marriage. At the time of their marriage Kevin's estate was worth 50 Million while Karla's was valued at 2 Million. A month after their marriage Kevin died in a freak helicopter accident. He left no will, no debts, no obligations. Surviving Kevin, aside from Karla, are his only relatives: his brother Luis and first cousin Lilia. 1. What property Relations governed the marriage of Kevin and Karla? Explain. 2. Determine the value of the estate of Kevin, 3. Who are Kevin's heirs? 4. How much is each of Kevin's heirs entitled to inherit? Suggested Answer: 1. Since the marriage settlement was entered into without the consent and without the participation of the parents (they did not sign the document), the marriage settlement is invalid applying Art. 78, F.C. which provides that a minor who according to law may contract marriage may also enter into marriage settlements but they shall be valid only if the person who may give consent to the marriage are made parties to the agreement. (Karla was still a minor at the time the marriage settlement was executed in September 1988 because the law, R.A. 6809, reducing the age of majority to 18 years took effect on 18 December 1989.) The marriage settlement being void, the property relations governing the marriage is, therefore, absolute community of property, under Art. 75 of the FC. 2. All the properties which Kevin and Karla owned at the time of marriage became community property which shall be divided equally between them at dissolution. Since Kevin owned 50 Million and Karla. 2 Million, at the time of the marriage, 52 Million constituted their community property. Upon the death of Kevin, the community was dissolved and half of the 52 Million or 26 Million is his share in the community. This 26 Million therefore is his estate. 3. Karla and Luis are the Intestate heirs of Kevin. 4. They are entitled to share the estate equally under Article 1001 of the NCC. Therefore. Karla gets 13 Million and Luis gets 13 Million Art. 109. The following shall be the exclusive property of each spouse: (1) That which is brought to the marriage as his or her own; (2) That which each acquires during the marriage by gratuitous title; (3) That which is acquired by right of redemption, by barter or by exchange with property belonging to only one of the spouses; and

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(4) That which is purchased with exclusive money of the wife or of the husband. (Memorize) Art. 117. The following are conjugal partnership properties: (1) Those acquired by onerous title during the marriage at the expense of the common fund, whether the acquisition be for the partnership, or for only one of the spouses; (2) Those obtained from the labor, industry, work or profession of either or both of the spouses; (3) The fruits, natural, industrial, or civil, due or received during the marriage from the common property, as well as the net fruits from the exclusive property of each spouse; (4) The share of either spouse in the hidden treasure which the law awards to the finder or owner of the property where the treasure is found; (5) Those acquired through occupation such as fishing or hunting; (6) Livestock existing upon the dissolution of the partnership in excess of the number of each kind brought to the marriage by either spouse; and (7) Those which are acquired by chance, such as winnings from gambling or betting. However, losses therefrom shall be borne exclusively by the loser-spouse. Q: What is the effect if the finder is married? A: If the finder is married he or she gets one half of the treasure or its value his or her spouse is entitled to share one‐half of that share it being a conjugal property. (Art. 117, par. 4, FC) Art. 118. Property bought on installments paid partly from exclusive funds of either or both spouses and partly from conjugal funds belongs to the buyer or buyers if full ownership was vested before the marriage and to the conjugal partnership if such ownership was vested during the marriage. In either case, any amount advanced by the partnership or by either or both spouses shall be reimbursed by the owner or owners upon liquidation of the partnership. Bar Question: X bought a house and lot on installment basis from Y for P150,000.00. He paid P120,000 but there is a stipulation that upon the execution of the contract, ownership shall be vested upon X. A few months later, X married Z. During the marriage, the amount of P20,000.00 was paid out of conjugal funds. Who owns the house and lot? 31 | P a g e

Suggested Answer: X is the owner, because ownership was vested in him before the marriage. The fact that the amount was paid on installment basis does not matter. What matters is the stipulation that the ownership shall be vested before the marriage. Under Article 1478 of the Civil Code, the parties may stipulate that ownership of the thing shall not pass to the purchaser until he has fully paid the price. Conversely, they can agree that even if the price has not yet been fully paid, ownership shall be acquired by the vendee. Furthermore, Article 1498 of the Civil Code provides that when the sale is made through a public instrument, the execution thereof shall be equivalent to the delivery of the thing which is the object of the contract, if from the deed the contrary does not appear or cannot be inferred. If the ownership in the case above-cited is vested during the marriage, the house and lot are owned by the conjugal partnership. The law, however, requires that in either case, X must reimburse the conjugal partnership for whatever he advanced or paid. In the same vein, in the second case, the conjugal partnership shall reimburse X the amount of P120,000.00 he paid to Y. Art. 119. Whenever an amount or credit payable within a period of time belong 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. A lent B the amount of P50,000.00 payable in one year starting January 1988. On June 1, 1988, A married C. In such a case, any amount collected by A from B in payment of the principal is his exclusive property. However, if the obligation earns interest, any interest falling due from June 1988 is conjugal. The reason for this is that, interests are considered as fruits of the separate properties of each spouse. However, with respect to the capital, the same is exclusive property, because that is considered as exclusive property of each spouse. 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;

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(4) That the spouse of the petitioner has abandoned the latter or failed to comply with his or her obligations to the family as provided for in Article 101; (5) That the spouse granted the power of administration in the marriage settlements has abused that power; and (6) That at the time of the petition, the spouses have been separated in fact for at least one year and reconciliation is highly improbable. In the cases provided for in Numbers (1), (2) and (3), the presentation of the final judgment against the guilty or absent spouse shall be enough basis for the grant of the decree of judicial separation of property Actual Abandonment - a spouse leaves the conjugal dwelling without the intention of returning. It presupposes an active act of leaving the conjugal dwelling. Constructive abandonment - the spouse was considered as having abandoned the wife inspite of the fact that he never left the home when he, however, prevented the wife from returning to the conjugal dwelling after a vacation in her home province. It was ruled therein that the mere act of preventing the spouse from returning to the conjugal dwelling is sufficient act to constitute abandonment. This is otherwise known as constructive abandonment. It is not enough that the spouses have been separated in fact for at least one (1) year in order that an action for separation of properties may be granted. It is a necessary prerequisite that reconciliation between the two of them is highly improbable Article 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership. In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former’s efforts consisted in the care and maintenance of the family and of the household. Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in

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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 or of 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. 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 share 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. Coverage: 1. man and the woman who live together as husband and wife without the benefit of marriage and 2. Void marriages Distribution of Properties Under article 148, the properties acquired during the cohabitation shall be distributed as follows: (1) Wages and salaries earned by each party belong to him or her exclusively (2) Only the property acquired by both of them through their actual joint contribution of money, property or industry shall be owned in common and in proportion to their respective contributions. (3) The share of the party validly married to another shall accrue to the property regime of such existing marriage (4)If the party who has acted in bad faith is not validly married to another, his or her share shall be forfeited in the manner already heretofore expressed Francisco vs. Master Iron Works Construction Corp. 2005 FACTS: Josefina Castillo and Eduardo Francisco were married on January 15, 1983. On August 31, 1984, she bought two parcels of land where titles were 34 | P a g e

issued under their names. At the dorsal portion of the titles, there were entries showing that Eduardo waived any right over the properties as they were purchased out of her own savings. When she mortgaged the property, Eduardo affixed his marital conformity. In 1990, Eduardo bought 7,500 bags of cement from MIWCC but failed to pay, hence, a complaint was filed. Judgment was rendered against him, hence, there was levy on the properties but Josefina filed a third party claim with the sheriff. There was sale of the properties hence, she filed a complaint to declare the sale void alleging that the properties were bought out of her own money and through the help of her brother and sister and that Eduardo had no participation at all. In the meantime, Josefina filed a complaint to declare their marriage void as Eduardo had a prior marriage. HELD: Since the subject property was acquired during the subsistence of the marriage of Eduardo and Carmelita, under normal circumstances, the same should be presumed to be conjugal property. Article 105 of the Family Code of the Philippines provides that the Code shall apply to conjugal partnership established before the code took effect, without prejudice to vested rights already acquired under the New Civil Code or other laws. Bar Question (2000): Q: For five years since 1989, Tony, a bank Vice-president, and Susan, an entertainer, lived together as husband and wife without the benefit of marriage although they were capacitated to marry each other. Since Tony's salary was more than enough for their needs, Susan stopped working and merely "kept house". During that period, Tony was able to buy a lot and house in a plush subdivision. However, after five years, Tony and Susan decided to separate. 1. Who will be entitled to the house and lot? 2. Would it make any difference if Tony could not marry Susan because he was previously married to Alice from whom he is legally separated? Suggested Answer: 1. Tony and Susan are entitled to the house and lot as co-owners in equal shares. Under Article 147 of the Family Code, when a man and a woman who are capacitated to marry each other lived exclusively with each other as husband and wife, the property acquired during their cohabitation are presumed to have been obtained by their joint efforts, work or industry and shall be owned by them in equal shares. This is true even though the efforts of one of them consisted merely in his or her care and maintenance of the family and of the household. 2. Yes, it would make a difference. Under Article 148 of the Family Code, when the parties to the cohabitation could not marry each other because of an impediment, only those properties acquired by both of them through their actual joint contribution of money, property, or Industry shall be owned by them in common in proportion to their respective contributions. The efforts of one of the parties in maintaining the family and household 35 | P a g e

are not considered adequate contribution in the acquisition of the properties. Since Susan did not contribute to the acquisition of the house and lot, she has no share therein. If Tony cohabited with Susan after his legal separation from Alice, the house and lot is his exclusive property. If he cohabited with Susan before his legal separation from Alice, the house and lot belongs to his community or partnership with Alice.

Art. 155. The family home shall be exempt from execution, forced sale or attachment except: (1) For nonpayment of taxes; (2) For debts incurred prior to the constitution of the family home; (3) For debts secured by mortgages on the premises before or after such constitution; and (4) For debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered service or furnished material for the construction of the building.

This is a waivable defense in attachment/levy situation. It must be raised at 1st opportunity; cannot be paritioned for at least 10 years after the death of one of the spouse or if there is still a minor living therein. Modequillo vs. Breva G.R. No. 86355 1990 FACTS: Owner secured a debt using the family home but claims exemption from attachment. HELD: If the owner of the family home secured a debt using it as a security for the payment of his obligation, and if he does not pay them, the creditors can sue him and attach the family home, or if judgment has already been rendered and it has already become final and executory, it can be levied upon and sold to answer for such debt. The creditor can also foreclose the mortgage if he wants to. These things can be done as they are allowed by law by way of exception to the rule against attachment, etc It must be said that the main purpose of the law on the constitution of the family home is to place it beyond the reach of ordinary creditors and thus encourage the building of the family home which is the seat and symbol of family affections. Bar Question (2005):

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A complaint for damages was filed against Hinahon in 1986 when incurred liabilities as early as 1977, which action prospered in 1989. house and lot that she owned was levied upon and sold at auction. assails the levy and sale on the ground that it was her family home therefore exempt from execution. Decide.

she The She and

Suggested Answer: It is not exempt. Under Art. 155 of the FC, the family home shall be exempt from execution, forced sale, or attachment except for, among other things, debts incurred prior to the constitution of the family home. In the case at bar, the house and lot was not constituted as a family home, whether judicially or extra‐judicially, at the time that the debtor incurred her debts. Under prevailing jurisprudence, it is deemed constituted as such by operation of law only upon the effectivity of the Family Code on August 3, 1988, thus, the debts were incurred before the constitution of the family home. Art. 166. Legitimacy of a child may be impugned only on the following grounds: (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. (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. Art. 167. The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. Who May Impugn Child’s Legitimacy As a rule, impugning the legitimacy of the child is a strictly personal right of the husband

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EXPN: Under article 171 of the Code, the heirs may impugn the child’s legitimacy in the following instances: (1) if the husband should die before the expiration of the period fixed for bringing his action; (2) if the husband 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. Outside of these cases, none — even the husband’s heirs — can impugn legitimacy; that would amount to an insult to his memory.

Liyao, Jr. vs. Tanhoti-Liyao 378 SCRA 563 (2002) the child was still regarded as the legitimate child of Corazon Garcia and Ramon Yulo even if the mother made a declaration that the child’s father was the late William Liyao. HELD: Article 167 covers a situation where the wife denies the husband’s paternity of a child conceived or born during their marriage. Thus, when the wife says that a child is her child but not of her husband, such declaration does not defeat the presumption of the child’s legitimacy. This is the situation contemplated by article 167. It does not, however, contemplate a situation where a child is alleged not to be the child of nature or biological child of a certain couple. Thus, when the mother says that the child is not of the couple, such declaration is not within the ambit of the prohibition under article 167, since in this case the wife is not merely asserting that the child is not legitimate, but that he or she is not their child at all. Bar Question (2006): Q: Ed and Beth have been married for 20 years without children. Desirous to have a baby, they consulted Dr. Jun Canlas, a prominent medical specialist on human fertility. He advised Beth to undergo artificial insemination. It was found that Ed’s sperm count was inadequate to induce pregnancy. Hence, the couple looked for a willing donor. Andy the brother of Ed readily considered to donate his sperm. After series of test, Andy’s sperm was medically introduced into Beth’s ovary. She became pregnant and 9 months later, gave birth to a baby boy named Alvin. 1) Who is the father of Alvin? Explain 2) What are the requirements, if any, in order for Ed to establish his paternity over Alvin? Suggested Answer: 1) Ed is the father of Alvin if he gave his written consent to the artificial insemination of his wife. Otherwise, the child is the illegitimate child of Andy. Under the Family Code, children conceived as a result of artificial insemination of the wife with the sperm of the husband or that of a donor or both are legitimate children of the husband and the wife, provided that both of them authorized or 38 | P a g e

ratified such insemination in a written instrument executed and signed by both of them before the birth of the child. 2) To establish Ed’s paternity over Alvin, two requirements must obtain: a. Both spouses authorized or ratified the insemination in a written document executed and signed by them before the birth of the child; and b. The instrument is recorded in the civil registry together with the birth certificate of the child. Bar Question (1995): Q: Abraham died intestate on 7 January 1994 survived by his son Braulio. Abraham’s older son Carlos died on 14 February 1990. Danilo who claims to be an adulterous child of Carlos intervenes in the proceedings for the settlement of the estate of Abraham in representation of Carlos. Danilo was legally adopted on 17 March 1970 by Carlos with the consent of the “latter’s wife.” 1. Under the Family Code, how may an illegitimate filiation be proved? Explain. 2. As lawyer for Danilo, do you have to prove Danilo’s illegitimate filiation? Explain. 3. Can Danilo inherit from Abraham in representation of his father Carlos? Explain. Suggested Answer: 1. Under Article 172 in relation to Article 173 and Article 175 of the Family Code, the filiation of illegitimate children may be established in the same way and by the same evidence as legitimate children. Article 172 provides that the filiation of legitimate children is established by any of the following: a) The record of birth appearing in the civil register or a final judgment; or b) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: a) The open and continuous possession of the status of a legitimate child, or b) Any other means allowed by the Rules of Court and special laws. 2. No, Since Danilo had already been adopted by Carlos; he ceased to be an illegitimate child. An adopted child acquires all the rights of a legitimate child under Article 189 of the Family Code. 3. No, he cannot. Danilo cannot represent Carlos as the latter’s adopted child in the inheritance of Abraham because adoption did not make Danilo a legitimate grandchild of Abraham. Adoption is personal between Carlos and Danilo. He cannot also represent Carlos as the latter’s illegitimate child because in such case he is barred by Article 992 of the New Civil Code from inheriting from his illegitimate grandfather Abraham. Art. 172. The filiation of legitimate children is established by any of the following: (1) The record of birth appearing in the civil register or a final judgment; or (2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned.

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In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) The open and continuous possession of the status of a legitimate child; or (2) Any other means allowed by the Rules of Court and special laws. Birth certificate cannot be used as an evidence in filiation cases however, it can be admitted when it is backed up with evidence aliunde. For a birth certificate to be considered competent evidence of paternity, it is necessary that the putative father must have a participation in its preparation. Ilano vs. Court of Appeals FACTS: A former secretary of a lawyer (Leoncia Delos Santos) had an affair with one of the lawyer’s clients (Artemio Ilano). The former secretary and the client eventually cohabited and lived together as husband and wife. During their cohabitation, a child was born to them, later named Merceditas S. Ilano. When Leoncia gave birth at the Manila Sanitarium, Artemio arrived in the hospital after five o’ clock in the afternoon. When the nurse came to inquire about the bio-data of the child, Leoncia was still unconscious so it was Artemio who supplied the information to the nurse, including the fact of his paternity. After the interview the nurse told Artemio that the information has to be recorded in the formal form and has to be signed by Artemio. Inasmuch as it was already past seven o’ clock in the evening, the nurse promised to return the following morning for signature. However, Artemio left an instruction to give the birth certificate to Leoncia for her signature, as he was leaving early the following morning. HELD: Affirmed the Court of Appeal’s findings that the birth certificate in question was competent evidence of paternity, although unsigned by the father, since the latter supplied all the data about the child’s birth. 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 seven years of age shall be separated from the mother unless the court finds compelling reasons to order otherwise. tender-age presumption - in order to avoid many a tragedy where a mother has seen her baby torn away from her. No man can sound the deep sorrows of a mother who is deprived of her child of tender age. XPN: ‘compelling reasons’ for the good of the child; those cases must indeed be rare, if the mother’s heart is not to be unduly hurt. If she has erred, as in cases of adultery, the penalty of imprisonment and the divorce decree (relative divorce) will ordinarily be sufficient punishment for her. Moreover, moral dereliction will 40 | P a g e

not have any effect upon the baby who is as yet unable to understand her situation.” Bar question (2006): Under Article 213 of the Family Code, no child under 7 years of age shall be separated from the mother unless the court finds compelling reasons to order otherwise. 1) Explain the rationale of this provision 2) Give at least 3 examples of “compelling reasons” which justify the taking away from the mother’s custody of her child under 7 years of age. Suggested Answer 1) The rationale of the provision is that a child below 7 years older needs love and care which only its mother can give. The welfare of the child is given the highest priority and the interest of the child prevails over procedural rules. 2) The following have been considered as “compelling reasons” to deprive a mother of custody: a) Neglect b) Abandonment c) Unemployment d) Immorality e) Alcoholism f) Drug addiction g) Maltreatment h) Insanity i) Highly communicable serious disease j) Grave physical handicap Distinguish briefly but clearly between: Substitute parental authority and Special parental authority. (2004) A: In substitute parental authority, the parents lose their parental authority in favor of the substitute who acquires it to the exclusion of the parents. In special parental authority, the parents or anyone exercising parental authority does not lose parental authority. Those who are charged with special parental authority exercise such authority only during the time that the child is in their custody or supervision. Substitute parental authority displaces parental authority while special parental authority concurs with parental authority.

Deep Pocket Rule (possible for definition) - it means that if a child is already emancipated (18-21) but still dependent and living with his parents committed an act which causes damage to another; parents are liable despite the emancipation of the child Art. 184. The following persons may not adopt: (1) The guardian with respect to the ward prior to the approval of the final accounts rendered upon the termination of their guardianship relation; (2) Any person who has been convicted of a crime involving moral turpitude; (3) An alien, except: (a) A former Filipino citizen who seeks to adopt a relative by consanguinity; (b) One who seeks to adopt the legitimate 41 | P a g e

child of his or her Filipino spouse; or (c) One who is married to a Filipino citizen and seeks to adopt jointly with his or her spouse a relative by consanguinity of the latter. Aliens not included in the foregoing exceptions may adopt Filipino children in accordance with the rules on inter-country adoptions as may be provided by law. (28a, EO 91 and PD 603) Bar Question (2005): In 1984, Eva, a Filipina, went to work as a nurse in the USA. There, she met and fell in love with Paul, an American citizen, and they got married in 1985. Eva acquired American citizenship in 1987. During their sojourn in the Philippines in 1990, they filed a joint petition for the adoption of Vicky, a 7- year old daughter of Eva's sister. The government, through the Office of the Solicitor General, opposed the petition on the ground that the petitioners, being both foreigners, are disqualified to adopt Vicky. 1. Is the government's opposition tenable? Explain. 2. Would your answer be the same if they sought to adopt Eva's illegitimate daughter? Explain. 3. Supposing that they filed the petition to adopt Vicky in the year 2000, will your answer be the same? Explain. Suggested Answer: 1. The government's position is untenable. Under paragraph 3, Article 184 of the Family Code, an alien, as a general rule cannot adopt. However, an alien who is a former Filipino citizen and who seeks to adopt a relative by consanguinity is qualified to adopt. (par. 3[a], Art. 184, Family Code) In the given problem, Eva, a naturalized American citizen would like to adopt Vicky, a 7-year old daughter of her sister, who is a relative within the third degree of consanguinity. Thus, under the above-cited provision, Eva is qualified to adopt Vicky. 2. My answer will still be the same. Paragraph 3(a) of Article 184 of the Family Code does not make any distinction. The provision states that an alien who is a former Filipino citizen is qualified to adopt a relative by consanguinity. 3. Yes, my answer will still be the same. Under Sec. 7(b), Art.III of the New Domestic Adoption Act, an alien who possesses all the qualifications of a Filipino national who is qualified to adopt may already adopt provided that his country has diplomatic relations with the Philippines, that he has been living in the Philippines for at least three (3) continuous years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered, that he has been certified by his diplomatic or consular office or any appropriate government agency that he has the legal capacity to adopt in his country, and that his government allows the adoptee to enter his country as his adopted child. Bar Question (2003):

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Lina, a former Filipina who became an American citizen shortly after his marriage to an American husband would like to adopt in the Philippines, jointly with her husband, one of her minor brothers. Assuming that all the required consents have been obtained, could the contemplated joint adoption in the Philippines prosper? Explain. Suggested Answer: Yes, Lina and her American husband can jointly adopt a minor brother of Lina because she and her husband are both qualified to adopt. Lina, as a former Filipino citizen, can adopt her minor brother under Sec 7 (b)(i) of RA 8552 (Domestic Adoption Act of 1998), or under Art 184 (3)(1) of the Family Code. The alien husband can now adopt under Sec 7(b) of RA8552. The Supreme Court has held in several cases that when husband and wife are required to adopt jointly, each one of them must be qualified to adopt in his or her own right (Republic v. Toledano, 233 SCRA 9 (1994)). However, the American husband must comply with the requirements of the law including the residency requirement of three (3) years. Otherwise, the adoption will not be allowed. -middle name of adopted: biological mother (for purposes of successional rights)

SUCCESSION Art. 804. Every will must be in writing and executed in a language or dialect known to the testator. Can there be an oral will? No. Article 804 expressly provides, “every will must be in writing”. X, knowing that he was about to die, dictated in front of a video camera his last will and testament. Is the will valid? No. The will is invalid. Article 804 expressly provides that every will must be in writing. What does “language must be known” mean, as provided for under Article 804? It means that the language of the will must ne personally known to the testator whether he is illiterate or not. That it will be communicated only to him without changing any intent therein if he is blind, deaf-mute or deaf. Example: If the testator is an illiterate and he speaks tagalong only, the will must be in tagalong. Does the aforementioned rule apply also to the witnesses?

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No. The witnesses need not know the language of the will or attestation clause. This is the reason why the law requires it to be interpreted to them and not merely communicated. X speaks and understands Tagalog only. He does not understand a single English word. His lawyer, Atty. Sobrang Yabang wanted to impress X. So, he wrot X’s will in English. However, Atty. Sobrang Yabang translated and explained the will “word for word” to X. Is the will valid? No. Because the law requires that the will shall be written in the language known to the testator. *This rule applies even if the person is blind, deaf, deafmute. In the preceding problem, why is it required to be written in a language known to the testator? Because a will is a personal act concerning a disposition of one’s properties. What about if the translator is the best translator that the world can offer? The will is till invalid. No matter how good the translator can be, something may be lost in the process of translation. Is it necessary for the validity of the will that it is stated, that the will was executed in a language or dialect known to the testator? No. *It is a matter that may be established by extrinsic evidence. Can a will be written in Latin? Yes. As long as it is known to the testator. Can a will be written in several languages? Yes. As long as the languages used are known to the testator. When X executed his will, it contained ten (10) dispositions. Each of the ten (10) dispositions was written in different dialects and languages. X used French, Spanish, Latin, English, Tagalog, Bikol, Cebuano, Waray, Ilonggo and Hiligaynon, so that these languages and dialect correspond to the aforementioned ten (10) dispositions in the will. Is the will valid? It depends. If X knows all those languages and dialects, then, the will is valid. The only requirement as to the language or dialect used in the making of the will, is that, it must be known to the testator. Otherwise, the will is totally invalid. In the preceding problem, what if X only knows English? The will is totally invalid.

Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in 44 | P a g e

his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page. The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. (n) Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the Office of the Clerk of Court. (n) The testator signs at the beginning of the will. Is the will valid? No. Article 805 provides “every will, other than a holographic will, must be subscribed at the end thereof by the testator or by the testator’s name written by some other person in his presence, and by his express direction xxx”. Suppose X signed his will in the middle, is the will valid? No. Because of the express requirement under Article 805, which requires the subscription at the end. End refers to the logical end of the will, not the will’s physical end. Logical end is the portion after the last testamentary provision. X died with a will. When the will was presented for probate, it was readily apparent that it was signed in each and every page and in the left margin, but not the end. Should the will be allowed? No. The law requires that the will be subscribed at the end of the will. Is it a fatal defect? Yes. Why require that the signature must be at the end of the will? The purpose of the requirement is not only to show that the testamentary purpose therein expressed is completed, but also to prevent any opportunity for fraud or interpolations between the written matter and the signature.

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Another essential requirement for the validity if an ordinary will is the attestation clause. Absence of this clause will render the will a nullity. Therefore it is mandatory. What is an attestation clause? It is a memorandum or record of facts, wherein, the witness certify that the instrument has been executed before them and that it has been executed in accordance with the formalities prescribed by law. Is the attestation clause part of the will? No. It is separate and distinct from the testamentary dispositions, which were executed by the testator. It is a separate memorandum executed by the witnesses stating that they witnessed the execution of the will and that it is in accordance with the formalities of the law. But it can be incorporated in the will. What is the purpose of the attestation? To render available proof during the probate of the will, not only to the authenticity of the will, but also its due execution. Where should the attestation clause be place? The attestation clause may be written immediately after the signature of the testator at the end of the will. What if it is place at the beginning of the will? The will would still be valid. The present form is only for convenience. The law does not require the attestation to be contained in a single clause. Thus, where a will did not contain a separate and independent attestation clause, but the concluding paragraph of the body of the will was written in the tenor of an attestation, stating the facts required by law to be set forth in an attestation clause, and the ultimate paragraph of the will stated the number of pages use, it was stated that there was a sufficient attestation clause. If there is a separate attestation clause, it need not be written on the very same page where the dispositions of the will ends, even if, there should be sufficient space in which to begin the said clause. Is it necessary that the attestation clause be after the testamentary disposition? No. The current form is only for convenience. If the attestation clause failed to state the (a) number of pages; (b) the fact that it was signed by the testator in the presence of the witnesses; or (c) the fact that it was signed by the testator. Is the will valid? (a) General rule, the will is not valid. Exception: if the number of pages is stated in the will itself or acknowledgment (Taboado vs Rosal). But this exception must be received with caution because in the case of Taboado, there were only two (2) 46 | P a g e

pages in the will, including the acknowledgment. This rule applies also if the pages are not correlatively numbered but only in cases when the will does not exceed two (2) pages. (b) The will is void without any exceptions even if the will contains the signature of the witnesses. The omission cannot be determined by the examination of the will itself. Extrinsic evidence is inadmissible. (c) The will is void. Exception: the doctrine of liberal interpretation shall be applied, if there are indeed signature present. Suppose the attestation clause does not state the number of pages used, is the will valid? General rule: No Exception: Applying the doctrine of liberal interpretation construction, the failure to state in the attestation clause of the number of pages used, is not fatal. Hence, the will may still be valid, provided, that it can be established or deduced from an examination of the will itself, that all the statutory requirements have been complied with. The doctrine of liberal interpretation cannot be applied if the omission consists of the failure to state that the witnesses and the testator signed in the presence of one another. Reason: this omission cannot be remedied by an examination of the will itself. Suppose that in a four (4) – paged will, the attestation clause did not state all the number of pages used. But the last paragraph states that the will is comprised of four (4) pages including the attestation clause, should the will be allowed? Yes. Following the doctrine of liberal interpretation, there is substantial compliance of the requirements. That is, the failure of the instrumental witnesses to state one or some of the essential facts which, according to the law, must be stated in the attestation clause would not be fatal, provided, it can be established or deduced from the examination of the will itself that all of the statutory requirements have been complied with. Take note, that in this case, the body of the will states that it is composed of four (4) pages. Taboada vs Rosal, 118 SCRA 195 FACTS: The attestation clause of a notarial will failed to state the number of pages thereof. However, it is discernible from the entire will that it really consists of two (2) pages only: the first, containing the provisions; and the second, both the attestation clause and the acknowledgment. Besides, the acknowledgement itself states that “this Last Will and Testament consists of two (2) pages including this page”. HELD: Under the circumstances, the will should be allowed probate. After all, we should approach the matter liberally.

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Presence of witnesses. — Although it is not expressly stated in the first paragraph of Art. 805, it is also required that the subscription of an ordinary will by the testator should take place in the presence of the instrumental witnesses. This statutory requirement which is also mandatory in character is prescribed by the third paragraph of the article which provides that the attestation clause shall state, among others, “the fact that the testator signed the will x x x or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses.” Attestation and subscription by witnesses. — Under Art. 805 of the Civil Code, it is also an indispensable requirement that an ordinary will must be attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. This fact, according to the same article, must be stated, among others, in the attestation clause. An instrumental witness may be defined as one who takes part in the execution of an instrument or writing.27 Attestation of the will consists in the act of the witnesses of witnessing the execution of the will in order to see and take note mentally that such will has been executed in accordance with the requirements prescribed by law. Strictly speaking, it is the act of the witnesses not that of the testator, although it necessarily involves the acts of the testator in executing the will.28 Its purpose is to render available proof during the probate proceedings that the will has been executed in accordance with the requirements prescribed by law and that the instrument offered for probate is authentic.29 Subscription, on the other hand, as it is used in this part of the Code, consists in the manual act of the instrumental witnesses in affixing their signatures to the instrument. Its only purpose is identification. It is, therefore, evident that attestation and subscription are different things and required for obviously different ends. They may be distinguished from each other in the following ways: (1) Attestation is an act of the senses, while subscription is an act of the hand. (2) The first is a mental act, while the second is a mechanical act. (3) The purpose of the first is to render available proof during the probate of the will, not only of the authenticity of the will, but also of its due execution, while the only purpose of the second is identification. Meaning of presence. — The law also requires that the will must be attested and subscribed by the instrumental witnesses “in the presence of the testator and of one another.’’ The purpose of such a requirement is evidently to prevent the substitution of a surreptitious will. Under this rule, it is essential that each one of the three instrumental witnesses must actually sign not only in the presence of the testator, but also in the presence of the other witnesses. In other words, the execution of a will is supposed to be a single act or transaction and cannot be legally effective if the various participants signed on various days or occasions and in various combinations of those present. Hence, it is not sufficient if the witnesses merely acknowledged their previously affixed signatures in the presence of the testator or in the presence of each other. It is not, however, essential that the testator must have actually seen the signing of the will by each one of the instrumental witnesses.

Test of presence. — What test, therefore, shall we apply in order to be able to determine whether or not the witnesses signed the will “in the presence of the testator and of one another?” This question has been answered several times by our highest court — notably in the cases of Jaboneta vs. Gustilo, 5 Phil. 541. 48 | P a g e

Jaboneta vs. Gustilo 5 Phil. 541 In these proceedings, the will of Mario Jaboneta was denied probate by the lower court on the ground that Javellana, one of the witnesses, did not attach his signature thereto in the presence of Jena, another of the witnesses. It is admitted that after the testator and the witnesses Jalbuena and Jena had signed the will and all of the pages thereof, the latter stood up and left the room just as the third witness Javellana was signing the will and all of the pages thereof. The question now is — did Javellana sign his name in the presence of Jena as required by law? According to the Supreme Court, speaking through Justice Carson: “We cannot agree with so much of the above finding of the facts as holds that the signature of Javellana was not signed in the presence of Jena. The fact that Jena was still in the room when he saw Javellana moving his hand and pen in the act of affixing his signature to the will, taken together with the testimony of the remaining witnesses, which shows that Javellana did in fact there and then sign his name to the will, convinces us that the signature was affixed in the presence of Jena. The fact that he was in the act of leaving, and that his back was turned, while a portion of the name of the witness was being written is of no importance. He, with the other witnesses and the testator, had assembled for the purpose of executing the testament, and were together in the same room for that purpose and at the moment when the witness, Javellana signed the document he was actually and physically present and in such position with relation to Javellana that he could see everything which took place by merely casting his eyes in the proper direction, and without any physical obstruction to prevent his doing so, therefore, we are of the opinion that the document was in fact signed before he finally left the room. “This conclusion is in accordance with American authorities which hold that the true test of presence of the testator and the witnesses in the execution of a will is not whether they actually saw each other sign, but whether they might have seen each other sign, had they chosen to do so, considering their mental and physical condition and position with relation to each other at the moment of inscription of each signature.” The law requires three (3) witnesses in the execution of the will. Is the will valid if there are only two (2) witnesses? No. The will is not valid if there are only two (2) witnesses. The law expressly requires three (3) witnesses. What about if there are more than three (3) witnesses in the execution of the will? Is the will valid? Yes. Article 805 provides, “ xxx and attested and subscribed by three (3) or more credible witnesses xxx”. The excess shall only be considered as a mere surplus but it will not affect the validity of the will. Note: 1. Lack of signatures in the left margin is fatal unless, there is a duplicate copy of the original. (Icasiano vs Icasiano) 49 | P a g e

2. The ruling in Icasiano vs Icasiano should not be applied in all cases, when the signature of the witnesses do not appear on the margin of the will. It can be applied only if there is a duplicate original copy of the will. In this case, there was no issue on the validity of the will due to the presence of the copy. 3. The requirement regarding the location (left margin) of the marginal signatures is not mandatory in character, provided that, such signatures are present in every page of the will (except the last page). So, the marginal signatures may be found on the right margin and the will is still valid. What is the effect if the will is not acknowledged? It will not enjoy the presumption of regularity. In short it is void. A will is not a public instrument that is why the law does not require a notary public to keep a copy or to transmit a copy to the clerk of court. As a general rule, witnesses in the execution of a will should also acknowledge the will before a notary public. This is because witnesses are also principal participants in the execution of the will. This is different from other ordinary contracts, which requires only the contracting parties. Attesting witnesses are different from acknowledging witnesses. Failure of one witness to acknowledge the will before the notary public renders the will void. May the notary public be one of the subscribing witnesses? No. To allow the notary public to act as one (1) of the three (3) attesting witnesses would have the effect of having only two (2) attesting witnesses to the will. In the preceding problem, are there exceptions? What are they? Yes. 1. If there are more than three (3) witnesses. 2. If the will is not acknowledged before him. Is it necessary that acknowledgment of the will be made by the testator and all of the witnesses at the same time? No. The law does not require simultaneous acknowledgment, neither does the law require that the acknowledgment be made by the testator and the witnesses in the presence of one another, provided that all of the parties acknowledge in from of the notary public, and provided further, that all the parties has the testamentary capacity at the time of the acknowledgment. May the testator and the witnesses acknowledge the will in separate occasions? Yes. The law does not require simultaneous acknowledgment neither does the law require that the acknowledgment be made by the testator and the witnesses in the presence of one another, provided that all of the parties acknowledge in front of the notary public and provided further, that all the parties has the testamentary capacity at the time of acknowledgment.

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The two (2) immediately preceding problems are the same. The questions were rephrased to as elicit either a negative or positive answer. But the reasons are the same. Suppose the testator died before the will may be acknowledged. Can the will be allowed? No. The will lacks one of the formalities required by law – testamentary capacity of the testator, since, he is already dead.

BAR QUESTIONS Wills; Formalities (1990) (1) If a will is executed by a testator who is a Filipino citizen, what law will govern if the will is executed in the Philippines? What law will govern if the will is executed in another country? Explain your answers. (2) If a will is executed by a foreigner, for instance, a Japanese, residing in the Philippines, what law will govern if the will is executed in the Philippines? And what law will govern if the will is executed in Japan, or some other country, for instance, the U.S.A.? Explain your answers. SUGGESTED ANSWER: (1) a. If the testator who is a Filipino citizen executes his will in the Philippines, Philippine law will govern the formalities. b. If said Filipino testator executes his will in another country, the law of the country where he maybe or Philippine law will govern the formalities. (Article 815, Civil Code} (2) a. If the testator is a foreigner residing in the Philippines and he executes his will in the Philippines, the law of the country of which he is a citizen or Philippine law will govern the formalities. b. If the testator is a foreigner and executes his will in a foreign country, the law of his place of residence or the law of the country of which he is a citizen or the law of the place of execution, or Philippine law will govern the formalities (Articles 17. 816. 817. Civil Code).

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Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of Article 805.66 Doctrine of Liberal Interpretation. — The rule stated in the above article is sometimes known as the doctrine of liberal interpretation. As a consequence of the adoption of this doctrine, the rule of strict interpretation, which used to be upheld by the Supreme Court during that period immediately following the enactment of Act No. 2645 which amended the provisions of Sec. 618 of the Code of Civil Procedure, is abrogated. Thus, according to the Code Commission: “The Supreme Court of the Philippines had previously upheld the strict compliance with the legal formalities and had even said that the provisions 53 | P a g e

of Section 618 of the Code of Civil Procedure, as amended, regarding the contents of the attestation clause were mandatory, and noncompliance, therewith invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405). The decisions necessarily restrained the freedom of the testator in disposing of his property. “However, in recent years the Supreme Court changed its attitude and has become more liberal in the interpretation of the formalities in the execution of wills. This liberal view is enunciated in the cases of Rodriguez vs. Yap, G.R. No. 45924, May 18, 1939; Leynez us. Leynez, G.R. No. 46097, October 18, 1939; Martir vs. Martir, G.R. No. 46995, June 21, 1940 and Alcala vs. Villa, G.R. No. 47351, April 18, 1941. “In the above mentioned decisions of our Supreme Court, it has practically gone back to the original provisions of Section 618 of the Code of Civil Procedure before its amendment by Act No. 2645 in the year 1916. To turn this attitude into a legislative declaration and to attain the main objective of the proposed Code in the liberalization of the manner of executing wills, Article 809 of the Project is recommended.’ Limitation. — By virtue of the provision of Art. 809 of the New Civil Code, the doctrine of liberal interpretation has become part and parcel of the law on wills in this jurisdiction. One difficulty, however, still remains and that is with regard to the admissibility of evidence aliunde in order to prove or establish the fact that the will was in fact executed and attested in substantial compliance with all the requirements prescribed by law. The law states that “defects or imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with the requirements of Article 805.” Does this mean that such defects or imperfections can be cured by evidence aliunde? If the attestation does not state that the testator had signed the will and all of the pages in the presence of the instrumental witnesses and nothing can be inferred of such fact from the context of the will itself, can evidence aliunde be presented in order to prove that the testator actually signed the will and all of the pages thereof in the presence of the instrumental witnesses? Under the old law, there was no question. According to the cases decided by the Supreme Court under the old law, whether applying the doctrine of liberal interpretation or the doctrine of strict interpretation, such evidence cannot be presented in order “to fill a void in any part of the document or supply missing details that should appear in the will itself.” There can only be “a probe into the will, an exploration within its confines, to ascertain its meaning or to determine the existence or absence of the requisite formalities of law.” Is this limitation still applicable under the present law considering the phraseology of Art. 809? It is submitted that the limitation is still applicable. It must be observed that the doctrine of liberal interpretation, as enunciated in Art. 809, can only be applied to defects or imperfections either in the form of the attestation or in the language used therein. It cannot be applied to defects which are substantial, such as when there is an absolute omission in the attestation clause of one, or some, or all of these essential facts, which, according to the law, must be stated in such clause, and such an omission cannot be cured by an examination of the entire will itself. It is evident that such an omission cannot be classified as a defect or imperfection in the form of the attestation or in the language used therein.

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Problem – What is the effect of an unsigned attestation clause? Answer — An unsigned attestation clause results in an unattested will. The attestation clause is a “memorandum of the facts attending the execution of the will” required by law to be made by the attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause cannot be considered as an act of the witnesses since the omission of their signatures at the bottom thereof negates their participation. The signatures on the left-hand corner of every page signify that the witnesses are aware that the page they are signing forms part of the will. On the other hand, the signatures to the attestation clause establish that the witnesses are referring to the statements contained in the attestation clause itself. An unsigned attestation clause results in an unattested will (Felix Azuela vs. CA, et al., supra) Problem – What is the effect of a notarial will that has been subscribed and sworn to before a notary public but has not been acknowledged before the notary public by the testator and the witnesses? Answer — A notarial will that is not acknowledged before a notary public by the testator and the witnesses is fatally defective, even if it is subscribed and sworn to before the notary public. A jurat is that part of an affidavit where the notary public certifies that before him, the document was subscribed and sworn to by the executor. On the other hand, an acknowledgment is the act of one who has executed a deed in going before some competent officer or court and declaring it to be his act or deed. It involves an extra step undertaken whereby the signor actually declares to the notary that the executor of a document has attested to the notary that the same is his own free act and deed. Tender Care Rule: if defect is not fatal to the will tender care must be given by the court to the will because a will is the voice of the testator even after his death.

Property CLASSIFICATION OF PROPERTY Art. 414 provides that all things which are or maybe the object of appropriation are considered either; 1. Immovable or real property 2. Movable Property A. Immovable Property maybe classified as follows: 1. Immovables by nature- those which cannot be moved or transported from place to place such as; a.) Land, Buildings, roads and constructions adhered to the soil. (Art. 415, par. 1)

of

all

kinds

JURISPRUDENCE: Buildings are always immovable. The mere fact that the parties deal with it separately or apart from the land on which it 55 | P a g e

stands does not change its character as real property. Thus, a chattel mortgage over the building would not bind third parties. Leung Yee vs. Strong Machinery Co.; Evangelista vs. Alto Surety But such chattel mortgage is binding on the parties, as parties may validly agree to treat immovable property as personal property. They are estopped from repudiating their treatment of the property as immovable. Standard Oil Corp. vs Jaranillo; Navarro vs. Pineda; Tsai vs. CA; Sergs Products, Inc vs. PCI Leasing The mere fact that the building and the land on which it stands do not belong to the same owner does not make the building immovable. Lopez vs Orosa

b.)Mines, Quarries and Slag Dumps, while the matter forms part of the bed, and the waters either running or stagnant; (Art 415, par. 8)

2. Immovables by incorporation- those which are essentially movabales, but are attached to an immovable in such a manner as to be an integral part thereof: such as; a.) Trees, plants, and growing fruits, while they are attached to the land or form an integral part of an immovable; (Art. 415, par. 2) When they are cut or uprooted, they become movables again. b.)Everything attached to an immovable in a fixed manner, in such a way that it cannot be separated therefrom without breaking the material or deterioration of the object: (Ar. 415, par. 3) When they are detached from the immovable, they become movable again. c.) Fertilizer actually used on a piece of land; (Art. 415,Par. 3) 3. Immovables by Destination- those which are essentially movables but by the purpose of which they have been placed in an immovable, partake of the nature of the latter because of the added utility derived therefrom, such as; a.) Statues, reliefs, paintings or other objects for use or ornamentation, placed in the buildings or on lands by the owner of the immovable in such a manner that it reveals the

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intention to attach them permanently to the tenements; (Art. 415, par. 4) Question: A was the owner of a beautiful painting with a frame, which he bought from Florence, Italy. As his house was not yet habitable, A gave the painting to his neighbor and friend B, who in turn attached the painting In the meantime that A’s house was being constructed, to the wall of his house. What kind of property is the painting while in the house of B? Reasons. Answer: The painting is a movable. To be immovable, it is essential that the painting should have been placed by the owner of such building for such use or ornamentation in such a manner that it reveals the intention to attach them permanently to the tenement. Here, the attachment is only temporary, not permanent. b.)Machinery, receptacles, instruments or implements intended by the owner of the tenement for an industry or works which maybe carried on in a building or on a piece of land, and which tends directly to meet the needs of such industry or works; JURISPRUDENCE: Machinery becomes immobilized only when placed in a plant by the owner of the property or plant, but not so when placed by a tenant, usufructuary, or any person having only a temporary right, unless such person acted as the agent of the owner. Davao Sawmill vs. Castillo Question: A leased a building to B for a term of 10 years. B established a shoe factory in the building and installed certain machineries therein. Are the machineries immovable? Answer: The machineries are movable. In order that machineries can be classified as immovable within the meaning of no. 5 Art 415 of NCC, it is essential that the following requisites must concur: 1. 2. 3. 4.

The machinery must be placed by the owner of the tenement An industry or works must be carried on in the tenement The machinery must be intended for such industry or works The machinery must tend directly to meet the needs of such industry or works.

It is clear from the facts, that the machineries are movables since they were installed by the lessee and not by the owner of the tenement. Question: Suppose that in the above problem, there is a stipulation in the contract of lease that at the end of the term, the machineries to be

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installed by B shall automatically belong to A, will that make any difference to your answer? Ans: Yes. The machineries become immovables since B would then be considered as agent. The machinery or implements covered by Art. 415, par. 5 are those which are PRINCIPAL AND ESSENTIAL ELEMENTS of the business, i.e, those without which the business would be unable to function or carry out its purpose. B.H. Berkenkotter vs. Cu Unjieng The provision does not cover those items which are merely INCIDENTAL to the business. Examples: repair tools of a transportation company; cash registers of typewriters of a hotel or restaurant business; forklifts, jeep wagons, or pressure pumps of airline companies, delivery trucks of manufacturing businesses. Mindanao Bus Company vs. City Assessor and Treasurer c. ) Animal Houses, Pigeon Houses, Beehives, fish ponds, or breeding places of similar nature, in case their owner has placed them or preserves them with the intention to have them permanently attached to the lands and forming a permanent part of it, the animals in these places are included. (Art. 415, par. 6) d.) Docks and structures, which though floating are intended by their nature and object to remain at a fixed place on a river, lake or coast; (Art. 415, par. 9) Question: Manila Petroleum Co. (MPC) owned and operated a petroleum operation facility off the coast of Manila. The facility was located on a floating platform made of wood and metal, upon which was permanently attached the heavy equipment for the petroleum operations and living quarters of the crew. The floating platform likewise contained a garden area, where trees, plants and flowers were painted. The platform was tethered to a ship, the MV 101, which was anchored to seabed. (1)Is the platform movable or immovable? (2007) Answer: The platform is an immovable by destination. It was intended by the owner to remain at a fixed place on a river or coast. Art. 415 (9) of the NCC considers as real property “docks and structures which, though floating, are intended by their nature and object to remain at a fixed place on river, lake or coasts.

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Please note that in FELS ENERGY, INC. vs The Province of Batangas, the court ruled that the power barges moored of the coast of Balayan, Batangas are real property under Art. 415(1) (2)Are equipments and living quarters movable or immovable property? (2007) Answer: With respect to the equipment, the same real property under paragraph 5, Art. 415 of the NCC. It is intended to meet the needs of the industry being taken by the MPC. The equipment partakes of the nature of immovable upon which it has been placed. The Living quarters, if attached to the immovable platform with permanence, becomes an immovable as well. Permanence means they cannot be separated without destroying the platform or the quarters (Art. 415(3), NCC). On the other hand if the attachment is not permanent, not merely, or is merely superimposed on the platform, then the living quarters are movable property. Question: What are the tests which must be applied in order to determine whether an object is a movable or not? Answer: i. whether the object can be transported from place to place. ii. Whether the change of location can take place without injury to the immovable to which it may be attached. iii. Whether it is not included in the enumeration found in Art. 415 of NCC. If the answers of all the following questions are in affirmative, then it movable.

OWNERSHIP Ownership is the independent and general power of a person over a thing for purposes recognized by the law within the limits established thereby. General Rule: The owner of a parcel of land is the owner of its surface and of everything under it, and he can construct thereon any works or make any plantations and excavations which he may deem proper, subject or without prejudice to(1) Servitudes or easements (2) Special laws and ordinances (3) The reasonable requirements of aerial navigation. (Art. 437) Hidden Treasure

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a. Definition. Treasure is any hidden and unknown deposit of money, jewelry, or other precious objects the lawful ownership of which does not appear. (Art. 438) b. Ownership. Hidden Treasure belongs to the owner of the land, building or other property on which it is found. (Art. 438) Nevertheless, when the discovery is made by chance (unintentional) on the property of another or of the State or any of its Subdivisions, one half thereof shall be allowed to the finder. If a finder is a trespasser, he shall not be entitled to any share of the treasure. If the things found be of interest to science or arts, the State may acquire them at their just price, which shall be divided in conformity with the rule stated. (Art. 438) Question: X is the owner of a piece of land where hidden treasure is believed to be buried. Y who owns a device used in detecting hidden treasure was given permission by X to use the device on his land. Y discovered, after some effort, jewelry and other precious objects which are not of interest to science or the arts worth P60,000. To whom should the treasure belong? Explain your answer.(1970) Answer: The treasure belongs to Y. The NCC provides that hidden treasure belongs to the owner of the land, building or other property on which it is found. The second paragraph provides that when the discovery is made on the property of another or the state or its subdivisions, and by chance, ½ thereof should be entitled to the finder provided that he is not a trespasser. For a finder to be entitled to such share the following requisites must be met; first, the treasure must consist of money, jewelry or other precious objects; second, it must be hidden and unknown; third, its lawful ownership does not appear; fourth, the discovery must be by chance, and fifth, the discoverer must be a stranger and not a trespasser. In the case at bar, Y was given permission by X to use a device used for detecting hidden treasure. Thus, the fourth requisite is not present. QUIETING OF TITLE Art. 476. Whenever there is a cloud on title to real property or any interest therein, by reason of any instrument, record, claim, encumbrance or proceeding which is apparently valid or effective is in truth and in fact invalid, ineffective, voidable, or unenforceable, and may be prejudicial to said title, an action may be brought to remove such cloud or to quiet the title. An action may also be brought to prevent a cloud from being cast upon title to real property or any interest therein.

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Art. 477. The plaintiff must have legal or equitable title to, or interest in the real property which is the subject matter of the action. He need not be in possession of said property. Art. 478. There may also be an action to quiet title or remove a cloud therefrom when the contract, instrument or other obligation has been extinguished or has terminated, or has been barred by extinctive prescription. Art. 479. The plaintiff must return to the defendant all benefits he may have received from the latter, or reimburse him for expenses that may have redounded to the plaintiff's benefit. Art. 480. The principles of the general law on the quieting of title are hereby adopted insofar as they are not in conflict with this Code. Art. 481. The procedure for the quieting of title or the removal of a cloud therefrom shall be governed by such rules of court as the Supreme Court shall promulgated. Notes: Like accion publiciana, it involves only real property and is either curative or preventive. Unlike accion publiciana, quieting of title applies to both ownership and possession. In quieting of title, the complaint must allege the existence of an apparently valid or effective instrument or other claim which is in reality void, ineffective, voidable or unenforceable. Article 476 seems to interchange removal of a cloud with quieting of title. In common law, there is a distinction. Under common law, an action to quiet title must set forth an adverse claim, but it must not be specific. Only a general claim is made. An action to remove a cloud requires a specific claim. Article 476 can either be a preventive (2) or a remedial action (1). Quieting of title is a quasi in rem action. If the plaintiff in an action to quiet title is in possession of the property, then the action to quiet title is imprescriptible (Faya vs. CA). As long as a person is in possession of the property, it is presumed that the person in possession is the owner. The burden is on the challenger to prove otherwise. The 1st sentence of Article 433 is similar to Article 541. However, under Article 1131 for purposes of prescription, just title is not presumed. If one seeks to acquire title by prescription, the burden is on the applicant claiming to be the owner. In Article 1131, it is the possessor who is the applicant. The possessor is the one who has the burden to prove that he acquired the property through prescription. It is not presumed. In Articles 433 and 541, the possessor does not claim to own it by prescription. The possessor takes a defensive stance RIGHT OF ACCESSION 61 | P a g e

A. In General 1. Definition. Accession is the extension of ownership over a thing to everything which is produced by it or incorporated or attached to it. Art. 440 provides that the ownership of property gives right by accession to: a.) Everything which is produced thereby (accession discreta) i. Natural fruits ii. Industrial fruits iii. Civil Fruits AND b.) Everything which is incorporated or attached thereto, either naturally or artificially (accession). This accession maybe classified according to the type of the principal, thus: i. With respect to immovable ii. With respect to movables

Immovables a. Industrial (Articles 445-456) Art. 445: Whatever is built, planted or sown on the land of another and the improvements or repairs made thereon, belong to the owner of the land, subject to the provisions of the following articles. Art. 446: All works, sowing, and planting are presumed made by the owner and at his expense, unless the contrary is proved. 1st scenario: Landowner builds with the materials of another Art. 447:The owner of the land who makes thereon, personally or through another, plantings, constructions or works with the materials of another, shall pay their value; and, if he acted in bad faith, he shall also be obliged to the reparation of damages. The owner of the materials shall have the right to remove them only in case he can do so without injury to the work constructed, or without the plantings, constructions or works being destroyed. However, if the landowner acted in bad faith, the owner of the materials may remove them in any event, with a right to be indemnified for damages. PRINCIPLES: 62 | P a g e

1. If the LANDOWNER and the OWNER OF THE MATERIALS are both in GOOD FAITH, the LANDOWNER can acquire the materials provided he pays for the value thereof. The OWNER OF THE MATERIALS in GOOD FAITH has the following rights; a.) Right to receive payment for value of the materials; b.) Limited right of removal if there would be no injury to work constructed, or without plantings or constructions being destroyed (Article 447) 2. If the LANDOWNER is in BAD FAITH and the OWNER OF THE MATERIALS is in GOOD FAITH, the LANDOWNER can acquire the materials provided that he pays for its value plus damages. The OWNER OF THE MATERIALS in GOOD FAITH has the following rights; a.) Right to receive payment for value of materials plus damages; b.) Absolute right of removal of the work constructed in any event (whether or not substantial injury is caused) plus damages 3. If the LANDOWNER is in GOOD FAITH and the OWNER OF THE MATERIALS is in BAD FAITH, the LANDOWNER can acquire the materials without paying for the value thereof and is entitled to consequential damages. The OWNER OF THE MATERIALS who is in BAD FAITH loses the materials completely without receiving any indemnity. 4. If BOTH acted in BAD FAITH, they shall be considered as though they both acted in GOOD FAITH. Note: The land owner – builder, planter, sower is in good faith if he believes that the land belongs to him and he is ignorant of any defect or flaw in his title and he does not know that he has no right to use such materials. But when his good faith is coupled with negligence, he is liable for damages. The land owner – builder, planter, sower is in bad faith if he makes use of the land or materials which he knows belong to another. The owner of the materials is in good faith if he did not know that another was using his materials, or granting that he did know, if he informed the user of the ownership and made the necessary prohibition.

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The owner of the materials is in bad faith if he allows another to use the materials without informing him of the ownership thereof. 2nd Scenario: Builder builds on land of another Art. 448: The owner of the land on which anything has been built, sown or planted in good faith, shall have the right to appropriate as his own the works, sowing or planting, after payment of the indemnity provided for in articles 546 and 548, or to oblige the one who built or planted to pay the price of the land, and the one who sowed, the proper rent. However, the builder or planter cannot be obliged to buy the land if its value is considerably more than that of the building or trees. In such case, he shall pay reasonable rent, if the owner of the land does not choose to appropriate the building or trees after proper indemnity. The parties shall agree upon the terms of the lease and in case of disagreement, the court shall fix the terms thereof.

PRINCIPLES: 1. If both LANDOWNER and BUILDER acted in GOOD FAITH, the LANDOWNER shall have the following options: Option 1: The owner has the right to appropriate as his own, the works, sowing or planting, after payment of the required indemnity as provided in Arts. 546 and 546, that is, (a) Necessary Expenses- expenses for the preservation of the thing. -The possessor in good faith may retain the thing until he has been reimbursed thereof. (b) Useful Expenses- expenses for the utility or productivity of the thing. The landowner has the option to refund the expenses or pay for the increase in value. The possessor in good faith may remove the ornaments with whihch he has embellished the principal thing if it suffers no injury thereby, and if his successor in the possession does not prefer to refund the amount expanded. Option 2: The owner has the right to oblige the one who built or planted to pay the price of the land and the one who sowed, the proper rent. However, the builder or planter cannot be obliged to buy the land if its value is considerably more than that of the building or trees. In 64 | P a g e

such a case, he shall pay the reasonable rent if the owner does not choose to appropriate the building or trees after the payment of required indemnity. Note: In applying Article 448, the land owner, if in good faith, should be given the first option because he is the owner of the land especially if he is dealing with a person in bad faith. His right is older and by the principle of accession, he is entitled to the ownership of the accessory thing. The Landowner cannot refuse to exercise any of the two options given by ART. 448. He can be even compelled by the builder to exercise his options. Furthermore, the Landowner cannot refuse both options and instead demand for the removal of the improvement. He can only demand for such removal if after he has opted to sell his land to the builder, the latter failed to pay. The land owner is in good faith if : a.) he is ignorant of the builder/planter/sower‘s act or even if he did know, he expressed his objection b.) If he believed that the builder/planter/sower has a right to construct, plant or sow  Otherwise, he shall be in bad faith. The builder/planter/sower is in good faith if he thought that the land was his. Question: Can a Lessee be in Good Faith? Answer: No. A Lessee cannot be in good faith. In Frederico Geminiano vs. CA, the court held that lessees are not builders in good faith. They came into possession of the lot by contract of lease by petitioner’s mother in their favor. They are estopped to deny their landlords title, or to assert a better title not only of themselves, but also in some third person while they remain in possession of the leased premises and until they surrender the possession to the landlord. The relation of a lessor and lessee was created and maybe asserted not only by the original lessor, but also those who succeeded to his title. Being mere lessees, they knew that their occupation is only temporary. Thus, they cannot be considered as possessors nor builders in good faith. Note: If lessee made improvements to the property: 50% reimbursemnt should be made by the lessor. Reason: to prevent from improving out the lessor 2. LANDOWNER is in GOOD FAITH while BUILDER is in BAD FAITH The Landowner has the following options: Option 1: Appropriate the improvements without indemnity.

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Option 2: Demand the demolition of the work, or that the planting or sowing be removed, in order to replace things in their former condition at the expense of the person who built, planted or sowed. Option 3: Compel the builder or planter to pay the price of the land and the sower, the proper rent. Option 4: The Landowner is also entitled to damages from the builder, planter or sower.

b. Natural (Articles 457-465) Alluvion or accretion (Article 457) Art. 457. To the owners of lands adjoining the banks of rivers belong the accretion which they gradually receive from the effects of the current of the waters. Article 457 applies only to lands adjoining banks of rivers. It does not apply by analogy to lands adjoining all bodies of water. However, Article 84 of the Law of Waters applies the same principle to lakes, streams and creeks. The owners of lands adjoining the banks of rivers (riparian land) shall own the accretion which they gradually receive. Accretion denotes the act or process by which a riparian land gradually and imperceptively receives addition made by the water to which the land is contiguous. Alluvion refers to the deposit of soil. Rationale for this benefit: to compensate the owners for the losses which they may suffer by erosion due to the destructive forces of the water (Ferrer vs. Bautista). Requisites of Accretion 1. The accumulation of soil is gradual and imperceptible 2. It is the result of the action of the water of the river. 3. Deposits made by human intervention are excluded. 4. The land where the accretion takes place is adjacent to the bank of the river. Accretion operates ipso jure. However, the additional area isnot covered by a Torrens title since it is not described in thetitle. The riparian owner must register the additional area.

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Question: Andres is a riparian owner of a parcel of registered land. His land, however, has gradually diminished in area due to the current of the river, while the registered land of Mario on the opposite bank has gradually increased in area by 200square meters. Who has the better right over the 200-square meter area that has been added to Mario’s registered land, Mario or Andres? Answer: Mario has a better right over the 200 square meters increase in area by reason of accretion, applying Article 457 of the New Civil Code, which provides that ―to the owners of lands adjoining the banks of rivers belong the accretion which they gradually received from the effects of the current of the waters. Andres cannot claim that the increase in Mario’s land is his own, because such is an accretion and not result of the sudden detachment of a known portion of his land and its attachment to Mario’s land, a process called ―avulsion‖. He can no longer claim ownership of the portion of his registered land which was gradually and naturally eroded due to the current of the river, because he had lost it by operation of law. That portion of the land has become part of the public domain Question: May third people acquire said 200-square meter land by prescription? Answer: Yes, a third party may acquire by prescription the 200 square meters, increase in area, because it is not included in the Torrens Title of the riparian owner. Hence, this does not involve the imprescriptibility conferred by Section 47, P.D. No. 1529. The fact that the riparian land is registered does not automatically make the accretion thereto a registered land. (Grande v. CA, 115 521 (1962); Jagualing v. CA, 194 SCRA 607 (1991). Avulsion Art. 459. Whenever the current of a river, creek or torrent segregates from an estate on its bank a known portion of land and transfers it to another estate, the owner of the land to which the segregated portion belonged retains the ownership of it, provided that he removes the same within two years. Avulsion is the removal of a considerable quantity of soil from 1 estate and its annexation to another by the perceptible action of water. Avulsion vs. Aluvium In alluvium, the accumulation of the soil is gradual. The soil belongs to the owner of the property where the soil attaches. The soil cannot be identified. In avulsion, the accumulation of soil is sudden and abrupt. The soil can be identified. The soil belongs to the owner of the property from where the soil was taken. However, the owner has to 2 years to get the soil. If he does not get the soil within 2 years, the owner of the property

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where the soil currently is shall own the soil. Avulsion is a case of delayed accession (JBL Reyes). Art. 465. Islands which through successive accumulation of alluvial deposits are formed in nonnavigable and non-floatable rivers, belong to the owners of the margins or banks nearest to each of them, or to the owners of both margins if the island is in the middle of the river, in which case it shall be divided longitudinally in halves. If a single island thus formed be more distant from one margin than from the other, the owner of the nearer margin shall be the sole owner thereof. Movables Adjunction or conjunction (Articles 466-471) Art. 466. Whenever two movable things belonging to different owners are, without bad faith, united in such a way that they form a single object, the owner of the principal thing acquires the accessory, indemnifying the former owner thereof for its value. Art. 467. The principal thing, as between two things incorporated, is deemed to be that to which the other has been united as an ornament, or for its use or perfection. Art. 468. If it cannot be determined by the rule given in the preceding article which of the two things incorporated is the principal one, the thing of the greater value shall be so considered, and as between two things of equal value, that of the greater volume. In painting and sculpture, writings, printed matter, engraving and lithographs, the board, metal, stone, canvas, paper or parchment shall be deemed the accessory thing. Art. 469. Whenever the things united can be separated without injury, their respective owners may demand their separation. Nevertheless, in case the thing united for the use, embellishment or perfection of the other, is much more precious than the principal thing, the owner of the former may demand its separation, even though the thing to which it has been incorporated may suffer some injury. Art. 470. Whenever the owner of the accessory thing has made the incorporation in bad faith, he shall lose the thing incorporated and shall have the obligation to indemnify the owner of the principal thing for the damages he may have suffered. If the one who has acted in bad faith is the owner of the principal thing, the owner of the accessory thing shall have a right to choose between the former paying him its value or that the thing belonging to him be separated, even though for this purpose it be necessary to destroy the principal thing; and in both cases, furthermore, there 68 | P a g e

shall be indemnity for damages. If either one of the owners has made the incorporation with the knowledge and without the objection of the other, their respective rights shall be determined as though both acted in good faith. Art. 471. Whenever the owner of the material employed without his consent has a right to an indemnity, he may demand that this consist in the delivery of a thing equal in kind and value, and in all other respects, to that employed, or else in the price thereof, according to expert appraisal. Commixtion or Confusion (Articles 472, 433) Art. 472. If by the will of their owners two things of the same or different kinds are mixed, or if the mixture occurs by chance, and in the latter case the things are not separable without injury, each owner shall acquire a right proportional to the part belonging to him, bearing in mind the value of the things mixed or confused. . Specification (Article 474) Art. 474. One who in good faith employs the material of another in whole or in part in order to make a thing of a different kind, shall appropriate the thing thus transformed as his own, indemnifying the owner of the material for its value. If the material is more precious than the transformed thing or is of more value, its owner may, at his option, appropriate the new thing to himself, after first paying indemnity for the value of the work, or demand indemnity for the material. If in the making of the thing bad faith intervened, the owner of the material shall have the right to appropriate the work to himself without paying anything to the maker, or to demand of the latter that he indemnify him for the value of the material and the damages he may have suffered. However, the owner of the material cannot appropriate the work in case the value of the latter, for artistic or scientific reasons, is considerably more than that of the material. CO-OWNERSHIP Art. 494. No co-owner shall be obliged to remain in the coownership. Each co-owner may demand at any time the partition of the thing owned in common, insofar as his share is concerned. Nevertheless, an agreement to keep the thing undivided for a certain period of time, not exceeding ten years, shall be valid. This term may be extended by a new agreement. A donor or testator may prohibit partition for a period which shall not exceed twenty years. Neither shall there be any partition when it is prohibited by law. No prescription shall run in favor of a co-owner

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or co-heir against his co-owners or co-heirs so long as he expressly or impliedly recognizes the coownership. Termination of Co-Ownership 1. PARTITION Partition -converts into certain and definite parts the respective share of the undivided shares of the co-owners. General Rule: Partition is demandable by any of the co-owners as a matter of right at any time. If the other co-owners do not consent, then go to court. Exceptions: a.) when there is an agreement to keep the thing undivided b.) The maximum period for such an agreement is 10 years. The agreement can be extended. Such an extension must not go beyond 10 years. There is no limit as to the number of extensions. Question: What if the co-owners agree to extend for more than 10 years is the agreement totally void or it is good for only 10 years? Answer: It is valid for only 10 years. Partition may either be by agreement of the parties or by judicial proceedings (Article 496 ). When prohibited by the donor or testator The prohibition by the donor or testator cannot exceed 20 years.  Even though the testator or donor prohibits partition, the coownership shall terminate when: i.

Any of the causes for which partnership is dissolved takes place; or ii. The court finds compelling reasons that division should be ordered upon petition of one of the co-heirs c. When prohibited by law Exception to the exception: When compelling reasons it must be partitioned (i.e., Article 159, Family Code) d. When partition renders the thing unserviceable Article 498 governs in this case. Under Article 498, when the thing is essentially indivisible and the coowners cannot agree that it be allotted to one of them who shall indemnify the others, it shall be sold and its proceeds be distributed.

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What is allowed only is a constructive and not a physical partition (i.e. in a partition of a house). e. When the legal nature of the thing does not allow partition (i.e. party wall) 2. Consolidation 3. Destruction or loss 4. Prescription General Rule: Prescription will not run if the object is in possession of anyone of the co-owners since such possession is not adverse. Exception: Co-owner may repudiate prescriptive period will start to run.

the

co-ownership and

the

Question: In 1955, Ramon and his sister Rosario inherited a parcel of land in Albay from their parents. Since Rosario was gainfully employed in Manila, she left Ramon alone to possess and cultivate the land. However, Ramon never shared the harvest with Rosario and was even able to sell one-half of the land in 1985 by claiming to be the sole heir of his parents. Having reached retirement age in 1990 Rosario returned to the province and upon learning what had transpired, demanded that the remaining half of the land be given to her as her share. Ramon opposed, asserting that he has already acquired ownership of the land by prescription, and that Rosario is barred by laches from demanding partition and reconveyance. Decide the conflicting claims. (2002) Answer: Ramon is wrong on both counts: prescription and laches. His possession as co-owner did not give rise to acquisitive prescription. Possession by a co-owner is deemed not adverse to the other coowners but is, on the contrary, deemed beneficial to them (Pongon v. GA, 166 SCRA 375). Ramon's possession will become adverse only when he has repudiated the co-ownership and such repudiation was made known to Rosario. Assuming that the sale in 1985 where Ramon claimed he was the sole heir of his parents amounted to a repudiation of the co-ownership, the prescriptive period began to run only from that time. Not more than 30 years having lapsed since then, the claim of Rosario has not as yet prescribed. The claim of laches is not also meritorious. Until the repudiation of the co-ownership was made known to the other co-owners, no right has been violated for the said coowners to vindicate. Mere delay in vindicating the right, standing alone, does not constitute laches. Question: Senen and Peter are brothers. Senen migrated to Canada early while still a teenager. Peter stayed in Bulacan to take care of their widowed mother and continued to work on the Family farm even after her death. Returning to the country some thirty years after he had left, Senen seeks a partition of the farm to get his share as the only co-heir of Peter. Peter interposes his opposition, contending that acquisitive 71 | P a g e

prescription has already set in and that estoppel lies to bar the action for partition, citing his continuous possession of the property for at least 10 years, for almost 30 years in fact. It is undisputed that Peter has never openly claimed sole ownership of the property. If he ever had the intention to do so, Senen was completely ignorant of it. Will Senen’s action prosper? (2002) Answer: Senen’s action will prosper. Article 494 of the New Civil Code provides that ―no prescription shall run in favor of a co-owner or coheir against his co-owners or co-heirs so long as he expressly or impliedly recognizes the coownership nor notified Senen of his having repudiated the same.

POSSESSION Tacking of Possession (Art. 533) The possession of hereditary property is deemed transmitted to the heir without interruption and from the moment of the death of the decedent, in case the inheritance is accepted. One who validly renounces an inheritance is deemed never to have possessed the same. (Art. 533) One who succeeds by hereditary title shall not suffer the consequences of the wrongful possession of the decedent, if it is not shown that he was aware of the flaws affecting it. (Art. 534) But the effects of possession in good faith shall not benefit him except from the date of the decedent. (Art. 534) Reason: Bad faith is personal and intransmissible Rule as to Movables Art. 559: The possession of movable property acquired in good faith is equivalent to title a title. Nevertheless, one who has lost any movable or has been unlawfully deprived thereof may recover it from the person in possession of the same. If the possessor of a movable lost or which the owner has been unlawfully deprived, has acquired it in good faith at a public sale, the owner cannot obtain its return without reimbursing the price paid therefor.

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Good faith is always presumed, and upon him who alleges bad faith on the part of a possessor rests the burden of proof. : The possession of a movable property acquired in good faith is equivalent to title provided that the following requisites are present: 1. The possession should be in good faith. 2. The former owner voluntarily parted with the possession of the thing 3. The possession is in the concept of the owner A person, who lost or has been unlawfully deprived of the movable, may recover it from the person who has possession of the movable. Unlawful deprivation extends to all instances where there is no valid transmission (i.e. theft, robbery, etc.) Note: The movable referred to is a specific or determinate thing (one that can be identified or distinguished from others of the same kind, and not a generic and fungible thing like money. A person who voluntarily delivers the thing sold under a perfected contract of sale cannot be considered to have been “unlawfully deprived of such property, even if the buyer fails to pay (failure of consideration) or is an impostor. Thus, the vendor cannot recover the property from third parties who have subsequently obtained the property in good faith. His remedy is to go after the buyer. (Chua Hai vs. Hon. Kapunan, EDCA Publishing and Distributing Corp. vs. Santos) Question: In a case where the owner A sold books to B. B issued check to A for payment. B then sold the books to C. Later on the check issued by B to A bounced. Can A use art 559 in recovering his books to C? Answer: No. He was not unlawfully deprived because there was payment made to him despite the fact that it bounced. His remedy is to rescind the contract to B and file replevin for the return of the books. Contrast this case to the Case where a casino chip was paid; the owner of the chips was forced by the guards of the casino to return the chips. Here he was unlawfully deprived. Art. 559 is applicable in this case. Question: Using a falsified manager's check, Justine, as the buyer, was able to take delivery of a second hand car which she had just bought from United Car Sales Inc. The sale was registered with the Land Transportation Office. A week later, the seller learned that the check had been dishonored, but by that time, Justine was nowhere to be seen. It turned out that Justine had sold the car to Jerico, the present possessor who knew nothing about the falsified check. In a suit by United Car Sales, Inc. against Jerico for recovery of the car, plaintiff 73 | P a g e

alleges it had been unlawfully deprived of its property through fraud and should, consequently, be allowed to recover it without having to reimburse the defendant for the price the latter had paid. Should the suit prosper? Answer: The suit should prosper as to the recovery of the car. However, since Jerico was not guilty of any fraud and appears to be an innocent purchaser for value, he should be reimbursed for the price he paid. This is without prejudice to United Car Sales, Inc. right of action against Justine. As between two innocent parties, the party causing the injury should suffer the loss. Therefore, United Car Sales, Inc. should suffer the loss. Instances when the original owner who lost a movable or was illegally deprived thereof can no longer recover the same: (1) If the present possessor acquired it in good faith at a public sale (unless the original owner reimburses the price paid for the movable. Public sale means that there is a notice to public and everybody can bid or offer to buy. (2) If the present possessor purchased it in merchant’s store, fair or markets. The rule protects the innocent buyer to facilitate commercial sales and give stability to business transactions. A buyer cannot be expected to look behind the title of every article when he buys at a store. (3) If the present possessor purchased it in good faith from one who has a voidable title thereto, this has not been annulled at the time of the sale. (4) If the present possessor has already become owner of the thing through acquisitive prescription (adverse possession for a necessary length of time) Note however, that if the possession is acquired through a crime, prescription shall not benefit the offender.

USUFRUCT Extinguishment of the Usufruct 1. By death of the usufructuary (Article 603 (1)) Exceptions a. Contrary intention b. Definite period c. When the usufruct is in favor of several persons i. Successively or ii. Simultaneously 2. By the expiration of the period for which it was constituted or by the fulfillment of any resolutory condition (Article 603 (2)) 3. By merger of the usufruct and ownership in the same person (Article 603 (3)) 4. By renunciation of the usufructuary (Article 603 (4)) 74 | P a g e

5. By the total loss of the thing in usufruct (Article 603 (5)) 6. By the termination of the right of the person constituting the usufruct (Article 603 (6)) 7. By prescription (Article 603 (7)) 8. Non-fulfillment of a mode imposed on the usufructuary 9. Rescission or annulment of the contract 10. Legal ways of extinguishing usufruct (i.e. termination of parental authority terminates the parents‘usufruct with regard to the child‘s adventitious property) 11. Mutual dissent 12. Alienation by innocent purchaser for value (Article 709) 13. Happening of a resolutory condition

EASEMENTS Art. 615. Easements may be continuous or discontinuous, apparent or nonapparent. Continuous easements are that the use of which is or may be incessant, without the intervention of any act of man. Discontinuous easements are those which are used at intervals and depend upon the acts of man. Apparent easements are those which are made known and are continually kept in view by external signs that reveal the use and enjoyment of the same. Nonapparent easements are those which show no external indication of their existence. a.) Continuous easements are that the use of which is or may be incessant, without the intervention of any act of man. b. Discontinuous b.) Discontinuous easements are those which are used at intervals and depend upon the acts of man (i.e. right of way) As to Indication of Existence (Article 615) a.) Apparent Apparent easements are those which are made known and are continually kept in view by external signs that reveal the use and enjoyment of the same. For example, a right of way is apparent if the path is marked off. b. Non-apparent b.) Non-apparent easements are those which show no external indication of their existence. For example, a right of way is non-apparent if the path is not marked.

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