Persons Notes

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PERSONS AND FAMILY RELATIONS CIVIL CODE OF 1950 Chapter 1: Effect and Application of Laws Article 1

This Act shall be known as the Civil Code of the Philippines •

Article 2

Republic Act No.386 o Otherwise known as the Civil Code of the Philippines o Full Name: An Act to Ordain and Institute the Civil Code of the Philippines o Date of Enactment: January 26, 1949 o Main draft prepared by the Roxas Code Commission ! Create by President Manuel Roxas through E.O. 48 (March 20, 1947) ! Chairman of the Commission: Dr. Jorge C. Bacobo ! Duration ! May 8, 1947 to December 15, 1947 Laws shall be effective after fifteen days following the completion of the publication either in the Official Gazette or in a newspaper of general circulation, unless it is otherwise provided

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Article 3

The 1950 Civil Code took effect on August 30, 1950 o [Note: So the code'’s draft was created in 1947, which was eventually enacted by Congress in 1949, had been published in 1950 and has taken effect since the same year it was published.] Amended through E.O. 200 issued by President Corazon Aquino on June 18, 1987 o Amendment ! Publication either in the Official Gazette or in a newspaper of general circulation in the Philippines ! Rationale ! The publication need not be made in the Official Gazette because of its erratic release and limited readership ([SC] Tanada et al. vs. Tuvera) ! Newspaper of general circulation could undoubtedly better perform the function of communicating laws to the people because it has a wide circulation and comes out regularly Effectivity of Laws o No one shall be charged of the statute's provisions until the said publication is completed and the required period has expired o Publication must be in full or no publication at all o After the fifteen-day period, the people are deemed to have conclusively been notified of the law o Statutes and Laws also covered in this rule: ! Presidential Decrees, EOs, Administrative rules and regulations, City charter o The clause “unless it is otherwise provided” solely refers to the 15-day period and not to the requirement of publication ! In Tañada v. Tuvera, “omission [of the publication requirement] would offend due process insofar as it would deny the public of the laws o If the law provides for a longer or shorter period than the 15-day provided, what the law expresses immediately prevails. o “Shall immediately take effect” ! means that the law shall take effect immediately after the publication Ignorance of the law excuses no one from compliance therewith

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That every person knows the law is a conclusive presumption. The public is always put on constructive notice of the law'’s existence and effectivity. To allow ignorance as a valid defense is to foment disorder in society. Article 3 is a consequence of the mandatory provision that all laws must be published. o It would be the height of injustice to punish or burden a citizen for the transgression of a law which he had no notice whatsoever, not even a constructive one. “ignorantia legis non excusat” Only applies to mandatory or prohibitory laws.

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Article 4

Laws shall have no retroactive effect, unless the contrary is provided. • • • • •

Article 5

Laws looks to the future and has no retroactive effect. Statutes are to be construed as having only prospective operation Unless the law expressly declared or necessarily implied from the language used. But in case of doubt, the same must be resolved against retrospective effect. Statutes are not to be construed as having a retroactive effect so as to affect pending proceedings Exceptions to the non-retroactivity clause: o 1. When the law expressly provides for retroactivity. o 2. When the law is curative or remedial. ! Curative ! “healing acts” that do not impair obligations or interfere with vested rights ! Related case: DBP v. Court of Appeals ! DBP questionably acquired lots but Congress enacted RA 85 to precisely correct such invalidity. o 3. When the law is procedural o 4. When the law is penal in character and favorable to the accused. ! In accordance with Article 22 of the Revised Penal Code ! Shall have retroactive effect insofar as they favor the person guilty of felony, who is not a habitual criminal. Acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity.

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Article 6

Mandatory provision ! the omission of such shall render the proceedings and acts related to it generally illegal or void. Prohibitory ! contain positive prohibitions and are couched in the negative terms stating that the act required shall not be done otherwise than designated. Acts committed in violation of prohibitory laws are likewise void. Rights may be waived, unless the waiver is contrary to law, public policy, morals, good customs, or prejudicial to a third person with a right recognized by law.

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Article 7

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Waiver – intentional relinquishment of a known right [So when is the waiver legal and valid?] o Must be clearly and convincingly shown either by express stipulation or acts admitting no other reasonable explanation o The right must be in existence at the time of the waiver. o It must be exercised by a duly capacitated person actually possessing the right to make the waiver. [So when is the waiver not valid, illegal and worthy of prohibition?] o Ignorance of the material fact negates the waiver o When it’s contrary to law, public policy, morals, good customs or prejudicial to a third person with a right recognized by law Rights, protections and advantages conferred by statutes may be generally waived. However, if the object of the statute is to promote great public interests, liberty and morals, it cannot be defeated by any private stipulation o e.g. Consent between spouses on the commission of adultery and concubinage Laws are repealed only by subsequent ones, and their violation and non-observance shall not be excused by disuse, or custom, or practice to the contrary. When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution.

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• Article 8

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Repeal of a law – legislative act abrogating through a subsequent law the effects of a previous statutes o Either expressed or implied ! Implied repeal – when a new law contains provisions contrary to and inconsistent with those of the former without expressly repealing them ! Repeals and amendments by implication are not favored. ! Express repeal ! Literally declared by a new law, either in specific terms (particular law and provisions are named, identified and declared) or in general terms (provision of a new law declares all laws and parts of laws inconsistent) ! Some particular exceptions (as per SC: Iloilo Palay and Corn Planters Association v. Feliciano) ! Repealing clause “all laws and parts thereof inconsistent with the provisions of this Act are hereby repealed” - is NOT an expressed repeal ! A special statute, for a particular case or class of cases, is not repealed by a subsequent statute, general in its terms, provisions and applications No ordinary statute can override the constitutional provision (Floresca v. Philex Mining). Constitutionality or unconstitutionality of a statute depends upon factors other than those existing at the time of the enactment thereof. o Where a portion of a statue is rendered unconstitutional and the remainder valid, the parts will be separated and the constitutional portion upheld” o Consequently, as per SC: Lidasan v. COMELEC, when the parts of the statute are so mutually dependent and connected, if some parts are unconstitutional, all the provisions which are mutually dependent, conditional and connected, must fall with them. o Valid portions may stand and be enforced. [Separability clause] Rules and regulations, when promulgated in pursuance of the procedure or authority conferred upon the administrative agency by law, partake the nature of a sanction provided in the law. A rule is binding as long as the procedure fixed for its promulgation is followed and within the scope of the the statutory authority given by the legislature, even if the courts disagree with the policy stated therein or its innate wisdom. Related case: Teoxon v. Members of the Board Administrator o An administrative agency cannot amend an act of Congress Judicial decisions applying or interpreting the laws or the Constitution shall form part of the legal system of the Philippines.

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Principal function of courts: o 1. resolving legal controversies; and o 2. interpreting and construing vague provisions of law relative to a particular dispute. Construction [like in StatCon] – is the act or process of discovering and expounding on the meaning and intention of the authors of the law with respect to its application to a given case, where the intention is rendered doubtful, among others by reason of the fact that given case is not explicitly provided for in the law. [Caltex v. Palomar] Judicial decisions assume the same authority as the statute itself o These decisions also constitute evidence of what the law means Maxim: “Legis interpretatio legis vim obtinet” - the interpretation place upon the written law by a competent court has the force of law Judicial decisions of the Supreme Court are authoritative and precedent-setting while those of the inferior courts and the appellate courts are merely persuasive. Judicial decisions (application and interpretation) of the Supreme court are deemed and are established as part of the law as of the date of enactment since it established contemporaneous legislative intent. HOWEVER, when the doctrine of the SC is overruled and a different view is adopted, the new doctrine should be applied prospectively.

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• Article 9

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In People v. Licera, it is said that when a new doctrine abrogates an old rule, the new doctrine should not adversely affect those favored by the old rule. No judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws.

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Article 10

Judges are tasked with the dispensation of justice under the constitutional precept that no person shall be deprived of life, liberty, and property without due process of law. Judges, therefore, must not evade performance of this responsibility just because of an apparent non-existence of any law governing a particular legal dispute or because the law involved is vague or inadequate. [The in the absence or lack of a workable interpretation of the law, the judge therefore “fills-in” the gap] The judiciary cannot “legislate”. Legislation is the function of Congress. o HOWEVER, in Floresca v. Philex Mining, the SC said that existence of the concept that the courts cannot engage in judicial legislation, that myth has been exploded by Article 9 of the new Civil Code. o HENCE, the legislator himself, through Art. 9 of the Civil Code, recognizes the court “do and must legislate” (Holmes) to fill in the gaps in the law. In case of doubt in the interpretation and application of laws, it is presumed that the lawmaking body intended right and justice to prevail.

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Article 11

Where the law is clear ! must be applied according to its unambiguous provisions, without judicial addition or subtraction. o First and foremost duty of the court is to apply the law o Interpretation and construction come only after it has been demonstrated that application is impossible/inadequate without them. Interpretation of the law requires fidelity to the legislative purpose o Interpretation should not be at war with the end sought to be attained. o SC has cautioned against narrowly interpreting a statute to defeat the purpose of the legislator. Customs which are contrary to law, public order or public policy shall not be countenanced A custom must be proved as a fact, according to the rules of evidence.

Article 12 • • • • • Article 13

Custom – rule of conduct formed by repetition of acts, uniformly observed and practiced as a social rule, legally binding and obligatory. Courts take no judicial notice of custom. Local custom as a source of right cannot be considered by a court of justice o UNLESS such custom is properly established by competent evidence Juridical custom DIFFERS FROM social custom o juridical – can supplement statutory law or applied in the absence of one Customs which are contrary to law, public order or public policy shall not be countenanced When the law speaks of years, months, days or nights, it shall be understood that years are of three hundred sixty-five days each; months, of thirty days, days, of twenty-four hours; and nights from sunset to sunrise. If months are designated by their name, they shall be computed by the number of days which they respectively have. In computing a period, the first day shall be excluded, and the last day included.

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[WHAT THE HELL?!, But oh well haha] Year = 365 days Month (not specified) = 30 days

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Month (specified) = no. of days in that specific month Day = 24 hours Night = sunset to sunrise First day shall be excluded and the last day, included. Leap year = 366 days BUT THIS CONTRAVENES Art. 13 definition of the year. One year EXPLICITLY ordained in the Civil Code is 365 days. 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

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Article 15

Exceptions: (where the Philippine government has waived its criminal jurisdiction over them on the basis of the principles of public international law and treaty stipulations) o 1961 Vienna Convention on Diplomatic Relations: o Diplomatic agent shall be inviolable and he/she shall not be liable to any form of arrest or detention. ! A diplomatic agent is the head of the mission or member of the diplomatic staff of the mission. o S/He possesses immunity from criminal jurisdiction o the receiving state. 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.

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Article 16

Nationality rule: Regardless of where a citizen of the Philippines might be, he or she will be governed by Philippine laws with respect to his or her status, condition and legal capacity. e.g. the case of absolute divorce o When a Filipino citizen, regardless of wherever he or she is abroad, whether absolute divorce is legal in the country where he or she resides, initiates divorce from his or her spouse and is granted, the Philippines will not recognize such divorce. o If the alien spouse initiates and procures absolute divorce, the Philippines shall recognize the divorce. Real property as well as personal property is subject to the law of the country were it is situated. However, intestate and testamentary successions, both with respect to the order of succession and to 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.

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Article 17

The law of the country where the real property is situated shall be the governing law over such real property. As to the order of succession and the amount of successional rights, whether in intestate or testamentary succession, they shall be regulated by the national law of the deceased and this shall be applicable regardless of the nature of the property. Minciano v. Brimo (Turkish national) Apply the national law of the deceased in intestate and testamentary succession with regards to four elements: o the order of succession o the amount of successional rights o intrinsic validity of the provisions of the will o capacity to succeed. 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.

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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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Article 18

The law provides clearly that the forms and solemnities of public instruments, wills, and contracts shall be governed by the laws of the country where they are executed. Diplomatic and consular officials are representative of the state. Hence, any act or contract made in a foreign country before diplomatic and consular officials must conform with the solemnities under Philippine law. Under our law, 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 In matters which are governed by the Code of Commerce and special laws, their deficiency shall be supplied by the provisions of this Code.

Chapter 2: Human Relations Article 19

Every person must, who in the exercise of his/her rights and in the performance of his/her duties, act with justice, give everyone his/her due and observe honesty and good faith.

Article 20

Every person who contrary to law, willfully or negligently causes damage to another shall indemnify the latter for the same.

Article 21

Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs and public policy shall compensate the latter for the damage. • •

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Article 19 Provides for a rule of conduct that is consistent with an orderly and harmonious relationship known to contain what is commonly referred to as principle of abuse of rights, set certain standards that may be observed not only in the exercise of one's rights but also in the performance of one's duties o Standards: o 1. Act with justice o 2. Give everyone his or her due o 3. Observe honesty and good faith A right by itself legal, granted by law as such, may nevertheless become a source of some illegality. Elements of an abuse of right (Alebenson v. CA) o 1. There is legal right or duty o 2. Which is exercised in bad faith o 3. for the sole intent of prejudicing or injuring another [What is Malice/Bad faith?] (DBP v. CA) o does not simply connote bad judgment or simple negligence o connotes ill-will or spite and speaks not in response to duty o implies an intention to do ulterior and unjustifiable harm Article 20 renders it impossible that a person who suffers damage because another has violated some legal provision should find himself without relief anyone, who, whether willfully or negligently, in the exercise of his legal right or duty, causes damage to another, shall indemnify his or her victim for injuries suffered thereby. Article 21 designed to “fill in the countless gaps in statutes”, which leave so many victims of moral wrongs, helpless, even though they have actually suffered material and moral injury Deals with acts contra bonus mores and has the following elements:

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o 1. act which is legal o 2. but which is contrary to morals, good customs, public order or public policy o 3. it is done with intent to injure Application: (from the book) o The case of the pregnant girl who was promised of marriage ! Can still file for civil action even if there's nothing “illegal/contrary to law” ! She and her family have suffered incalculable moral damages ! Under article 21, they would have such a right action Integration of Art. 19, 20 and 21 An act which causes injury to another may be made the basis for an award of damage Common element of Art. 19 and 21 ! the act must be intentional Article 20: does not distinguish: the act maybe done either “willfully”, or “negligently” Application (from the book): Mr. Curio case (Art. 19) o Petitioner had unjustly discriminated against Mr. Curio o Petitioner had no reason to be strict and “go legal” all of a sudden with respect to Mr. Curio since he cleared three employees who are in a similar situation Application: Velayo v. Shell Co. (Art. 19) o defendant liable under Article 19 for disposing of its property – a perfectly legal act – in order to escape reach of a creditor o held that a principal is liable under Article 19 in terminating the agency Application: Article 19 o PNB v. CA o Held: Certainly, it knew that the agricultural year was about to expire, that by its disapproval of the lease private respondents would be unable to utilize the sugar quota in question. In failing to observe the reasonable degree of care and vigilance which the surrounding circumstance reasonably impose Art. 20 - an act may be intentional or due to negligence, but it is contrary to law, so it is illegal”. (May not be done with malice but it is illegal) Art. 21 – an act may be legal, but it is done with the intent to harm, injure or burden another.

Article 22

Every person who through an act or performance by another, or any other means, acquires or comes into possession of something at the expense of the latter without just or legal ground shall return the same to him/her

Article 23

Even when an act or event causing damage to another's property was not due to the fault or negligence of the defendant, the latter shall be liable for indemnity if through the act or event s/he was benefited • • • • • • •

Article 24

Unjust enrichment: no person can claim what is not validly and legally his or hers. Hence, he or she should not unduly profit on something which does not meritoriously belong to him or her Article 22: even if it is unintentional, there is somebody who suffers/takes damage when one comes into possession of something Force majeure – no just enrichment, both suffered damages, no unjust enrichment prevention of unjust enrichment Relevant jurisprudence: Obana v. CA, Pajarillo v. CA, Perez v. Pomar “Nemo cum alterious detrimento locupletari potest” - that no one should not be permitted to enrich himself/ herself to the damage of another. There is unjust enrichment when a person unjustly retains a benefit to the loss of another, or when a person retains money or property of another against the fundamental principles of justice, equity and good conscience. (Republic v. Ballacanag). In all contractual, property or other relations, when one of the parties is at a disadvantage on account of his/her moral dependence, ignorance, indigence, mental weakness, tender age or other handicap, the courts must be vigilant for his/her protection.

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Equity rule ! tempers Article 3 Court vigilance: the court must be vigilant in protecting the rights of the disadvantaged in the view that any decision will be consonance with what is right and legal.

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Article 25

Thoughtless extravagance in expenses for pleasure or display during a period of acute public want or emergency may be stopped by order of the courts at the instance of any government or private charitable institution • •

Article 26

“Thoughtless” ! insensitive Government and private charitable institutions are given legal standing to seek an injunction Every person shall respect the dignity, personality, privacy, and peace of mind of his /her neighbors, and other persons. The following and similar acts, though they may not constitute a criminal offense shall produce a cause of action for damages, prevention or other relief: o 1. prying into the privacy of another's residence o 2. meddling with or disturbing the private life or family relations of another o 3. intriguing to cause another to be alienated from his/her friends o 4. vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition.

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• Article 27

Protection of human dignity ! the sacredness of human personality is a concomitant of every plan for human amelioration. The touchstone of every system of laws, of the culture and civilization of every country is how far it dignifies man/woman. The privacy of one's home is an inviolable right Watching TV in another's residence is not “Prying into privacy” there is meddling of so-called friends who poison the mind of one or more members of the family against other members To a certain extent, these situations seem inevitable, from the nature of social make-up, but there ought to be a limit somewhere, when the penal laws against defamation and unjust vexation are not transgressed. Social equality is not sought by the legal provision under consideration but due regard for decency and propriety. Any person suffering material or moral loss because a public servant or employee refuses or neglects, without just cause, to perform his/her official duty may file an action for damages and other relief against the latter, without prejudice to any disciplinary administrative action that may be taken.

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Article 28

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What’s the difference between a public servant and employee o Public servant = elected into office[?]; holds a certain high rank o Public employee = appointed or hired on the basis of merit, functions under a government agency or office of a governmental institution Speaks of public servant or employees and are liable for their refusal or negligence to perform their functions The refusal or negligence should be based on just cause. Absence of which constitutes for a cause of action for damages or other relief. o Example: When a public employee (Mr. X) refuses to process your request because “a certain person-in-charge” is absent. Will Art. 27 apply? ! It depends. If Mr. X has just cause for his refusal and/or negligence of his function, then he is not. But his absence cannot be justified, and neglect is established, then he is liable. [JUST CAUSE is important] ! Absence may not be a form of refusal but there is negligence A public official is supposed to be an agent or at least a representation of the government therefore the law exacts on him or her an obligation to be very vigilant and just so that the public can be assured that the government is truly effective in servicing their needs in Correa v CFI of Bulacan, a public officer who commits a tort or other wrongful act done in excess or beyond the scope of his duty, is not protected by his office and is personally liable therefore like any private individual Unfair competition in agricultural, commercial or industrial enterprises, or in labor through the use of force, intimidation, deceit, machination or any other unjust, oppressive or highhanded method shall give rise to a right of action by the person who thereby suffers damage.

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• • Article 29

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This is necessary in a system of free enterprise. Should not deprive others of a fair chance to engage in business or earn a living When the accused in criminal prosecution is acquitted on the ground that his/her guilt has not been proved(proven?) beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted. Such action requires only a preponderance of evidence. Upon motion of the defendant, the court may require the plaintiff to file a bond to answer for damages in case the complaint should be found to be malicious. If in criminal case the judgment or acquittal is based upon reasonable doubt, the court shall so declare. In the absence of any declaration to that effect it may be inferred from the text of the decision whether or not the acquittal is due to that ground.

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Article 30

This means that only preponderance of evidence is required. Therefore, acquittal because of the failure to present a proof beyond reasonable doubt does not necessarily amounts to the extinction of the civil case, unless the accused is innocent and is not the perpetrator. Proof beyond reasonable doubt ! that amount of proof which forms an abiding moral certainty that the accused committed the crime charged. It is not absolute certainty. If the basis is innocence, then there is no need for a separate civil case Preponderance of evidence (in a civil case) – that, as a whole, the evidence adduced by one side outweighs that of the adverse party. Hence if the guilt of the accused is not proven beyond reasonable doubt, a civil action to prove civil liability can still be filed where only preponderance of evidence is needed. “a judgment of acquittal does not constitute a bar to subsequent civil action involving the same subject matter, even in regard to a civil action brought against the defendant by the State. People of the Philippines v. Ritter o presumption of innocence o on the ground of reasonable doubt o lacks laws against child exploitation o response ! RA 7610 (against child exploitation) ! intervention at first sign of exploitation o When a separate civil action is brought to demand civil liability arising from a criminal offense, and no criminal proceedings are instituted during the pendency of the civil case, a preponderance of evidence shall likewise be, sufficient to prove the act complained of.

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Article 31

Even in the civil obligation arose from a criminal offense the required quantum of evidence on a civil suit to claim such civil obligation is but merely preponderance of evidence. o Example: A steals B'’s property. B has the capacity to sue you for your criminal liability. Under Article 30, B can file a separate civil action even without a criminal proceeding YET. When the civil action is based on an obligation not arising from the act or omission complained of as a felony, such civil action may proceed independently of the criminal proceedings and regardless of the result of the latter.

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Pertains to injuries which do not necessarily arise from a commission of a crime Art. 2176: Whoever by act or omission causes damage to another there being fault or negligence, is obliged to pay for the damage done. Quasi-delict is culpa aquiliana and is separate and distinct from criminal negligence, which is a delict. Quasi-delict (culpa aquiliana) applicable for torts ! no contractual relations between parties Quasi-delict (culpa contractual) ! if there exist a contract or obligation Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the civil liability. Not on the act or omission charged as a felony in a criminal case, but to one based on an obligation arising from other sources, such as law or contract.

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Article 32

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Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates, or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: [INSERT LONG LIST OF RIGHTS HERE THAT I WILL PROBABLY NOT REMEMBER] In any cases referred to in this article, whether of not the defendant'’s act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civl action shall proceed independently of any criminal prosecution (if the latter be instituted) and may be proved by a preponderance of evidence The indemnity shall include moral damages. Exemplary damages may also be adjudicated.

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The responsibility herein set forth is not demandable from a judge unless his act or omission constitute a violation of the Penal Code or other penal statute. Two kinds of duties exercised by public officers: o 1. Of Duties to the Public ! ! owing primarily to the public collectively – to the body politic – and not to any private individual o Of Duties to Individuals ! ! Includes those who, whole they owe to the public the general duty of a proper administration of their respective offices, yet become, by reason of their employment by a particular individual to do some act for him in an official capacity. The liability of a public officer to an individual or the public is based upon and is co-extensive with his duty to the individual or the public. If to the one, or the other, he owes no duty, to that he can incur no liability “duty owing to the public in general” - an individual cannot have a cause of action for damages o in performing or failing to perform a public duty, the officer has touched his/her interest to his/her prejudice; but the officer owes no duty to him/her as an individual. The remedy in this case is not judicial but political. Thus, the rule restated is that an individual cannot have a particular action against a public officer without a particular injury, or a particular right which are the grounds upon which all actions are founded. Allows a damage suit for “tort for impairment of rights and liberties” In tort law, for a plaintiff to maintain an action for damages for the injuries of which he complains, he must establish that such injuries resulted from a breach of duty which the defendant owed the plaintiff, meaning a concurrence of injury to the plaintiff and legal responsibility by the person causing it. To have cause of action for damages against the petitioner, the respondent must allege that it suffered a particular or special injury. A cause of action exists WHEN: o 1. a right in favor of the plaintiff by whatever means and under whatever law it arises or is created. o 2. an obligation on the part of the named defendant to respect or not to violate such right o 3. an act or omission on the part of such defendant violative of the right of the plaintiff for which the latter may maintain an action for recovery of damages REASONS on the creation of an absolutely separate and independent civil action for the violation of civil liberties is essential to the effective maintenance of democracy: o the threat to freedom originates from the abuse of power of gov'’t officials and peace officers ! [Subjecting these criminal or civil actions under the whims and pure discretion of the public official/prosecutors], many individuals, whose freedom had been tampered with, have been unable to reach o even when prosecuting attorney filed a criminal action, the requirement of proof beyond reasonable doubt often prevented the appropriate punishment o direct and open violations of the Penal Code trampling upon the freedoms named are not so frequent as those subtle, clever and indirect ways which do not come within the pale

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Article 33

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of the penal law. Only judges are excluded from liability under the said article, provided their acts or omissions do not constitute a violation of the Penal Code or other penal statute. Good faith not a defense o the very nature of Article 32 is that the wrong may be civil or criminal. It is not necessary therefore that there should be malice or bad faith. To make such a requisite would defeat the main purpose of Article 32 which is that effective protection of individual right Why are judges exempted? o Right to speedy trial: the judge repeatedly granted motion for postponement, then undergoes certiorari for grave abuse of discretion. It would be absurd for the judges to be liable for every error. o The judge will only be liable if the act or omission constitutes a violation of the Penal Code or other penal statute. ! If the act of the judge amounts to criminal offense ! “knowingly rendering an unjust judgment” ! hard to prove ! example: ! before and during the martial law, gov't departments were converted to ministries ! Ministry of Education, Cuture and Sports ! silly directive, when joining “world softball competition”. ! Alleged to have cheated because players were overage ! Documents were faked or intentionally mismatched them with the persons ! The “ruling is that one must look for the presence of pubic hair”. ! PE teacher abused this. ! PE teacher claims innocence pursuant to the MECS directive ! The Supreme Court acquitted the teacher, and that there was “no knowingly rendering an unjust judgment” ! There is something wrong with such ruling.

In cases of defamation, fraud, and physical injuries, a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution and hall require only a preponderance of evidence. •

Article 34

Terms such as defamation, fraud and physical injuries must be understood in their ordinary sense”. o Fraud – estafa, forgery, etc. o Defamation – libel, unjust vexation o Physical injuries – death, homicide, etc. When a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property, such peace officer shall be primarily liable for damages, and the city or municipality shall be subsidiarily responsible therefor. The civil action herein recognized shall be independent of any criminal proceedings, and a preponderance of evidence shall suffice to support such action.

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It is the duty of police officers to see to it that peace and order are maintained in the community. Their failure or refusal to render the needed assistance to maintain lawful order can be a basis for claiming damages against them When the civil liability is satisfied: does not provide for “just cause” but there is still a way out: “if it is in case of danger to life or property” -[has to be in danger of life and property and not just any other trivial and simple circumstance ! it has to be of the same magnitude to “danger to life and property”. o Danger to property has to amount to the same magnitude as danger to life ! needs substantial What do you mean by “subsidiarily liable/ subsidiary liability” ! o if it's according to principle of “respondeat superior” [?] o and it is the failure of their duty to the public [?]

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Article 35

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When a person, claiming to be injured by a criminal offense, charges another with the same, for which no independent civil action is granted in this Code or any special law, but the justice of the peace finds no reasonable grounds to believe that a crime has been committed, or the prosecuting attorney refuses or fails to institute criminal proceedings, the complainant may bring a civil action for damages against the alleged offender. Such civil action may be supported by a preponderance of evidence. Upon the defendant's motion, the court may require the plaintiff to file a bond to indemnify the defendant in case the complaint should be found to be malicious If during the pendency of the civil action, an information should be presented by the prosecuting attorney, the civil action shall be suspended until the termination of the criminal proceedings. •

Article 36

Rule 111 of the Rules of Court: o Sec. 1 ! when a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action . ! The reservation of the right to institute separately civil action shall be made before the prosecution starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation ! no counterclaim, cross-claim, or third-party complaint may be filed by the accused in the criminal case, but any cause of action which could have been the subject thereof may be litigated in a separate civil action o Sec 2 ! When a separate civil action is suspended ! A criminal action has been commenced, the separate civil action arising therefrom cannot be instituted, the latter shall be suspended in whatever stage it may be found before judgment on the merits. The suspension shall last until final judgment is rendered in the civil action, the same may, upon the motion of the offended party, be consolidated with the criminal action in the court trying the criminal action ! The extinction of the penal action does not carry with the extinction of the civil action o Sec. 3 ! when the civil action may proceed independently ! It shall proceed independently of the criminal action and shall require only a preponderance of evidence ! In no case however, may the offended party recover damages twice for the same act or omission charged in the criminal action o Sec. 4 ! Effect of death ! the death of the accused after arraignment and during the pendency of the criminal action shall extinguish the civil liability arising from the delict. However, the independent civil action under sec 3 or which thereafter is instituted to enforce the liability arising from other sources of obligation may be continued against the estate or legal representative of the accused after proper substitution or against said estate, as the case may be. ! Legal representatives, o representatives to appear and be substituted within period of 30 days from notice o Sec. 5 ! judgment in civil action not a bar ! A final judgment rendered in a civil action the defendant form civil liability is not a bar to a criminal action against the defendant for the same act or omission subject to the civil action Prejudicial questions, which must be decided before any criminal prosecution may be instituted or may proceed, shall be governed by the rules of court which the Supreme Court shall promulgate and which shall not be in conflict with the provisions of this Code

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The general rule is that where both a civil and criminal case arising from the same facts are filed in courts, the criminal case takes precedence. An exception to this general rule would be if there exist prejudicial questions which should be resolved first before action could be taken.

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Prejudicial questions ! is one that arises in a case, the resolution of which is a logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal Always two case: The criminal is always suspended because the issues in the civil is determinative of the outcome of the criminal case. Two elements of a prejudicial question: o 1. the previously instituted action involves an issue similar or intimately related to the issue raised in the subsequent criminal action o 2. the resolution of such issue determines whether or not the criminal action may proceed

Chapter 3: Civil Personality Article 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. Article 37 • • Article 38

Juridical capacity - acquired upon birth Capacity to act – not intrinsic in a person. It is attained or conferred and it can be lost not only by death of the person but by any valid cause provided by law.

Minority, insanity or imbecility, the state of being a deaf-mute, prodigality and civil interdiction are mere restrictions on the capacity to act, and do not exempt the incapacitated person from certain obligations, as when the latter arise from his acts or from property relations, such as easements. Minority – when one is under the age of majority (18) Insanity – any mental disorder severe enough that it prevents a person from having legal capacity Prodigality – (Prodigal) A person whose affairs are managed by a curator because of the person’s wasteful spending or other bad conduct. • Interdiction – The act of depriving a person of the right to handle his or her own affairs • Easement – An interest in land owned by another person consisting in the right to use control the land or an area above or below it. The following circumstances, among others, modify or limit capacity to act: age, insanity, imbecility, the state of being a deaf-mute, penalty, prodigality, family relations, alienage, absence, insolvency and trusteeship. The consequences of these circumstances are governed in this Code, other codes, the Rules of Court, and in special laws. Capacity to act is not limited on account of religious belief or political opinion. A married woman, twenty-one years of age or over, is qualified for all acts of civil life, except in cases specified by law. • • •

Article 39

Article 39 •

Article 40 Article 41

SIGNIFICANCE of 38 and 39 – The former restricts the capacity to act, while 39 is broader in scope but it enumerates situations which merely modify the capacity to act.

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. 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. •

Articles 40 and 41:

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Child and Youth Welfare Code amended article 40. It thus provided that the civil personality of the child shall commence from the time of his conception for all purposes favorable to him, subject to the requirements of article 41. Birth certificate – provides prima facie evidence of the facts contained therein. These facts may however be rebutted by competent evidences such as testimonies of the attending physician or

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the midwife. •

In cases of an exposed child, the person who found the child shall report to the local civil registrar the place, date and time of finding and other attendant circumstances.

In cases of illegitimate children, the birth certificate shall be signed and sworn jointly by the parents of the infant or only by the mother if the father refuses. In this case it is not permissible to state or reveal in the document the name of the father who refuses to acknowledge paternity. Civil personality is extinguished by death. The effect of death upon the rights and obligations of the deceased is determined by law, by contract and by will. •

Article 42

Article 42 • Article 43

The rights and obligations of a dead person can still be regulated by contract, will or the law.

If there is doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, it is presumed that they died at the same time and there shall be o transmission of rights from one to the other. Article 43 •

Proof of death must be established by positive evidence. However it can likewise be established by circumstantial evidence derived from facts. If ever an inference is to be made it must be derived from an existing fact. Proof of death can never be established from mere interference arising from another inference or from presumptions and assumptions.

Article 44

The following are juridical persons: 1. The State and its political subdivisions; 2. Other corporations, institutions and entities for public interest or purpose created by law; their personality begins as soon as they have been constituted according to law; 3. Corporations, partnerships and associations for private interest or purpose to which the law grants a juridical personality, separate and distinct from that of each shareholder, partner or member.

Article 45

Juridical persons mentioned in Nos. 1 and 2 of the preceding article are governed by the laws creating or recognizing them. Private corporations are regulated by laws of general application on the subject. Partnerships and associations for private interest or purpose are governed by the provisions of this Code concerning partnerships.

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Article 46

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Juridical persons may acquire and possess property of all kinds, as well as incur obligations and bring civil or criminal actions, in conformity with the laws and regulations of their organizations. Juridical person – a being of legal existence susceptible of rights and obligations, or of being the subject of juridical relations Articles 44-46:

Article 47

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State – The state cannot be sued without its consent. Express consent may be embodied in a genera law or special law. Consent is implied when the government enters into business contracts and when a State files a complaint, thereby opening itself to a counterclaim.

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Suability V. Liability – Suability depends on the consent of the state to be sued. Liability depends on the applicable law and the established facts. When a state is suable it does not necessarily mean that it is also liable. On the other hand if it cannot be sued it can never be held liable.

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Political subdivisions – Municipal corporations, provinces, cities and municipalities

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Corporation – governed by BP 68 or the Corporation Code. These are creatures of the law and can only come into existence in the manner prescribed by law.

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Partnership – Two or more people bind themselves to contribute money, property, or industry to a common fund with the intention of dividing the profits among themselves. Two or more people may also form a partnership in the exercise of a profession.

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Distinct personality and exceptions – The obligation of the corporation is not the obligation of stockholders and vice versa.

Upon the dissolution of corporations, institutions and other entities for public interest or purpose mentioned in No. 2 of Article 44, their property and other assets shall be disposed of in pursuance of law or the charter creating them. If nothing has been specified on this point, the property and other assets shall be applied to similar purposes for the benefit of the region, province, city or municipality which during the existence of the institution derived the principal benefits from the same.

Chapter 4:Citizenship and Domicile Article 48 The following are citizens of the Philippines: 1. Those who were citizens of the Philippines at the time of the adoption of the Constitution 2. Those born in the Philippines of foreign parents who, before the adoption of said constitution, had been elected to public office in the Philippines; 3. Those whose fathers are citizens of the Philippines; 4. Those whose mothers are citizens of the Philippines and, upon reaching the age of majority, elect Philippine Citizenship; 5. Those who are naturalized in accordance with law. Article 49

Naturalization and the loss and reacquisition of citizenship of the Philippines are governed by special laws.

Article 50

For the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is the place of their habitual residence.

Article 51

When the law creating or recognizing them, or any other provision does not fix the domicile of juridical persons, the same shall be understood to be the place where their legal representation is established or where they exercise their principal functions. Articles 48-51: •

Domicile - denotes a fixed permanent residence to which, when absent, one has the intention of

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returning. Residence is used to indicate a place of abode, whether permanent or temporary. Domicile is residence coupled with the intention to remain for an unlimited time. No length of residence without intention of remaining will constitute domicile. A person may have multiple residences but he may only have one domicile. •

Domicile of minors - Minors follow the domicile of their parents

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Change in Domicile - 1) an actual removal or an actual change of domicile; 2) a bona fide intention of abandoning the former place of residence establishing a new one; and 3) acts which correspond with the purpose

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Fixing Domicile - The husband and the wife shall fix the family domicile. In case of conflict the court shall decide (Art. 69)

FAMILY CODE OF THE PHILIPPINES E.O. 209 “Family Code of The Philippines” E.O. 277 Contains amendments and modifications to Articles 26, 36 and 39. Effectivity August 3, 1988 R.A. 6809 Amended Title X of the Family Code dealing with emancipation and the age of majority. This took effect on December 18, 1989. Chapter 1: Marriage Article 1 Marriage is a special contract of permanent union between a man and a woman entered into in accordance with the 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. •

Upon marriage the husband and wife become one single moral, spiritual and social being not only for the purpose of procreation but also for mutual help and protection in all aspects of life. It is one of the most basic civil rights of man. While it is a sacrosanct obligation it is nevertheless a civil contract regulated by law. Marriage as a special contract can'’t be restricted by discriminatory policies of private individuals or corporations.

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Once one is married, one is married for all intents and purposes i.e. one cannot be married for one purpose and married for another purpose.

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There are three parties to a marriage - the husband, wife and the state through its policies embodied in codes and customs.

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Examples of State Policies which guard marriage R.A. 6995 - Mail order Brides 1990 -These include matchmaking services for Filipina women to Foreign Nationals which use the postal service for the actual service or for advertising the services. -Also inducing a woman to become a member of a club whose sole purpose is matchmaking. R.A. 9208 -Anti Trafficking in Persons Act of 2003 -This includes matching a Filipino woman to a foreign national for money, profit or material, economic or other consideration. -To offer or contract marriage, real or simulated, for the purpose of acquiring, buying, offering, selling, or trading them.

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Marriage between rapist and rape victim -A subsequent valid marriage of the offender to the victim extinguishes the criminal action or penalty imposed for rape. -If the couple is married, the forgiveness of the victim spouse shall also extinguish the criminal action or the penalty provided that the crime shall not be extinguished or the penalty shall not be abated if the marriage is void ab initio.

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Article 2

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Marriage as status - marriage creates a social status or relation between the contracting parties in which not only they but the State as well is interested.

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Marriage in International Law - it is a recognized fundamental human right uner I.L. through the UNDHR, ICESCR and ICCPR.

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Constitutional Protection - The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic social institution. Furthermore the right to marriage falls within the ambit of the right of association also the right of privacy in a marriage is a right!

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These state policies however do not absolutely bar the legislature from enacting a law which allows absolute divorce. The legislature has the plenary power to decide what sort of situations allowing the absolute divorce may be recognized within the limits allowed by the Constitution. Note that this is still consistent with the policy of the State to protect the sanctity of marriage because there may be instances where parties might have undergone a marriage ceremony to bind themselves together but, subsequently, no functional marital life would exist. Hence there would be no marriage to preserve at all.

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Marriage does not shed the spouses'’ integrity or their privacy as individuals.

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Communications between the spouses are privileged. Neither the husband nor wife may testify for or against the other without the consent of the affected spouse while the marriage subsists.

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Legislative Control over Marriage - The Constitution doesn'’t establish the parameters of state protection to marriage and the family. It remains the province of the legislature to define all legal aspects of marriage.

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Law governing validity of marriage - In determining the validity of marriage, it is to be tested by the law in force at the time the marriage was contracted. As a general rule, the nature of the marriage already celebrated cannot be changed by a subsequent amendment to the law. However statutes may apply retroactively depending on its wording also statutes may also expressly validate or invalidate marriages. However, an express validation or invalidation is important because any ambiguity or doubt in the law should follow the general rule that marriages are governed by the law enforced at the time of their celebration and any interpretation of the law must always be made towards upholding the validity of a marriage.

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. •

Legal capacity - If any of the parties is below 18 the marriage is void even if the consent of the parents were previously obtained. Also the contracting parties must not be related to each other in the manner articulated in Article 37 which refers to incestuous marriages and Article 38 which refers to void marriages for reasons of public policy. Legal capacity to marry must likewise have reference to Article 39 of the Civil Code which states that capacity to act is, among others, limited by family relations.

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Contracting parties must be of different sex i.e. the contracting parties must be a male and a female. The term "“contracting parties"” cannot refer to same sex parties since the Civil Code uses terms that are heterosexual imports.

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Effect of sex change - definitely not contemplated in Article 2. However the reality of transsexuals and intersexuals'’ gender identities have been called to the attention of the SC.

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In Silverio v. Republic the court ruled that even though the Silverio "“became"” a female through sex reassignment surgery in order to get married to his/her partner, his/her sex is still nonetheless determined by visually looking at the genitals of a baby at the time of birth. The SC also said that

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there is no law recognizing sex reassignment.

Article 3

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In Republic v. Cagandahan the respondent was found to have Congenital Adrenal Hyperplasia (CAH) which is a condition where the person has both male and female characteristics and organs and where, through expert evidence, it was shown that the respondent, through genetically a female, secreted male hormones not female hormones. He/She had no breasts and did not have menstrual periods. He/She, in his mind and emotion, gelt like a male person and did not want to have surgery. The SC considered the person as an intersex individual and granted the preference of the person to be considered a male person thereby allowing the amendment of the birth certificate from female to male. The SC saw that statutes compel that a person be classified either as a male or as a female but the court is not controlled by mere appearances when nature itself fundamentally negates such rigid classification. Further the SC said (and this is very important) it is at maturity that the gender of such persons (intersex) is fixed. With REGARD to his change of name from Jennifer to Jeff the court enunciated the principle that a change of name is not a matter of right but of judicial discretion. Considering that his birth certificate will also be amended in terms of his sex the court found merit in his request for change of name.

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Consent Freely given The same must be made in the presence of the solemnizing officer

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A total absence of consent makes the marriage void ab initio.

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Consent obtained through fraud, force, intimidation, or undue influence makes such marriage merely annullable or voidable.

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State Consent - Given through the solemnizing officer. This is way a Solemnizing Officer may incur penalties if he/she contracts a marriage without authority.

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PENIS - O ano, nagising ka noh?! Keep reading! Don'’t give up!

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Note the difference: Absence of Consent = Void ab initio Vs. Defective or Vitiated Consent = Voidable (Valid until annulled)

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There is no specific manner in which consent must be given so long as there is a clear manifestation that the parties take each other as husband and wife.

• Proxy marriages are invalid in the Philippines. The formal requisites of marriage are: 1.) Authority of the solemnizing officer; 2.) A valid marriage license except in the cases provided for in Ch. 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. •

Authority of the solemnizing officer - note the difference between the person of authority and his vested authority. The former is a human being the latter is a legal power ("“by the power vested in men by...blah blah) to perform marriages within his/her jurisdiction. What is important is the latter. Hence a solemnizing officer may be present but he may not have the proper authority to marry.

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The new Local Government Code which took effect in 1992 granted the power to solemnize a marriage to a Mayor.

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In the absence of any proof to the contrary the authority of the officer or clergyman shown to have performed a marriage ceremony will be presumed.

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Also, every presumption will be indulged that the marriage was legally performed.

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The solemnizing officer is not duty bound to investigate whether or not a marriage license has been

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duly and regularly issued. It is enough that the officer knows that the license has been issued by a competent official. • •

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Under Article 29 in relation to 27 and 28 which provides situations where the parties are excused from obtaining a marriage license, the solemnizing officer has the following additional duty -In marriages that are performed in articulo mortis and marriages performed in an area where there is no means of transportation to go to the local civil registrar, the S.O. is required to ascertain the ages and relationship of the contracting parties as well as the absence of any legal impediment to marry. Under Article 34, persons living together as husband and wife for at least five years without the benefit of marriage may contract a valid marriage even in the absence of a marriage license. In this case the S.O. has the following additional duty -Ascertain the qualifications of the contracting parties. A Valid Marriage License must be issued by the Local Civil Registrar at the place where the marriage application was filed. -Lifetime of 120 days from the date of issue and is effective in any part of the Philippines but it only valid within the Philippines. -The date of issue is the date of the signing of the marriage license by the local civil registrar. -The other requirements are merely directory in the sense that their non-observance shall only constitute an irregularity and shall not render a marriage void or voidable.

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However...

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The marriage certificate itself is not an essential nor formal requirement of marriage. Failure to sign the marriage certificate or the absence of such does not render the marriage void or annullable

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WITNESSES - As a general rule, the absence of any of the two witnesses shall render the marriage void. However because of the presumption of validity of marriages, the absence of any of the two witnesses could be justifiably argued to be a mere irregularity which can give rise to civil, criminal and administrative liabilities pursuant to Article 4. Another logical argument would be the fact that the witnesses are not parties who partake of the marriage. What is essential is that the contracting parties were present before a duly authorized S.O. and that they gave their vows (Perido v. Perido).

COMMON LAW MARRIAGES - These are not recognized in the Philippines. In essence it is a non-ceremonial or informal marriage by agreement entered into by a man and a woman having capacity to marry. Such agreement should be coupled with consummation in the form of cohabitation and reputation. We don'’t recognize it because the intervention of a an ecclesiastical or civil functionary duly authorized by the state is a mandatory requirement of marriage. The absence of any of the essential or formal requisites shall render the marriage void ab initio except as stated in Article 35(2). •

Article 4

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. •

An expired marriage license is not a valid marriage license thereby making any marriage contracted on the basis of such license void.

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Good faith of at least one of the parties that the S.O. had authority to perform the marriage could render the marriage valid. This however must be distinguished from Article 3 of the Civil Code (Ignorance of the law excuses no one from compliance therewith).

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To distinguish one must find out if the party who believed in good faith believed under a mistake of fact or ignorance of the law.

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Mistake of fact: If the spouse in good faith believed that the priest who certainly looked like a

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priest and certainly had a reputation as such who married them had the proper authority despite the fact that in reality the priest authorization had recently expired. In general mistake of facts regarding the authority of the S.O. can be cured by good faith of either spouse. •

Ignorance of the law: Consider a situation where the S.O. was clearly not any of the S.O.s enumerated in Article 7 e.g. janitor, senator, security guard. Even if the clearly ignorant and asinine spouses believed in good faith re: authority, the marriage is not valid.

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Marriage by way of jest is likewise void because there is absolutely no genuine consent on the part of both the contracting parties.

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Marriage by proxy solemnized here in the Philippines is likewise void.

A mere breach of promise to marry is not an actionable wrong hence the aggrieved party cannot file a case to compel the person who has breached the promise to enter into the marriage contract. However in Wassmer v. Velez when the wedding had already been paid for and one of the parties backed out at the last moment causing financial and emotional hardships as well as public shame, the aggrieved party could certainly file for damages under Article 21 of the Civil Code. In this case, actual damages were awarded to the plaintiff. Any Male or Female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37 and 38, may contract marriage. •

Article 5 Article 6

No prescribed form or religious rite for the solemnization of the marriage is required. It shall be necessary, however, for the contracting parties to appear personally before the solemnizing officer and declare in the presence of not less than two witnesses of legal age that they take each other as husband and wife. This declaration shall be contained in the marriage certificate which shall be signed by the contracting parties and their witnesses and attested by the solemnizing officer. In case of a marriage in articulo mortis, when the party at the point of death is unable to sign the marriage certificate, it shall be sufficient for one of the witnesses to the marriage to write the name of said party, which fact shall be attested by the solemnizing officer. •

Marriage Ceremony - The Family Code recognizes ceremonial marriages i.e. marriages which are solemnized by persons duly authorized by the state. There is no specific form or ceremony that is required however there must be a personal appearance by both parties in front of an S.O. and during such appearance the parties must declare that they take each other as husband and wife in the presence of at least two witnesses of legal age. This is the minimum requirement.

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An exchange of vows can be presumed to have been made from the testimonies of the witnesses who state that a wedding took place since the very purpose of having a wedding is to exchange marital commitments (Balogbog v. Court of Appeals)

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The declaration of consent need not be vocally expressed. The consent may be shown by other manifestations. It is the agreement itself, not the form in which it is couched, which constitutes the contract.

Some of the irregularities which do not affect the validity of marriage: 1. Absence of two witnesses of legal age during the marriage ceremony 2. Absence of a marriage certificate 3. Marriage solemnized in a place other than publicly in the chambers of the judge or in open court, in church, chapel, or temple, or in office of the consul-general, consul, or vice-consul 4. Issuance of marriage license in a city or municipality not the residence of either of the contracting parties 5. Unsworn application for a marriage license 6. Failure of the contracting parties to present original birth certificate or baptismal certificate to the local civil registrar who likewise failed to ask for the same 7. Failure of the contracting parties between the ages of 18 and 21 to exhibit consent of parents or persons having legal charge of them to the local civil registrar 8. Failure of the contracting parties between the ages of 21 to 25 to exhibit advice of parents to local

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9. 10. 11. 12. 13. 14. Article 7

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civil registrar Failure to undergo marriage counseling Failure of the local civil registrar to post the required notices Issuance off marriage license despite absence of publication or prior to the completion of the 10day period for publication Failure of the contracting parties to pay the prescribed fees for the marriage license Failure of the person solemnizing the marriage to send copies of the marriage certificate to the local civil registrar Failure of the local registrar to enter the applications for marriage licenses filed with him in the registry book in the order in which they were received

Marriage may be solemnized by: 1.) Any incumbent member of the judiciary within the court'’s jurisdiction; 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 S.O.'’s church or religious sect; 3.) Any ship captain or airplane chief only in cases mentioned in Article 31 (articulo mortis). 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 that because of the Local Government Code there is a sixth functionary who is vested with the power to marry. The Mayor or when he is temporarily incapacitated for physical or legal reasons like a leave of absence, travel abroad or suspension, the Vice Mayor or the highest ranking Sangguniang Bayan member shall have the power to solemnize marriages within their jurisdiction. •

Judges - Different judges have different jurisdictions. Judges of the S.C., C.A., C.T.A., Sandiganbayan have a national jurisdiction. Judges who are appointed in specific jurisdictions like R.T.C. judges can only solemnize marriages within said jurisdictions. Non-observance of the rule on jurisdiction generally makes the marriage null and void because outside their jurisdictions the judges have no authority (an essential requirement) however one must recall the exception of good faith of either of the contracting parties. Note that the good or bad faith of the S.O. will not matter when it comes to the validity of the marriage.

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Priests etc. - For these religious functionaries there are four requisites which must concur Must be duly authorized by his or her church or religious sect; Must act within the limits of the written authority granted to him or her by the church or religious sect; Must be registered with the civil registrar general; At least one of the contracting parties whose marriage he or she is to solemnize belongs to his or her church or religious sect.

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• • • •

Ship Captain and Airplane Chief - For these individuals the three requisites must concur The marriage must be in articulo mortis (at least one of the parties is at the point of death); The marriage must be between passengers or crew members; and Generally, the ship must be at sea or the plane must be in flight.

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In no case will the assistant pilot or the second in command of the ship have authority to marry his/her passengers even if their superiors perish since there is no law allowing such assumption of authority for the purpose of solemnizing a marriage. Such marriages can be solemnized during stopovers at ports of call.

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Military Commander - Five requisites: He or she must be a military commander He must be a commissioned officer (at least a 2nd Lieutenant, Ensign or its equivalent) of a unit (at least a battalion or its equivalent). A chaplain must be assigned to such unit The said chaplain must be absent at the time of the marriage

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Article 8

The marriage must be one in articulo mortis The contracting parties, whether members of the armed forces or civilians, must be within the zone of military operation. If the chaplain is present, he must be the one who should solemnize the marriage.

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Note that the chaplain'’s authority comes from Article 7(2). Thus, if the chaplain cannot comply with Article 7(2), then it is as if he is absent as he cannot solemnize a marriage, in which case, the military commander can solemnize the marriage.

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Note also that the term "“within the zone of military operation"” does not include simulated exercises because it requires absence of civilian authorities. Furthermore it contemplates a widespread military activity over an area.

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Consul-General, Consul or Vice Consul - Only the three mentioned are authorized to solemnize a marriage. Consul agents are not authorized. They can solemnize marriages abroad only in cases where both parties are Filipino citizens. They also perform the role of the local civil registrar. The solemnities established by Philippine laws shall be observed in these marriages. If the parties wish to have their wedding in a place other than the office of the consul-general, they shall request the said official in writing in which case the marriage may be solemnized at a house or place designated by them in a sworn statement to that effect.

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In general a marriage between a foreigner and a Filipino solemnized a Consular Official is void because the authority to marry only applies to Filipino citizens. The exception to this rule is when such manner of marriage is valid in the host country. If it is valid in the host country then it is valid in the Philippines.

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A Consular Official does not have authority to marry within the Philippines since the code specifically refers to marriages abroad.

The marriage shall be solemnized publicly in the chambers of the judge or in open court, in the church, chapel or temple, or in the office of the consul-general, consul, or vice consul, as the case may be, and not elsewhere, except in the cases of marriages contracted at the point of death or in remote places in accordance with Article 29 of this Code, or where both of the parties request the solemnizing officer in writing in which case the marriage may be solemnized at a house or place designated by them in a sworn statement to that effect. •

Article 9

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Venue - Non-observance of Article 8 will not invalidate a marriage but can subject the person or persons who cause the violation to civil, criminal or administrative liability.

A marriage license shall be issued by the local civil registrar of the city or municipality where either contracting party habitually resides, except in marriages where no license is required in accordance with Ch. 2 of this Title •

Place of issue - If the parties get a license in a place other than the place where wither of them reside, it is merely an irregularity which will not render null and void the marriage celebrated.

Article 10

Marriages between Filipino citizens abroad may be solemnized by a consul-general, consul or viceconsul of the Republic of The Philippines. The issuance of the marriage license and the duties of the local civil registrar and of the solemnizing officer with regard to the celebration of marriage shall be performed by said consular official.

Articles 11-12 Article 13

Duties of the Civil Registrar In case either of the contracting parties has been previously married, the applicant shall be required to furnish, instead of the birth or baptismal certificate required in the last preceding article, the death certificate of the deceased spouse or the judicial decree of the absolute divorce, or the judicial decree of annulment or declaration of nullity of his or her previous marriage. In case the death certificate cannot be secured, the party shall make an affidavit setting forth this circumstance and his or her actual status and the name and date of death of the deceased spouse.

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Article 14

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In case either or both of the contracting parties, not having been emancipated by a previous marriage are between the ages of e18 and 21, they shall in addition to the requirements of the preceding articles, exhibit to the local civil registrar, the consent to their marriage of their father, mother, surviving parent or guardian, or persons having legal charge of them, in the order mentioned. Such consent shall be manifested in writing by the interested party who personally appears before the proper local civil registrar, or in the form of an affidavit made in the presence of two witnesses and attested before any official authorized by law to administer oaths. The personal manifestation shall be recorded in both applications for marriage license, and the affidavit, if one is executed instead, shall be attached to said application. •

No more emancipation by marriage under the Family Code. Emancipation is only attained when the child reaches 18 years of age.

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Parental Consent - for people at least 18 but below 21 this must be obtained in order to get a marriage license. Non-compliance with this requirement does not invalidate the marriage but merely makes the marriage annullable. This is because parental consent is needed only to get a formal requisite not a essential requisite (distinguish from consent of contracting parties).

Article 15

Any contracting party between the ages of 21 and 25 shall be obliged to ask their parents or guardian for advice upon the intended marriage. If they do not obtain such advice, or if it be unfavorable, the marriage license shall not be issued until after 3 months following the completion of the publication therefor. A sworn statement by the contracting parties to the effect that such advice has been sought, together with the written advice given, if any, shall be attached to the application for marriage license. Should the parents or guardian refuse to give any advice, this fact shall be stated in the sworn statement.

Article 16

In the cases where parental consent or parental advice is needed, the party or parties concerned shallm in addition to the requirements of the preceding articles, attach a certificate issued by a priest, imam or minister authorized to solemnize marriage under Article 7 of this Code or a marriage counselor duly accredited by the proper government agency to the effect that the contracting parties have undergone marriage counselling. Failure to attach said certificate of marriage counselling shall suspend the issuance of the marriage license for a period of three months from the completion of the publication of the application. Issuance of the marriage license within the prohibited period shall subject the issuing officer to administrative sanctions but shall not affect the validity of the marriage. Should only one of the contracting parties need parental consent or parental advice, the other party must be present at the counseling referred to in the preceding paragraph. •

Article 17

The local civil registrar shall prepare a notice which shall contain the full names and residences of the applicants for a marriage license and other data given in the applications. The notice shall be posted for 10 consecutive days on a bulletin board outside the office of the local civil registrar located in a conspicuous place within the building and accessible to the general public. This notice shall request all persons having knowledge of any impediment to the marriage to advise the local civil registrar thereof. The marriage license shall be issued after the completion of the period of publication. •

Article 18

Absence of parental advice does not affect the marriage. Absence of advice doesn'’t even make marriage annullable. This provision is only in keeping with Philippine tradition and it does not bar marriage totally

If a marriage license is issued even prior to the 10 days notice rule and/or the 3 months rule for parental advice and/or both, the marriage will still be completely valid. It will not even be annullable

In case of any impediment known to the local civil registrar or brought to his attention, he shall note down the particulars thereof and his findings thereon in the application for a marriage license, but shall nonetheless issue said license after the completion of the period of publication, unless ordered otherwise by a competent court at his own instance or that of any interested party. No filing fee shall be charged for the petition nor a corresponding bond required for the issuance of the order.

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Investigative power of the L.C.R. - the Registrar may note down any impediment to marriage of any party but he would still be duty bound to issue the license after the fulfillment of all the other formalities such as payment of fees, parental advice etc. In general, only court intervention can prevent the issuance of a marriage license. However the petition to the court may be brought by the registrar or by any interested party. The exception to this rule is when a foreigner fails to produce a certificate of legal capacity in order to obtain a marriage license here. In that case the registrar could withhold the license.

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The registrar is devoid of the power to withhold licenses on their own to prevent opportunities for extortion and corruption.

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If there is a defiance of a court injunction and the license is still issued it will only be considered an irregularity

Article 19

The local civil registrar shall require the payment of the fees prescribed by law or regulations before the issuance of the marriage license. No other sum shall be collected in the nature of a fee or a tax of any kind for the issuance of said license. It shall, however, be issued free of charge to indigent parties, that is, those who have no visible means of income or whose income is insufficient for their subsistence, a fact established by their affidavit, or by their oath before the local civil registrar.

Article 20

The license shall be valid in any part of the Philippines for a period of 120 days from the date of issue, and shall be deemed automatically cancelled at the expiration of said period if the contracting parties have not made use of it. The expiry date shall be stamped in bold characters at the face of every license issued. •

Article 21

The date of the signing by the L.C.R. is the date of issue.

When either or both of the contracting parties are citizens of a foreign country, it shall be necessary for them before a marriage license can be obtained, to submit a certificate of legal capacity to contract marriage, issued by their respective diplomatic or consular officials. Stateless persons or refugees from other countries shall, in lieu of the certificate of legal capacity herein required, submit an affidavit stating the circumstances showing such capacity to contract marriage.

Article 22 Article 23

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Citizens of any foreign country may contract marriage in the Philippines. They must however obtain a marriage license in the Philippines. Before such license is issued a certificate of legal capacity must be submitted. The Philippines, in so far as marriage is concerned, adheres to the national law of the contracting parties with respect to their legal capacity to contract marriage. Thus a foreigner 16 years of age could marry a Filipino here or another foreigner here by first obtaining a certificate of legal capacity stating that in his/her country, 16 year olds can marry.

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The requisite of certificate of legal capacity, which shall come from a foreigner intending to marry here is an exception to the rule that a L.C.R. may not withhold the issuance of a marriage license without a court order.

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If despite the absence of the certificate of legal capacity, a license was still issued, the resulting marriage will still be valid as this will be merely an irregularity.

Marriage Certificate The one important thing to remember here is that a marriage settlement (if there is one) shall be attached to this. It shall be the duty of the person solemnizing the marriage to furnish either of the contracting parties the original marriage certificate referred to in Article 6 and to send the duplicate and triplicate copies of the certificate not later than 15 days after the marriage, to the local civil registrar of the place where the marriage was solemnized. Proper receipt shall be issued by the local civil registrar to the solemnizing officer transmitting copies of the marriage certificate. The solemnizing officer shall retain in his file the quadruplicate copy of the marriage certificate, the

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original of the marriage license and in proper cases, the affidavit of the contracting party regarding the solemnization of marriage in a place other than those mentioned in Article 8.

Articles 24-25 Article 26

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Proof of marriage - The best evidence of a marriage is the marriage contract or the marriage certificate. A mere photostat copy of a marriage certificate is however a worthless piece of paper. The marriage certificate must be duly certified by the L.C.R. as an authentic copy of the records in his office.

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If however only photostat copies are presented in court and none of the parties object to its entrance into evidence it will be deemed sufficient proof of the facts stated therein such as the fact that a marriage took place.

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The absence of a marriage contract is not always proof that no marriage took place. A marriage like any other contract may be proved by parol evidence such as testimonies of witnesses or by the S.O.

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Mere cohabitation is however, not direct proof of marriage.

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In Sy v. Court of Appeals, where the wife only invoked the absence of a marriage license in her appeal, the S.C. applied an exception to the rule that litigants cannot raise an issue for the first time on appeal.

Duties of the L.C.R. There is nothing important here except if you someday plan on being a L.C.R. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they are solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1),(4) and (6),36,37 and 38. 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 likewise have capacity to remarry under Philippine law. •

Lex Loci Celebretionis rule - Except for prohibited marriages under 35(1),(4), and (6), 36, 37 and 38, marriages solemnized abroad and which are valid there such are recognized as valid here as a general rule. This is a matter pursuant to our policy towards international comity.

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If the marriage is solemnized by a Consular Official, the solemnization must conform to Philippine laws.

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EXCEPTION #1 to Lex Loci Celebretionis - If either or both parties are Filipinos and they are below 18 years of age and they get married in a country where marriages by people below 18 years of age are valid, such a marriage would nonetheless be invalid here. This is because our law clearly adheres to the rule that the marrying capacity of the contracting parties is governed by the national law of that party. Furthermore, laws relating to family rights and duties, or to the status, conditions and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.

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EXCEPTION #2 - Bigamous and polygamous marriages though valid abroad shall not be valid here. There is however, an exception to this exception (META-EXCEPTION!). Under Article 41 of the Family Code a bigamous marriage may be recognized when one of the spouses had been legally presumed dead but subsequently reappears after the his/her spouse had already remarried. More on this in Article 41.

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EXCEPTION #3 - A marriage by a Filipino to a person who is psychologically incapacitated to perform the essential marital obligations abroad even if valid in that foreign country where it has been solemnized shall not be valid here. The same is true even if the Filipino is the one who is psychologically incapacitated.

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EXCEPTION #3 - Marriages between ascendants and descendants of any degree as well as

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between brothers and sisters, whether of the full or half blood are likewise invalid here even if these marriages are allowed in the country where they were celebrated. These marriages are void because they are incestuous. •

EXCEPTION #4 - Marriages declared void under Philippine laws for being against public policy will not be recognized here even if valid in the country where the marriages were solemnized.

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EXCEPTION #5 - Common law marriages should not be valid here according to Atty. Sta. Maria. The key in his argument is in the distinction between our technical uses of the word "“solemnized"” as opposed to the technical definition of "“contracted"” which is attributed to common law marriages. It is a principle of statutory construction that when a statute used a technical term, the meaning of that term is also its technical definition. Thus when we compare the two we find that the word "“solemnized"” has a much narrower meaning which implies a ceremonial marriage not one which was contracted or merely performed by way of a mere agreement of the parties.

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The formality, namely, the solemnization, inherent in a ceremonial marriage is what primarily distinguishes it from a common law marriage.

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The jurisprudence here is Beddow v. Beddow and Re: Veta'’s Case from the Utah State Supreme Court which is only mildly persuasive but not at all binding on our courts.

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EXCEPTION #6 - Same sex marriage of Filipinos abroad invalid. This is a matter of public policy. Only a man and a woman can marry each other.

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UNTENNABLE Situation - When one is a Filipino and another is an alien whose national laws capacitate persons below 18 to marry. UNHAPPILY, The Family Code does not seem to give a precise solution to this situation. Remember that Article 35(1) provides an exception to the comity provision. It provides that a marriage is void ab initio if contracted by ANY party below 18... Now what does ANY mean? ANY means AAAAANNNNNYYYYYY! Now, does ANY include foreigners and Filipinos alike?! Certainly! If the authors of this code intended to exempt foreigners from this provision could they have done so? Certainly they could have! But even the brightest legal minds could not have possibly thought of all possible situations! And so they didn'’t!

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The absurdity of this conflict of a blanket exception 35(1) and Article 26 is clearer when it is related to Article 21 which allows foreigners below 18 years of age to marry Filipinos here if they obtain a certificate of legal capacity which states that their nation allows marriages by people below 18. The absurdity would then be summed up in this situation - such a marriage between under-age foreigners may be considered valid here but it will not be so if it were celebrated in the country of the foreigner.

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The position of Atty. Sta. Maria is that the exception under Article 26 referring to Article 35(1) should be construed as referring to a situation where the marriage abroad is between a Filipino and a Filipina and not between a Filipino or Filipina and an alien married in the alien'’s state where he or she (the alien), though below 18 years of age, is capacitated to marry. This is in keeping with one of the principles of statutory construction which states that if an interpretation of a statue leads to absurdity, such an interpretation should not be countenanced if there is another interpretation which does not lead to an absurdity.

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Proof of Foreign Marriage - To establish a valid marriage pursuant to Article 26, it is necessary to prove the foreign law s a question of fact and then to prove the celebration of marriage pursuant thereto by convincing evidence.

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If such law of the other state is not pleaded nor proved and for the purpose of determining the validity of a marriage in the said state, the laws of such state, in the absence of proof to the contrary, will be presumed by the court to be the same as the laws of its own state.

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The burden of proof to show the fact of marriage and the foreign marital law is upon the one who asserts the validity of the marriage celebrated abroad.

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Status as well as Legal Capacity of Foreigners - this is dictated by the law of the country of the person

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ABSOLUTE DIVORCE - Absolute divorce between two citizens of the Philippines is not recognized here. Hence if they obtain a divorce abroad, they may be single there but in the Philippines they are still considered married. The exception here is two-fold:

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First: If the divorce abroad is initiated by the foreigner spouse who is married to a Filipino then the divorce decree will be valid even for the Filipino and even in the Philippines.

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Second: If originally when the marriage was contracted, one of the spouses was a Filipino but when a divorce decree was sought by the same Filipino spouse he/she was already a foreigner, the divorce decree was considered binding on both parties and even in the Philippines (Republic v. Orbecido). It must be noted that at the time of the divorce decree, the Filipino had already become a foreigner and thus Philippine laws no longer governed his or her status.

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The recognition of divorce under Article 26 was prompted by the lamentable experiences and disadvantageous position of many Filipinos who, before the effectivity of the Family Code and though divorced by their alien spouses abroad, could not validly marry again, thereby forcing them to live, in the eyes of Philippine law in illicit relationships with others in the event they decide to "“remarry"” abroad.

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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 (Republic v. Orbecido).

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VOID AND VOIDABLE FOREIGN MARRIAGES - If a marriage is void under the laws of the state where it has been solemnized, such marriage shall likewise be null and void in the Philippines since Article 26 clearly provides that in order for foreign marriages to be considered valid in the Philippines it must first be valid in accordance with the laws in force in the country where they are solemnized.

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In this regard, a civil case can be filed in the Philippines to nullify a foreign marriage using as basis the legal grounds for nullity provided by the marriage laws of the state where the marriage was celebrated.

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Implicit in Article 26 is the fact that a Filipino'’s foreign marriage, which is invalid under the laws where such marriage has been solemnized but which would have been valid had such marriage been celebrated in the Philippines, is likewise invalid in the Philippines.

Chapter 2: Marriages Exempt From License Requirement Article 271 In case either or both of the contracting parties at the point of death, the marriage may be solemnized without necessity of a marriage license and shall remain valid even if the ailing party subsequently survives. • All who are authorized under Article 7 and the mayor may solemnize a marriage even without a valid marriage license if either or both contracting parties are at the point of death. •

Judge must, however, solemnize the marriage within his jurisdiction and the imam, priest or rabbi or nay minister must comply with the requisites provided in Article 7(2) and the consul or consul general abroad can only do so if both parties are Filipinos.

Article 282

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, the marriage may be solemnized without necessity of a marriage license.

Article 29

In the cases provided for in the two preceding articles, the solemnizing officer shall state in an affidavit executed before the local civil registrar or any other person legally authorized to administer oaths that the marriage was performed in articulo mortis or that the residence of either party,

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specifying the barrio or barangay, is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar and that the officer took the necessary steps to ascertain the ages and relationship of the contracting parties and the absence of a legal impediment to the marriage. Article 30

The original of the affidavit required in the last preceding article, together with a legible copy of the marriage contract, shall be sent by the person solemnizing the marriage to the local civil registrar of the municipality where it was performed within the period of thirty days after the performance of the marriage. •

Article 313

The procedure in both Article 29 to 30 is relative to the duties of the solemnizing officer with respect to the affidavit is merely “directory in character.” Non-observance of the requirements will not render the marriage void or annullable.

A marriage in articulo mortis between passengers or crew members may also be solemnized by a ship captain or by an airplane pilot not only while the ship is at sea or the plane is in flight, but also during stopovers at ports of call. Requirements for a ship captain and airplane chief to solemnize: 1. Marriage must be in articulo mortis (at least 1 is at the point of death) 2. Marriage must be between passengers or crew members 3. Ship must be at sea or the plane must be in flight (including “stopover” and “ports of call” since voyage is not yet terminated)

Article 324

A military commander of a unit, who is a commissioned officer, shall likewise have authority to solemnize marriages in articulo mortis between person within the zone of military operation, whether members of the armed forces or civilians. Requirements for a military commander to solemnize a marriage: 1. Must be a military commander of a unit (at least a battalion) 2. Must be a commissioned offer (rank from second lieutenant) 3. Chaplain must be assigned to such unit 4. Said chaplain must be absent at the time of marriage 5. Marriage must be one in articulo mortis 6. Contracting parties, whether of the armed forces or civilians, must be within the zone of military operation Note: If chaplain is present, he must be the one who should solemnize.

Article 335

Marriages among Muslims or among members of the ethnic cultural communities may be performed validly without the necessity of a marriage license, provided they are solemnized in accordance with their customs, rites, or practices. Code of Muslim Personal Laws of the Philippines signed Feb. 4, 1977, which does not provide that, for a marriage to be valid, a marriage license has to be procured by the contracting parties. R.A. 6766, the Organic Act for the Cordillera Autonomous Region (CAR), Art. X, Sec. 2 provides: “Marriages solemnized between or among members of the indigenous tribal group or cultural community in accordance to…customary laws…shall be valid, and the dissolution…recognized.”

Article 346

No license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for at least five years and without any legal impediment to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. The solemnizing officer shall also state under oath that he ascertained the qualifications of the contracting parties and found no legal impediment to the marriage. Living together as husband and wife must met 2 distinct conditions: 1. Must live as such for at least 5 years characterized by exclusivity and continuity that is unbroken. (Republic v. Dayot)

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2.

Must be without any legal impediment to marry each other. (only to the time of the actual marriage celebration) While both must concur, they do not qualify each other, meaning during the 5-year period, it is not necessary that they suffer from any legal impediment. “Legal impediment” refers to any possible ground or basis, including non-age and the status of being already married, to make a marriage infirm. Spouse who was living-in with his or her paramour can avail the exception and marry his or her paramour without a marriage license after the death of his or her legal spouse. Failure of the solemnizing officer to investigate the qualifications of the contracting parties and of any legal impediments, shall not invalidate marriage. Cosca v. Palaypayon • Judge solemnized a marriage involving party who was only 18 years of age without a marriage license on the basis of an affidavit indication the parties have lived together as husband and wife for 6 years already. • Supreme Court held that the judge acted improperly because he should have investigated as to the qualification of the parties. Parties started living together when the 18 year old was barely 13 years of age and a probability that the affidavit was forged. • Marriage was not void because the parties had no legal impediment to marry at the time of the marriage ceremony. De Castro v. Assidao-De Castro • Supreme Court ruled the nullity of a marriage on the ground of absence of a valid marriage license upon evidence that there was no cohabitation for 5 years, a substantial requirement, contrary to statements in the falsified affidavit by the parties.

Chapter 3: Void and Voidable Marriages Chapter 3.a Void Marriages Article 35

The following marriages shall be void from the beginning: 1. Those contracted by any party below 18 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 believed in good faith that the solemnizing officers had the legal authority to do so 3. Those solemnized without a license except those who are covered in the preceding chapter 4. Those bigamous or polygamous marriages not falling under Article 41 5. Those contracted through mistake of one contracting party as to the identity of the other 6.Those subsequent marriages that are void under Article 53 • •

A petition of declaration of nullity, without any other incidental prayers like support, deals with only one cause of action, which is the invalidity of the marriage from the beginning. Void marriage is different from voidable marriage o Marriage that is annullable is valid until otherwise declared by the court ! can be ratified but cannot be assailed collaterally ! can only be assailed during the lifetime of the parties o Marriage that is void ab initio is considered as having never to have taken place and cannot be the source of rights ! cannot be ratified and can be assailed collaterally

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can be questioned even after the death of either party Void marriages have no legal effects except those declared by law concerning property relations of the alleged spouses. ! Void marriages cannot be ratified or cured by any act of any of the contracting parties. o Mallion v. Alcantara ! petitioner after being denied of the nullity of marriage via a petition based on psychological incapacity, filed for nullity again on the grounds of the absence of a marriage license. HELD: The court rejected the petition for splitting the cause of action and for violating the rule on res judicata. ! This violates the essence of NONRATIFICATION of void marriages ! Neither can estoppel or acquiescence can make the infirmity valid o GENERAL RULE: Bad faith and good faith remain IMMATERIAL in determining whether the marriage is void or not. o There is no strict “injured party” or “guilty party” in declaring the marriage null and void. o Even in the psychological incapacitated one can file for an action for the declaration of the nullity of marriage (Chi Ming Tsoi v. CA) ! the “no granting of relief to the wrongdoer” rule does not apply here o EXCEPTIONS: ! 1. When either or both of the spouses believed in good faith that the solemnizing officer has the authority to perform the celebration of marriage though he or she has actually none, or when he or she did not obtain the proper permit to do so ! MARRIAGE IS VALID ! 2. Article 41 ! if a spouse has disappeared for four years and the present spouse has a well founded belief that the absent spouse is already dead, or for two year in cases when there is a danger to the life of the absent spouse, the present spouse can validly contract a subsequent marriage provided that the present spouse procures a judicial declaration of presumptive death; and that either or both parties are in good faith during the ceremony of the subsequent marriage. GOOD/BAD FAITH MATERIAL IN PROPERTY RELATIONS, LIQUIDATION AND DISTRIBUTION o when the marriage is void, the general rule is that their property relation is that of coownership o If one of the parties contracted the marriage in bad faith, the value of the co-ownership upon liquidation shall be forfeited to their common children, and in the absence thereof, the children of the guilty spouse in a previous marriage, or in the absence of children, the innocent spouse. Void marriage can be collaterally attacked ! that the validity of a marriage can be attacked even if the case does not state the validity of marriage as its PRINCIPAL issue. De Castro v. Assidao-De Castro ! when a spouse files a case for child support and the husband eventually questions the validity of marriage, the court can decide on the declaration of nullity. No separate proceeding/ judicial decree of the absolute nullity of marriage is needed to decide on the case. The lower court can rule on the nullity of marriage. o EXCEPTIONS: (DIRECT ATTACK) ! 1. For the purposes of remarriage, a judicial declaration of absolute nullity of marriage is needed. (Art. 40) ! 2. When the direct attack (for a declaration of the nullity of marriage) is essential to the determination of the case ! heirship, legitimacy/illegitimacy, dissolution of properties, or in criminal cases ! Atty. Sta Maria: in cases of declaratory relief. ! 3. If the donor desires to revoke a donation in consideration of marriage (donation propter nuptias). 1. Below 18 years of age: o Spanish Civil Code ! 14 for male, 12 for female (reason: can effectively procreate) o Civil Code 1950 ! 16 for male, 14 for female (reason: males should be older because they’re the provider for the family)

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Family Code: ! 18 for both parties (reason: no significant distinction between the maturity of both men and women) 2. Absence of the authority of the solemnizing officer = void marriage. o Good-faith marriage (putative marriage) under Art 35(2) is not founded on the actual marriage or ceremonial marriage but on the reasonable belief by one or both parties that they were honestly married. And that solemnizing officer had authority when, in fact, he had none. ! Ignorance of the law ! If the contracting parties go before a person not specifically mentioned by law as having any authority to solemnize a marriage, then good faith and bad faith is immaterial. ! Mistake in fact ! contacting parties go before a person stated by law as qualified to solemnize a marriage but in fact is not because of non-fulfillment of a requirement by law such as a solemnizer'’s license. Therefore, good faith is material. 3. No marriage license is a formal requisite, absence of which will make a marriage void. o Exceptions: Refer to Art. 27-34 4. Bigamous or polygamous marriages are void o Exceptions: under special laws such as the Muslim Code or under the Article 41 of the Family Code 5. Mistake of one spouse as to the identity of the other = void marriage o essential component: that the other party did not intended to marry that person ! THIS DOES NOT INCLUDE: mistake in the name, character of the person or in his or her attributes, age, religion, social standing etc. 6. Void under Article 53 o after judicial declaration of absolute nullity of marriage, they must undertake liquidation, partition and distribution of their properties, if any, and only in proper cases, the delivery of the children'’s presumptive legitimes and thereafter all these requirements, including the decree of annulment or nullity. o

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Article 36

A marriage contacted by any party, who at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations, shall likewise be void even f such incapacity becomes manifest only after its solemnization (amended by E.O.227) •

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Psychological incapacity o the law does not define psychological incapacity ! determination is left solely with the courts on a case-to-case basis. ! Depends on the facts of the case, and not on the basis of a priori assumptions, predilections or generalizations. ! Absence of definition was intentionally made ! should not be equated with insanity or a total mental inability to function in all aspects of human life ! the malady or mental disposition of one or both of the spouses must be such as to seriously and effectively prevent them from having a functional and normal marital life ! involves senseless protracted and constant refusal to comply with the essential marital obligations by one or both of the spouses although he/she or they are physically capable of performing such obligations o the ground, therefore, does not comprehend any and all forms of mental incapacity so as to preclude the individual from performing other endeavors in life o the incapacity is clearly limited to his and/or her failure or disregard to comply with his and/or her essential marital obligations although physically capable of doing so o it is not mere stubborn refusal but can be attributed to psychological causes MUST BE PRESENT AT THE TIME OF THE MARRIAGE ! juridical antecedence o cannot be cured by cohabitation Article 36 o LIFTED FROM CANON LAW

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Article 37

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Canon 1095 ! 1. Lack sufficient use of reason ! 2. Who suffer from a grave defect of discretion of judgment concerning essential matrimonial rights and duties, to be given and accepted mutually ! 3. Who for causes of psychological nature are unable to assume the essential obligations of marriage The inability to commit ! This inability to commit must refer to the essential obligations of marriage Incapacity not on the part of the consent, but on the “object of the consent” ! Not capacity to posit consent, but the capacity to posit the object of consent

Psychological incapacity o 1. GRAVITY o 2. JURIDICAL ANTECEDENCE o 3. INCURABILITY/PERMANENCE o 4. MEDICALLY/ CLINICALLY IDENTIFIED Expert Testimony o expert testimonies of a psychologist or psychiatrist evaluating the behavioral pattern of the person o that it is not “a conditio sine qua non” for such declaration o BUT (since the SC requires it to be medically identified, expert testimony is therefore required) Jurisprudential Guidelines (Republic v. CA and Molina) o 1. burden of proof to show the nullity belongs to the plaintiff o 2. root cause of the psychological incapacity must be: medically or clinically identified, alleged in the complaint, sufficiently proven be experts and clearly explained in the decision. o 3. the incapacity must be proven to be existing at the time of the celebration of the marriage o 4. such incapacity must also be shown to be medically or clinically permanent or incurable o 5. such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage o 6. the essential marital obligations must be those embraced by articles 68-71 of the Family Code o 7. Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church of the Philippines, while not controlling and decisive, should be given great respect by the courts, o 8. the trial court must order the prosecuting attorney or fiscal and the SG to appear as counsel for the state. Damages o award of moral damages, exemplary damages and attorney'’s fees on the ground that the very nature of psychological incapacity which is non-cognizance of ones'’ essential marital obligation at the time of the marriage ceremony, negates bad faith. Marriages between the following are incestuous and void from the beginning whether the relationship between the parties be legitimate or illegitimate: 1. Between ascendants and descendants of any degree 2. Between brothers and sisters, whether of the full or half-blood Incestuous marriages have been universally condemned as grossly indecent, immoral and inimical to the purity and happiness of the family and the welfare of future generations.

The following marriages shall be void from the beginning for reasons of public policy:

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1. Between collateral blood relatives, whether legitimate or illegitimate, up to the fourth civil degree 2. Between step-parents and step-children; 3. Between parents-in-law and children-in-law; 4. Between the adopting parent and the adopted child; 5. Between the surviving spouse of the adopting spouse 6. Between the surviving spouse of the adopted child and the adopter 7. Between an adopted child and a legitimate child of the adopter 8. Between the adopted children of the same adopter 9. Between parties where one, with the intention to marry the other, killed that other person'’s spouse or his or her own spouse. •

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Article 39

Rationale: o policy of the state to foster a normal, peaceful and wholesome integral nuclear family unit which would constitute the very foundation of society Collateral blood relatives by consanguinity o Marriage between collateral blood relatives up to the fourth civil degree may disturb the policy of the state as it may likely result though not of the same gravity, in the dangers and confusion, attendant in incestuous marriages under Article 37. FOURTH CIVIL DEGREE o 1. Find the reckoning point o 2. From the reckoning point, locate the most immediate common ascendant o 3. Count the degree of consanguinity from the reckoning point, excluding the reckoning point but including the object Collateral half-blood relatives by consanguinity o all doubts must be construed in favor of marriage ! those only expressly prohibited by law as void shall be treated as such Relationship by affinity o Step-parents and step children as well as parents-in-law and children-in-law o Affinity is a connection formed by marriage. ! Affinity arises from marriage, by which each party become becomes related to all the consanguine of the other party to the marriage o Effect of termination of marriage on the affinity prohibition ! the marriage is annulled or nullified in accordance with law, there can be no question between step-parents and step-children as well as parents-in-law and children-in-law is terminated. o EFFECTS OF DEATH to Affinity ! 1. If there are living issues, the affinity is not terminated by death ! 2. if there are no living issues, then the affinity is terminated ! 3. CARUNGCONG CASE: affinity is not terminated by death regardless of whether there are living issues or not. Intentional killing of spouse o highly criminal o involving grave moral turpitude o destructive not only of the family but the whole society itself o Indeed, if the guilty spouse can undertake a sinister scheme to kill his or her spouse in order to marry another person and can eventually be successful about it there is no guarantee that he or she will not do the same evil act again to his or her subsequent spouse so that he or she can again marry for the third. o No prior criminal conviction by the court for the killing is required by the law. o The reason for a spouse killing his or her own spouse to marry another and thus making the subsequent marriage void, likewise apply to a person who kills the spouse of another to marry the latter. The action or defense for the declaration of absolute nullity of a marriage shall not prescribe

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Prescriptive period

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the time within which to file an action for the declaration of nullity of a marriage or to invoke such nullity as a defense, whether in a direct or collateral manner, does not prescribe o Niñal v. Bayadog ! where the petition for the declaration of nullity of marriage was filed by the children of the deceased contracting party only after the latter'’s death, the Supreme Court ruled that such a petition can proceed. The SC justified its decision by stating that a void marriage is considered as having never to have taken place and will be treated as non-existent by the courts ! the petition is imprescriptible and can be filed by the children even after death of the contracting party who was their father. o SC A.M. 02-11-10 which took effect March 15, 2003 ! the ruling in Niñal case as to prescription no longer holds ! because the said resolution provides that only the husband and wife can file the case and, if filed, the case will be closed or terminated if during its pendency, either the husband or wife should die. ! Moreover, under the said new rules on declaration of nullity of marriage of their parents or of their parent with their step-parent o Under Executive Order Number 227, if the ground for declaration of nullity is that the spouse is psychologically incapacitated to perform the essential marital obligations and the marriage ceremony was celebrated prior to the effectivity of the Family Code which was on August 3, 1988, such action or defense must be filed or invoked within ten years from the date of effectivity or more specifically August 1, 1998. ! RA 8533 amended Article 39 by deleting the precriptive period to nullify a marriage under 36. PARTIES o while the Family code is silent as to who can file, only the husband or the wife can file a court case declaring the marriage void. (AM SC 02-11-10) o prior to this ! parents, children, step-children can file. o Heirs can no longer file a case for the nullity of marriage of their parents or of their parent with their step-parent o

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Article 40

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The absolute nullity of a previous marriage may be invoked for the purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.

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If the marriage between two contracting parties is void ab initio, any one of them cannot contract a subsequent valid marriage without a previous judicial declaration of nullity of the previous void marriage if a marriage between two contracting parties is void ab initio, any one of them cannot contract a subsequent valid marriage without a previous judicial declaration of nullity of the previous void marriage. HISTORICAL BACKGROUND o From September 1954 ! No need for JDON (judicial declaration of nullity) o From February 28, 1957 ! No need for JDON o From June 30, 1970 ! JDON needed o From January 30, 1971 ! JDON needed o From June 2, 1977 ! No need for JDON o From May 30, 1983 ! No need for JDON o From August 19, 1986 ! JDON needed o From October 28, 1986 ! No need for JDON o FINALLY AUGUST 3, 1988 – article 40 of the Family Code took effect. JDON NEEDED. Article 40 in effect states that the only acceptable proof of the nullity of a first marriage for purposes of remarriage is a judicial declaration of nullity ARTICLE 40 and Bigamy o the law distinctly separated the provisions of a subsequent void marriage contracted while a previous void marriage is still subsisting, which contained in Art 40 in relation to Art. 52 and 53, from the provisions on void bigamous marriage is void but they differ on the status of the first marriage.

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o o o Article 41 and 42

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DOES NOT EXPRESSLY DEFINE OR DECLARE THAT a subsequent void marriage marriage in violation of Article 40 is bigamous. Nicdao Cariño v. Cariño case ! under Article 40, marriage is bigamous Mercado v. Mercado ! criminally bigamous without Art. 40 ! Comment: NOT TO BE FOLLOWED. Not bigamous according to Sta. Maria.

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 has been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disappearance, where there is danger of death under the circumstances set forth in the provisions of Art. 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 for in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of the reappearance of the absent spouse. 42: The subsequent marriage referred to in the preceding Article shal be automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage 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 an 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. •

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Bigamous Marriage o General rule ! a marriage contracted during the lifetime of the first spouse is null and void EXCEPTION. o “bigamous marriage” may be considered valid if, prior to the subsequent marriage and without prejudice to the effect of the reappearance of the other spouse, the present spouse obtains a judicial declaration of presumptive death via a summary proceedin in a court of competent jurisdiction Judicial declaration of presumptive Death ! merely a statement to the effect that the prior spouse is merely presumed dead. The declared presumption will still be only prima facie, and can be overthrown by evidence o It is without prejudice to the effect of reappearance of the absent spouse. o General rule: if absent for 4 consecutive years and there'’s a well founded belief that the spouse is dead o shortened rule: if under Article 391 or when there is a danger of death, the prescriptive period is shortened to 2 years. ! Art 391 ! 1. a person on board a vessel lost during a sea voyage or an airplane which is missing, ! 2. a person in the armed forced who has taken part in war ! 3. a person who has been in danger of death under other circumstances o GENERAL CONDITION ON PERSONS ! Presumed dead for all purposes except succession 7 years ! presumed dead for all purposes til after the absence of 10 years ! 5 years if the person is 75 and above ! Art. 391 ! 4 years TERMINATION OF THE SUBSEQUENT MARRIAGE o automatic termination of the subsequent marriage can be obtained y 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 pursuant to Art. 42. o This is the only instance where a marriage is terminated extra-judicially o Valid bigamous marriage ! when the spouse did not file for reappearance After the issuance of the judicial declaration, the properties of the first marriage should be liquidated.

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• Article 43

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Well-founded belief of death ! depends on the circumstances of the case Sworn Statement of reappearance o affidavit is needed o must be recorded in the civil registry of the residence of the part of the subsequent marriage Criminal liability for Bigamy ! prision mayor The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects:

1. The children of the subsequent marriage conceived prior to its termination shall be considered legitimate and their custody and support in case of dispute shall be decided by the court in a proper proceeding; 2. the absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or if there are none, the children of the guilty spouse by a previous marriage or in default of children, the innocent spouse 3. Donations by reason of marriage shall remain valid, except that if the donee contracted the marriage in bad faith, such donations made to said donee are revoked by operation of law; 4. The innocent spouse may revoke the designation of the other spouse who acted in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession 44: If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of marriage and testamentary disposition made by one in favor of the other are revoked by operation of law •

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Status of Children: o under art. 41 children conceived before the termination of the same shall be considered legitimate Property regime o the effect of the termination of the subsequent marriage on the property regime, whether ACP or CJP is the same. ! The regime shall be dissolved and liquidated ! property shall be divided equally or in accordance with what is stipulated in a marriage settlement. ! If in bad faith, the guilty spouse shall not get his/her share and shall be forfeited in favor of the common children, children of the guilty spouse of a previous marriage or to the innocent spouse, in that order. Donations by reason of marriage o if both parties are in good faith ! valid o it shall be valid even if the donor acted in bad faith o if the donee acted in bad faith ! shall be revoked by operation of law o if guilty of concubinage or adultery ! void Designation as beneficiary in insurance policy o the innocent spouse has the choice of revoking by testate or intestate succession Marriage contracted where only one is in bad faith ! valid Marriage contracted where both are in bad faith ! void ab initio

Chapter 3.b Voidable Marriages Article 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;

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2.

That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other and both lived together as husband and wife;

3.

That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other has husband and wife;

4.

That the consent of either party was obtained by force, intimidation, and 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.

State is interested in the permanency of the marriage relation, deemed essential to public welfare. Annullable or voidable marriage is considered valid up to the time it is terminated. Grounds for annulment are only those specified by law (exclusive). Mere non-cohabitation is not a ground for annulment of marriage. CONSENT: Age of at least 18 years and below 21 years is considered not to possess the degree of maturity to be able to comprehend the consequences and serious responsibilities of marital relations. UNSOUND MIND: • There must be such a derangement of the mind to prevent the party from comprehending the nature of the contract and from giving to it his free and intelligent consent. Marriages are not invalidated by mere weakness of mind or dullness of intellect, nor by eccentricities or partial dementia. • Burden of proof of insanity rests upon the person who alleges insanity, or seeks to avoid an act on account of it, and it devolves upon that person to establish the fact of insanity by a preponderance of evidence. If a previous state of insanity is proved, the burden of proof shifts to the person who asserts that the act was done while the person was sane. FRAUD: refers to the non-disclosure or concealment of certain circumstance, which materially affect the essence of marriage. (Art. 46) VITIATED (or IMPAIRED) CONSENT: • Must be of “overt acts” • Force: (or coercion), sort of violence constituting “duress” of physical or moral nature •

Intimidation: when one of the contracting parties is compelled by a reasonable and well-grounded fear of an imminent and grave evil upon his person or property, or upon those of his spouse, descendants or ascendants, to give his consent (Art. 1335 of Civil Code) o Degree of intimidation based on: age, sex, condition of person

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Undue influence: when a person takes improper advantage of his power over the will of another, depriving the latter of a reasonable freedom of choice (Art. 1337 of Civil Code) Must be proven by preponderance of evidence, which may include the actuations of the parties previous to the marriage

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INCAPACITY TO CONSUMMATE: • Denotes permanent inability on the part of one of the spouses to perform the complete act of sexual intercourse; must exist at the time of the marriage ceremony •

Non-consummation, even psychological, which leads to physical inability, are included and may

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be on the part of the husband or wife: 1. May be caused by a physical or structural defect in the anatomy 2. May be due to chronic illness and inhibitions 3. Fears arising in part from psychophysical conditions 4. May be caused by psychogenic causes Must be continuous and appear to be incurable. •

Impotency, being an abnormal condition, should not be presumed. The presumption is in favor of potency

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Ex.1: incurable nervous disorder on the part of the wife known as vaginismus, which renders sexual coition impossible is good proof of inability to perform the marital act (Vanden Berg v. Vanden Berg)

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Rule of Triennial Cohabitation o If the wife remains a virgin for at least 3 years from the time the spouses started cohabiting, the husband must show that he was not impotent during the said period and burden will be upon him to overcome the presumption of impotence

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Sterility o Not an impotency. A sterile person can successfully engage in sexual coition. Sterility does not imply want of power for copulation. o Not a ground for annulment

SEXUALLY TRANSMISSIBLE DISEASE: • STD in cases of fraud need not be incurable • For annulment, STD must be found to be serious and incurable • If the venereal disease were obtained after the marriage ceremony, cannot be a ground for annulment, but can be used as evidence of sexual infidelity as ground for legal separation Grounds which cannot ratify the annullable marriage: 1. Incurable physical incapacity to consummate the marriage; 2. Incurable STD, both existing at the time of the marriage ceremony Negates an important purpose of marriage: procreate normal, healthy, and upright children. Article 46

Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Article: 1.

Non-disclosure of a previous conviction of final judgment of the other party of a crime involving moral turpitude;

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Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband;

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Concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage; or

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Concealment of drug addiction, habitual alcoholism, or homosexuality or lesbianism existing at the time of the marriage. No other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage.

PREVIOUS CONVICTION: Turpitude meaning inherent baseness, vileness, or depravity in the private and social duties, which a person owes to society, contrary to accepted rule of right and duty between man and man. Moral turpitude includes everything, which is contrary to justice, honesty, or good morals. Generally, crimes punishable under the RPC involve such. The burden is on the convicted party to reveal his criminal record. Failure to do so will constitute the non-

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disclosure. CONCEALMENT OF PREGNANCY: The law is limited to the wife only and not the husband. The reason is that the husband is misled in devoting all his attention and care on somebody else’s child, on the other hand, the fact of the husband’s having a child from another is speculative and difficult to prove. Concealment MUST have been done in bad faith. If the woman did not expressly inform the man of her pregnancy but such physical condition was readily apparent to the man, he cannot claim lack of knowledge of such pregnancy (Buccat v. Buccat). 33% at 5 months; 50% at 6 months. Foss v. Foss • A man who knew of the unchaste character of a woman with whom he likewise had extra-marital sexual intercourse, at the time of the marriage was pregnant and who assured him that it was his child when in fact it could not have been his child, the said man cannot be allowed to have his marriage annulled; 1 Reason: does not come into court with clean hands If a woman misrepresented to her fiancé that she was pregnant for the purpose of inducing her fiancé to marry her when in fact she was not pregnant, such fiance, cannot annul the marriage because there was no pregnancy to conceal. CONCEALMENT OF STD: The nature or gravity is irrelevant in order to invoke this ground, enough that there was concealment at the time of the marriage ceremony. Consummation is not required. CONCEALMENT OF DRUG ADDICTION or HABITUAL ALCOHOLISM: Habitual Alcoholism: • Defined as a persistent, fixed, and irresistible habit of becoming intoxicated; lost the power or will to control his appetite for intoxicating liquor, in the practice of becoming intoxicated whenever the temptation or opportunity arises •

To be a habitual drunkard, a person does not have to drink all the time nor be more drunken than sober hours. It is a ground to annul because it renders the person unfit for the duties of the marital relation and disqualifies him from properly rearing and caring for the children born of the marriage

Drug Addiction: • The deleterious and evil effects from excessive use of drugs interfere with the happiness of married life, and produce other effects upon the marriage relation as deplorable CONCEALMENT OF HOMOSEXUALITY OR LESBIANISM: • Ground is not homosexuality or lesbianism, but the concealment of such orientation, thus the element of bad faith of the one making the concealment is essential and must be duly proven

Article 47

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Effects to the “injured spouse” in case of concealment and discovery of the homosexuality or lesbianism of the other spouse may affect the innocent spouse’s performance of his or her marital duties.

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What if bisexual? Not specified in the law (Code of Commission was probably not aware of such situations)

The action for annulment of marriage must be filed by the following person and with the periods indicated herein: GROUND 1. No Parental-Consent

PARTY TO FILE THE SUIT a. Parent/guardian having legal charge b. “No-consent” party

PRESCRIPTION PERIOD Anytime before “no-consent party” reaches age of 21 Within 5 years after 21

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2. Insanity

a. Sane spouse w/o knowledge of insanity b. Relative, guardian or person having legal charge of insane c. Insane spouse

3. Fraud

Injured party

4. Vitiated Consent

Injured party

5. Incapability to consummate/STD

Injured party

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At any time before death of either party At any time before death of either party During lucid interval or after regaining sanity Within 5 years after discovery of fraud Within 5 years from time force, intimidation, or undue influence disappeared Within 5 years after the marriage ceremony

“Injured party” means the aggrieved spouse, not the parents Action to annul marriage filed with the said 5 years will not succeed if it is shown that at anytime during the said 5-year period, he or she freely cohabited with the other as husband and wife. Incapacity to consummate and STD: cannot be ratified because these grounds are not based on defective consent, but are based on the fact that both are incurable Annulment cases are “actions in rem,” for they concern the status of the parties, and status affects or bind the whole world. The “res” is the relation between the said parties, or their marriage tie. Jurisdiction over the same by the proper RTC depends upon the nationality or domicile of the parties, not the place of the celebration of the marriage, or the locus celebrationis (Art. 26 relating to “laws of the country where the marriage is celebrated) Article 48

In all cases of annulment or declaration of absolute nullity of marriage, the court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed. In all cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or confession of judgment (during the trial). Procedure is now governed by Supreme Court En Bank Resolution in A.M. No. 00-11-01-SC effective March 15, 2003 After a complaint has been filed, defendant has 15 days from receipt of the summons and a copy of the complaint within which to file an answer. In the event that the defendant fails to file an answer, he cannot be declared in default. If, erroneously, the court renders a default judgment in an annulment case, this would not prevent the decree from having legal effect. In all cases: • A full-blown hearing must be undertaken • Summary proceedings are not allowed Role of Fiscal and Solicitor General: • Must be present • Required to submit a memorandum • Duty is not only to defend a valid marriage but to expose an invalid one Collusion: • Parties come up with an agreement making it appear that the marriage is defective; agreeing to represent false or non-existent cause of action before the proper court; implies corrupt agreement

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between the husband and wife, thus renders dismissible any annulment or nullity case Proof that defendant desires divorce and makes no defense, is not by itself collusion A judge who does not order an investigation for collusion when needed, can be subject to administrative sanction

Stipulation of Facts or Confession of Judgment: 1. Confession of Judgment • When the defendant appears in court and confesses the right of plaintiff to judgment or files a pleading expressly agreeing to the plaintiff’s demand • What the law prohibits is a judgment based exclusively or mainly on defendant’s confession Article 49

During the pendency of the action and in the absence of adequate provisions in a written agreement between the spouses, the court shall provide for the support of the spouses and the custody and support of their common children. The Court shall give paramount consideration to the moral and material welfare of said children and their choice of the parent with whom they wish to remain as provided for in Title IX. It shall also provide for appropriate visitation rights of the other parent. Support of Spouses and Custody of Children: • Shall be governed by whatever agreement the parties have made • Spouses and their children are supported from the properties of ACP or CPG during the pendency of the suit for annulment or nullity of marriage in proper cases (Art. 198) • If the court finds the agreement to be inadequate, it may disregard such and make the necessary provisions in its sound discretion, would be adequate under circumstances In making decision as to custody of children: • Sex and age of children • Characteristics and needs of each child including emotional, social, moral, material, and educational needs • Respective home environments offered by the parties • Capacity and interest of each parent to provide • “No child under 7 years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.” (Art. 213) • Visitation rights o Unless the court finds compelling reason, cannot deprive a parent who is not awarded custody of his or her right o Even if deprived, can be reinstated if shown that the grounds for such have become too harsh or not anymore present

Article 50

The effects provided for in paragraphs (2), (3), (4), and (5) of Article 43 and in Article 44 shall also apply in proper cases to marriages which are declared void ab initio or annulled by final judgment under Article 40 & 45. The final judgment in such cases shall provide for the liquidation, partition, and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of their presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings. All creditors of the spouses as well as of the absolute community or the conjugal partnership shall be notified of the proceedings for liquidation. In said partition, the conjugal dwelling and the lot on which it is situated shall be adjudicated in accordance with the provisions of Art. 102 & 129. JUDGEMENT OF ANNULMENT or NULLITY of MARRIAGE: • Shall state factual and legal basis for its dispositive conclusion • Court can only grant relief if issues related to the main case presented with out objection from any party • Liquidation, partition, and distribution shall be provided in said judgment unless adjudicated in previous judicial proceedings or parties had agreed in their marriage settlement prior to the marriage to be governed by regime of separation of property.

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Void marriage due to non-observance of Art. 40, the property shall be liquidated as if there is CPG or ACP. In all other cases of void marriages, property regime will be co-ownership (Art.147 &148) Partition of the conjugal dwelling and the lot on which it is situation: • Unless otherwise agreed upon by the parties, it shall be adjudicated to the spouse with whom the majority of the common children choose to remain. In case there is no majority, court shall decide taking into consideration the best interest of the children (Art. 102(6) ACP and 129(9) CPG). • ACP and CPG shall apply in case the marriage is annulled under Art. 45 or void subsequent marriage as a result of non-observance of Art.40. • In other cases of a void marriage (not Art. 40 in relation to 52 and 53), co-ownership will apply and in case of liquidation, the dwelling can be sold and the proceeds be divided equally or if shown that such is legally owned only by one party. Creditors: • All creditors of the spouses shall be notified of the liquidation proceeding • If in the dissolution and partition, one of the parties decides to waive his or her rights, share or interest in the community or conjugal property in favor of the other party or any other person, the creditors of the one who makes the waiver can seek the rescission of the waiver to the extent of the amount sufficient to cover the amount of credit (Art. 89 & 107) Unless there is a: • Motion for Reconsideration or; • Appeal made after decision Decision becomes FINAL upon expiration of 15 days from receipt, which upon finality: 1. Issuance of ENTRY OF JUDGMENT (registered in proper local civil registries) 2. Approved PARTITION and DISTRIBUTION of properties in the property registry of deeds) 3. Delivery of presumptive legitime After compliance of above requirements, shall render issuance of DECREE, the best evidence of nullity or annulment of marriage. Article 51

In said partition, the value of the presumptive legitimes of all common children, computed as of the date of the final judgment of the trial court, shall be delivered in cash, property or sound securities, unless the parties, by mutual agreement judicially approved, had already provided for such matters. The children or their guardian, or the trustee of their property, may ask for the enforcement of the judgment. The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the ultimate successional rights of the children accruing upon the death of either or both of the parents; but the value of the properties already received under the decree of annulment or absolute nullity shall be considered as advances on their legitime. Legitime: • Part of the testator’s property, which he cannot dispose because the law has reserve it for the compulsory heirs (Art. 886), regardless of the will. This is to protect the legitime of the children against the result of subsequent marriages contracted after annulment or void marriage. • The presumptive legitime of the common children shall be delivered in cash, property, or sound securities, unless parties by mutual agreement judicially approved, had already provided for such matter. It is not the actual legitime, which is present at the time of death. It shall be computed as of the date of the final judgment of the trial court. • Value of the properties already received shall be considered as advances on the legitime. • ANNULLED: presumptive legitime of common children delivered to them • VOID: delivery of presumptive legitime, generally, not required except void subsequent marriage in relation to Art. 40 • Delivery can be done by filing a summary court proceeding praying for such delivery (Art. 253)

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Article 52

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The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses, and the delivery of the children’s presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect third persons In case of nullity of marriage, properties shall be liquidated by co-ownership. In voidable marriage, properties liquidated in accordance with ACP and CPG. If in a pre-nuptial agreement, provides for separation of property regime, there is no need for liquidation and partition. Maquilan v Maquilan: • Partial voluntary separation of property agreed upon by the parties via a compromise agreement duly approved by the court prior to the judicial declaration of nullity of marriage is VALID. RECORDING IN CIVIL REGISTRY AND REGISTRY OF PROPERTY: • Necessary for the parties to be able to validly contract a subsequent marriage • Non-compliance with the liquidation and partition requirements as well as delivery of presumptive legitime = non issuance of DECREE If a surviving spouse (other spouse dies) subsequently remarries without liquidating the community or conjugal properties of the first marriage, the mandatory regime of complete separation of property shall govern the subsequent marriage. APPROPRIATE CIVIL REGISTRY AND REGISTRIES OF PROPERTY: • Local Civil Registry of city or municipality: o Where the court issued the decision o Where the marriage was solemnized Duty of the successful petitioner to send the copy of the final decree of the court to the proper local civil registrars. Duty of the clerk of court which issued the decree, to ascertain that the decree has been registered, and if not, to send a copy to the civil registry (Art. 409) •

Registries of Property: o Where the properties are located o If there are many, registration must be made in each of the registries of the properties

Article 53

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

Article 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 Children referred to under Art. 54 referring to Art. 36 do not involve those conceived and born before the marriage ceremony of the parents but to those conceived or born after the marriage ceremony of the parents but before final judgment of nullity. Child conceived and born before the marriage ceremony is illegitimate. If the child were conceived at a time when the parents do not suffer any legal impediment to marry each other, the subsequent marriage of such parents will legitimate the child (Art. 178)* If such subsequent marriage is declared void because of Article 36, the child shall be an illegitimate child. Under Art. 53, when either of the former spouses does not comply with the requirements under Art. 52 and decides to remarry, such subsequent marriage is void, but the children conceived or born inside shall be legitimate.

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ANNEX A: RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARRIAGES AND ANNULMENT OF VOIDABLE MARRIAGES Supreme Court EN Banc Resolution A.M. No. 02-11-10-SC Section 1 Scope Petitions for declaration of absolute nullity of void marriages and annulment of voidable marriages under Family Code of the Philippines Section 2

Petition Who may file • Husband or the wife Where to file • Family Court What to allege • Complete facts – either or both parties = psychologically incapacitated from complying with essential marital obligations of marriage at time of celebration

Section 3

Petition for annulment of voidable marriages Following may file a petition for annulment of voidable marriage based on any of the grounds under Article 45, within period indicated: (1) The contracting party whose parent, or guardian, or person exercising substitute parental authority did not give his or her consent, within five years after attaining the age of twenty-one unless, after attaining the age of twenty-one, such party freely cohabitated with the other as husband or wife; or the parent, guardian or person having legal charge of the contracting party, at any time before such party has reached the age of twenty-one; (2) The sane spouse who had no knowledge of the other’s insanity; or by any relative, guardian, or person having legal charge of the insane, at any time before the death of either party; or by the insane spouse during a lucid interval or after regaining sanity, provided that the petitioner, after coming to reason, has not freely cohabited with the other as husband or wife; (3) The injured party whose consent was obtained by fraud, within five years after the discovery of the fraud, provided that said party, with full knowledge of the facts constituting the fraud, has not freely cohabited with the other as husband or wife; (4) The injured party whose consent was obtained by force, intimidation, or undue influence, within five years from the time the force, intimidation, or undue influence disappeared or ceased, provided that the force, intimidation or undue influence having disappeared or ceased, said party has not thereafter freely cohabited with the other as husband or wife; (5) The injured party where the other spouse is physically incapable of consummating the marriage with the other and such incapacity continues and appears to be incurable, within five years after the celebration of marriage; and (6) The injured party where the other party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable, within five years after the celebration of marriage.

Section 4

Venue • Family Court • Province/ city – residing 6 months prior to filing • Non-resident respondent – where in Philippines found

Section 5

Contents and form of petition 1. • Complete facts + cause of action 2. • Names & ages of the common children of the parties • Specify the regime governing their property relations • Properties involved, and creditors • No adequate provision in a written agreement between the parties –may apply for a provisional order for spousal support, custody and support of common children, visitation rights, administration of community or conjugal property, and other similar matters requiring urgent action 3.

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• Verified and accompanied by a certification against forum shopping – personally signed by the petitioner • No petition may be filed solely by counsel or through an attorney-in-fact • If petitioner in a foreign country = verification and certification against forum shopping shall be authenticated by the duly authorized officer of the Philippine embassy or legation, consul general, consul or vice-consul or consular agent in said country 4. • Filed in six copies • Petitioner within five days from filing, furnish a copy of the petition to the City or Provincial Prosecutor and the creditors + submit to the court proof of such service within the same period Failure to comply with the preceding requirements may be a ground for immediate dismissal of the petition Section 6

Summons 1. Respondent cannot be located at given address/ whereabouts are unknown and cannot be ascertained by diligent inquiry = publication once a week for two consecutive weeks in a newspaper of general circulation in the Philippines and in such place as the court may order. Copy of the summons shall be served on respondent at his last known address by registered mail or by any other means the court may deem sufficient. 2. The summons to be published shall be contained in an order of the court with the following data: a) Title of the case b) Docket number c) Nature of the petition d) Principal grounds of the petition and the reliefs prayed for e) Directive for respondent to answer within thirty days from the last issue of publication

Section 7

Motion to Dismiss Ground of lack of jurisdiction over the subject matter

Section 8

Answer 1. Answer = 15 days from receipt of summons or 30 days from last issue of publication 2. Answer = verified by respondent himself 3. Fails to file an answer = court not declare him in default 4. No answer filed = public prosecutor – investigate whether collusion exists

Section 9

Investigation Report of Public Prosecutor 1. 1 month after receipt of court order – submit a report to the court whether parties are in collusion & serve copies of parties and their respective counsels 2. Public prosecutor finds collusion exists = state the basis report 3. Parties – file respective comments on the finding of collusion within 10 days from receipt of copy of the report 4. Court set report for hearing and if convinced that parties are in collusion, it shall dismiss the petition 5. Public prosecutor reports that no collusion exists, Court = set the case for pre-trial 6. Duty of the public prosecutor to appear for the State at the pre-trial

Section 10

Social Worker • Social worker = conduct case study and submit the corresponding report at least three days before the pre-trial • May also require a case study at any stage of the case whenever necessary

Section 11

Pre-trial • A pre-trial is MANDATORY • Set the pre-trial after the last pleading has been served and filed, or upon receipt of the report of the public prosecutor that no collusion exists between the parties on a date not earlier than six months from date of the filing of the petition Notice of Pre-trial

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1. The notice of pre-trial shall contain: (a) Date of pre-trial conference (b) Order directing the parties to file and serve their respective pre-trial briefs – receipt by the party at least three days before the date of the pre-trial 2. Notice served separately on the parties and their respective counsels as well as on the public prosecutor. It shall be their duty to appear personally at the pre-trial. 3. Notice of pre-trial shall be sent to the respondent even if he fails to file an answer. In case of summons by publication and the respondent failed to file his answer, notice of pre-trial shall be sent to respondent at his last known address. Section 12

Contents of pre-trial brief 1. Statement of willingness of parties = enter into agreements allowed by law = desired terms 2. Concise statement of their respective claims together with the applicable laws and authorities 3. Admitted facts and proposed stipulations of facts, as well as the disputed factual and legal issues 4. All the evidence to be presented, including expert opinion, briefly stating or describing the nature and purpose thereof 5. Number and names of the witnesses and their respective affidavits 6. Such other matters as the court may require Failure to file the pre-trial or to comply with its required contents shall have the same effect as failure to appear at the pre- trial under the succeeding section.

Section 13

Effect of failure to appear at the pre-trial • Petitioner fails to appear personally= case dismissed • Unless counsel/duly authorized representative gives valid excuse for non-appearance of the petitioner. • Respondent filed his answer but fails to appear = court proceed with the pre-trial and require the public prosecutor to investigate the non-appearance of the respondent • Submit within 15 days a report to the court stating whether his non-appearance is due to any collusion between the parties • If no collusion = public prosecutor to intervene for State during the trial on the merits to prevent suppression or fabrication of evidence • Pre-trial conference • May refer issues to mediator – assist the parties in reaching an agreement on matters not prohibited by law • Mediator = report within 1 month from referral • Court may extend for a period not exceeding one month • Mediation not availed/ failed – court proceed with the pre-trial conference • Consider the advisability of receiving expert testimony and such other matters as may aid in the prompt disposition of the petition

Section 14

Section 15

Pre-trial order (a) The proceedings in the pre-trial shall be recorded. Upon termination of the pre-trial, the court shall issue a pre-trial order which shall recite in detail the matters taken up in the conference, the action taken thereon, the amendments allowed on the pleadings, and, except as to the ground of legal separation, the agreements or admissions made by the parties on any of the matters considered, including any provisional order that may be necessary or agreed upon by the parties. (b) Should the action proceed to trial, the order shall contain a recital of the following: (1) Facts undisputed, admitted, and those which need not be proved subject to Section 13 of this Rule; (2) Factual and legal issues to be litigated; (3) Evidence, including objects and documents, that have been marked and will be presented; (4) Names of witnesses who will be presented and their testimonies in the form of affidavits; and (5) Schedule of the presentation of evidence. The pre-trial order shall also contain a directive to the public prosecutor to appear for the State and take steps to prevent collusion between parties at any stage of the proceedings and fabrication or suppression of evidence during the trial on the merits. (c) The parties shall not be allowed to raise issues or present witnesses and evidence other than those stated in the pre-trial order. The order shall control the trial of the case unless modified by the court to

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prevent manifest injustice. (d) The parties shall have five days from receipt of the pre- trial order to propose corrections or modifications. Section 16

Prohibited Compromise Court shall not allow compromise on prohibited matters: 1. Civil status of persons 2. Validity of marriage or legal separation 3. Any ground for legal 4. Future support 5. Jurisdiction of courts 6. Future legitime

Section 17

Trial (a) The presiding judge shall personally conduct the trial of the case. No delegation of the reception of evidence to a commissioner shall be allowed except as to matters involving property relations of the spouses. (b) The grounds for legal separation must be proved. No judgment on the pleadings, summary judgment, or confession of judgment shall be allowed. (c) The court may order the exclusion from the courtroom of all persons, including members of the press, who do not have a direct interest in the case. Such an order may be made if the court determines on the record that requiring a party to testify in open court would not enhance the ascertainment of truth; would cause to the party psychological harm or inability to effectively communicate due to embarrassment, fear, or timidity; would violate the party’s right to privacy; or would be offensive to decency or public morals. (d) No copy shall be taken nor any examination or perusal of the records of the case or parts thereof be made by any person other than a party or counsel of a party, except by order of the court.

Section 18

Memoranda The court may require the parties and the public prosecutor to file their respective memoranda in support of their claims within fifteen days from the date the trial is terminated. No other pleadings or papers may be submitted without leave of court. After the lapse of the period herein provided, the case will be considered submitted for decision, with or without the memoranda.

Section 19

Decision 1. Grant petition – declare decree of absolute nullity or decree of annulment = issued by the court only after compliance with Articles 50 and 51 of the Family Code as implemented under the Rules on Liquidation, Partition and Distribution of Properties. 2. Parties + Solicitor General + public prosecutor = served copies of the decision personally or by registered mail. If the respondent summoned by publication failed to appear in the action, the dispositive part of the decision shall be published once in a newspaper of general circulation. 3. Decision = final upon the expiration of 15 days from notice to the parties 4. Entry of judgment = made if no motion for reconsideration or new trial, or appeal is filed by any of the parties, the public prosecutor, or the Solicitor General 5. Upon the finality of the decision, the court = issue the corresponding decree if the parties have no properties. • If parties have no properties = court shall observe the procedure prescribed in Section 21 of this Rule. • Entry of judgment shall be registered in the Civil Registry where the marriage was recorded and in the Civil Registry where the Family Court granting the petition for declaration of absolute nullity or annulment of marriage is located.

Section 20

Appeal Pre-condition • No appeal from the decision shall be allowed unless the appellant has filed a motion for reconsideration or new trial within 15 days from notice of judgment Notice of Appeal • Aggrieved party or the Solicitor General = appeal decision = filing a Notice of Appeal within 15

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days from notice of denial of the motion for reconsideration or new trial • Appellant = serve a copy of the notice of appeal upon the adverse parties Section 21

Liquidation, partition and distribution, custody, and support of minor children Upon entry of the judgment granting the petition, or, in case of appeal, upon receipt of the entry of judgment of the appellate court granting the petition, the Family Court, on motion of either party, shall proceed with the liquidation, partition and distribution of the properties of the spouses, including custody and support of common children, under the Family Code unless such matters had been adjudicated in previous judicial proceedings.

Section 22

Issuance of Decree of Absolute Nullity of Annulment of Marriage A. The court shall issue the Decree of Legal Separation after: a. Registration of the entry of judgment granting the in the Civil Registry where the marriage was celebrated and in the Civil Registry where the Family Court is located; and b. Registration of approved partition and distribution of the properties of the spouses, in the proper Register of Deeds where the real properties are located. B. The court shall quote in the Decree the dispositive portion of the judgment entered and attach to the Decree the approved deed of partition. C. Court order LCR – issue amended birth certificate indicating new civil status of children affected

Section 23

Registration and publication of the Decree; Decree as best evidence Registration of decree • The prevailing party shall cause the registration of the Decree in the Civil Registry where the marriage was registered, in the Civil Registry of the place where the Family Court situated, and in the National Census and Statistics Office • Report to the court = compliance with this requirement 30 days from receipt of the copy of the Decree Publication of decree • If by publication, cause the publication of the Decree once in a newspaper of general circulation Best evidence Registered Decree • Best evidence to prove the legal separation of the parties • Notice to third persons concerning the properties of petitioner and respondent as well as properties or presumptive legitimes delivered to common children

Section 24

Effect of death of a party. Duty of the Family Court or Appellate Court 1. Party dies at any stage before the entry of judgment = case closed and terminated without prejudice to the settlement of estate in proper proceedings in the regular courts 2. Party dies after the entry of judgment = binding upon the parties and their successors in interest in the settlement of the estate in the regular courts

Section 25

Effectivity • March 15, 2003 • Following its publication in a newspaper of general circulation not later than March 7, 2003

Chapter 4: Legal Separation

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Article 55

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A petition for legal separation may be filed on any of the following grounds: 1. Repeated physical violence or grossly abusive conduct – directed against petitioner, common child or child of the petitioner 2. Physical violence or moral pressure to compel the petitioner to change religious or political affiliation 3. Attempt of the respondent to corrupt or induce the petitioner, common child, or child of the petitioner to engage in prostitution, or connivance in such corruption or inducement 4. Final judgment – sentencing respondent to imprisonment of more than 6 years, even if pardoned 5. Drug addiction or habitual alcoholism of respondent 6. Lesbianism or homosexuality 7. Contracting by respondent subsequent bigamous marriage whether in the Philippines or abroad 8. Sexual infidelity or perversion 9. Attempt by the respondent against the life of the petitioner 10. Abandonment of petitioner by respondent without justifiable cause for more than 1 year Term “child” – child by nature or by adoption Legal Separation • Does not affect marital status • Does not dissolve marriage • Bed-and-board separation • Terminable by MANIFESTATION in court • Called RELATIVE DIVORCE • Grounds EXCLUSIVE, usually occur after the celebration of marriage Repeated Physical Violence • FREQUENCY not severity • Must be inflicted with BAD FAITH/MALICE • Grossly abusive conduct – no exact definition, case-to-case basis o Example: offensive language – purpose: causing unhappiness; singular but serious act Compulsion by Physical Violence or Moral Pressure to Change Religious or Political Affiliation • ANY AGE – may or may not be emancipated • Mere ATTEMPT enough • PROSTITUTION only • Does not include child of the respondent or guilty spouse with another person Final Judgment involving More than Six Years Imprisonment • Offense can be against ANYBODY • Ground can be invoked even if validly pardoned • Stigma created by spouse • Judgment must be FINAL Drug Addiction, Habitual Alcoholism, Lesbianism and Homosexuality • Same as those in annulment cases except grounds can exist even after marriage ceremony • Cruelty of continued acts " lead to serious mental anguish • Should not have lumped lesbianism and homosexuality with drug addiction and habitual alcoholism – different in nature • Lesbianism and homosexuality – not afflictions, sexual orientations • Drug addiction and habitual alcoholism – mental state detrimental to one’s social and personal well-being Bigamy • Act of illegally contracting a second marriage despite full knowledge that first marriage is validly existing • If committed abroad, guilty party cannot be criminally persecuted for bigamy in the Philippines as penal statutes are territorial in nature Sexual Infidelity or Perversion • Clear betrayal of TRUST of spouse by having intimate love affairs with other persons • Single act of sexual intercourse, even if did not commit concubinage • ADULTERY – woman, single act of sexual intercourse with another • CONCUBINAGE o Maintaining a mistress in the conjugal dwelling o Sexual intercourse under scandalous circumstances o Cohabiting with her in any other place • MARITAL INFIDELITY – VAWC

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Article 56

Article 57

Article 58

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Sexual Perversion with one’s spouse and other sexual partners o Oral sexual intercourse o Condone: cannot file anymore • Bestiality – sexual intercourse between a person and an animal • Can cause great psychological and physical agony Attempt on Life • Must proceed from an EVIL DESIGN • No previous criminal conviction required • Only preponderance of evidence needed • Criminally convicted – innocent spouse can disinherit even without legal separation case filed Unjustified Abandonment • Must be WILLFUL • Wrongful intent to desert, continued for a statutory period • Abandonment implies a total renunciation of duties • No reasonable excuse for one who separated • If willingly concur (both parties) – NOT WILLFUL desertion • Spouse – insane – not granted o Desertion must be willful or intentional for full statutory period • Left conjugal dwelling without intention of returning • 3 MONTHS – failed to give information on whereabouts o prima facie presumed to have no intention of returning The petition for legal separation shall be denied on any of the following grounds: 1. Where the aggrieved party has condoned the offense or act complained of; 2. Where the aggrieved party has consented to the commission of the offense or act complained of 3. Where there is connivance between the parties in the commission of the offense or act constituting the ground for legal separation 4. Where both parties have given ground for legal separation 5. Where there is collusion between the parties to obtain the decree of legal separation 6. Where the action is barred by prescription Condonation • Act of forgiving offense after its commission • Implies good behavior = no repetition • Each action can be a ground – revives original offense • May be express or implied • Does not require sexual intercourse Consent • Either of the spouses agreed or did not object, despite full knowledge, to the act committed • May be deduced from ACTS of the spouses Connivance • Action with knowledge and belief that it would produce certain results and which results are produced • Corrupt consenting o Example: husband lays lure for his wife Collusion • Corrupt agreement • Agreement between husband and wife looking to the procuring of a divorce • May not be inferred from the fact that guilty party confesses to offense and enables other party to procure evidence necessary to prove it Recrimination or Equal Guilt • “He who comes inot equity must come with clean hands” • 2 persons in bad faith = good faith • In pari delicto An action for legal separation shall be filed within five years from the time of the occurrence of the cause. Prescription • 5 YEARS from the occurrence of the CAUSE • Time of discovery not material • If discovered after 5 years, FORGIVENESS and no longer recrimination An action for legal separation shall in no case be tried before six months shall have elapsed since the filing •

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of the petition. Article 59

No legal separation may be decreed unless the court has taken steps toward the re- conciliation of the spouses and is fully satisfied, despite such efforts, that reconciliation is highly improbable.

Article 60

No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment. In any case, the court shall order the prosecuting attorney or fiscal assigned to it to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed.

Article 61

After the filing of the petition for legal separation, the spouses shall be entitled to live separately from each other. The court, in the absence of a written agreement between the spouses, shall designate either of them or a third person to administer the absolute community or conjugal partnership property. The administrator appointed by the court shall have the same powers and duties as those of a guardian under the Rules of Court.

Article 62

During the pendency of the action for legal separation, the provisions of Article 49 shall likewise apply to the support of the spouses and the custody and support of the common children. Procedure • 15 days from receipt of the summons to answer • COOLING OFF PERIOD – 6 months, enough time to further contemplate positions with the view of attaining reconciliation • Healing balm of time may aid the process • Can be dispensed with if VAWC • MANDATORY requirement • PREVENTED: hearing merits with respect to VALIDITY/INVALIDITY of GROUND for legal separation o Any other determination ALLOWED – custody of children, support • Proof by preponderance of evidence o MATERIAL FACTS always have to be proved • Court cannot compel parties to live together, cohabitation = personal act Management of Properties during Suit • Administrator assigned by the court • Example o Diplomat went back to the Philippines – resided with bigamous wife and illegitimate children o Legitimate wife, administered conjugal properties without complaint from husband o Allowed her to administer without interference from the petitioner • No formal designation has been made • Primary purpose: preserve the status quo of the things subject of the action or the relations between the parties and thus protect rights during the pendency of the suit Death Terminates Legal Separation Case • Death of one of the party to the action causes the death of the action itself • Purely personal • Death had settled the question of separation beyond all controversy and deprived the court of jurisdiction • Action for legal separation is abated by death of the plaintiff even if property rights are involved " rights are mere effects of a decree for separation • Source: decree itself The decree of legal separation shall have the following effects: 1. The spouses shall be entitled to live separately from each other, but the marriage bond shall not be severed 2. The absolute community of or the conjugal partnership shall be dissolved and liquidated but the offending spouse shall have no right to any share of the net profits earned by the absolute com- munity or the conjugal partnership, which shall be forfeited in accordance with the provisions of Article 43(2) 3. The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of Article 213 of this Code 4. The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. Moreover, provisions in favor of the offending spouse in the will of the innocent spouse shall

Article 63

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Article 64

Article 65 Article 66

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be revoked by operation of law. Effects of a Decree of Legal Separation • When decree is issued – finality of separation = complete after lapse of period to appeal decision even if effects (liquidation od property) have not been commenced or terminated • Dissolution and liquidation are necessary consequences of the final decree • Merely incidental Marriage Bond Maintained • Entitled to live separately from each other • Marriage bond not severed • Spouse can still be held criminally liable for bigamy, concubinage or adultery if act is committed • Still married to each other Liquidation of Property • ACP/CPG shall be liquidated • Offending spouse – no right to share of any of the net profits earned by the ACP/CPG – forfeited in favor of common children, children of guilty spouse or innocent spouse • Computing net profit – market value of community property at time of marriage and market value at time of dissolution Custody of Minor Children • Innocent spouse shall be awarded custody of minor children • However, paramount interest of the child shall be the standard • Court shall take into account all the relevant considerations especially if the choice of the child over 7, unless parent is unfit • No child under 7 can be separated from mother unless court finds compelling reasons to order otherwise Intestate and Testate Disqualification • Provisions in favor of offending spouse in will – revoked by operation by law • Does not provide that revocation will be rendered ineffectual in case parties reconciled • Person can DISINHERIT his or her spouse in a will if the latter has given CAUSE for legal separation even if he or she has NOT YET been found GUILTY of committing such cause • HOWEVER, Article 922 of the Civil Code – disinheritance in a will shall be rendered ineffectual upon the MUTUAL RECONCILIATION of the spouses After the finality of the decree of legal separation, the innocent spouse may revoke the donations made by him or by her in favor of the offending spouse, as well as the designation of the latter as a beneficiary in any insurance policy, even if such designation be stipulated as irrevocable. The revocation of the donations shall be recorded in the registries of property in the places where the properties are located. Alienations, liens and encumbrances registered in good faith before the recording of the complaint for revocation in the registries of property shall be respected. The revocation of or change in the designation of the insurance beneficiary shall take effect upon written notification thereof to the insured. The action to revoke the donation under this Article must be brought within five years from the time the decree of legal separation has become final. Donations and Beneficiary in Insurance • Acts of liberality – option to revoke by innocent party • Designation as beneficiary of guilty spouse – in insurance – will be considered REVOKED upon WRITTEN NOTIFICATION to the insured • Innocent spouse – revoke donation – file an ACTION FOR REVOCATION within 5 years – from time decree of legal separation becomes final • If donation is VOID = does not prescribe • Two recordings in the provision o Recording of the alienations, liens and encumbrances o Recording of complaint for revocation • Why notice to the insured? • More practical if notification is given to the insurer – liable for insurance, no way for beneficiary to get proceeds after revoked • Insurer might pay the proceeds to the insurance of former beneficiary • But law states otherwise, law must be applied If the spouses should reconcile, a corresponding joint manifestation under oath duly signed by them shall be filed with the court in the same proceeding for legal separation. The reconciliation referred to in the preceding article shall have the following consequences: 1. The legal separation proceedings, if still pending, shall thereby be terminated in whatever stage

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Article 67

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2. The final decree of legal separation shall be set aside, but the separation of property and any forfeiture of the share of the guilty spouse already effected shall subsist, unless the spouses agree to revive their former property regime. The court’s order containing the foregoing shall be recorded in the proper civil registries. The agreement to revive the former property regime referred to in the preceding article shall be executed under oath and shall specify: 1. The properties to be contributed anew to the restored regime 2. Those to be retained as separate proper- ties of each spouse 3. The names of all their known creditors, their addresses and the amounts owing to each. The agreement of revival and the motion for its approval shall be filed with the court in the same proceeding for legal separation, with copies of both furnished to the creditors named therein. After due hearing, the court shall, in its order, take measures to protect the interest of creditors and such order shall be recorded in the proper registries of property. The recording of the order in the registries of property shall not prejudice any creditor not listed or not notified, unless the debtor-spouse has sufficient separate properties to satisfy the creditor’s claim. Effect of Reconciliation • File JOINT MANIFESTATION OF RECONCILIATION • If pending = terminated • If issued = set aside • Recorded in the proper civil registries • Parties can enter into an agreement reviving their previous property regime o List of properties which will remain separate o Properties contributed to revived property regime o Names and addresses of creditors, amounts of the credit o Creditors must be furnished the motion seeking approval of the agreement • After hearing, court – take measures to protect the interest od the creditors • Recording – not prejudice creditor not listed Revival and Adoption • Reconciling spouse can revive their original property regime • AM Resolution allowed “adoption of another regime of property relations different from that which they had prior to the filinf of the petition for legal separation” • Conflicting views on this o Article 66 & 67 ! Restrictive and no other property regime can judicially be applied for ! Only revival is allowed o Article 66 (2) ! Does not expressly provide that a different property regime cannot be applied for by the parties ! Must be construed to allow what they do not disallow ! Marriage is still intact and never been cut ! Can allow only a change to a different property regime other than ACP or CPG ! Can allow a different kind of regime devised by the parties themselves o Provided there is court approval, parties can request for any other different regime Inheritance • Disinherited guilty spouse = subsequent reconciliation renders ineffectual any disinheritance made • Revoked provisions in will (guilty spouse) – innocent spouse still has the option of reinstituting provisions in a will • Given by law power to decide which properties they want to maintain as their own separate property in any agreement for revival of the property regime Recording of the Order of Revival • Effect on the creditor’s claim: o Recording of the order o Listing or non-listing of creditors in order o Notification of creditors • Recording of order of revival – prejudice the creditors listed • Not listed – not prejudiced • Creditors not listed or not notified – prejudiced IF debtor-spouse has sufficient separate properties • Court can set aside certain separate properties for paying off or protecting interests of each of the spouses’ respective creditors

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Section 1

Section 2

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No claims filed though listed or notified – prejudiced A pay X (creditor) X can only execute on A’s house Conjugal property when A and B reconciled X was notified – cannot execute on the house anymore because A and B became co-owners – part of revived conjugal partnership property regime • X was legally prejudiced • X should have filed his claim – so court could make provisions to protect his interest • If X was not listed – C can foreclose on A’s house o Separate properties first (if enough) o Conjugal property ANNEX B: RULE ON LEGAL SEPARATION Supreme Court EN Banc Resolution A.M. No. 02-11-11-SC Scope This Rule shall govern petitions for legal separation under the Family Code of the Philippines. The Rules of Court shall apply suppletorily. Petition A. Who may and when to file • Husband or the wife • Within five years from the time of the occurrence of any of the following causes: 1. Repeated physical violence or grossly abusive conduct – directed against petitioner, common child or child of the petitioner 2. Physical violence or moral pressure to compel the petitioner to change religious or political affiliation 3. Attempt of the respondent to corrupt or induce the petitioner, common child, or child of the petitioner to engage in prostitution, or connivance in such corruption or inducement 4. Final judgment – sentencing respondent to imprisonment of more than 6 years, even if pardoned 5. Drug addiction or habitual alcoholism of respondent 6. Lesbianism or homosexuality 7. Contracting by respondent subsequent bigamous marriage whether in the Philippines or abroad 8. Sexual infidelity or perversion 9. Attempt by the respondent against the life of the petitioner 10. Abandonment of petitioner by respondent without justifiable cause for more than 1 year B. Contents and form The petition for legal separation shall contain: 1. • Complete facts + cause of action 2. • Names & ages of the common children of the parties • Specify the regime governing their property relations • Properties involved, and creditors • No adequate provision in a written agreement between the parties –may apply for a provisional order for spousal support, custody and support of common children, visitation rights, administration of community or conjugal property, and other similar matters requiring urgent action 3. • Verified and accompanied by a certification against forum shopping – personally signed by the petitioner • No petition may be filed solely by counsel or through an attorney-in-fact • If petitioner in a foreign country = verification and certification against forum shopping shall be authenticated by the duly authorized officer of the Philippine embassy or legation, consul general, consul or vice-consul or consular agent in said country 4. • Filed in six copies • Petitioner within five days from filing, furnish a copy of the petition to the City or Provincial Prosecutor and the creditors + submit to the court proof of such service within the same period • Failure to comply with the preceding requirements may be a ground for immediate dismissal of the petition C. Venue • • • • •

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Section 3

Section 4

Section 5

Section 6

Section 7

Section 8

Section 9

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Family Court • Province or city where the petitioner or the respondent has been residing for at least six months prior to the date of filing • Non-resident respondent = where he may be found in the Philippines at the election of the petitioner Summons 3. Respondent cannot be located at given address/ whereabouts are unknown and cannot be ascertained by diligent inquiry = publication once a week for two consecutive weeks in a newspaper of general circulation in the Philippines and in such place as the court may order. In addition, a copy of the summons shall be served on respondent at his last known address by registered mail or by any other means the court may deem sufficient. 4. The summons to be published shall be contained in an order of the court with the following data: f) Title of the case g) Docket number h) Nature of the petition i) Principal grounds of the petition and the reliefs prayed for j) Directive for respondent to answer within thirty days from the last issue of publication Motion to Dismiss Ground of lack of jurisdiction over the subject matter Provided, however, That any other ground that might warrant a dismissal of the case may be raised as an affirmative defense in an answer Answer 1. Answer = 15 days from receipt of summons or 30 days from last issue of publication 2. Answer = verified by respondent himself 3. Fails to file an answer = court not declare him in default 4. No answer filed = public prosecutor – investigate whether collusion exists Investigation Report of Public Prosecutor 1. 1 month after receipt of court order – submit a report to the court whether parties are in collusion & serve copies of parties and their respective counsels 2. Public prosecutor finds collusion exists = state the basis report 3. Parties – file respective comments on the finding of collusion within 10 days from receipt of copy of the report 4. Court set report for hearing and if convinced that parties are in collusion, it shall dismiss the petition 5. Public prosecutor reports that no collusion exists, Court = set the case for pre-trial 6. Duty of the public prosecutor to appear for the State at the pre-trial Social Worker • The court may require a social worker to conduct a case study and to submit the corresponding report at least three days before the pre-trial • May also require a case study at any stage of the case whenever necessary Pre-trial • A pre-trial is MANDATORY • Set the pre-trial after the last pleading has been served and filed, or upon receipt of the report of the public prosecutor that no collusion exists between the parties on a date not earlier than six months from date of the filing of the petition (b) Notice of Pre-trial 4. The notice of pre-trial shall contain: (c) Date of pre-trial conference (d) Order directing the parties to file and serve their respective pre-trial briefs – receipt by the party at least three days before the date of the pre-trial 5. Notice served separately on the parties and their respective counsels as well as on the public prosecutor. It shall be their duty to appear personally at the pre-trial. 6. Notice of pre-trial shall be sent to the respondent even if he fails to file an answer. In case of summons by publication and the respondent failed to file his answer, notice of pre-trial shall be sent to respondent at his last known address. Contents of pre-trial brief

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7. A statement of the willingness of the parties to enter into agreements as may be allowed by law, indicating the desired terms thereof; 8. A concise statement of their respective claims together with the applicable laws and authorities 9. Admitted facts and proposed stipulations of facts, as well as the disputed factual and legal issues 10. All the evidence to be presented, including expert opinion, if any, briefly stating or describing the nature and purpose thereof 11. The number and names of the witnesses and their respective affidavits 12. Such other matters as the court may require. 13. Failure to file the pre-trial or to comply with its required contents shall have the same effect as failure to appear at the pre- trial under the succeeding section.

Section 10

Section 11

Section 12

Section 13

Effect of failure to appear at the pre-trial • Petitioner fails to appear personally= case dismissed • Unless counsel/duly authorized representative gives valid excuse for non-appearance of the petitioner. • Respondent filed his answer but fails to appear = court proceed with the pre-trial and require the public prosecutor to investigate the non-appearance of the respondent • Submit within 15 days a report to the court stating whether his non-appearance is due to any collusion between the parties • If no collusion = public prosecutor to intervene for State during the trial on the merits to prevent suppression or fabrication of evidence Pre-trial conference • May refer issues to mediator – assist the parties in reaching an agreement on matters not prohibited by law • Mediator = report within 1 month from referral • Court may extend for a period not exceeding one month • Mediation not availed/ failed – court proceed with the pre-trial conference • Consider the advisability of receiving expert testimony and such other matters as may aid in the prompt disposition of the petition Pre-trial order (a) The proceedings in the pre-trial shall be recorded. Upon termination of the pre-trial, the court shall issue a pre-trial order which shall recite in detail the matters taken up in the conference, the action taken thereon, the amendments allowed on the pleadings, and, except as to the ground of legal separation, the agreements or admissions made by the parties on any of the matters considered, including any provisional order that may be necessary or agreed upon by the parties. (b) Should the action proceed to trial, the order shall contain a recital of the following: (1) Facts undisputed, admitted, and those which need not be proved subject to Section 13 of this Rule; (2) Factual and legal issues to be litigated; (3) Evidence, including objects and documents, that have been marked and will be presented; (4) Names of witnesses who will be presented and their testimonies in the form of affidavits; and (5) Schedule of the presentation of evidence. The pre-trial order shall also contain a directive to the public prosecutor to appear for the State and take steps to prevent collusion between parties at any stage of the proceedings and fabrication or suppression of evidence during the trial on the merits. (c) The parties shall not be allowed to raise issues or present witnesses and evidence other than those stated in the pre-trial order. The order shall control the trial of the case unless modified by the court to prevent manifest injustice. (d) The parties shall have five days from receipt of the pre- trial order to propose corrections or modifications. Prohibited compromise The court shall not allow compromise on prohibited matters, such as the following: 1. The civil status of persons 2. The validity of a marriage or of a legal separation 3. Any ground for legal separation 4. Future support 5. The jurisdiction of courts

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Section 14

Section 15

Section 16

Section 17

Section 18

Section 19

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6. Future legitime Trial (a) The presiding judge shall personally conduct the trial of the case. No delegation of the reception of evidence to a commissioner shall be allowed except as to matters involving property relations of the spouses. (b) The grounds for legal separation must be proved. No judgment on the pleadings, summary judgment, or confession of judgment shall be allowed. (c) The court may order the exclusion from the courtroom of all persons, including members of the press, who do not have a direct interest in the case. Such an order may be made if the court determines on the record that requiring a party to testify in open court would not enhance the ascertainment of truth; would cause to the party psychological harm or inability to effectively communicate due to embarrassment, fear, or timidity; would violate the party’s right to privacy; or would be offensive to decency or public morals. (d) No copy shall be taken nor any examination or perusal of the records of the case or parts thereof be made by any person other than a party or counsel of a party, except by order of the court. Memoranda The court may require the parties and the public prosecutor to file their respective memoranda in support of their claims within fifteen days from the date the trial is terminated. No other pleadings or papers may be submitted without leave of court. After the lapse of the period herein provided, the case will be considered submitted for decision, with or without the memoranda. Decision A. The court shall deny the petition on any of the following grounds: (1) The aggrieved party had condoned the offense or act complained of or has consented to the commission of the offense or act complained of (2) There is connivance in the commission of the offense or act constituting the ground for legal separation; (3) Both parties have given ground for legal separation; (4) There is collusion between the parties to obtain the decree of legal separation (5) The action is barred by prescription. B. If the court renders a decision granting the petition, it shall declare therein that the Decree of Legal Separation shall be issued by the court only after full compliance with liquidation under the Family Code. However, in the absence of any property of the parties, the court shall forthwith issue a Decree of Legal Separation which shall be registered in the Civil Registry where the marriage was recorded and in the Civil Registry where the Family Court granting the legal separation is located. C. The decision shall likewise declare that: 1. The spouses are entitled to live separately from each other but the marriage bond is not severed 2. The obligation of mutual support between the spouses ceases 3. The offending spouse is disqualified from inheriting from the innocent spouse by intestate succession, and provisions in favor of the offending spouse made in the will of the innocent spouse are revoked by operation of law. D. The parties, including the Solicitor General and the public prosecutor, shall be served with copies of the decision personally or by registered mail. If the respondent summoned by publication failed to appear in the action, the dispositive part of the decision shall also be published once in a newspaper of general circulation. Appeal Pre-condition • No appeal from the decision shall be allowed unless the appellant has filed a motion for reconsideration or new trial within fifteen days from notice of judgment. Notice of Appeal • An aggrieved party or the Solicitor General may appeal from the decision by filing a Notice of Appeal within fifteen days from notice of denial of the motion for reconsideration or new trial. The appellant shall serve a copy of the notice of appeal upon the adverse parties. Liquidation, partition and distribution, custody, and support of minor children Upon entry of the judgment granting the petition, or, in case of appeal, upon receipt of the entry of judgment of the appellate court granting the petition, the Family Court, on motion of either party, shall proceed with the liquidation, partition and distribution of the properties of the spouses, including custody and support of common children, under the Family Code unless such matters had been adjudicated in previous judicial proceedings. Issuance of Decree of Legal Separation A. The court shall issue the Decree of Legal Separation after:

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c.

Section 20

Section 21

Section 22

Section 23

Section 24

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Registration of the entry of judgment granting the petition for legal separation in the Civil Registry where the marriage was celebrated and in the Civil Registry where the Family Court is located; and d. Registration of the approved partition and distribution of the properties of the spouses, in the proper Register of Deeds where the real properties are located. B. The court shall quote in the Decree the dispositive portion of the judgment entered and attach to the Decree the approved deed of partition. Registration and publication of the Decree of Legal Separation; decree as best evidence Registration of decree • The prevailing party shall cause the registration of the Decree in the Civil Registry where the marriage was registered, in the Civil Registry of the place where the Family Court situated, and in the National Census and Statistics Office. He shall report to the court compliance with this requirement within thirty days from receipt of the copy of the Decree. Publication of decree • In case service of summons was made by publication, the parties shall cause the publication of the Decree once in a newspaper of general circulation. Best evidence Registered Decree • best evidence to prove the legal separation of the parties • notice to third persons concerning the properties of petitioner and respondent Effect of death of a party. Duty of the Family Court or Appellate Court 3. In case a party dies at any stage of the proceedings before the entry of judgment, the court shall order the case closed and terminated without prejudice to the settlement of estate in proper proceedings in the regular courts. 4. If the party dies after the entry of judgment, the same shall be binding upon the parties and their successors in interest in the settlement of the estate in the regular courts. Petition for revocation of donations 1. Within five (5) years from the date the decision granting the petition for legal separation has become final, the innocent spouse may file a petition under oath in the same proceeding for legal separation to revoke the donations in favor of the offending spouse. 2. The revocation of the donations shall be recorded in the Register of Deeds in the places where the properties are located. 3. Alienations, liens, and encumbrances registered in good faith before the recording of the petition for revocation in the registries of property shall be respected. 4. (After the issuance of the Decree of Legal Separation, the innocent spouse may revoke the designation of the offending spouse as a beneficiary in any insurance policy even if such designation be stipulated as irrevocable. The revocation or change shall take effect upon written notification thereof to the insurer. Decree of Reconciliation 1. If the spouses had reconciled, a joint manifestation under oath, duly signed by the spouses, may be filed in the same proceeding for legal separation. 2. If the reconciliation occurred while the proceeding for legal separation is pending, the court shall immediately issue an order terminating the proceeding. 3. If the reconciliation occurred after the rendition of the judgment granting the petition for legal separation but before the issuance of the Decree, the spouses shall express in their manifestation whether or not they agree to revive the former regime of their property relations or choose a new regime. 4. The court shall immediately issue a Decree of Reconciliation declaring that the legal separation proceeding is set aside and specifying the regime of property relations under which the spouse shall be covered. 5. If the spouses reconciled after the issuance of the Decree, the court, upon proper motion, shall issue a decree of reconciliation declaring therein that the Decree is set aside but the separation of property and any forfeiture of the share of the guilty spouse already effected subsists, unless the spouses have agreed to revive their former regime of property relations or adopt a new regime. 6. In case of paragraphs (b), (c) and (d), if the reconciled spouses choose to adopt a regime of property relations different from that which they had prior to the filing of the petition for legal separation, the spouses shall comply with Section 24 hereof. 7. The decree of reconciliation shall be recorded in the Civil Registries where the marriage and the Decree had been registered. Revival of property regime or adoption of another

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Section 25

Section 1

Section 2

Section 3

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A. In case of reconciliation under Section 23, paragraph (c) above, the parties shall file a verified motion for revival of regime of property relations or the adoption of another regime of property relations in the same proceeding for legal separation attaching the said motion their agreement for the approval of the court. B. The agreement which shall be verified shall specify the following: 1. The properties to be contributed to the restored or new regime 2. Those to be retained as separate properties of each spouse 3. The names of all their known creditors, their addresses, and the amounts owing to each 4. The creditors shall be furnished with copies of the motion and the agreement. 5. The court shall require the spouses to cause the publication of their verified motion for two consecutive weeks in a newspaper of general circulation. 6. After due hearing, and the court decides to grant the motion, it shall issue an order directing the parties to record the order in the proper registries of property within thirty days from receipt of a copy of the order and submit proof of compliance within the same period. Effectivity • March 15, 2003 • Following its publication in a newspaper of general circulation not later than March 7, 2003 ANNEX C: RULE ON PROVISIONAL ORDERS (Supreme Court en Banc Resolution A.M. 02-11-12-SC) When Issued • Upon receipt = may issue provisional orders and protection orders with or without a hearing • May be enforced immediately, with or without a bond, and for such period and under such terms and conditions as the court may deem necessary Spousal Support In determining support for the spouses, the court may be guided by the following rules: • Absence of adequate provisions in a written agreement between the spouses, the spouses may be supported from ACP or CPG • Support to either spouse in such amount and for such period of time as the court may deem just and reasonable based on their standard of living during the marriage • The court may likewise consider the following factors: • (1) Whether the spouse seeking support is the custodian of a child whose circumstances make it appropriate for that spouse not to seek outside employment • (2) Time necessary to acquire sufficient education and training to enable the spouse seeking support to find appropriate employment, and that spouse’s future earning capacity • (3) Duration of the marriage • (4) Comparative financial resources of the spouses, including their comparative earning abilities in the labor market • (5) Needs and obligations of each spouse • (6) Contribution of each spouse to the marriage, including services rendered in home-making, child care, education, and career building of the other spouse • (7) Age and health of the spouses • (8) Physical and emotional conditions of the spouses • (9) Ability of the supporting spouse to give support, taking into account that spouse’s earning capacity, earned and unearned income, assets, and standard of living • (10) Any other factor the court may deem just and equitable. • The Family Court = may direct the deduction of the provisional support from the salary of the spouse Child Support • Common children of the spouses = supported from ACP/CPG • Subject to sound discretion of the court, either parent or both may be ordered to give an amount necessary for the support, maintenance, and education of the child • Proportion to the resources or means of the giver and to the necessities of the recipient • In determining the amount of provisional support, the court may likewise consider the following factors • Financial resources of the custodial and non-custodial parent and those of the child • Physical and emotional health of the child and his or her special needs and aptitudes • Standard of living the child has been accustomed to • Non-monetary contributions that the parents will make toward the care and well-being of the child

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Section 4

Section 5

Section 6

Section 7

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The Family Court may direct the deduction of the provisional support from the salary of the parent. Child Custody • Court – consider: best interests of the child & paramount consideration to the material and moral welfare of the child • Consider following factors: (a) agreement of the parties (b) desire and ability of each parent to foster an open and loving relationship between the child and the other parent (c) child’s health, safety, and welfare (d) any history of child or spousal abuse by the person seeking custody or who has had any filial relationship with the child, including anyone courting the parent (e) nature and frequency of contact with both parents (f) habitual use of alcohol or regulated substances (g) marital misconduct (h) most suitable physical, emotional, spiritual, psychological and educational environment (i) preference of the child, if over seven years of age and of sufficient discernment, unless the parent chosen is unfit • Court – award provisional custody in the following order of preference: (1) Both parents jointly (2) Either parent taking into account all relevant considerations especially the choice of the child over 7, unless the parent chosen is unfit (3) Surviving grandparent/ grandparent chosen by the child over seven years of age unless the grandparent is unfit or disqualified (4) Eldest brother or sister over 21, unless unfit or disqualified (5) Child’s actual custodian over twenty-one years of age (6) Person deemed by the court suitable to provide proper care and guidance for the child Custodian temporarily designated by the court • 5 days notice – plan to change the residence of the child or take him out of his residence for more than 3 days • should not prejudice visitation rights of parents Visitation Rights Appropriate visitation rights = provided to the parent not awarded provisional custody unless found unfit or disqualified by the court Hold Departure Order • Pending resolution of the petition = no child of the parties shall be brought out of the country without prior order from the court. • Issue ex-parte a hold departure order • Addressed to the Bureau of Immigration and Deportation = directing it not to allow the departure of the child from the Philippines without the permission of the court • The Family Court issuing the hold departure order = furnish the Department of Foreign Affairs and the Bureau of Immigration and Deportation of the Department of Justice copy = issued within 24 hours from the time of its issuance and through the fastest available means of transmittal. • The hold-departure order shall contain the following information: o Complete name (including the middle name), the date and place of birth, and the place of last residence of the person against whom a hold-departure order has been issued or whose departure from the country has been enjoined; o Complete title and docket number of the case in which the hold departure was issued o Specific nature of the case o Date of the hold-departure order • If available, recent photograph of the person against whom a hold departure order has been issued or whose departure from the country has been enjoined should also be included. • The court may recall the order, motu proprio or upon verified motion of any of the parties after summary hearing, subject to such terms and conditions as may be necessary for the best interests of the child. Order of Protection The court may issue an Order of Protection requiring any person: 1. Stay away from the home, school, business, or place of employment of the child, other parent or any other party, and to stay away from any other specific place designated by the court

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2.

Section 8

Section 9

Refrain from harassing, intimidating, or threatening such child or the other parent or any person to whom custody of the child is awarded; 3. Refrain from acts of commission or omission that create an unreasonable risk to the health, safety, or welfare of the child; 4. Permit a parent, or a person entitled to visitation by a court order or a separation agreement, to visit the child at stated periods 5. Permit a designated party to enter the residence during a specified period of time in order to take personal belongings not contested in a proceeding pending with the Family Court 6. Comply with such other orders as are necessary for the protection of the child. Administration of Common Property • If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the court may, upon application of the aggrieved party under oath, issue a provisional order appointing the applicant or a third person as receiver or sole administrator of the common property subject to such precautionary conditions it may impose. • The receiver or administrator may not dispose of or encumber any common property or specific separate property of either spouse without prior authority of the court. • The provisional order issued by the court shall be registered in the proper Register of Deeds and annotated in all titles of properties subject of the receivership or administration. Effectivity • March 15, 2003 • Following its publication in a newspaper of general circulation not later than March 7, 2003

Chapter 5: Obligations of Husband And Wife Article 68

The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support •

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Oblige to live together ! virtue in making as difficult as possible for married couples to abandon each other'’s company. o Repugnance of the law to dissolve obligations of matrimonial cohabitation. o HOWEVER, the law/court cannot compel spouses to live together if they refuse to do so. Procreation ! essential marital obligation considering that such obligation springs from universal principle that procreation of children through sexual cooperation is the basic end of marriage. NO COMPULSION: a court cannot validly issue a decision compelling the spouses to live together, observe mutual love, respect and fidelity. ! purely personal act There can be no action for damages merely because of a breach in marital obligation. o Alternative remedy: ! if the property regime is separation of property, then a spouse may be held liable under Art. 19, 20, or 21 (if one acted in bad faith). ! Seek for spousal support ! “performance of the domestic duties of the wife” rendered neutral by stating that this should be the duty of both spouses (Lilius v. Manila Railroad Company) RAPE: Art. 266-A as amended by RA 8353 o Under this law, a husband can be held liable for raping his wide ! Subsequent forgiveness by the wife as the offended party extinguishes criminal liability ! HOWEVER, the crime shall not be extinguished or the penalty shall not be abater if the marriage is VOID AB INITIO. o Rape is also an act of violence against a woman. (Sec 3 of VAWC) o Reasons of exempting rape against wife (prior law) ! a man and a woman no longer retain separate legal existence. They are one and the same. No one can rape himself/herself. ! Upon entering the marriage contract, a wife consents to sexual intercourse with her husband o Rebuttal: ! rape statutes have always aimed to protect the safety and protection of liberty of women. ! Reclassification of rape as crimes against persons

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! Article 69:

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implied consent is repugnant and not sound where the marriage itself is irrevocable.

The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide. The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family. • • • •

Article 70, 71, 72

Domicile is a place of habitual residence Fixing the domicile must be made by agreement between husband and wife where the family domicile will be Revolutionary changes in the concept of women'’s rights ! before it was the husband who fixes the domicile (Romualdez-Marcos v. COMELEC) In case of disagreement, the court shall decide.

70: The spouse are jointly responsible for the support of the family. The expenses for such support and other conjugal obligations shall be paid from the community property and, in the absence thereof, from the income or fruit of their separate properties. In case of insufficiency or absence of said income or fruits, such obligations shall be satisfied from their separate properties. 71: The management of the household shall be the right and duty of both spouses. The expenses for such management shall be paid in accordance with the provisions of Article 70. 72: When one of the spouses neglects his or her duties to the conjugal union or commits acts which tend to bring danger, dishonor, or injury to the other or to the family, the aggrieved party may apply to the court for relief. • • • • • •

Article 73

Support is a very important duty. Spouses are jointly liable liable for the support of the family ACP/CPG among others shall be liable for support of spouses and common and legitimate children in the absence of the community property, the fruits of the gains of separate properties shall support the family spouses are solidary liable to creditors for family expenses even if the family house is separately owned by one of the spouses, the other spouse still has the right and duty to the management of the household

Either spouse may exercise any legitimate profession, occupation, business or activity without the consent of the other. The latter may object only on valid, serious and moral grounds. In case of disagreement, the court shall decide whether or not: 1. objection is proper 2. benefit has accrued to the family prior to the objection or thereafter. If the benefit accrued prior to the objection, the resulting obligation shall be enforced against the separate property of the spouse who has not obtained consent. The foregoing provisions shall not prejudice the rights of creditors who acted in good faith. • •

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Either spouses can engage in any LAWFUL enterprise or profession if the husband compels the wife to desist from pursuing a profession or ay other conduct which the wife has the right to engage in, or prevent the wife from engaging in any legitimate profession, occupation, business or activity with the purpose or effect of controlling or restricting her movement or conduct o CONSIDERED VIOLENCE AGAINST WOMEN which is punishable by law (RA 9262) When a spouse contract an isolated transaction that has not redounded to the benefit of the family, his/her liability shall be taken from the fruits or gains of the separate property or in case of insufficiency, the separate property

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in case of DISAGREEMENT, the objection must be anchored only on valid, serious and moral grounds. o If the BENEFIT has accrued PRIOR to the objection, ! it shall be charged from the separate property o If the BENEFIT has accrued AFTER to the objection, ! it shall be charged from ACP/CJP o ERROR IN PRINTING ! the outcome did not reflect the “intent” of the Commissioners as revealed in the minutes of the deliberations.

Chapter 6: Property Relations Article 74, 75, 76, 77

74: The property relations between husband and wife shall be governed in the following order 1. 2. 3.

by marriage settlements executed before the marriage by provisions of this Code; and 3. By the local customs

75: The future spouses may, in the marriage settlements, agree upon the regime of absolute community of property, conjugal partnership of gains, complete separation of property, or any other regime. In the absence of marriage settlement, or when the regime or when the regime agreed upon is void, the system of absolute community of property as established in this Code shall govern. 76: In order that any modification, in the marriage settlements may be valid, it must be made before the celebration of marriage, subject to the provisions Article 66, 67, 128, 135 and 136. 77: The marriage settlements and nay modification thereof shall be in writing, signed by the parties, and executed before the celebration of marriage. They shall not prejudice third persons unless they are registered in the local civil registry where the marriage contract is recorded as well as in the proper registries of properties . •

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Property relations shall be governed in the following order o 1. By marriage settlements executed before the marriage o 2. By provisions of this Code o 3. By local customs Spouses may agree upon the regime of: o Absolute community of property ! property acquired during marriage except gratuitous tile o Conjugal partnership of gains ! common funds of the fruits and income from separate properties o Complete separation of property In the ABSENCE OF ANY MARRIAGE SETTLEMENT or if it is VOID o Absolute community of property shall take effect Modification of marriage settlements: o 1. Must be before the celebration of marriage o 2. Art. 66 and 67 ! effects of the legal separation decree and upon reconciliation (SC AM 02-11-11) [that spouses can revert to OR adopt a new property regime ! but according to Atty. Sta Maria, this should not be followed and is an exercise of judicial legislation). o 3. Article 128 ! effects of abandonment which is a ground for a judicial decree of separation of property) o 4. Article 135 and 136 ! grounds for judicial separation of property (must be decreed by the court for the same) Marriage settlement/pre-nuptial agreement o Mandatory for VALIDITY o Oral agreement is VOID and cannot be ratified or be objected upon. o Done during the time other than the celebration of marriage is VOID Death of the spouse without liquidation + Subsequent marriage = Separation of property

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Article 78

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Property regime in other countries valid ! as long as they are not contrary to law, public policy, morals and etc. “Mixed Up Property regime” is possible = Valid Combination: o Death + No Liquidation = Complete separation of property o Death + With Liquidation + No Marriage Settlement/Void = Absolute community of property o Death + With Liquidation + Marriage Settlement (CJP) = Conjugal property of gains Marriage settlements or modification o 1. Must be in writing o 2. Signed by the parties o 3. Executed before the celebration o 4. Shall not prejudice third persons ! Exception: if they are registered in the local civil registry where the marriage is contract is recorded as well as in the property registries of property, therefore third persons may be prejudiced. Prejudice to third parties o To bind them, the register to the local civil registry o If redounded to the benefit of the family ! Debtor spouse ! in case of default, the absolute community of property shall be liable BUT it shall be considered advances to be deducted upon liquidation of the ACP. What if the spouses execute a marriage settlement that they do not ACP, but also failed to specify any other property regime? Local customs shall apply given that such customs are not contrary to public law or policy (Art. 11/12 of Civil Code) and such can be proven in court or existent.

A minor who according to law may contract marriage may also execute his or her marriage settlements, but they shall be valid only if the persons designated in Article 14 to give consent to the marriage are made parties to the agreement, subject to the provisions of Title IX of this Code. • •

No longer applicable Only 18 years old above can contract marriage/marriage settlement

Article 79

Article 79. For the validity of any marriage settlements executed by a person upon whom a sentence of civil interdiction has been pronounced or who is subject to any other disability, it shall be indispensable for the guardian appointed by a competent court to be made a party thereto. Sentenced Civil Interdiction – required consent from guardian

Article 80

In the absence of a contrary stipulation in a marriage settlement, the property relations of the spouses shall be governed by Philippine laws, regardless of the place of the celebration of the marriage and their residence. This rule shall not apply: 1) Where both spouses are aliens; 2) With respect to the extrinsic validity of contracts affecting property not situated in the Philippines and executed in the country where the property is located; and 3) With respect to the extrinsic validity of contracts entered into the Philippines but affecting property situated in a foreign country whose laws require different formalities for its extrinsic validity •

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Marriage settlements shall be governed by Philippine Laws o except when: ! 1. both spouses are aliens ! 2. property not situated in the Philippines and are executed therein ! 3. executed in the Philippines but property in a foreign country Real Property ! Article 16 of Civil Code Extrinsic validity ! Article 17 of Civil Code (formalities of will, contracts, etc.)

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Article 81

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Everything stipulated in the settlements or contracts referred to in the preceding articles in consideration of a future marriage, including donations between the prospective spouses made therein, shall be rendered void if the marriage does not take place. However, stipulations that do not depend upon the celebration of the marriage shall be valid. • •

Stipulations in Marriage Settlement ! Void if marriage did not take place o must be in consideration of marriage Those stipulations not dependent upon the marriage ! VALID.

Chapter 7: Donations by Reason of Marriage Article 82, 83, 84

Article 82. Donations by reason of marriage are those which are made before its celebration, in consideration of the same, and in favor of one or both of the future spouses. (126) Article 83. These donations are governed by the rules on ordinary donations established in Title III of Book III of the Civil Code, insofar as they are not modified by the following Articles. (127a) Article 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. •

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Donations by reason of marriage o made before marriage o in consideration of the same o in favor of one or both the future spouses Donations by reason of marriage are governed by the rules on ordinary donations o Title III, Book III of Civil Code o EXCEPT when they are modified by the following articles If spouses agree upon a regime other than ACP o they cannot donate to each other in their settlement more than 1/5 of their present property o EXCESS SHALL BE VOID Donation + Property regime not ACP + up to 1/5 = Valid Donation + Property regime not ACP + >1/5 = Void Donations of future property shall be governed by the provisions on testamentary succession and formalities of will Donations are without onerous condition Donations Propter Nuptias o could be subject to reduction for inofficiousness of donor upon his/her death, if they should infringe the legitime of a forced heir o must be made prior to the celebration Exclusions: o 1. made after the celebration o 2. made in favor of the future spouse not in consideration of marriage o 3. granted to persons other than spouses even though they may be founded on the marriage DPN can be contained in a marriage settlement o Governed by rules on regular donations Book III Title III of Civil Code ! 1. must be accepted by the donee (personally and/or special power/agent) ! 2. must be within the lifetime of donee/donor ! 3. may be ORAL or WRITTEN ! 3.a Oral ! movable; must be delivered simultaneously and must not exceed P5,000 ! 3.b Written ! immovable, must be in a public document (notarized, deed of donation), for a movable exceeding P5,0000 Future property ! provisions on testamentary succession and formalities of a will

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handwritten ! if not handwritten ! must be attested by at least 3 credible witnesses Donations to a would be spouse + ACP as property regime = USELESS o except: ! on personal properties except jewelry ! gratuitous title and income thereof ! acquired before the marriage who has legitimate descendants Requisites of donation between Would Be Spouses o 1. valid marriage settlement o 2. stipulated property regime other than ACP o 3. must not be more than 1/5 of the present property o 4. must be accepted by the would-be spouse o 5. comply with Title 3 Book 3 of Civil Code 1/5 limitation not applicable to “separate deed” not included in the M.S. o Violates spirit of the law o undue influence between spouses but there is a presumption of good faith when giving donations o

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• Article 85

Donations by reason of marriage of property subject to encumbrances shall be valid. In case of foreclosure of the encumbrance and the property is sold for less than the total amount of the obligation secured, the donee shall not be liable for the defi ciency. If the property is sold for more than the total amount of said obligation, the donee shall be entitled to the excess. • • •

Article 86

DNP subject to encumbrances shall be void In case of foreclosure of the encumbrance and the property is sold for less than the total amount the obligation secured, donee SHALL NOT BE LIABLE If more than the obligation, donee SHALL BE ENTITLED TO THE EXCESS o donee is not the debtor, not even a solidary debtor

DNP may be revoked by the donor in the following cases: 1. if marriage is not celebrated or declared void ab initio except donations made in a marriage settlement governed by Article 81 2. when the marriage takes place without consent of parents/guardians 3. when marriage is annulled and the donee acted in bad faith 4. upon legal separation, donee being the guilty spouse 5. if with resolutory condition, and the condition is complied with 6. when the donee has committed an act of ingratitude as specified in Civil Code on donations in general •

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Generally, all actions whose period are not fixed must be brought within FIVE YEARS after the time of the right of action accrues o HOWEVER, the period within which to declare the donation void does not prescribe for marriage settlements 5 conditions where a judicial declaration of nullity is necessary: o 1. if subsequent marriage (under art. 40 in relation to 52 and 53), donee-spouse contracted the subsequent marriage in bad faith ! REVOKED by OPERATION OF LAW o 2. under Art 41, when both are in bad faith in contracting a subsequent marriage after obtaining a judicial declaration of presumptive death. Art 44 makes the marriage void ab initio ! SHALL BE REVOKED BY OPERATION OF LAW o 3. Void Marriages not under Art. 40 (in rel. 52 AND 53) and 44, MAY BE REVOKED o 4. Bigamous Marriages Scenario: ! if marriage is void, X (innocent) donated to A (married before) ! donation MAY BE REVOKED ! if marriage is void, A (married) donated to X (innocent) + guilty of adultery or concubinage ! VOID ! if marriage is void, A (married) donated to X (innocent) + if living together (common-law) ! VOID under Article 87 o 5. When marriage is void but was contracted in good faith ! MAY BE REVOKED.

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REVOKED BY OPERATION OF LAW o 1. Under Marriage Settlement, marriage did not take place (Art. 81) o 2. Art. 40 in rel. to 54 and 53 (with bad faith) o 3. Art. 41 and 44 (both in bad faith) o 4. Art. 50, in rel. to 43 and 45 (bad faith) o 5. Art. 55 (8) if guilty of concubinage or adultery MAY BE REVOKED o 1. void ab initio marriages not falling under Art. 40 in rel 52&53, 41 in rel. 44 o without consent of parents/guardians o legal separation (donee in bad faith) except if guilty of concubinage/adultery o resolutory condition complied therewith o act of ingratitude (Art. 765 of Civil Code) ! 1. commits offense against the person/honor/property of donor ! 2. imputes to the donor any criminal offense unless crime has been committed against the person of the donee/wife/children under his authority ! 3. unduly refuses to give support to donor even if morally or legally bound to give support Recovery prescription period: o 8 years (article 1140 of Civil Code) o 30 years for immovable (Article 1141 Civil Code) For Legal Separation, after the decree of legal separation issued, donor may revoked within 5 years

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

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Donations or grant of gratuitous advantage + DIRECT or INDIRECT + Between SPOUSES + DURING THE MARRIAGE = SHALL BE VOID o also applies to spouses living together as husband and wife (common-law marriage) ! Except moderate gifts during times of family rejoicing Reason for prohibition ! undue influence Indirect donations: o 1. to a stepchild who has no compulsory and/legal heirs o 2. to a common child who has no compulsory and/or legal heirs o 3. to the parents of the other spouse o 4. to the other spouse'’s adopted child who has no compulsory and/or legal heirs o 5. to a common adopted child who has no compulsory and/or legal heirs. “Interested parties” challenging the validity of transfer o prohibited are those parties who has absolutely no relation o the parties to the transfer AT THE TIME IT OCCURRED and had no rights or interests inchoate present, remote or otherwise, in the property in question at the time of transfer. RESERVA TRONCAL (Art. 891 of CC) o that the ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of the relatives who are within the third degree and who belong to the line from which said property came.

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Chapter 8. System of Absolute Community Section 1: General Provisions Article 88

Article 89, 90

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The absolute community of property between spouses shall commence at the precise moment that the marriage is celebrated. Any stipulation, express or implied, for the commencement of the community regime at any other time shall be void. • ACP includes : o all properties owned before the marriage ceremony o all properties acquired after marriage ceremony o property not agreed upon as part of the separate property under complete separation of property (refer to art 144) • Spouses become co-owners of all the properties • ACP was favored more than CPG as the default property regime under the Family Code (prior to Family Code, CPG is the presumed regime in the absence of a marriage settlement) o ACP is in consonance with the “traditional oneness of the Filipino Family” o viewed as “revolutionary” • An alien married to a Filipino cannot have interest in the ACP or CPG o A Filipina spouse entering a lease agreement without the consent of the foreign husband is valid (Matthews v Taylor) o Aliens are not allowed to acquire public or private lands in the Philippines save only in intestate succession • Any stipulation as to the automatic conversion of property regime is void as it makes the commencement of the ACP at a time other than the precise moment of the celebration of the marriage. Article 89. No waiver of rights, interests, shares and effects of the absolute community of property during the marriage can be made except in case of judicial separation of property. When the waiver takes place upon a judicial separation of property, or after the marriage has been dissolved or annulled, the same shall appear in a public instrument and shall be recorded as provided in Art 77. The creditors of the spouse who made such waiver may petition to the court to rescind the waiver to the extent of the amount sufficientt to cover the amount of their credits.

Section 2: What constitutes community property

Article 90. The provisions on co-ownership shall apply to the absolute community of property between the spouses in all matters not provided for in this chapter. • ACP as special type of co-ownership o each co-owner may use the thing owned in common provided he or she does so in accordance with the purpose for which it is intended and in such a way as not to injure the interest of the co-ownership or prevent the other co-owners from using it according to their rights (Article 486, civil code). Any co-owner may bring an action for ejectment (Article 487, civil code) • UNLIKE an ordinary co-ownership, rights, interests, shares and effects cannot be waived EXCEPT in case of judicial separation of property. o Interest of parties in the community properties is merely inchoate or an expectancy prior to liquidation o waiver without judicial separation of property decree is contrary to public policy (Article 6, civil code) and against prohibitory law (Article 5, civil code) – Article 89 is a prohibitory provision • “Upon judicial separation” (Article 89 par. 2) covers the tie period DURING and AFTER judicial separation Article 91. Unless otherwise provided in this Chapter or in the marriage settlements, the community property shall consist of all the property owned by the spouse at the time of the celebration of the marriage or acquired thereafter.

Article 91, 92, 93 Article 92. The following shall be excluded from the community property: 1) Property acquired during the marriage by gratuitous title by either spouse, and the fruits as well as the income thereof, if any, unless it is expressly provided by the donor, testator or

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grantor that they shall form part of the community property; 2) Property for personal and exclusive use of either spouse. However, jewelry shall form part of the community property; 3) Property acquired before the marriage by either spouse who has legitimate descendants by a former marriage, and the fruits as well as the income, if any, of such property.

Section 3 : Charges upon and obligations of the absolute community Article 94

Article 93. Property acquired during the marriage is presumed to belong to the community, unless it is proved that it is one of those excluded therefrom. • 4 exclusions are as provided in marriage settlements and statutory exclusions under Article 92: o Marriage settlements – should be within the limits provided by the Code o Gratuitous Title ! Must be valid – donations should not involve substantial amount of separate properties (Article 87 provides that any donation between spouses, direct or indirect, is void except moderate gifts) o Personal and exclusive use ! Except jewelry, which involves substantial amount ! General rule – interpreted in terms of value ! “Value” pertains to jewelry (Maam Ampy) ! i.e. Mercedes Benz for personal use must be considered as part of ACP if net worth of the family shows that the spouses are not even very rich to afford a Benz o Property from previous marriage ! legitimate “descendants” - includes grandchildren, great-grandchildren and all other descendants ! if previous marriage is declared null and void because the parties are blood relatives, thereby making the children illegitimate, and thereafter, one of the parties validly marries again, the properties which such party might have acquired as a result of liquidation of the previous marriage and all other properties derived from other sources shall belong to the ACP of the subsequent marriage (except children from void marriage under Article 54) • Previous marriage terminated by death, no liquidation – complete separation of property • Exclusions are only those provided in Articles 91 and 92. No other exclusions are provided by law o A marriage settlement stating that Php 1M won by husband shall remain separate is valid. But if Php 1M is used to buy a house, the latter is part of ACP (in relation to Article 93) o House is donated to the husband who consequently sold the house to a 3rd party. The money derived from sale is part of ACP. o Any property exchanged or merely bartered for another property will be part of ACP; UNLESS, proven to be of personal and exclusive use 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 administratorspouse for the benefit of the community, or by both spouses, or by one spouse with the consent of the other; 3) Debts and obligations contracted by either spouses 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;

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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 the illegitimate children of either spouse, and liabilities incurred by either spouse by reason of 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 te 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 ther separate properties. • Note : par 1, “Legitimate children” - law does not distinguish if from previous or subsequent marriage. As long as legitimate, support is chargeable against the ACP • Illegitimate children are adversely affected by the ACP – support not chargeable to ACP and should be taken from separate property of parent-spouse (Maam Ampy). If the latter is insufficient, support can be advanced from ACP • Support is the most sacred and important of all obligations; should never fail unless with valid cause (refer to Article 194 for legal inclusions) • General Rule : debts and obligations incurred BEFORE or DURING marriage, which redound to the benefit of the family is chargeable to ACP, with or without consent of the other spouse o PROOF that obligation is for the benefit of the family must be shown o If debt and obligation incurred during marriage do not redound to the benefit of the family, ACP will be liable if contracted by both spouses or anyone of them with consent f the other. ! Consent may be expressed and implied. A spouse's signature in an agreement manifests consent (Marmont Resort Hotel v Guiang) o If without consent, ACP will be liable only to the extent that family benefited. o Any loss resulting from exercise of a profession or family business by any of the spouses shall be chargeable to ACP (Ayala Investment v CA) o Debts and obligations should be incurred DIRECTLY for the benefit of the family. Any personal undertaking by a spouse, such as becoming a surety or guarantor in relation to an obligation of a 3rd party cannot be presumed to be for the benefit of the family – >Indirect • All taxes, liens, charges and expenses, including minor and major repairs, upon the community, is chargeable to ACP, even without consent of the other spouse (in accordance with the rule on co-ownership) • Expenses for the preservation of the separate property of any spouse USED BY THE FAMILY is chargeable to ACP (in CPG: whether used by the family or not, preservation is chargeable to CPG) • Donation for self-improvement activities should be done by BOTH spouses. Otherwise, it will be prohibited under Article 87 - “donations between spouses, direct or indirect, are void except moderate gifts....” • Requisites to make advancement from ACP, which should be reimbursed upon liquidation: o Debts and obligations arising from crime or quasi-delict, support for illegitimate child and antenuptial debts incurred not for the benefit of the family --- exclusive list right? So personal debts incurred during marriage, not satisfying any requirement above-listed cannot be advanced?? o there is an absence or insufficiency of the exclusive property of the debtor-spouse ! on quasi-delict – obligation imposed is demandable not only for one's own acts or omissions but also for those persons for whom one is responsible. ! Example in the book – The head of a family that lives in a building or part thereof is responsible for the damages caused by

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Article 95

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things thrown or falling from the same. ! Question : so this means it's not chargeable to the ACP?? only an advancement even if the family lives in that building??? • ACP is liable for expenses arising from litigation between husband and wife that is not groundless and also for those NOT involving a case between husband and wife as long as suit benefits the family. o In an adultery case, SC ruled that legal fees spent by wife who was ACQUITTED should be charged to ACP o If the spouse is convicted, ACP is not liable. Guilty spouse should reimburse the expenses upon litigation (Maam Ampy) o Stipulation in lawyer-client agreement, wherein client bound herself or assumed personal obligation to pay by way of contingent fees, 20% of her share in the partnership, does not bind the CPG • Solidary obligations – those where several creditors or debtors or both concur, and where each creditor has the right to demand and each debtor is bound to perform, in its entirety, the prestation constituting the object of the obligation. o Spouses are solidarily liable for unpaid balance with their separate properties if the community property is insufficient to cover liabilities for which ACP is liable. Solidary liability does not include 94(9). • Insolvency of Spouses o So long as the ACP subsists, its property shall not be among the assets to be taken possession of by the assignee for the payment of the insolvent debtor's obligations, EXCEPT if the latter redounded to the benefit of the family o In an insolvency proceeding: ! court appoints an ASSIGNEE to represent the insolvent and the creditors, whether voluntary or involuntary ! Assignee takes all properties of the insolvent and obtain their title, and speedily as possible convert the estate, real or personal, into money to settle debts o 2nd sentence of Article 2238, Civil Code, “if it is the husband who is insolvent, the administration of the CPG or ACP may, by order of the court, be transferred to the wide or to a third person other than the assignee” !purpose is to prevent the husband who usually acts as administrator, from dissipating or transferring the assets of the community property. ! Still consistent with Family code's provision on Joint Administration. In case of disagreement, the decision of the husband prevails (in the meantime) but the wife can seek the annulment of the contract if she desires. ! Under Family Code, If one becomes insolvent, the right of the insolvent spouse to jointly administer the community property may be legally curtailed by the court. The non-insolvent spouse becomes the sole administrator. However, the court can appoint a third person, other than the assignee and administrator Whatever may be lost during the marriage in any game or chance, betting, sweepstakes, or any other kind of gambling, whether permitted or prohibited by law, shall be borne by the loser and shall not be charged to the community but any winnings therefrom shall form part of the community property • •

Protects the community from useless depletion of resources Activities enumerated necessarily connote that the spouses parted with some valuable consideraton hoping that some valuable return will be gained o i.e. stranger giving one of the spouses a sweepstake ticket which eventually won and such spouse was paid the prize money, the winning shall be considered separate property (Article 92(1)), unless donor expressly provided that it shall form part of the ACP. The winning prize is considered “income” derived from the ticket o “gross income” - includes prize and winnings derived from whatever source

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Section 4: Ownership, Administration, Enjoyment and Disposition of the Community Property Article 96

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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 the recourse to the court by the wife for a proper remedy, which must be availed of within five years from the date of the contract implementing such decision. In the event that the 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 which must have the 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. •

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Spouses are co-owners of the properties introduced into the marriage and those acquired thereafter except those enumerated in Article 92. o However, the administration of the property may be validly delegated to only one spouse in a marriage settlement executed prior to the marriage Joint administration does not require that husband and wife always act together. Each spouse may exercise power alone, subject to intervention of the court in proper cases o Signature of one spouse is enough for the validity of the certification of nonforum shopping o each spouse may act individually even without the consent of the other in cases of repairs to the properties ! Unlike in the co-owership chapter of the Civil code, which requires the consent of the other spouse in doing any repairs or alterations, the Family code provides that even without the consent of the other spouse, any alteration redounding to the benefit of the family is valid and therefore chargearble to ACP. ---> Provisions on ACP prevails over rules on coownership In case of disagreement, husband's decision temporarily prevails in accordance with the Filipino culture and tradition. o However, wife may go to court for adequate relief thru summary proceeding Article 96 (2) – the assumption of powers of a spouse has been limited and restricted so as not to include the power of disposition, alienation and encumbrance when the latter is incapacitated o Family code does not provide a situation wherein one of the spouses disposes, alienates or encumbers any of the common property without the consent of the other spouse who is likewise capacitated. The Code commission considers the latter actions under the ambit of the phrase “administration and enjoyment” in article 96(1) o Implication : Power to administer is broadly treated under the first paragraph of Article 96, but may be limited by law as in the case of the second paragraph of the same article. o “Incapacitated” - incompetent who is in a comatose or semi-comatose condition, a victim of stroke, cerebrovascular accident, without motor or mental faculties o Relief can be sought thru judicial guardianship. Adminitrator-spouse must perform duties of a guardian. ! Spouse who assumed power of administration cannot dispose or encumber property without judicial approval or the written consent of the incapacitated spouse. Otherwise, it will be void. However, void transaction is to be treated as a continuing offer between consenting spouse and third person ! Effectivity of the contract shall take effect only upon such written acceptance or court authorization Any disposition completely without the knowledge and consent of the other spouse – null and void; hence the action to nullify such will not have a prescriptive period o Before the Family Code, such would only be voidable o Action to nullify is barred if the third party purchased the property in good faith.

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Article 97

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Article 98

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Article 99

Will – an act whereby one person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death. o Grant shall not encroach on the lawful legitimes of the compulsory heirs ACP is a co-ownership; hence, a spouse can only dispose his or her interest in the community and not in a specific property. o Disposition made in a will of an interest in the community is not considered a waiver which is prohibited under Article 89. o Act of disposition – intent of the testator to control the property to take effect after death

Neither spouse may donate any community property without the consent of the other. However, either spouse may, without the consent of the other, make moderate donations from the community property for charity or on occasions of family rejoicing or family distress.

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Section 5: Dissolution of the Absolute Community Property

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The remedy of the aggrieved spouse is to compel the erring spouse to account for the proceeds of the sale as it is part of the ACP o If third party acts in bad faith, sale can be voided. • If there was knowledge but without consent of the other spouse – annullable at the instance of the wife. o If wife ratifies the contract by any express or implied act, she cannot seek annulment of contract even within the 5 yr period o Wife has the right to nullify or annul not only her share in the property involved, but also the entire contract itself o Husband can also go to the court to seek proper relief, like the wife, if the latter enters a contract without the consent of the husband • NOTE : Flores vs. Indo, Apr 13, 2001 – Let's review and discuss o Held : execution of SPA is the acceptance of the other spouse in the continuing offer. • NOTE : Sps Agabao vs Parulan, Sept 1, 2010 o Held : Acts of administration does not include alienation, encumbrance and disposition of properties. There is no distinction whether on not the spouse has consented. Either spouse may dispose by will of his or her interest in the community property

Purpose – protect the share of the spouse from prodigality of a reckless or faithless spouse o Donations by both spouses or by one spouse with the consent of the other will generally be valid, subject to revocation or reduction should such donations turn out to be inofficious or they infringe on the legitime or successional rights of another compulsory heir Even with consent of the other spouse, the donor-spouse cannot make substantial donations, direct or indirect to the consenting spouse during the marriage (Article 87) o Whether a donation is moderate or not depends upon the financial situation of the spouses and the ACP regime

The absolute community terminates: 1) Upon the death of either spouse; 2) When there is a decree of legal separation; 3) When the marriage is annulled or declared void; or 4) In case of judicial separation of property during the marriage under Articles 134 to 138

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Termination of ACP does not necessarily mean the termination of the marriage. But termination of a marriage simultaneously results in dissolution of the ACP. o Dissolution ! liquidation and partition • Death o Civil personality is extinguished by death and the effect of death upon the rights and obligations of the deceased is determined by law, by contract and by will (Article 42, Civil Code). • Legal Separation decree o One of the effects is ACP or CPG shall be dissolved and liquidated but the offending spouse shall have no right to any share of the net profits earned by the ACP or CPG. Forfeiture: common children ! children of guilty spouse ! innocent spouse o However, upon reconciliation, spouses may agree to revive the property regime in accordance to Art 67. • Annulment decree o Final judgment provides for the liquidation, partition and distribution of properties of the spouses, custody and support of common children and the delivery of presumptive legitime o Forfeiture of net profits of the offending spouse – same as in legal separation • Nullity decree o General Rule : no ACP or CPG in void marriages. Article 147 and 148 (coownership) govern a void marriage; not under Article 102. o Forfeiture of share of the party in bad faith : common children or their descendants ! each vacant share to respective surviving descendants ! innocent party. Same rule applies if both spouses are in bad faith. o Exception : Void marriage under Art 40 • Judicial Separation of property o Voluntary or involuntary ! Involuntary – law provides what constitutes “sufficient cause” ! spouse is sentenced to a penalty that carries civil interdiction ! spouse has been judicially declared absent ! loss of parental authority has been decreed by the court ! spouse has abandoned the latter or failed to comply with the obligations (marital, property, parental) to the family ! spouse granted power of administration in the marriage settlement has abused such power ! at the time of the petition, spouses have been separated in fact for at least 1 year and reconciliation is highly improbably • Liquidation after affidavit of reappearance o ACP or CPG of a subsequent marriage is dissolved when the spouse who is presumed dead under Article 41 appears and files an affidavit of reappearance to terminate the subsequent valid marriage of the present spouse ! Note: If, upon the declaration of presumptive death, the property regime of the first marriage is not liquidated, complete separation of property will govern the subsequent marriage. o Forfeiture of the share in the net profits: similar to legal separation and annulment The separation in fact between husband and wife shall not affect the regime of absolute community except that: 1) The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported; 2) When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding; 3) In the absence of sufficient community property, the separate property of both spouses shall be solidarily liable for the support of the family. The spouse present shall, upon proper petition in a summary proceeding, be given judicial authorization to administer or encumber any specific separate property of the other spouse and use the fruits or proceeds thereof to satisfy the latter's share. •

Article 100

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In separation in fact, ACP will still be liable for all charges and obligations incurred by either spouses for the benefit of the family and spouses are solidarily liable in case ACP is insufficient to pay off the obligations (article 94) o Exceptions provided in Article 100 No support o Abandonment under Article 101! no support o Fault must always be proven to forfeit the right for support ! Mere fact of separating from the conjugal roof without evidence does not constitute a reason to annul the right of support (Sumulong vs Cembrano) ! If spouse left with a valid cause, he/she shall be supported by the ACP o Considered a drastic penalty to the guilty spouse who left without a just cause ! However, ACP may still be held liable for the expenses incurred for the benefit of the family, as enumerated in Article 94 Court authorization o Any of the spouses, whether or not he or she was the one who left the conjugal home without a valid cause, can seek judicial relief; provided it is for the benefit of the family. ! i.e. A spouse who left without just cause needs money in order to pay the tuition fee of the common child and the only way to have money is to sell a property that belongs to the ACP, such spouse can seek for judicial authorization if the innocent spouse does not want to give his or her consent or if such consent cannot be obtained ! Note : alienation, disposition or encumbrance of the spouse without the knowledge and consent of the other is null and void; hence the need for court authorization Solidary liability and administration of separate property o reiteration of the last paragraph of Article 94 o Article 70 – Spouses are jointly responsible for the support of the family and the expenses of the same shall be paid from the community property and, in the absence thereof, from the income or fruits of the separate properties. In case of insufficiency or absence of said income or fruits, such obligations shall be satisfied from their separate properties o Only the present spouse is given standing by the law to file the petition. ! The authority granted is limited – to enable the present spouse to satisfy the other spouse's share in the obligations used to support the family which should be totally paid by the ACP had it not been insufficient ! i.e. If spouse borrowed money from a particular creditor to pay for the tuition fees of the common child, the creditor, in the absence of sufficient ACP can go against the separate properties of the present spouse and the spouse who left the conjugal home, even if spouses are separated in fact. ! Should the creditor decides to go against the separate property of the present spouse, the same should pay the total amount due the creditor. The present spouse can seek reimbursement from the separate property of the spouse who left the conjugal home with respect to his/her share by filing a judicial summary proceeding ! If present spouse does not want to pay the total obligation from his or her separate property alone, he or she, prior to the payment, can file a summary proceeding to get the enough funds from the fruits or proceeds emanating from the separate property of the absent spouse

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Article 101

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If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the aggrieved spouse may petition the court for receivership, for judicial separation of property or for authority to be the sole administrator of the absolute community, subject to such precautionary conditions as the court may impose. The obligations to the family mentioned in the preceding paragraph refer to marital, parental or property relations. A spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling.

Abandonment o Not only physical estrangement but also amount to financial and moral desertion ! courts must be therefore be careful in appreciating evidences to determine whether or not there is abandonment o Provides a presumption – 3 month period = prima facie presumed to have no intention of returning to the conjugal home • Failure to comply with the family obligations o obligations = parental, marital and property relationships o If the designated administrator abuses his or her administration, any of the relief provided can be availed of ! However, mere refusal or failure of administrator of the property to inform the other spouse does not constitute abuse, as they may be the result of mere inefficient or negligent administration. ! If failure to comply is due to negligence or inefficiency that is not merely isolated but so gross, one may seek relief provided by law ! “Abuse” - connotes willful and utter disregard of the interest of the partnership, evidenced by repetition of deliberate acts and/or omissions prejudicial to the other spouse o Apart from the reliefs or remedies provided in Art 101, the present spouse can: ! seek for nullity of marriage if failure to comply with obligations constitutes psychological incapacity, which existed at the time of the marriage ! seek for legal separation if abandonment without just cause is more than one year Upon dissoluton of the absolute community regime, the following procedure shall apply: 1) An inventory shall be prepared, listing separately all the properties of the absolute community and the exclusive properties of each spouse; 2) The debts and obligations of the absolute community shall be paid out of its assets. In case of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid balance with their separate properties in accordance with the provisions of the second paragraph of Article 94; 3) Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each of them; 4) The net remainder of the properties of the absolute community property shall constitute its net assets, which shall be divided equally between husband and wife, unless a different proportion or division was agreed upon in marriage settlements, or unless there has been a voluntary waiver of such share as provided in this Code. For purposes of computing the net profits subject to the forfeiture in accordance with Articles 43, No. (2) and 63, No (2), the said profits shall be the increase in value between the market value of the community property at the time of the celebration of the marriage and the market value at the time of its dissolution; 5) The presumptive legitimes of the common children shall be delivered upon partition, in accordance with Article 51; 6) Unless otherwise agreed upon by the parties, in the partition of the properties, the conjugal •

Section 6: Liquidation of the Absolute Community of Assets and Liabilities Article 102

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dwelling and the lot on which it is situated shall be adjudicated to the spouse with whom the majority of the common children choose to remain. Children below the age of seven years are deemed to have chosen the mother, unless the court has decided otherwise. In case there is no such majority, the court shall decide, taking into consideration the best interest of said children.

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Liquidation procedure stated in Article 102 to be followed when ACP should be dissolved with regard to Article 99 o However, in voluntary judicial separation of property, the liquidation may be governed by the agreement of the parties provided that the court approves the same o Article 102 provides for the step-by-step procedure in connection with the dissolution of the ACP o Note: let's distinguish liquidation and dissolution! Inventory of all properties – itemized and valued by taken into account the market or, in default thereof, the assessed value at the time of the liquidation (not the purchase price). o A new valuation can be done at the last stage of the liquidation, so long as all properties are appraised in reference to the same period of time. There is no law or doctrine that a prior appraisal is conclusive upon the parties and the courts Payment of debts for all obligations enumerated in Article 94 o However, debts under Article 94 (9) – ante-nuptial debts not redounding to the benefit of the family, support of the illegitimate child and liabilities incurred by such debtor-spouse by reason of a crime or quasi-delict- are considered advances to be deducted from the share of the debtor-spouse upon liquidation o In case of insufficiency of ACP, spouses shall be solidarily liable for unpaid balances with their separate properties, except those under 94 (9) Exclusive properties – those stipulated in the marriage settlement and the three exclusions enumerated in Article 92 Partition of Net Assets o Presumption is equal division of net assets (remainder after the 3 preceding steps) ! However, a different proportion or division may be applied if stated in the marriage settlement or there has been a valid voluntary waiver of such share ! Share of each spouse is limited to these net assets or net remainder and upon liquidation can this share be determined. That's voluntary waiver of rights, interests, share and effects is only allowed upon judicial separation of property or after the marriage has been dissolved or annulled. Such waiver must be contained in a public instrument (Article 89) o Forfeiture of share /share in the net profits of spouse in bad faith : ! Annulment, legal separation, void marriage under Article 40 – share in the net profits ! common children ! children of the guilty spouse ! innocent spouse ! Void marriage excluding those under Article 40 – share in co-ownership ! common children or their descendants –> each vacant share

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Article 103

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shall belong to the respective surviving descendants ! innocent party ! forfeiture shall take place upon termination of cohabitation o NOTE: Let's review jurisprudence on QUIAO vs. QUAIO, Jul 4, 2012 ! Held : No difference between net profits and net assets ! Maam Ampy thinks otherwise. • Delivery of presumptive legitime – only after the finality of a judicial decree of annulment on grounds provided in Article 45 or of nullity of a subsequent void marriage under Article 40 in relation to Articles 52 and 53 o Not needed in cases of legal separation or in judicially declared void marriages other than in a subsequent void marriage as a result of non-observance of Art 40. o Children or their guardian, or the trustee of their property may ask for the enforcement of the judgment via summary judicial proceeding. o Value of presumptive legitime – computed as of the date of the final judgment of the trial court, and can be delivered in cash, property or sound securities unless otherwise provided by a judicially approved mutual agreement between both parties o Note: presumptive legitime is considered under the debts and obligations of the ACP. Hence, ACP should provide for such (article 102 (2)) • Adjudication of the conjugal dwelling o The presumption that children is deemed to have chosen the mother applies only if the children are below 7 yrs old Upon the termination of the marriage by death, the community property shall be liquidated in the same proceeding for the settlement of the estate of the deceased. If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the community property either judicially or extra-judicially within one year from the death of the deceased spouse. If upon the lapse of the said period, no liquidation is made, any disposition or encumbrance involving the community property of the terminated marriage shall be void. Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage. •

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Transmission of rights – at the moment of death o If decedent spouse left no will and no debts and the heirs are all of age, or the minors are represented by their judicial or legal representatives, duly authorized for the purpose, the parties may, without securing letters of administration from the court, divide the estate among themselves as they see fit by means of a public instrument filed in the office of Reg of Deeds and should they disagree, they may do so in an ordinary action for partition. o If there is only one heir, he may adjudicate to himself the entire estate by means of an affidavit filed in the office of Reg of deeds o If deceased is survived by a spouse and compulsory heirs (legitimate children), ACP or CPG, which has been dissolved upon death, evolves into COOWNERSHIP between the surviving spouse and heirs ! a co-owner can undertake any act of dominion over their interest, share or participation but not over a specific concrete property ! each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and he may therefore alienate, assign, or mortgage it, although the effect of the alienation or mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in division upon termination of the co-ownership If after one year, no liquidation is made, any disposition or encumbrance involving the community property shall be void. Liquidation process shall be completed to make a valid disposition or encumbrance of any specific property. This is so because upon death of one of the spouses, only the interest to the property and not any physical and definite property is vested on the heirs.

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Article 104

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Only after the liquidation and partition when specific properties are definitely and physically determined that a sale of such allotted property can be made. o Heirs can sell, waive or even alienate their interest to the property they inherit, but they cannot sell a specific property as the same can only be determined after liquidation and partition. o Prior to liquidation and partition, the interest of an heir in the estate of the deceased may be attached for purposes of execution and sold, even if the estate is in the process of settlement before the court. ! Attachment is subject to administration of the estate. The administrator has the control over the properties and will still have the power to sell them, if necessary, for the payment of debts of the deceased ! Debts of the decedent should be settled before interest can be vested on the heirs o Specific and concrete properties cannot be donated by any co-heir prior to liquidation and partition Claims against the estate o General Rule : All debts chargeable against the community or conjugal partnership, which has already been dissolved upon death, must be claimed and paid in the settlement of estate proceedings of the deceased spouse. ! Upon death of one spouse, the powers of administration of the surviving spouse ceases and is passed to the administrator appointed o No complaint for the collection of indebtedness chargeable to the community or conjugal properties can be brought against the surviving spouse as ACP or CPG is dissolved at the moment of death ! Exception: when surviving spouse has committed himself or herself to be solidarily liable for claim against ACP or CPG ! If judgment is brought against the surviving spouse who did not commit to be solidarily liable, such judgment is void Mandatory complete separation of property o General rule : In the absence of a marriage settlement, the ACP shall govern the marriage ! Exception is mandatory complete separation of property in situations wherein: ! First marriage is terminated by death, and the surviving spouse contracts a subsequent marriage without liquidating the community property or conjugal partnership. ! Subsequent marriage is terminated upon the filing of an affidavit of reappearance of the absent spouse who was presumed dead ! No other property regime may govern in the above-stated situations

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

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In case of doubt, properties are to be divided between or among communities in proportion to the capital and duration of each. There are 5 scenarios: o 1st : Duration = equal; fair market value of the inventoried assets = Php 15,000 ! Php 15,000/2 = Php 7,500 each for first marriage and second marriage o 2nd : First marriage duration = 2 years; Second marriage duration = 3 years; Actual assets in each marriage=unknown; Market value of inventoried assets = Php 15,000 ! 2/5 (php 15000) = Php 6,000 for the first marriage ! 3/5 (php 15000) = Php 9,000 for the second marriage o 3rd : Duration = equal; Assets of first marriage = Php 1,000; Assets of second marriage = Php 2,000 ! since duration is equal, they will cancel each other ! 1/3 (15,000) = Php 5,000 for the first marriage ! 2/3 (15,000) = Php 10,000 for the second marriage o 4th : Duration of first marriage = 2 years; Duration of second marriage = 3 years; Assets of each marriage = equal ! since assets are equal, they will cancel each other ! 2/5 (15000) = Php 6,000 for the first marriage ! 3/5 (15000) = Php 9,000 for the second marriag o 5th : Duration of first marriage = 2 years; Duration of second marriage = 3 years; Assets of first marriage = Php 1,000; Assets of the second marriage = Php 2,000; Assets to be inventoried = Php 15, 000 ! 2yrs (1000) = 2,000 3 yrs (2000) = 6,000 Total = 8,000 ! ratios are 2/8 and 6/8 ! 2/8 (15000) = Php 3,750 for the first marriage ! 6/8 (15000) = Php 11,250 for the second marriage • Purpose is to protect the properties of the previous marriage from the possibility of mixing with the properties of the second marriage •

CONJUGAL PARTNERSHIP OF GAINS Article 105

Article 106

Article 107

Section 1. GENERAL PROVISIONS In case the future spouses agree in the marriage settlements that the regime of conjugal partnership of gains shall govern their property relations during marriage, the provisions in this Chapter shall be of supplementary application. The provisions of this Chapter shall also apply to conjugal partnerships of gains already established between the spouses before the effectivity of this Code without prejudice to vested rights al- ready acquired in accordance with the Civil Code or other laws as provided in Article 256. Under the regime of conjugal partnership of gains, the husband and wife place in a common fund the proceeds, products, fruits and income from their separate properties and those acquired by either or both spouses through their efforts or by chance, and upon dissolution of the marriage or of the partnership, the net gains or benefits obtained by either or both spouses shall be divided equally between them, unless otherwise agreed in the marriage settlements. Conjugal Partnership of Gains • Agree to CPG = common fund the fruits of their separate properties and the income from their work or industry • Fruits of paraphernal property – separate property of the wife • Effort - activity or undertaking which may or may not be rewarded • Chance – activities like gambling or betting • No unilateral declaration by one spouse can change the character of a conjugal property o Determined by law • Proof of acquisition of property during marriage – presumption of conjugality attaches • Dissolution of marriage = net gains divided equally between spouses • After August 3, 1988 – governed by provisions on CPG under Family Code • The rules provided in Articles 88 and 89 shall also apply to conjugal partnership of gains.

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Article 108

Article 109

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When the Conjugal Partnership shall Commence • Commence at the precise moment marriage ceremony is celebrated • HOUR not date of the marriage Prohibition on Waiver • no waiver of rights, interests, shares, and effects of the conjugal partnership of gains can be made during the marriage except upon judicial separation of property • Avoid undue pressure and influence exerted upon the weaker spouse who may be persuaded or coerced into parting with his interests The conjugal partnership shall be governed by the rules on the contract of partnership in all that is not in conflict with what is expressly determined in this Chapter or by the spouses in their marriage settlements. Special Type of Partnership • CPG – governed by the rules on the contract of partnership in all that are not in conflict with Chapter or by the spouses in their marriage settlements • In case of conflict between rules of Civil Code and provisions of Family Code – Family Code shall prevail • Any stipulation which excludes the partners from any share of the profits and losses of the partnership = VOID • Partner = co-owner with other partner of specific parternship property • Every partner must account to the partnership for any benefit • Without CONSENT of other partner – CANNOT assign the partnership property in trust for creditors or on the assignee’s promise to pay the debts of the partnership, confess a judgment, enter into a compromise concerning a partnership claim or liability, submit a partnership claim or liability to arbitration and renounce a claim of the partnership • No act of a partner in contravention of a restriction on authority shall bind the partnership to person having knowledge of the restriction • Any wrongful act or omission by partner – ordinary course of business or with authority of co-partner o Partnership is liable to the same extent as the partner acting or omitting to act • Carandang v. Heirs of Quirino A. De Guzman o Partner is a co-owner with other partners in the specific partnership property o May separately bring an action for recovery o Do not have to join all other co-owners as co-plaintiffs ! Suit presumed to be filed for the benefit of co-owners ! Any of the co-owners can bring an action for ejectment o In suits to recover property = all co-owners are REAL PARTIES IN INTEREST o Only one is the INDISPENSIBLE PARTY ! Others not ! Complete relief can be accorded even without their participation Section 2. EXCLUSIVE PROPERTY OF EACH SPOUSE 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 4. That which is purchased with exclusive money of the wife or of the husband Properties Brought into the Marriage • Partnership does not produce the merger of the properties of each spouse • Can exercise all rights of dominion or of ownership over these exclusive properties • Properties cannot be encumbered, alienated nor disposed of by the other spouse without the consent of the owner- spouse • Clearly indicating property as separately owned without opposition = separate • Purchased by spouse previous to marriage = property registered only after marriage in name of owner-spouse with other spouse as co-owner o Exclusive property of spouse who bought it with own funds o Only creates a TRUST o Restoration to real owner-spouse of subject property upon liquidation • Exclusive properties brought into marriage = payment of personal debts not redounding to benefit of family, support of illegitimate children of owner spouse

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Article 110

Article 111

82

• Insufficient to pay obligations of partnership at time of liquidation = spouses solidarily liable for unpaid balance with separate properties Property Acquired by Gratuitous Title • Anything received by each spouse from any source by way of an act of liberality of the giver, such as a donation or a gift, shall belong exclusively to the spouse-recipient and will not belong to the conjugal partnership property o Moderate gifts given by one spouse to another during family occasions o Honorarium • Honorarium – something given not as a matter of obligation but in appreciation for services rendered, a voluntary donation in consideration of services which admit no compensation in money • If the property were acquired by lucrative (or gratuitous) title by way of succession, property = separate property regardless of whether it was acquired before or after marriage • INCOME and FRUITS of property acquired by gratuitous title = conjugal Redemption, Barter and Exchange • Redemption – property shall belong to the spouse who has the right to redeem regardless of whether or not he uses personal funds • Conjugal funds used to effect redemption = spouse making the redemption through conjugal fund shall be liable to the conjugal partnership for the reimbursement of the amount used to redeem his or her exclusive property • Whoever buys or procures something using own funds shall exclusively own what was purchased • Right of redemption = not the same as the right of a successor in interest in cases of execution of judgment o Two of parcels of land redeemed by husband’s wife using money given by father o Wife did not acquire the property on behalf of the husband but acquired it by right of redemption as successor-in-interest • Absence of proof = form part of the CPG • Property acquired by exchange by one spouse using exclusive property = remain SEPARATE property • Barter is limited to goods • Separate property used as part of purchase price of new property in addition to conjugal funds spent = CONJUGAL Property purchased with exclusive money of either spouse • Property is purchased using the exclusive money of one spouse but the title is taken in the spouses’ joint names, circumstances will determine: o Gift from the spouse whose money was used to effect the purchase o Trust in favor of such spouse The spouses retain the ownership, possession, administration and enjoyment of their exclusive properties. Either spouse may, during the marriage, transfer the administration of his or her exclusive property to the other by means of a public instrument, which shall be recorded in the registry of property of the place where the property is located. Administration of Exclusive Properties • Administration – entering into contracts regarding the use of the property, engaging in litigation, and the collection of fruits, profits, and income arising from the separate property • Even when there is a transfer of administration, owner-spouse may still donate, encumber, or otherwise alienate the property • May also transfer administration to a stranger, even without the consent of the other spouse • Naguit v. CA o Exclusive property of the wife was sold upon execution finding her husband liable for his personal obligation o Wife can file a separate action to annul the sale o Third persons can file a proper action to vindicate their claims if their property was wrongfully sold to satisfy a judgment debt of another person o Wife = third person A spouse of age may mortgage, encumber, alienate or otherwise dispose of his or her exclusive property, without the consent of the other spouse, and appear alone in court to litigate with

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Article 112

Article 113

Article 114

83

regard to the same. The alienation of any exclusive property of a spouse administered by the other automatically terminates the administration over such property and the proceeds of the alienation shall be turned over to the owner-spouse. Applicability • Not applicable anymore, age of majority lowered to 18 • Article 111 should merely state that “either” spouse may mortgage, encumber, alienate, or otherwise dispose of his or her exclusive property Termination of Administration • Any spouse who alienates his or her exclusive separate property will terminate the administration of the other spouse over such property and the proceeds of the alienation shall be turned over to the owner- spouse • Owner-spouse, who is a party to the summary proceeding, cannot revoke the judicially approved administration of the present spouse over his or her specific property by the mere expediency of alienating such property • Wants to alienate such property, the owner-spouse must get: o Consent of the administrator-spouse or o Approval of the court • Restriction: solidary nature attached to the separate properties of the spouse will be better served and effected • Administrator spouse or the court can ask or order portion of the proceeds be earmarked as payment of owner-spouse’s share in the solidary liability Property donated or left by will to the spouses, jointly and with designation of determinate shares, shall pertain to the donee-spouse as his or her own exclusive property, and in the absence of designation, share and share alike, with-out prejudice to the right of accretion when proper. If the donations are onerous, the amount of the charges shall be borne by the exclusive property of the donee-spouse, whenever they have been advanced by the conjugal partnership of gains. Property Donated or Left by Will to Spouses • Donor or testator = may donate to spouses jointly, designate respective determinate share of each spouse, and in the absence, share and share alike • Property of the donation will then be considered separate property of the spouses Accretion in Case of Donation • Accretion is the incorporation or addition of property to another property • General rule in joint donation o One could not accept independently of his co-donee o No right of accretion unless expressly so provided • Each of them shall own such portions given as their respective separate properties • If the wife does not accept her part of the donation, accretion will set in favor of the husband • Donor provides in the deed of donation that no right of accretion shall be available o Only get original share • No designation of determinate shares = same rule applies • If the designation is not of determinate shares but of determinate properties (house, car) = accretion will NOT apply Accretion in Case of Property Left by Will • In case the property is left by will and for accretion to apply, it shall be necessary that the husband and the wife should be called to the same inheritance, or to the same portion thereof, pro indiviso (not divided); and that one of the spouses thus called dies before the testator or renounces the inheritance, or be incapacitated to receive it • “One half each” “in equal shares” o Do not exclude the right of accretion o Do not mean that the inheritance is not pro indiviso o Spouse to whom the portion goes by right of accretion takes it in the same proportion that he or she inherits o Spouse to whom the inheritance accrues shall succeed to all the rights and obligations which the heir who renounced or could not receive it would have had • Husband and the wife were validly given a property in a will o 1/4 of the property will go to the wife o 3/4 will go to the husband

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Article 115

Article 116

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o They shall own their respective shares separately • Designation of proportionate sharing does not make the properties specific • Inheritance is still pro indiviso • Testator gives to the husband and the wife the school buildings o Buildings which are located in Manila shall go to the husband while the building in Cebu shall go to the wife o Right of accretion will not apply because the inheritance is not pro indiviso Payment Using Conjugal Funds • Donee-spouse shall reimburse the conjugal partnership but the property remains to be exclusive property • Taxes and expenses for mere preservation made during the marriage upon the separate property of either spouse shall be chargeable to the conjugal partnership of gains Retirement benefits, pensions, annuities, gratuities, usufructs and similar benefits shall be governed by the rules on gratuitous or onerous acquisitions as may be proper in each case. Nature of Pensions, Annuities, Gratuities • Depend on how it was obtained and circumstances of the case • Gratuity – act of pure liberality o Generally acquired by lucrative title like donation or gift • Annuity – not gratuity if recipient is entitled to it as a matter of right • Pensions o Nature of compensation for services previously rendered for o Full and adequate compensation was not received at the time of the rendition of the service o Pay withheld to induce long continued and faithful service o Public benefit accrues in 2 ways ! Encouraging competent employees to remain in the service ! Retiring from the public service those who have become incapacitated from performing the duties as well as they might be performed by younger or more vigorous men o Not considered donations or gratuities • When there is no liberality on the part of the government, and the award is composed of mere accumulated savings or deductions from money earned during the marriage = PENSION = conjugal • Partly by conjugal funds and partly by separate funds = proceeds of the insurance shall be owned by the conjugal partnership and the separate property proportionately in accordance with the amount of contribution • Paid exclusively from separate funds = separate property • Proceeds shall be considered conjugal with the proper reimbursement to the spouse who paid using separate property • Retirement premiums totaling P9,700 are conjugal = no proof that the premiums were paid from the exclusive funds of the deceased spouse • If a beneficiary is named in the life insurance policy, the proceeds of the same are paid to beneficiary • Beneficiary of the retirement insurance can only claim the proceeds of retirement insurance if employee dies before retirement. • If employee failed or overlooked to state the beneficiary of his retirement insurance, retirement benefits will accrue to his estate and will be given to his legal heirs in accordance with law, as in the case of a life insurance if no beneficiary is named in the insurance policy Section 3. CONJUGAL PARTNERSHIP PROPERTY All property acquired during the marriage, whether the acquisition appears to have been made, contracted or registered in the name of one or both spouses, is presumed to be conjugal un- less the contrary is proved. When a Presumption is Applicable • Invoke presumption – prove property in controversy was acquired during the marriage • Proof of acquisition = condition sine qua non for operation of presumption in favor of conjugal ownership • Title is in wife’s name – determinative – if no showing when it was acquired • Phrase “is married to” – does not necessarily prove that land is conjugal • Registration of property = not proof of acquisition

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Article 117

85

Property could have been acquired while the owner was single and registered only after the marriage • For as long as acquisition is proven during the marriage, the presumption will apply even when the manner in which the properties were acquired does not appear • Property registered in both spouses name = presumption of conjugality • Because of the feelings of trust existing between the spouses, certificates of title are often secured in the name of both, or either, regardless of the true ownership of the property, and regardless of the source of the purchase money • Upon liquidation of the partnership, the trust should be recognized and enforced = real ownership of the property may be established • In normal marriage = spouses trust each other so implicitly o Attach little or no importance to what appears in legal documents o Unreservedly believing that no technicality would be availed to claim what in very truth pertains to one or the other • Presumption still applies though spouses are living separately • Evidence must be clear to override presumption • Nature of property acquired = source of MONEY utilized • Property in installments o Registered under name of second bigamous wife after full payment – No o Property is cpnjugal property of first legitimate marriage • Conveyance of the property of the wife to a third person + reconveyance to her months afterwards o Does not transform it to conjugal property o In the absence of proof that the money paid in the reconveyance came from conjugal funds • After proof of acquisition during the marriage has been shown, the presumption of conjugality attaches even if the property is registered in the name of one or both of the spouses • Tax declaration in name of one spouse – not sufficient 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 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. Acquisition of Onerous Title from Common Fund • Acquired with money of the conjugal partnership belongs thereto or forms part • Damages arising out of a contract solely financed by the conjugal partnership of gains = belongs to the CPG • Damages – physical injuries – belong exclusively to injured spouse • Damages arising out of the illegal detention of the exclusive property of any of the spouses shall pertain to the conjugal partnership if such detention deprived the partnership of the use and earnings of the same Property Acquired through Industry, Labor and Profession and through Occupation • Industry – sure to earn • Element of chance in fishing, hunting – work not always commensurate with results Fruits and Earnings from Properties • Fruits of the separate property will be applied first to the expenses of administration of the said separate property • Remaining balance of the said fruits which constitute the net fruits shall be considered conjugal Hidden Treasure o

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Article 118

Article 119

Article 120

86

• Law awards to the finder or owner of the property where the treasure is found = CPG • Hidden treasure = artifacts or objects which have undergone transformation from their original raw state, such as earrings, necklace, bracelets and the like • Gold nuggets, precious stones in their raw state, oil and the like = not treasures Livestock • Livestock existing upon the dissolution of the partnership in excess of the number of each kind brought to the marriage by either spouse shall be conjugal • Brought 40 cows into marriage, become 60. 20 = CPG Chance • If a spouse is given by a third person a sweepstake ticket without consideration and such sweepstake ticket won P1,000,000.00 o Winning shall be considered income o Belong to CPG 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. Installment purchases • Contemplates a situation when installment was initiated prior to the marriage and ended during the marriage • When property is bought on installment basis partly by exclusive funds of either or both spouses and partly by conjugal funds, the ownership of the property is determined by the time when the title is vested • Ownership is vested before the marriage = exempted from CPG • Ownership is vested upon the buyer-spouse after the marriage ceremony = form part of CPG • Spouse who contracted the purchase shall have the right to be reimbursed by the partnership • Friar lands o Bought by a woman before her marriage were her paraphernal properties, although some of the installments on their price were paid for with the conjugal funds during their marriage o CPG entitled to reimbursement o Title to the land passes to the purchaser the moment the first installment is paid and a certificate of sale is issued • Ownership to the said property shall vest only upon the last installment • Last installment was made during the valid second marriage by conjugal funds of the said marriage o Belongs to CPG of second marriage o Even though property was paid partly by conjugal funds of the said first marriage and partly by exclusive funds of the husband o Proper reimbursements should be made • Castillo, Jr. V. Pasco o Litigated fishpond was purchased partly with paraphernal funds and partly with money of the conjugal partnership o Property should belong to both patrimonies in common, in proportion to the contributions of each to the total purchase price of p6,000 • Properties bought during marriage partly by conjugal funds and partly by exclusive funds of either or both of the spouses must pertain to the CPG subject to reimbursement Reimbursement upon liquidation of partnership • No absolute sharing until after liquidation • Only upon liquidation of the partnership that the share of each spouse will be known Whenever an amount or credit payable within a period of time belongs to one of the spouses, the sums which may be collected during the marriage in partial payments or by installments on the principal shall be the exclusive property of the spouse. However, interests falling due during the marriage on the principal shall belong to the conjugal partnership. Payment of credit in favor of spouse • Interest on the principal falling due during marriage shall belong to the conjugal partnership o Interest is considered a fruit derived from particular property The ownership of improvements, whether for utility or adornment, made on the separate

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property of the spouses at the expense of the partnership or through the acts or efforts of either or both spouses shall pertain to the conjugal partnership, or to the original owner-spouse, subject to the following rules: When the cost of the improvement made by the conjugal partnership and any resulting increase in value are more than the value of the property at the time of the improvement, the entire property of one of the spouses shall belong to the conjugal partnership, subject to reimbursement of the value of the property of the owner-spouse at the time of improvement; otherwise, said property shall be retained in ownership by the owner-spouse, like- wise subject to reimbursement of the cost of the improvement. In either case, the ownership of the entire property shall be vested upon the reimbursement, which shall be made at the time of the liquidation of the conjugal partnership. Source of Funds used for Improvements • Value of the improvement and any resulting increase in value = more than value of separate property at the time of improvement o Entire property belong to CPG o Ownership vest only upon reimbursement – liquidation of CPG • Proof is needed o Construction of improvements o Source of funds used • Article 120 only allows claims from the husband if he is still the owner of the lot upon liquidation • does not give a cause of action on the part of the surviving spouse to claim from subsequent buyers of the property of the deceased husband Usufructuary • CPG may use land and improvement not as owner but usufruct • Ownership of the land remains the same until the value of the land is paid at liquidation • Prior to liquidation, the owner-spouse still owns her separate property and cannot be levied upon to satisfy a conjugal debt • Unless CPG is insufficient – separate properties solidarily liable • In Re Padilla o Conjugal partnership is not bound to pay any rent during the occupation of the wife’s land because if the lot were leased to a third person, instead of being occupied by the new construction from the partnership funds, the rent from the third person would belong to the conjugal partnership o All the increase or decrease in its value must be for her benefit or loss • No reimbursement made = ownership of the property = retained by the owner-spouse o Subject to reimbursement of the cost of the improvement Computation • Cost of land is still more than value of improvement Building is worth P 50, 000 Land is worth P 100, 000 Total is P 150, 000 Value of house and lot as a result of the improvement is P 180, 000 “Plus value” P 30, 000

Section 4: Charges upon the Obligations of the Conjugal Partnership Article 121

Cost of building P 50, 000 Plus the “plus value” P 30, 000 Total of the improvement P 80, 000 The conjugal partnership 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 administratorspouse for the benefit of the community, or by both spouses, or by one spouse with the consent of the other;

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(3) Debts and obligations contracted by either spouses 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; (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) 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 ther separate properties. • Almost the same with ACP's except for the support of the illegitimate children and liabilities for fines and pecuniary indemnities arising from crime or quasi-delict which are contained in Article 94 (9), which have been incorporated in a separate article 122 o Liabilities shall only be chargeable if it benefits the conjugal partnership ! i.e. debts incurred for a commercial enterprise for gain or in the exercise of the industry or profession by which the husband, as administrator of the property contributes to the support of the family, CPG shall be liable o Burden of proof that a debt was contracted for the benefit of the conjugal partnership lies with the creditor. Such must always be proven and cannot be presumed o Benefit must be a DIRECT result of the obligation, and not incidental like signing a surety or guarantee agreement not in favor of the family ! Creditor cannot go against the CPG in satisfying the obligation subject of the surety agreement ! However, if BOTH spouses signed the surety agreement, CPG shall be liable • CPG is liable for all obligations contracted by husband and wife o General Rule: If obligation redound to the benefit of the family, CPG shall be liable. Creditor cannot enforce claim against the separate properties of A and B. The separate properties of A or B can only be held solidarily liable if the CPG is insufficient to pay off the indebtedness o When spouses are sued for the enforcement of the obligation entered into by them, they are being impleaded in their capacity as representatives of the CPG and not as independent debtors. Hence, either of them may be sued for the whole amount, similar to that of a solidary liability, although the amount is chargeable against CPG (Carandang vs. Heirs of Quirino De Guzman) o Signature of the wife as a mere witness and not as a party to a contract nevertheless showed her implied consent to a contract of sale executed by her husband (Pelayo vs Perez) o Note: Art 121 (5) – distinguish from Art 94 (5). In CPG, even if not used by the family, all taxes and expenses for mere preservation made during the marriage upon separate property of either spouse are chargeable to CPG. This is because the fruits of such properties for part of CPG. • Solidary obligation using separate properties: o When CPG is insufficient to cover debts and obligations enumerated in Article 121, creditors may demand from either or any of the spouses with their respective separate properties. ! The spouse who made the payment may claim from his/her spouse only the share which corresponds to each, with interest, if there is. o If both of the spouses expressly made themselves liable in solidary manner in any obligation contracted by them for the benefit of the family • Insolvency of spouses – same as ACP (refer to the notes on Article 94)

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Article 122

89

The payment of personal debts contracted by the husband or the wife before or during the marriage shall not be charged to the conjugal partnership except insofar as they redounded to the benefit of the family. Neither shall the fines and indemnities imposed upon them be charged to the partnership. However, the payment of the personal debts contracted by either spouse before the marriage, that of fines and indemnities imposed upon them, as well as the support of illegitimate children of either spouse, may be enforced against the partnership assets after the responsibilities enumerated in the preceding Article have been covered, if the spouse who is bound should have no exclusive property or if it should be insufficient; but at the time of the liquidation of the partnership, such spouse shall be charged for what has been paid for the purposes above-mentioned. Debts and obligations redounding to the benefit of the family need not be quantified into peso or square meters of real property. It is enough that the transaction would result to some discernible advantages to the CPG, directly or indirectly. o Thus, health and being of both or either spouses would redound to the benefit of CPG • General Rule : Antenuptial debts not redounding to the benefit of the family, as well as fine and indemnities imposed upon thereon, are not chargeable to the CPG, except: o the debtor-spouse has insufficient or no exclusive properties to pay off debts o the obligations under Article 121 have been covered ! As opposed to ACP, which only requires insufficiency of separate properties for such personal debts to be advanced form the community property. The reason for the leniency is in ACP, spouses have fewer, if any at all, exclusive properties. (CPG is not given by law the same advance-reimbursement mechanism) o A husband cannot be deemed a “stranger” to the case prosecuted and adjudged against his wife for an obligation that has redounded to the benefit of the CPG (Sps Buado vs CA) o A third party claim (“stranger”) of the wife is proper since the obligation which is personal to the husband is chargeable not on the CPG but on his separate property (Guadalupe v Tronco) • Personal Obligations of spouses during marriage o personal debts of either of the spouses incurred during marriage which do not redound to the benefit of the family or do not have the consent of the other spouse shall be charged to the separate property o Article 122 limits the application of the advance-reimbursement mechanism to personal debts not redounding to the benefit of the family contracted by either of the spouses before the marriage and not during the marriage ! personal debts not redounding to the benefit of the family incurred during marriage cannot be advanced??? • Computation (im choosing the easiest method) o Husband's share Php 50,000 Wife's share 50,000 Amount advanced by the partnership for personal debt of the husband to be taken from his share 10,000 Husband's share 50,000 Less: amount advanced 10,000 Balance of husband's share Php 40,000 1. Php 10,000 will go to the partnership assets, which shall be divided again between the spouses 2. NOTE : after the inventory, amounts advanced by the CPG in payment of personal debts and obligations of either spouse shall be credited to the CPG as an asset thereto Whatever may be lost during the marriage in any game of chance, or in betting, sweepstakes, or any other kind of gambling whether permitted or prohibited by law, shall be borne by the loser and shall not be charged to the conjugal partnership but any winnings therefrom shall form part of the •

Article 123

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Section 5: Administration of the Conjugal Partnership Property Article 124, 125

Section 6: Dissolution of Conjugal Partnership Article 126

90

conjugal partnership property. • Explanation same as in ACP (article 95) Article 124. 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 the recourse to the court by the wife for a proper remedy, which must be availed of within five years from the date of the contract implementing such decision. In the event that the 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 which must have the 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. Article 125. Neither spouse may donate any conjugal partnership property without the consent of the other. However, either spouse may, without the consent of the other, make moderate donations from the conjugal partnership property for charity or on occasions of family rejoicing or family in distress. • Explanation is same as in ACP • Note: If marriage settlement provides for the CPG as governing the property relationship within the marriage but the same likewise stipulates that the sharing will not be equal upon liquidation, such unequal sharing will not affect the joint administration of the spouses during the marriage which places the spouses in equal footing, unless otherwise agreed upon also in the marriage settlement o Any alienation made by the husband without the consent of his wife prejudices her in so far as it includes a part or the whole of the wife's half and is, to that extent, invalid o During marriage, interest of each spouse is merely inchoate and cannot be determined in definite and concrete specifications until and after liquidation • Encumbrance without knowledge and consent = void o A subsequent bu questionable “amicable settlement” entered into by the wife, who contested her signature in the said settlement, with the third persons before the barangay authorities where the wife apparently was made to agree to leave the place could not have validated an already void and illegal contract which cannot be cured by any subsequent act (Sps Antonio v CA) • Encumbrance without consent (meaning with disagreement) = annullable due to fact that wife can seek to annul the contract o However, where buyers knew that property was conjugal property but they bought it from the husband only without the consent of the wife, sale is VOID. Purchase price with interest must be returned to the buyer • Any alienation or encumbrance by a capacitated spouse of any conjugal property without the consent of the incapacitated spouse or without court approval shall be void. o If contract is later approved by the court or the incapacitated spouse gives his/her consent, there is no retroactive effect as the contract thereby perfected is an entirely new transaction The conjugal partnership terminates: 1) Upon the death of either spouse; 2) When there is a decree of legal separation; 3) When the marriage is annulled or declared void; or 4) In case of judicial separation of property during the marriage under Articles 134 to 138 • •

Same as in ACP (Article 99) Partnership rules apply in a suppletory manner but not upon the dissolution of the conjugal partnership of gains o When community property is dissolved, all provisions x x x based upon the existence of that partnership cease to apply. Whatever is acquired by the surviving spouse on the dissolution of the partnership, whether the acquisition

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Article 127

Article 128

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be made by his or her own labor, it forms part of his or her own capital, in which the other consort, or his or her heirs, can claim no share (Nable jose v Nable jose) The separation in fact between husband and wife shall not affect the regime of absolute community except that: 1) The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported; 2) When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding; 3) In the absence of sufficient community property, the separate property of both spouses shall be solidarily liable for the support of the family. The spouse present shall, upon proper petition in a summary proceeding, be given judicial authorization to administer or encumber any specific separate property of the other spouse and use the fruits or proceeds thereof to satisfy the latter's share. • If consent of spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding o GUILT of the party in leaving the house is not material • Par 3 – debt incurred should be for the support of the family o If wife, who left with or without justifiable reasons, any debt incurred by any spouse for the benefit of the family shall be chargeable to CPG If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the aggrieved spouse may petition the court for receivership, for judicial separation of property or for authority to be the sole administrator of the absolute community, subject to such precautionary conditions as the court may impose. The obligations to the family mentioned in the preceding paragraph refer to marital, parental or property relations. A spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling. • Aggrieved spouse, who is the co-owner of the properties, has the right to bring an action to protect his or her interest and her right thereto even before the liquidation or dissolution of the CPG or ACP

Chapter 6: Regime of Separation of Property Article 143

Article 144

Article 145, 146

Should the future spouses agree in the marriage settlements that their property relations during marriage shall be governed by the regime of separation of property, the provisions of this Chapter shall be suppletory. • Marriage settlement to primarily govern the regime of separation of property. The Family Code shall only be suppletory in character Separation of property may refer to present or future or both. It may be total or partial. In the latter case, the property not agreed upon as separate shall pertain to the absolute community. • Parties may agree on the extent of their separation of property regime o However, it is not valid for contracting parties to agree in the marriage settlement that the CPG or ACP shall govern their marital property relationship only up to a certain time ! tantamount to dissolving ACP or CPG not specifically provided by law Article 145. Each spouse shall own, dispose of, possess, administer and enjoy his or her own separate estate, without need of the consent of the other. To each spouse shall belong all earnings from his or her profession, business or industry and all fruits, natural, industrial or civil, due or received during the marriage from his or her separate property. Article 146. Both spouses shall bear the family expenses in proportion to their income, or, in case of insufficiency or default thereof, to the current market value of their separate properties.

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

Chapter 7 Property Regime of Unions Without Marriage 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 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 coownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation. •

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Conditions o A man and a woman o 1. Capacitated to marry each other (legal capacity and no legal impediment) o 2. Living exclusively with each other as husband and wife o 3. Without benefit of marriage OR under a void marriage Their wages and salaries shall be owned by them IN EQUAL SHARES And property acquired by both of them through their work or industry Governed by the RULES ON CO-OWNERSHIP In the absence of proof to the contrary, property acquired shall be PRESUMED TO HAVE OBTAINED BY THEIR JOINT EFFORTS Neither party can encumber or dispose by acts inter vivos of his or her share in the property WITHOUT THE CONSENT of the other o Until 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 o 1. Their common children o 2. In default of common children, their DESCENDANTS o 3. In the absence of descendants to the innocent party In all cases, forfeiture shall take place upon the termination of the cohabitation Informal Civil Relationship " though not recognized by law as marriage, it would entitle to some rights Property relationship that is created is a special kind of co-ownership o Co-ownership – is a form of trust and every co-owner is a trustee for the other Below 18 and those incestuous marriages under Art. 37 and those against public policy under Art. 38 o Article 147 NOT APPLICABLE Structure of the property relationship under Article 147 o 1. Salaries and wages shall be owned by them in equal shares o 2. Property acquired by either of the parties exclusively by his or her own fund belongs to such party provide that there is proof that he or she acquired it by exclusive funds o 3. Property acquired both of them through their work or industry shall be governed by the rules on co-ownership. Consequently, either spouse may alienated in favor of his or her

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o

o o o

o

Article 148

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share in the property 4. Property acquired while they live together shall be presumed to have been obtained by their joint efforts, work or industry and shall be owned by them in equal shares. 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; 5. The fruits of the couple’s separate property are not included in the co-ownership 6. Property acquired by any of the parties after separation shall be exclusively owned by the party who acquired it; 7. Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation. However, either spouse may alienate in favor of the other his or her share in the property co-owned. But no one can donate or waive any interest in the co-ownership that would constitute an indirect or direct grant of gratuitous advantage to the other which is void pursuant to Article 87; 8. When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation.

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. • Property Regime under Article 148 o If one of the requirements in Article 147 is absent, then Article 148 will apply • The parties may be deemed to be co-owners of a property acquired during the cohabitation only upon proof that each made an actual contribution to its acquisition o Without proof of actual contribution, a co-ownership under Article 148 cannot arise • Relationships contemplated under Article 148 include the following: o 1. a man and a woman living together as husband and wife, without benefi t of marriage, but are not capacitated to marry; o 2. an adulterous relationship even if it occurred prior to the effectivity of the Family Code o 3. a bigamous or polygamous marriage; o 4. incestuous void marriages under Article 37; and o 5. void marriages by reason of public policy under Article 38. • Structure of Property Regime o 1) The salaries and wages are separately owned by the parties and if any of the spouses is married, his or her salary is the property of the conjugal partnership of gains of such legitimate marriage; o 2) Property solely acquired by funds of any of the parties belongs to such party; o 3) 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; o 4) The respective shares of the parties over properties owned in common are presumed to be equal. However, proofs may be shown to show that their contribution and respective shares are not equal. Without proof of actual contribution by both parties, there can be no presumption of co-ownership and equal sharing

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5) The rule and presumption mentioned above shall apply to joint deposits of money and evidences of credit; and o 6) 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 Article 147. The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith. The separate property of the “spouse” who have contracted a bigamous marriage while a previous marriage is subsisting, cannot be held liable or be subjected to being levied by the “new spouse” because for being contrary to law. Manila Surety Fidelity Co. v. Teodoro The “new spouse” cannot be held solidarily liable for the damage to vehicle of the husband since there was no co-ownership between them. Rather it should be charged to the conjugal partnership of the husband with the legitimate spouse. Juaniza v. Jose. o

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Title V. - The Family Chapter 1 - The Family as an institution Article 149

The family, being the foundation of the nation, is a basic social institution which public policy cherishes and protects. Consequently, family relations are governed by law and no custom, practice or agreement destructive of the family shall be recognized or given effect. Section 12, Article II of the Constitution "the State recognizes the sanctity of family life and shall protect and strengthen the family as a basic social institution." DESTRUCTIVE AGREEMENTS are not countenanced. Thus if spouses agree that they shall be free to cohabit and have sexual relations with other people while they are married to each other such agreement is invalid. However, such an agreement may be used as evidence to prove the consent of a spouse regarding sexual infidelity in a legal separation proceeding. Note that there are many other agreements possible between spouses which may be destructive of the family. In general, agreements that are against law, Filipino morals and public policy are also not countenanced. PARTIES IN COURT CASE -Husband and wife shall sue or be sued jointly except as provided by law (1997 Rules of Civil Procedure) -"Jointly" means that they shall be sued together. The same word DOES NOT refer to the nature of the liability arising from the suit. -The rationale for this rule is that spouses are being impleaded in their capacity as representatives of the ACP or CPG and not as independent debtors. Also, the spouses are joint administrators of either the ACP or the CPG. -The concept of joint or solidary liability, as between them, does not arise. Carandang v. Heirs of Quirino A. De Guzman, GR No. 160347 -The SC allowed one of the spouses to file a case for recovery of property because in CPG, the law of partnership in the Civil Code applies suppletorily. In accordance with said law, a spouse is a co-owner of partnership property. That being said, he or she can undertake anything beneficial to the partnership, including the filing by himself or herself alone of a case for the recovery of partnership property. The other spouse is not an indispensable party to such a case. Neither is the other spouse a necessary party. EXCEPTIONS: -Article 111 seems to form an exception to spouses having to be sued jointly. A spouse may appear alone in court if what is involved in the litigation is his or her separate and exclusive property. -Another exception is that in joint administration it is not always required that husband and wife act together. Each spouse may validly exercise full power of management alone subject to the intervention of the court in proper cases. -If one of the spouses as administrator, files the suit as plaintiff, the defendants in their counterclaim against

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the CPG or ACP can nevertheless file a motion to include as a necessary party the other spouse, who has not been impleaded, on the ground that their counterclaim may be chargeable to the ACP or CPG which requires the presence of the other spouse.

Article 150

Article 151

-Certification of non-forum shopping may be signed by just either one of the spouses. This forms an exception to the rule that all petitioners in the case must sign such certification. Family relations include those: 1) Between husband and wife; 2) Between parents and children; 3) Among other ascendants and descendants; and 4) Among brothers and sisters, whether of the full or half-blood. No suit between members of the same family shall prosper unless it should appear from the verified complaint or petition that earnest efforts toward a compromise have been made but that the same have failed. If it is shown that no such efforts were in fact made, the case must be dismissed. This rule shall not apply to cases which may not be the subject of compromise under the Civil Code -Any person not included in the enumeration of Article 150 cannot be considered as within the term "family relations." Collateral relatives who are not brothers and sisters are not included in the term "family relations." -Where a woman filed against her sister and the latter's husband, such a case will not need earnest efforts to compromise because of the inclusion of the husband of the petitioner's sister who is not within "family relations" provided by law. -The complaint or petition must be verified. If it is unverified the case should not be dismissed. The court should just merely require verification by the party. -If no earnest efforts are made to settle the case amicably, the case is dismissible (Rule 16 of the Rules of Court). EXCEPTIONS -The duty to engage in earnest efforts to compromise is not required if included in the suit between family members is a stranger not of the same family as the interest of such stranger may differ from the interest of members of the same family. -The rule will also not apply to cases which may not be the subject of compromise under the Civil Code. 1.) Civil Status 2.) The validity of a marriage or of a legal separation 3.) Any ground for legal separation 4.) Future Support 5.) The jurisdiction of courts 6.) Future Legitime -The rule is also not applicable to special proceedings like: 1.) Petition for settlement of estate guardianship 2.) Petition for settlement of Custody of Children 3.) Habeas Corpus -The term "suit" in Article 151 implies only civil actions. Article 332 of the RPC provides that no criminal but only civil liability shall result from the commission of the crimes of: 1.) Theft 2.) Swindling 3.) Malicious mischief, committed or caused mutually by the following persons: 1.) Spouses, ascendants and descendants, or relatives by affinity in the same line; 2.) The widowed spouse with respect to the property which belonged to the deceased spouse before the same shall have passed into the possession of another, and

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3.) Brothers and sisters and brothers-in-law and sisters-in-law, if living together. The exemption embodied in Article 332 does not apply to strangers participating in the commission of the crime. RUNNING OF PRESCRIPTIVE PERIODS - Unless otherwise provided by the Family Code and other laws, Article 1109 - Prescription does not run between husband and wife, even though there be a separation of property agreed upon in the marriage settlements or by judicial decree. Neither does prescription run between parents and children during the minority or insanity of the latter, and between guardian and ward during the continuance of the guardianship. Chapter 2: The Family Home Article 152

The family home, constituted jointly by the husband and the wife or by an unmarried head of a family, is the dwelling house where they and their family reside, and the land on which it is situated • • • •

Article 153

Requirement of house and land as constitutive a family home stresses the element of permanence (e.g. a boat on water cannot be constituted a family home) Residing in a family home is a real right and the occupancy must be actual and not constructive, something which is merely possible or presumptive Modequillo v. Breva o Creditors should take the necessary precautions to protect their interest before extending credit to the spouses or head of family owning the home All residential houses used as a family home, with or without having been judicially or extra judicially constituted prior to the effectivity of the Family Code, are deemed constituted by operation of law as a family home on August 3, 1988 The family home is deemed constituted on a house and lot from the time it is occupied as a family residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed by law

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Art. 153 cannot be given retroactive effect to shield the homes of debtors from execution of judgment arising from debts which became due and demandable prior to August 3, 1988 To be able to avail of the benefits of a family home in relation to debts which matured prior to August 3, 1988 – must be shown that the home was constituted either judicially or extra judicially pursuant to the Civil Code A family home cannot be constituted by the wife or husband alone (must be done jointly), but can be by an unmarried head of the family or by occupancy of any of the beneficiaries o Even if a married person is legally separated or de facto separated, a family home can still be constituted if any of his or her beneficiaries actually occupies the land and the house of such married person with his or her consent and pursuant to the other requirements in the Family Code A family home is not affected by the type of property regime of the spouses or by the fact that the marriage has been nullified (Valdez v. RTC) Exemption from execution, forced sale or attachment: o Effective from time of the constitution of the family home and lasts so long as any of its beneficiaries actually resides therein (Modequillo v. Breva) o Not absolute – obligations and indebtedness excluded from exemption are enumerated in Art. 155 (whole amount obtained from the sale of the family home may be taken by the creditor or obligee) o A claim for such exemption should be set up and proved before the sale of the property at public action, and failure to do so would estop the party from later claiming the exemption since the right of exemption is personal privilege granted to the judgment debtor which must be claimed by the judgment debtor himself at the

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time of the levy or within a reasonable period (Josef v. Santos) Article 154

The beneficiaries of a family home are: 1. The husband and wife, or an unmarried person who is the head of a family 2. Their parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate or illegitimate, who are living in the family home and who depend upon the head of the family for legal support •

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Article 155

Knowing the beneficiaries is important because their actual occupancy of a home may constitute the same as a family home provided they have the consent from either the husband and/or wife who owns the house and lot or the unmarried person, who is the head of the family, even if the said owners do not actually reside therein (Manacop v. Court of Appeals) To be a beneficiary, 3 requisites must concur: 1. Must be among the relationships enumerated in Art. 154 2. Live in the family home 3. Dependent for legal support upon the head of the family (e.g. grandson is not considered a beneficiary of a family home owned by his grandfather, while he was dependent on his father) Beneficiaries are the people who are most likely to be affected by the constitution of the family home and its disposition: o Thus in case the family home has to be sold by the owner, he or she has to obtain consent from majority of the beneficiaries of legal age (Art. 158) o For as long as any of its beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale, or attachment EXCEPT as provided and to the extent of the value allowed by law (Art. 153) Art. 154 includes in-laws where the family home is constituted jointly by the husband and wife, but not maids and overseers (Manacop v. Court of Appeals) The family home shall be exempt from execution, forced sale or attachment except: 1. For non-payment 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 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

1. 2.

Taxes are the lifeblood of the government and their prompt and certain availability is an imperious need; being the chief source of revenue, must be paid immediately and without delay (CIR v. Yuseco) Debts – Court judgment is not necessary to clothe a pre-existing debt with the privileged character of being enforceable against the family home • Such debt or obligation shall be considered to have arisen not from the time the court issues a judgment affirming the existence, propriety or validity of such debt but from the time it actually arouse • The term “debt” is not qualified and must therefore be used in its generic sense, i.e. obligations, in general • Includes money judgment arising from tort • Whole value of the family home may be used to pay off the obligations The family home must be part of the properties of the absolute community1 or the conjugal partnership2, or of the exclusive properties of either spouse with the latter’s consent3. It may also be constituted by an unmarried head of a family on his or her own property4 Nevertheless, property that is the subject of a conditional sale on installment where ownership is reserved by the vendor only to guarantee payment of the purchase price may be constituted as a family home

Article 156

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Family home must be constituted at a place where there is a fixed and permanent connection

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• • Article 157

with the persons constituting it An apartment unit or a house being rented cannot be constituted as a family home A house erected by a person on the property of another is not a family home as well The actual value of the family home shall not exceed, at the time of its constitution, the amount of P300,000 in urban areas, and P200,000 in rural areas, or such amounts as may hereafter be fixed by law In any event, if the value of the currency changes after the adoption of this code, the value most favorable for the constitution of a family home shall be the basis of the evaluation For purposes of this article, urban areas are deemed to include chartered cities and municipalities whose annual income at least equals that legally required for chartered cities. All others are deemed to be rural areas

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Article 158

Family home is constituted from the time it is actually occupied as a family home Actual occupancy is the “operative act of constitution” If at the time of the constitution, the home was more than the value fixed by the law, such home is not a family home; therefore, it is not exempted from execution, forced sale or attachment Limitation provided by law is not an incentive for people to spend their money to be able to build a secured home, rather a regressive limitation that tends to inhibit the progressive growth of the middle-class Values refer only to the value at the time of the constitution made after the effectivity of the Family Code: o Thus, if after the constitution, the value of the house increased due to improvements or renovations to an amount more that that fixed by the law at the time of the constitution, such family home will remain a family home The family home may be sold, alienated, donated, assigned or encumbered by the owner or owners thereof with the written consent of the person constituting the same1, the latter’s spouse2, and a majority of the beneficiaries of legal age3. In case of conflict, the court shall decide

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Article 159

This is a limitation on the right of disposition of the owners of a property where a family home is situated Thus, for the family home to be leased, the written consent of all the people mentioned must be obtained considering that a lease is an encumbrance The family home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of ten years or for as long as there is a minor beneficiary, and the heirs cannot partition the same unless the court finds compelling reasons therefor. This rule shall apply regardless of whoever owns the property or constituted the family home

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Security of the family is a concern of the law Purpose of the provision is to avert the disintegration of the family unit following the death of its head Art. 159 preserves the family home as the physical symbol of family love, security and unity by imposing the following restrictions on its partition: 1. Heirs cannot extra-judicially partition for a period of 10 years from the death of one or both spouses or of the unmarried head of the family, or for a longer period, if there is still a minor beneficiary residing therein 2. Heirs cannot judicially partition during the aforesaid periods unless the court finds compelling reasons therefor Art. 159 imposes the proscription against the immediate partition of the family home regardless of its ownership: o Even if the family home has passed by succession to the co-ownership of heirs, or has been willed to any of them, this cannot transform the family home into an ordinary property

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o

Article 160

Right of the individual co-owner or owner of the family home cannot subjugate the rights granted to the beneficiaries of the family home

When a creditor whose claim is not among those mentioned in Article 155 obtains a judgment in his favor, and he has reasonable grounds to believe that the family home is actually worth more than the maximum amount fixed in Article 157, he may apply to the court which rendered the judgment for an order directing the sale of the property under execution. The court shall so order if it finds that the actual value of the family home exceeds the maximum amount allowed by law as of the time of its constitution. If the increased actual value exceeds the maximum allowed in Article 157 and results from subsequent voluntary improvements introduced by the person or persons constituting the family home, by the owner or owners of the property, or by any of the beneficiaries, the same rule and procedure shall apply. At the execution sale, no bid below the value allowed for a family home shall be considered. The proceeds shall be applied first to the amount mentioned in Articled 1571, and then to the liabilities under judgment and costs2. The excess, if any, shall be delivered to the judgment debtor3 • • •

Unlike Art.155, there is a need under Art. 160 for a court decision before a judgment creditor can avail of the privilege Bidders cannot bid in an amount below P300,000 for the judgment debtor to be able to build a new family home to prevent being homeless Judgment-claim and judgment creditor making the claim should not be one of those mentioned in Art. 155 o Thus, if the family home was sold for exactly the amount due to the judgment creditors who are laborers, they will get all the amount leaving nothing to the judgment debtor

Article 161

For purposes of availing of the benefits of a family home as provided for in this Chapter, a person may constitute, or be the beneficiary of, only one family home

Article 162

The provisions in this Chapter shall also govern family residences insofar as said provisions are applicable •

Art. 162 does not state that the provisions of Chapter 2, Title V have a retroactive effect o Simply means that all existing family residences at the time of the effectivity of the Family Code are considered family homes and are prospectively entitled to the benefits accorded to a family home under the Family Code

Title VI. - Paternity and Filiation Article 163 Article 164

Article 165

The filiation of children may be by nature or by adoption. Natural filiation may be legitimate or illegitimate Children conceived or born during the marriage of the parents are legitimate. Children conceived as a result of artificial insemination of the wife with the sperm of the husband or that of a donor or both are likewise legitimate children of the husband and his wife, PROVIDED that both of them authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child. The instrument shall be recorded in the civil registry together with the birth certificate of the child. Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in this code. Policy of the Family Code -The status of children can never be compromised i.e. the question of legitimacy of children cannot be the subject of a simple agreement by the parents. -The Family Code is more liberal than the previous code in terms of its provisions which deal with investigation of paternity as well as the inclusion of scientific evidence which has only recently been made available. Paternity and Filiation

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-Generally refers to the relationship or tie which exists between parents and children. -May be by nature or adoption -Natural Children are considered legitimate if they are conceived or born during the valid marriage of the parents. -Illegitimate children are those conceived and born outside a valid marriage or inside a void marriage. EXCEPTIONS: Article 54 -children conceived or born before the judgment of annulment or of absolute nullity of the marriage, where the ground for voiding the same is the psychological incapacity of either of the spouses to perform his or her marital obligations (Article 36), has become final and executory shall be considered legitimate. Also under Article 54 - children born from a subsequent void marriage due to the contracting parties' failure to comply with the mandatory provisions of Articles 52 and 53 of the Family Code shall likewise be considered legitimate. -The presumption of the legitimacy of a child can only arise upon convincing proof that the parents of the child were legally married and that the child's conception or birth occurred during the subsistence of that marriage. -Two Classes of Children under The FC -Legitimate -Illegitimate -Five distinctions of illegitimate Children under The CC (Obsolete) -Natural Children -Natural children by legal fiction -Acknowledged or Recognized Natural Children -Spurious Children -Adulterous Children -Legitimate or illegitimate filiation is fixed by law and can't be left to the will of the parties or the declaration of any physician or midwife. IMPORTANT CASE: Concepcion v. CA -Where the wife bigamously married another and a child was born in the said bigamous union and where the bigamous marriage was declared null and void, the SC ruled that the child actually born in the second voided union was in effect born of the wife in the first subsisting marriage and therefore, in the eyes of the law, the father of the child was the first husband of the wife (in the First, VALID NON-Bigamous marriage). This was held even if the Birth Certificate of the child indicated that such child's father was the wife's husband in the bigamous marriage. *If there arises a conflict between a presumption of law that a child born inside a valid marriage is legitimate and a presumption of fact arising from the statement of filiation in a birth certificate, the former will prevail. Artificial Insemination Two Types: -Homologous insemination or AIH ( Artificial Insemination Husband) artificially impregnated with the semen of her husband -Heterologous insemination or AID (Artifical Insemination Donor)- wife with the semen of a third-party donor -May be consensual i.e. with the consent of the husband -Non consensual i.e. without the consent of the husband

wife is is impregnated

Status of an artificially inseminated child -Legitimate if both husband and wife authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child and that instrument is recorded in the civil registry together with the birth certificate of the child. -However if such ratification was obtained through mistake, fraud, violence, intimidation or undue influence, the husband may impugn the legitimacy of the child. If the husband fails to impugn the legitimacy of the child on grounds provided by law within the prescriptive period (no mention of a specific period so it is assumed to be five years) then the child shall be considered legitimate.

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*The Prescription Period is outlined in Article 170 -One year from the knowledge of the birth or its recording in the civil register if the husband or, in a proper case, any of his heirs, should reside in the city or municipality where the birth took place or was recorded. -Two years if they (ALL of the heirs or the husband challenging legitimacy) should reside in the Philippines other than in the place where the birth took place or where it was recorded -Three years if they (ALL of the heirs or the husband challenging legitimacy) live abroad -IF the birth of the child has been concealed from or was unknown to husband or his heirs, the period shall be counted from the discovery or knowledge of the birth of the child or of the fact of registration of said birth, whichever is earlier. -Note that there are moral and religious objections to artificial insemination but there is no reason to burden the child with bastardization or to force the parents to formally adopt such a child since there is consent by the husband and there is no marital infidelity. Moreover such a child is still born during lawful wedlock. The wife did not commit adultery since the semen was implanted and not obtained through sexual intercourse. -The Code Commission was not concerned with the legality or morality of artificial insemination. What the commission focused on was the status of the child born of that fact. Thus these articles should not be read as an approval or disapproval of artificial insemination.

Article 166

No criminal liability for adultery of wife artificially inseminated without consent of husband. -RPC Article 333 provides that an essential element of adultery is sexual intercourse with a man other than a woman's husband. -No such occurrence in artificial insemination. -Also the framers of the RPC could not have contemplated such an advanced procedure since the RPC took effect in 1932 way before the advent of said procedure. 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.

Article 167

The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. Applicability of Articles 166 and 167 -Presupposition of the existence of a valid marriage between the husband and the wife -Presupposition that the child has been delivered by a woman who is the child's natural mother. These articles do not apply to a situation where the alleged mother did not, in fact, deliver the child herself, or, in short, where the child did not come from her own womb. -Only the husband and in proper cases provided in Article 171, the heirs can invoke the grounds under Article 166. No other person can make use of the same. -Another way to impugn the legitimacy of the child can likewise be questioned on the ground that the marriage between the husband and the wife is void except if the ground for nullity is Article 36 or Article

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53 of the Family Code. -If any of the ground enumerated in Article 166 is proven, the husband and the child will not be related to each other in any manner considering the husband did not participate in the child's procreation. -As for the other, the child will be considered illegitimate. *Article 167 makes it impossible for the wife to file an action to impugn the legitimacy of her child because even if the wife knows that the child is by a man other than her husband, the declaration of the wife that the child is illegitimate or the sentencing of the wife as an adulteress has no bearing and can never affect the legitimate status of the child born or conceived inside a valid marriage. Declaration of legitimacy -The Civil Code provided presumptions -The Family Code provides declarations -Clear presumptions of legitimacy and presumptions of legitimacy and paternity exist independently of statute. -In all cases where the husband assails the legitimacy of an issue sired by his wife, all doubts are resolved in favor of legitimacy because of the existence of that universal presumption of legitimacy. -The presumption is a branch of that general rule of equity and justice which assumes the innocence of a person until there is proof of actual guilt; and whenever it is not consistent with the facts proved, this presumption is controlling. -Thus the presumption that the child of a married woman was begotten by her husband is not displaced by proof that the wife had immoral relations with other men; non-access by the husband at the time when the child must have been begotten must have been proved. 120-300 Day Period -A woman carries a child approximately 270 and 280 days after its conception. -Average longest period of gestation is 300 days. However a shorter or longer period is probable. -When a child is born inside a marriage, sexual intercourse or access is presumed to have occurred between the husband and wife within the first 120 days of the 300 days immediately preceding the birth of the child and that any day within the 120-day period is deemed as the possible conception date of a child. -The time span between the 120th day and the 300th day is 180 days or 6 months. -Experience shows that a child may be born without any defect whatsoever even if the gestation period is only 6 months Physical Incapacity -The presumption of legitimacy is so strong that evidence must be so convincing and persuasive to justify the bastardization of the child. Case to illustrate the strength of presumption - Tarleton v. Thompson -The penis of the man was cut almost leveling it to his stomach and necessitating the insertion of metal sounds for him to urinate and therefore apparently supporting a claim of physical incapability to have sexual intercourse that could sire the subject child, the court still ruled against the bastardization of the subject child because it regarded such evidence as insufficient to impugn the legitimacy of the subject child considering that it was also shown that despite the cutting of the penis just behind its head (probably the glans), it was still three inches long (ala Chi Ming Tsoi) enough to be able to copulate and also in the light of evidence that he had in many instances, engaged in sexual intercourse with other women. Living Separately -The spouses must have lived separately in such a way that sexual intercourse is not possible. -The term access means the same as sexual intercourse -Mere remoteness of the wife from the husband is not sufficient proof to disavow paternity. Serious Illness -The illness of the husband must be serious and must be such as to absolutely prevent him from engaging in sexual intercourse. -No matter what the husband is afflicted with, such illness must make sex an impossibility in order to overthrow presumption of legitimacy. Biological and Scientific Reasons

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-Paternity can be successfully impugned if, for biological and scientific reasons, the offspring could not have been that of the husband. -For example, a white couple could not have possible produced a black child or mulatto. However it is important to present evidence showing that neither of the spouses had black child or mulatto ancestry. Sterility -Sterility is a relative condition both as to degree and as to time -Thus a man has to have evidence that he was sterile during the possible period of conception of a child calculated from the child's date of birth in order to invoke this specific ground. -It has been held that medical evidence to the effect that a husband was sterile seven years before the birth of the child and that an examination four years after the birth of the child indicated he was sterile at the that time was deemed insufficient to displace the legitimacy of the child. -For sterility to overthrow the presumption of paternity on the ground of biological or scientific reasons, the husband must be shown to be completely sterile at the time when the child was conceived. -Normal sperm count = 60 million per cubic cm -Minimum sperm count to impregnate a woman with high probability = 10 million per cubic cm -But because it takes only one sperm to fertilize an egg even if a man has only 50 to 100 sperm, that same fact cannot overthrow the presumption of paternity. Vasectomy -Proof that husband had undergone vasectomy is not enough to rebut the presumption of legitimacy. -Vasectomy involves the removal of about an inch of the tubes or vas deferens which is the passage way of the sperm from the testicle to the urethra and tying the remaining ends. -Despite the procedure, the sperm can rechannel itself and effect fertilization. The fact of vasectomy must be coupled with concrete proof that the husband was entirely sterile and that rechanneling did not occur. Scientific Testing -Blood Grouping Test -A-B-O Test - accurate only in excluding paternity -If none of the putative father's phenotypes are present in the child's blood type then said father could not have been the father of the child (you get the point). -HLA or Human Leukocyte Antigen Test -A tissue typing test which was developed as a means of reducing the incidence of rejection in transplantation. The test is generally performed on white blood cells but may be done with other tissues. -The theory is that by identifying the antigen markers of a child and of the mother, the child's antigen genetic markers which could only be inherited from the father can be generally determined. -Better than 90% accuracy -DNA test, typing, fingerprinting, profiling, genetic testing or genetic fingerprinting -Chain of molecules found in every cell of the body except in the red blood cells which transmit hereditary characteristics among individuals. -If the probability of paternity is 99.9% this creates a refutable presumption -If it is less than 99.9%, it is merely corroborative. Vitiated Consent in Artificial Insemination -The mistake, fraud, violence, intimidation or undue influence can be exerted by not only the spouses against each other but also by third persons on both of the spouses or any one of them -But only the husband can impugn the legitimacy of the child on ANY ground provided by law or the heirs in special cases as provided in Article 171. Non-observance of procedure relative to artificial insemination -The law does not provide that failure to comply with the procedure laid down in the second paragraph of Article 164 shall constitute a ground to impugn the legitimacy of the child. -WEIRD EXAMPLE - The wife gets the sperm of the husband from a sperm bank without the husband's consent and uses the same sperm for artificial insemination

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-In such a case the husband can impugn the legitimacy of the child under any of the ground mentioned in Article 166 contending that it was physically impossible for him to have sexual intercourse with the wife at the time when the child was conceived. -In any case, the husband must impugn the legitimacy of the child within the prescriptive period otherwise he shall be estopped.

ARTICLE 168

-Article 166(2) provides that biological or other scientific reasons cannot be invoked to impugn legitimacy in cases of artificial insemination where the second paragraph of Article 164 was observed. Article 168. If the marriage is terminated and the mother contracted another marriage within three hundred days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary: 1) A child born before one hundred eighty days after the solemnization of the subsequent marriage is considered to have been conceived during the former marriage, provided it be born within three hundred days after the termination of the former marriage; 2 ) A child born after one hundred eighty days following the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage. (259a) •

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ARTICLE 169

Access is presumed between spouses PRIOR to the termination of marriage. It is not impossible that they performed sexual intercourse before the death of one spouse or before judicial decree of nullity o 300 days Access not presumed upon termination of the marriage o Essential obligation of cohabitation disappears Children conceived or born before judicial declaration of nullity under Art. 36 and annulment under 45 are legitimate IN THE ABSENCE OF PROOF TO THE CONTRARY o If there’s evidence of filiation between the previous husband/subsequent husband and the child, then Art. 168 does not apply o This rule will only apply in the absence of proof to the contrary Also the rules do not give any presumption of legitimacy or illegitimacy to either situation o The status of the child will depend on the status of the marriage If the mother marries again and a child is born within 180 days from the solemnization of the second marriage and within the 300-day period after the termination of the first marriage and there is no concrete proof as to the father of the child, the child shall be considered to have been conceived of the first marriage. o And since the 300-day period is considered the longest period for gestation and the 180-day period as the shortest time for gestation, the law, to avoid confusion as to paternity and in the absence of proof to the contrary, considers the child to have been conceived prior to the second marriage and during the first marriage. A child born after one hundred eighty days following the celebration of the subsequent marriage is considered to have been conceived during such marriage in the absence of proof to the contrary, even though it be born within the three hundred days after the termination of the former marriage o The benefit of the doubt from the former marriage to the subsequent one shifts. If there is confusion as to the father of the child because the proofs are not convincing or there is no proof as to who fathered the child, then the child shall be considered conceived of the second marriage applying Article 168(2) and, therefore, fathered by the husband of the subsequent marriage

The legitimacy or illegitimacy of a child born after three hundred days following the termination of the marriage shall be proved by whoever alleges such legitimacy or illegitimacy. • While there have been cases where the gestation period reached from up to 316 to 330 days (Ousley v. Ousley , 261 SW 2d 817), this is not normal and, hence, other convincing proofs of fi liation must be shown. Thus, no presumption can attach, thereby necessitating the introduction of evidence by whoever alleges legitimacy or illegitimacy

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ARTICLE 170-171

Article 170. The action to impugn the legitimacy of the child shall be brought within one year from the knowledge of the birth or its recording in the civil register, if the husband or, in a proper case, any of his heirs, should reside in the city or municipality where the birth took place or was recorded. If the husband, or in his default, all of his heirs do not reside at the place of birth as defi ned in the first paragraph or where it was recorded, the period shall be two years if they should reside in the Philippines; and three years if abroad. If the birth of the child has been concealed from or was unknown to the husband or his heirs, the period shall be counted from the discovery or knowledge of the birth of the child or of the fact of registration of said birth, whichever is earlier. Article 171. The heirs of the husband may impugn the filiation of the child within the period prescribed in the preceding article only in the following cases: 1) If the husband should die before the expiration of the period fi xed for bringing his action; 2) If he should die after the filing of the complaint, without having desisted therefrom; or 3) If the child was born after the death of the husband. (262a)

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Impugning the legitimacy of the child is strictly a personal right and cannot be set up by way of a defense or as a collateral issue o Legitimacy cannot be collaterally attacked or impugned o Can only be impugned in a direct suit assailing a child’s legitimacy o Principally only the husband can file a direct action to assail the legitimacy of a child. o His heirs can substitute him only if he dies before the expiration of the period fixed for bringing the action or after the filing of the same, without him having desisted therefrom, or if the child was born after his death. Generally, therefore, where the husband, the sovereign arbiter of his honor, fails to challenge the presumption of legitimacy of a child born to his wife in a direct suit for that purpose, no one can subsequently assert the husband’s strictly personal right except the heirs in certain very restricted situations as mentioned previously SC: the respondent had no legal personality to impugn the legitimacy of the niece as the said respondent was not the “husband” referred to in the law and also the issue of legitimacy cannot be properly controverted in an action for reconveyance. Legitimacy cannot be collaterally attacked but only directly attacked by the husband of the niece’s mother. (De Jesus v. Estate of Dizon). (Babiera v. Catotal): where a legitimate child filed a suit to cancel the birth certificate of her housemaid’s child who claimed to be her sister and therefore also the legitimate child of her parents and where it was proven that indeed the housemaid’s child was not given birth by the mother of the legitimate child and that the birth certificate of such housemaid’s child was forged to make it appear that the said housemaid’s child was the child of the parents of the legitimate child, the Supreme Court rejected the contentions of the housemaid’s child that the legitimate child cannot anymore impugn her legitimacy on the ground that only the father can do so and that the action had prescribed: o SC ruling: ! It can PROSPER on the grounds that petitioner is A REAL PARTY IN INTEREST " stands to be benefitted or injured ! Petitioner’s contention in untenable. Article 170 and 171 does not apply because it presumes that the CHILD IS THE UNDISPUTED OFFSPRING OF THE MOTHER. Impugning the legitimacy of a child shall not prosper in an action of partition as it is a collateral attack However, if one of the issues presented in an action for annulment of an extrajudicial partition concerned the right of a particular person to inherit and the assertion that the alleged heir was not in fact the child of the deceased, a determination of filiation can be made The mother is given no standing because MATERNITY IS NEVER UNCERTAIN

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Also for reasons of decency and public policy, the mother cannot say that she had extramarital intercourse and that her offspring is spurious Reasons for the limitations on the rule: o Desire to protect innocent children from attack against paternity or filiation o To allow others not belonging to the family is to allow to impugn the legitimacy of the child, with or without basis, by anyone whose purpose is to break up a family out of jealousy or revengeful conduct o The state has an interest in protecting the best interest of the child. There are three different prescriptive periods for the husband or, in proper case, the heirs to impugn the legitimacy of a child. They are as follows: o

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1) One (1) year from knowledge of the birth or its recording in the civil register, if the impugner resides in the city or municipality where the birth took place or was recorded; 2) Two (2) years from knowledge of the birth or its recording in the civil register, if the impugner resides in the Philippines other than in the city or municipality where the birth took place or was recorded; and 3) Three (3) years, if the impugner resides abroad;

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If the birth of the child has been concealed from or was unknown to the husband or his heirs, the period shall be counted from the discovery or knowledge of the birth of the child or of the fact of registration of the birth, whichever is earlier. Relatively shorter prescriptive periods than that of nullity or annulment o BECAUSE BASTARDIZATION IS A SERIOUS ISSUE o Public policy does not encourage It must also be noted that what is important is the knowledge of birth or its recording in the civil register. Hence, if the husband knew of the birth or recording of birth in the civil register, the prescriptive period will start to run from that time and not from the subsequent knowledge that the child is not his child

Chapter 2: Proof of Filiation Article 172

The filiation of legitimate children is established by any of the following: 1. The record of birth appearing in the civil register or a final judgment; or 2. An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: 1. The open and continuous possession of the status of a legitimate child; or 2. Any other means allowed by the Rules of Court and special laws. •

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Parentage, lineage and legitimacy cannot be made to depend upon parental physiognomy or bodily marks of similarity; lineage cannot depend wholly upon the presence or absence of paternal similarity of physical appearance (Chun Chong v. Collector of Customs; Chun Yeng v. Collector of Customs) Resemblance between parent and child can be competent and material evidence to establish parentage if accompanied by other strong evidence, direct or circumstantial, to prove the filiation of the child (Tijing v. CA) Legitimate or illegitimate filiation does not arise from the statements and admissions made in the documents mentioned in Art. 172(1) and (2), but from the fact that: o Children were conceived or born inside a valid marriage for legitimacy o Children were conceived or born outside a valid marriage or in a void marriage for illegitimacy Record of birth appearing in the civil register is good proof as it proceeds from an official government source and is considered a public document and prima facie evidence of the facts therein contained If the alleged father did not sign in the birth certificate, the placing of his name by the mother,

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Article 173

or doctor or registrar, is incompetent evidence of paternity of said child Between a presumption of fact created by the record of birth and a presumption or declaration of law, the latter will prevail (Concepcion v. CA) Final judgment is a judicial decision bearing the status of the children as legitimate and thus, biding and conclusive – also proof of filiation (arising from action under Art. 173) o Those based on a compromise agreement where the parties stipulated and agreed on the status of a person is VOID. (Art. 2035(1) of the Civil Code provides that no compromise agreement upon the civil status of persons shall be valid) Admission of legitimate filiation in a public instrument or private handwritten instrument and signed by the parent concerned – complete act of recognition without need of court action (De Jesus v. De Jesus) Mendoza v. CA o “Continuous” does not mean that concession of status shall continue forever but only that it shall not be of an intermittent character while it continues o Possession of such status means that the father has treated the child as his own, directly and not through others, spontaneously and without concealment though without publicity – must show permanent intention to consider child as his own, by continuous and clear manifestation of paternal affection and care Ong v. CA o Alleged father only met the respondent 4 times to give him money, SC rejected the claim of “continuous possession” of the status of a child; to exist, father’s conduct toward his son must be spontaneous and uninterrupted Angeles v. Maglaya o Birth certificate unsigned by the father, claimant’s student and government records were present as proofs of filiation to show alleged father was her father, such proofs were not enough to prove the relationship Any other means allowed by the Rules of Court and special laws: o Pictures, typewritten letters, and affidavits do not constitute proof of filiation Berciles v. Government Service Insurance system” o Fact alone that person used surname of father, after the latter’s death, without assent or consent, does not constitute a proof of filiation or paternity (Ferrer v. Inchausti) o For a baptismal certification to be proof of filiation under the Rules of Court, must be shown that the father participated in the preparation of the same; a birth certificate not signed by the father is not competent proof of paternity (Fernandez v. CA) DNA (Deoxyribonucleic Acid) testing: o Valid means of determining paternity o Processed to generate a pattern, or a DNA profile, for the individual from whom the sample is taken; unique for each person, except for identical twins o Reported theoretical error rate of less than one (1) in a trillion o If the man’s DNA types do not match that of a child, the man is excluded as the father. If the DNA types match, then he is not excluded as the father. It is not enough to state that the child’s DNA profile matches that of the putative father and a complete match does not necessarily establish paternity o In assessing the probative value of DNA evidence, court should consider: 1. How the samples were collected 2. How they were handled 3. Possibility of contamination of the samples 4. Procedure followed in analyzing the samples Whether proper standards and procedures were followed in the tests 5. Qualification of the analyst who conducted the tests o DNA analysis that excludes the putative father from paternity should be conclusive proof of non-paternity 1. If the value of W “probability of paternity” is less than 99.9%, the results should be considered as corroborative evidence 2. If the value of W is 99.9% or higher, then there is refutable presumption of paternity. The action to claim legitimacy may be brought by the child during his or her lifetime and

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shall be transmitted to theirs should the child die during minority or in state of insanity. In these cases, the heirs shall have a period of five (5) years within which to institute the action. The action already commenced by the child shall survive notwithstanding the death of either or both of the parties. •

Article 174

Right of action for legitimacy devolving upon the child is of a personal character and generally pertains exclusively to him. Only the child may exercise it at any time during his lifetime. o Exception, 3 cases, may be transmitted to the heirs of the child if he or she died during: 1. His or her minority 2. While insane 3. After action had already been instituted May exercise it either against the presumed parents, or his or her heirs (Conde v. Abaya) Legitimate children shall have the right: 3. To bear the surname of the father and the mother, in conformity with the provisions of the Civil Code on Surnames; 4. To receive support from their parents, their ascendants, and in proper cases, their brothers and sisters, in conformity with the provisions of this Code on Support; and 5. To be entitled to the legitime and other successional rights granted to them by the Civil Code

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The greatest and preferential sum of rights is given to the legitimate children (Clemena v. Clemena) Legitimate Child o Has whole lifetime to file an action to claim his or her legitimacy regardless of what type of proofs he or she has as provided in Art. 172 o Right to file an action to claim his or her legitimacy may be transmitted to his or her heirs as provided for in Art. 173 o In the direct line of relationship – entitled to receive support from any of his or her ascendants and descendants (Art. 195 and 199) o Shall principally bear the surname of the father (Art. 364 of Civil Code) o Can inherit ab intestato from relatives of his father or mother (Art. 992 of Civil Code) Illegitimate Child o Has his or her lifetime to file an action to claim illegitimacy only if he or she uses the proofs under the first paragraph of Art. 172; if under second paragraph such child could only bring the action within the lifetime of the parent o Right to claim his or her status is not transmissible to his or her heirs o With respect to the direct line – entitled to receive support only up to his or her grandparents and his or her grandchildren (Art. 195(2) and (3)) o As to successional rights, legitime shall consist of one-half (1/2) of the legitime of the legitimate child o Shall generally bear the surname of the mother o Cannot inherit by right of representation (Art. 992 of Civil Code)

Chapter 3 and 4 : Illegitimate and Legitmated Children IV. Art. 175: Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. The action must be brought within the same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent.

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a. 54)

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Claim of Illegitimate Children (Covers everything except those provided for in Art. 1. Example: An illegitimate child is born between a philandering husband and his concubine. Can the illegitimate child file for illegitimacy? 1.1 If the concubine is not validly married to another man? " Yes 1.2 If concubine is validly married to another man? " NO 1.2.1 The lawful husband of the concubine must first impugn the child’s legitimacy in relation to him before the latter can file for illegitimacy to the philandering father Proofs 1. Same proofs provided for in Art. 172 are needed to assert illegitimacy 1.1 Mendoza v. C.A: An illegitimate child is allowed to establish his claimed filiation by such means as may be allowed by the Rules of Court. The declaration of a deceased person in respect to the pedigree of another person related to him may be received in evidence where it occurred before the controversy and the relationship between the two persons is shown by evidence other than such act or declaration. 1.2 Jison v. C.A: Private letters and notes presented to prove filiation were not allowed because they do not qualify under Section 40, Rule 130. It is not in conformance with the well-known rule of Ejusdem Generis

c. Prescriptive Period 1. If proofs used are those enumerated in Art. 172(1), then the illegitimate child has his or her entire lifetime to bring the action 2. If proofs used are those enumerated in Art. 172(12), then the illegitimate child has only the lifetime of the alleged parent to bring the action V. Art. 176: Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. Except for this modification, all other provisions in the Civil Code governing successional rights shall remain in force. a. Rights of an illegitimate child " Illegitimate children are given substantial rights under the law 1. However: His or her rights are not equal with that of a legitimate child b. Parental Authority 1. Illegitimate child shall be under the parental authority of the mother 2. Briones v. Miguel: The father is not given the parental authority despite his recognition that the child is his. c. Surname 1. The surname of the mother shall be used by the illegitimate child

VI. Art. 177: Only children conceived and born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other may be legitimated. Art. 178: Legitimation shall take place by a subsequent valid marriage between parents. The annulment of a voidable marriage shall not affect the legitimation Art. 179: Legitimated children shall enjoy the same rights as legitimate children. VII. Art. 180: The effects of legitimation shall retroact to the time of the child's birth. a. Statutory Creation

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1. Before a child can be legitimated, the requirements of the law must be strictly complied with 2. Laws for legitimation are remedial in character and intended for the benefit and protection of the innocent offspring, hence applied retroactively 3. Annulment of a voidable marriage shall not affect legitimation b. Requirements for legitimation: 1. Parents do not suffer from any legal impediment or are disqualified to marry each other because either or both of them are below 18 at the time of conception 2. Child is conceived and born outside of a valid marriage. 3. The parents subsequently enter into a valid marriage. c. Muldrow v. Caldwell- Legitimating statute only legitimates the child; it will not affect property rights that have already vested. d. General Rule: Legitimation cannot occur if either or both parents are disqualified by any legal impediment to marry each other 1. Exception: When either or both parties are below 18 years old at the time of conception e. Effects of legitimation: 1. Same rights as legitimate children

VIII. Art. 181. The legitimation of children who died before the celebration of the marriage shall benefit their descendants. a. In case there is an illegitimate child involved, parents are only obliged to support their illegitimate children and the illegitimate or legitimate children of that child. (Grandparents" Grandchildren) IX. Art. 182. Legitimation may be impugned only by those who are prejudiced in their rights, within five years from the time their cause of action accrues. TITLE VIII: SUPPORT Article 194

Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family. The education of the person entitled to be supported referred to in the preceding paragraph shall include his schooling or training for some profession, trade or vocation, even beyond the age of majority. Transportation shall include expenses in going to and from school, or to and from place of work. Support • Includes whatever is necessary to keep a person alive • “In keeping with the financial position of the family” o Determines the amount of support to be given • Natural support – basic necessities • Civil support – anything beyond the basic needs • Schooling – formal education • Training – non-formal education

Article 195

Subject to the provisions of the succeeding articles, the following are obliged to support each other to the whole extent set forth in the preceding article: 1. Spouses 2. Legitimate ascendants and descendants 3. Parents and their legitimate children and the legitimate and illegitimate children of the latter 4. Parents and their illegitimate children and the legitimate and illegitimate children of the latter 5. Legitimate brothers and sisters, whether full or half-blood Mandatory Nature

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Support is a mandatory obligation Most sacred and important of all obligations imposed by law Others may fail, but this should never fail unless for a valid cause Waiver, renunciation, transmission or compensation of the right to receive support = not allowed o Contrary to law, public policy, morals or good custom o Violation of mandatory obligation under Article 195 • If paternity is at issue in a case, its existence or absence must be judicially established and cannot be left to the will or agreement of the parties Between Spouses • Duty to support and be supported = presuppose a valid marriage • Valid marriage – gives rise to the duty to support • Right to support o Law o Obligation to mutually help each other = created by matrimonial bond • Natural and legal duty • Dadivas v. Villanueva o In order to entitle a wife to maintain a separate home and to require separate maintenance from her husband, it is not necessary that the husband should bring a concubine into the marital domicile o Perverse and illicit relations with women outside of the marital establishment are enough o Cannot take advantage of her departure to abrogate the law applicable to the marital relations and repudiate his duties • Adultery of wife = valid defense against action for support • Spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported from ACP/CPG • Validity of marriage in issue o Cannot be given support pende lite without due hearing o Nothing except allegation of marriage exists • Pending Proceedings – Legal Sep and Annulment o Supported by ACP/CPG • Legal separation o Court may order guilty spouse to support the innocent spouse even after separation • Annulled/Declared void ab initio o Obligation to support ceases Between Ascendants and Descendants • Ensure that members of a family do not allow any member of the same family to become a burden to society • Relationship in issue – STATUS of parties should be established first • Francisco v. Zandueta o Nothing but a mere allegation, a fact in issue, and a simple fact in issue must not be confounded with an established right recognized by a final judgment o No effect can be given to such a claim until an authoritative declaration has been made as to the existence of the cause o Capacity of a person after the rendition of a final judgment in which that person is declared to be in possession of the status of a son and his capacity prior • Valid defense to refuse support by husband = child is the fruit of an adulterous relationship Between Parents and their legitimate children and the legitimate and illegitimate children of the latter • As long as one is related by blood to the person who is supposed to give support = no reason why the obligation to support him should fall on society and not on his family • Limited from the grandparents to the grandchildren only • Stigma of bastardy (illegitimate children) • No reason why further punishment should be inflicted • “There are no illegitimate children, there are only illegitimate parents” Between Parents and their illegitimate children and the legitimate and illegitimate children of the latter • Obliged to support their illegitimate children and their grandchildren whether or not legitimately or illegitimately related to their illegitimate children • • • •

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Hearing for support pendente lite + status of child in issue o Child may get support in the meantime while case is pending o Status must be proven provisionally o Need of prima facie evidence o Still subject to final outcome of trial • Quimiguig v. Icao o Unborn child = right to support from progenitors o Conceived child shall be considered born for all purposes that are favorable to it o Not a condition precedent to the right of the conceived child Between Legitimate Brothers and Sisters, whether full or half-blood • Uncles, aunts, nieces and nephews not obliged to support each other •

Article 196

Brothers and sisters not legitimately related, whether of the full or half-blood, are likewise bound to support each other to the full extent set forth in Article 194, except only when the need for support of the brother and sister, being of age, is due to a cause imputable to the claimant’s fault or negligence. Illegitimate Brothers and Sisters • Also entitled to support each other • Due to fault/negligence = support does not become a demandable right • Must be related to need for support

Article 197

For the support of legitimate ascendants; descendants, whether legitimate or illegitimate; and brothers and sisters, whether legitimately or illegitimately related, only the separate property of the person obliged to give support shall be answerable provided that in case the obligor has no separate property, the absolute community or the conjugal partnership, if financially capable, shall advance the support, which shall be deducted from the share of the spouse obliged upon the liquidation of the absolute community or of the conjugal partnership. Source • If common children of spouses or legitimate children of either spouse = ACP/CPG • Different from personal support owing from father or mother (Article 195 and 197) • Law makes a very exacting condition for the community property or the conjugal partnership property to be liable in the meantime • Illegitimate children o ACP – insufficiency of separate property enough o CPG – responsibilities enumerated are covered and insufficiency of the separate property • ACP/CPG – liable for support of spouses • Absence of ACP/CPG o Income or fruits of separate property o Separate property • Spouse leaves the home without just cause, he or she shall not be entitled to be supported from ACP/CPG

Article 198

During the proceedings for legal separation or for annulment of marriage, and for declaration of nullity of marriage, the spouses and their children shall be supported from the properties of the absolute community or the conjugal partnership. After final judgment granting the petition, the obligation of mutual support between the spouses ceases. However, in case of legal separation, the court may order that the guilty spouse shall give support to the innocent one, specifying the terms of such order. Support Pendente Lite • Support under this chapter is principally obtained from the separate property of the spouse from whom support is sought • Adultery of wife – must be established by competent evidence o Mere allegation that wife committed adultery – not bar her from right to support pendent lite o Courts must ascertain kind and amount of evidence sufficient o Facts have to be established

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Lerma v. Court Appeals o Spouse convicted of adultery o Filed a case of legal separation against husband o Article 198 is not a source of legal right to receive support o Does not preclude the loss of rights in certain cases o Circumvent the prohibition – groundless o Not considered within intendment of the law granting support

Article 199

Whenever two or more persons are obliged to give support, the liability shall devolve upon the following persons in the order herein provided: 1. Spouse 2. Descendants in the nearest degree 3. Ascendants in the nearest degree 4. Brothers and sisters

Article 200

When the obligation to give support falls upon two or more persons, the payment of the same shall be divided between them in proportion to the resources of each. However, in case of urgent need and by special circumstances, the judge may order only one of them to furnish the support provisionally, without prejudice to his right to claim from the other obligors the share due from them. When two or more recipients at the same time claim support from one and the same person legally obliged to give it, should the latter not have sufficient means to satisfy all claims, the order established in the preceding article shall be followed, unless the concurrent obligees should be the spouse and a child subject to parental authority, in which case the child shall be preferred. Order of Priority • Law sets order of persons whom liability of giving support • In the presence of the one, the others are not obliged to give support • Obliged to give support only in the absence of or failure or refusal to give support by the other • Grandfather, who was proven to be well-off required to support his grandchildren as parents were not capable of supporting the children

Article 201

The amount of support, in the cases referred to in Articles 195 and 196, shall be in proportion to the resources or means of the giver and to the necessities of the recipient.

Article 202

Support in the cases referred to in the preceding article shall be reduced or increased proportionately, according to the reduction or increase of the necessities of the recipient and the resources or means of the person obliged to furnish the same. Proportionality • Law is not that unreasonable as to contemplate a situation where the one giving the support shall be compelled to make such support to the detriment of his or her own being and existence Provisional Character of Support Judgment • Changing needs of the recipient and the changing ability of the provider that any judgment for support does not become final • Cannot be subject to final determination • May be modified anytime • Once the needs of the plaintiff arise = right to bring the action for support o only then that her cause of action accrues • Right to support = demandable form date plaintiff needs it • Support under the judgment becomes due from time to time as provided and is enforceable by simple motion at any time, except as to installments not recovered within the statute of limitations

Article 203

The obligation to give support shall be demandable from the time the person who has a right to receive the same needs it for maintenance, but it shall not be paid except from the date of judicial or extrajudicial demand.

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Support pendente lite may be claimed in accordance with the Rules of Court. Payment shall be made within the first five days of each corresponding month. When the recipient dies, his heirs shall not be obliged to return what he has received in advance. Demand • Payment of the amount for support starts only from the time support has been judicially or extrajudicially demanded • Support must be DEMANDED and the RIGHT to it ESTABLISHED before it becomes payable • “From imperative necessity without which it cannot be demanded, and the law presumes that such necessity does not exist unless support is demanded” • Need for support cannot be presumed • Payment shall be made from the time it was extrajudicially or judicially demanded Support in Arrears • Arrear – overdue alimony or support payments • Allowed payment of support in arrears • Children, who should have been given support, must have already finished their schooling by the time the decision was rendered • Amount of support to be paid was computed from the time they entered school until they finished respective studies Article 204

The person obliged to give support shall have the option to fulfill the obligation either by paying the allowance fixed, or by receiving and maintaining in the family dwelling the person who has a right to receive support. The latter alternative cannot be availed in case there is a moral or legal obstacle thereof. Option • Right is NOT absolute o Opposed to the exercise of a preferential right or existence of some justifiable cause morally opposed • Wife – forced to leave the conjugal home by her husband – without fault on her part – can maintain action against husband for separate maintenance • SC rejected the grandfather to take custody of the grandchildren o Relationship turned sour during pendency of the suit o Accusations against each other

Article 205

The right to receive support under this Title as well as any money or property obtained as such support shall not be levied upon on attachment or execution. Exemption from Attachment or Execution • Support = provisions made for survival and well-being of the recipient • Deprive recipient = prejudicial to his existence • Right to receive support and money/property obtained from support = cannot be made to satisfy any judgment against recipient • Exception: contractual support or given by will

Article 206

When, without the knowledge of the person obliged to give support, it is given by a stranger, the latter shall have a right to claim the same from the former, unless it appears that he gave it without intention of being reimbursed.

Article 207

When the person obliged to sup- port another unjustly refuses or fails to give support when urgently needed by the latter, any third person may furnish support to the needy individual, with a right of reimbursement from the person obliged to give support. This Article shall apply particularly when the father or mother of a child under the age of majority unjustly refuses to support or fails to give support to the child when urgently needed. Quasi-contract • Resulting relationship between a stranger and person obliged to give support • Juridical relation which arises from certain lawful, voluntary and unilateral acts to the end that no one shall be unjustly enriched or benefited at the expense of another

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• Valid lawful obligation • Requirements for a stranger to be reimbursed o Support has been furnished a dependent of one bound to give support but who fails to do so o Support supplied by a stranger o Support given without knowledge of person charged with duty • Requisites of 207 o Urgent need to be supported on the part of the recipient o Person obliged to support unjustly refuses or fails to give support o Third person furnishes support to needy individual • “When urgently needed” – any unjust refusal + failure to give support Article 208

In case of contractual support or that given by will, the excess in amount beyond that required for legal support shall be subject to levy on attachment or execution. Furthermore, contractual support shall be subject to adjustment whenever modification is necessary due to changes in circumstances manifestly beyond the contemplation of the parties. Contractual and Testamentary Support • Contractual Support o Entered into by parties usually with reciprocal duties and obligations o Not mandated by law o Basis: Agreement • Only contractual support, not support given in a will, is subject to adjustment whenever modification is necessary due to changes of circumstances manifestly beyond the contemplation of the parties • Example: Parents – educational policy – insurance company o Money placed by the corporation in a trust fund to finance the education of the children cannot be subject to levy or attachment except the amount in excess required for legal support o Policy goes beyond educational support – provincial trip in the Philippines – can be attached

Title IX. Parental Authority – Chapter 1 Article 209

Pursuant to the natural right and duty of parents over the person and property of their unemancipated children, parental authority and responsibility shall include the caring for and rearing of such children for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being. •

Article 210

Custody, care, and nurture of the child reside first in the parents whose primary function and freedom include the preparation for obligations the state can neither supply nor hinder

Parental authority and responsibility may not be renounced or transferred except in the cases authorized by law. • •

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The upbringing of the children is a sacred duty entrusted to the parents Law allows a waiver of parental authority only in cases of: 1. Adoption 2. Guardianship 3. Surrender to a children’s home or an orphan institution When a parent entrusts the custody of a minor to another, what is given is merely temporary custody and it does not constitute a renunciation of parental authority Only cases substitute parental authority may be exercised by the surviving parents: 1. Parent’s death 2. Absence 3. Unsuitability Ex. Fact that he failed to financially support the child for 3 years is not sufficient reason to strip him of custody

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Article 211

Duty of care is not necessarily dependent upon custody; thus a mother who does not have custody of her child may have a duty to give him some personal care and attention

The father and the mother shall jointly exercise parental authority over the persons of their common children. In case of disagreement, the father’s decision shall prevail, unless there is a judicial order to the contrary. Children shall always observe respect and reverence towards their parents and are obliged to obey them as long as the children are under parental authority. • • •

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Article 212

In case of absence or death of either parent, the parent present shall continue exercising parental authority. The marriage of the surviving parent shall not affect the parental authority over the children, unless the court appoints another person to be the guardian of the person or property of the children. • •

Article 213

Father and mother are not expected to have a compartmentalized concern over their children or their parental love be split up to serve different purposes Art. 211 on joint parental authority applies to both legitimate and illegitimate children For Art. 211 to apply to illegitimate children: 1. Father is certain 2. Illegitimate children are living with the said father and the mother, who are cohabiting without benefit of marriage or under a void marriage not failing under Art. 36 and 53 Art. 211 must be harmonized with Art. 176, providing that illegitimate children shall be under the parental authority of the mother where: 1. Paternity of the child is unknown or in doubt 2. Though paternity is certain, the father is not living with the mother and the child Once parental authority is vested, it cannot be waived except in cases of adoption, guardianship, and surrender to a children’s home or an orphan institution In case of conflict between the parents, the decision of the father prevails. It is presumed that the decision of the father is for the children’s best interest. If the mother or the children want to change the decision of the father, they must go to court. Ex. Mere fact that mother does not want to have the children study in a particular school because the children do not like is not enough reason to supplant the decision of the father. Must be that the school does not provide good instructions or does not teach the children right moral values.

New spouse does not automatically possess parental authority unless such new spouse adopts the children Court may appoint another person to be the guardian of the person or property of the children if it is clearly shown that, by reason of the remarriage, the surviving parent cannot undertake the necessary devotion, care, loyalty, and concern toward the children

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. • •

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Parental authority shall be given to any of the parents who may be designated by the court in case the parents have separated from each other Designation does not mean that the parental authority of the other parents is necessarily terminated or suspended; parental authority shall be terminated only if the court so decrees on the basis of the causes for termination or suspension provided by law In a legal separation case, decree does not necessarily terminate the parental authority of the

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Article 214

guilty parent, mother who later decides to have children adopted must have consent of the father Parents are never deprived of the custody and care of children except for cause While the choice may be in favor of one parent, the court may still nevertheless award custody to the other parent or even to a third person if the paramount interest of the child so dictates If the child has mad e choice and there is no showing that the selected parent is in any way unfit to have custody of the child, the child should be awarded to such parent Procedure for custody cases is now governed by the Rule On custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors o Habeas corpus case can be availed of to secure the custody of a child in case the parents are separated from each other o Can be used also by the parents as against third persons o Also a proper remedy to enable parents to regain the custody of minor daughter even though latter be in the custody of third person of her free will because the parents were compelling her to marry a man against her will o Question of identity is relevant and material in habeas corpus proceedings, subject to the usual presumptions including those as to identity of the person In child custody hearings, equity may be invoked for the best interest of the child Natural parents, who are of good character and who can reasonably provide for the child, are ordinarily entitled to the custody as against all persons Right of custody accorded to parents spring from the exercise of parental authority No court would deprive a parent of his child simply because someone else might give it better care and attention than the means of the parents permit Rights of the parents are not the principal issues in a custody case but rather the best interest of the children Maternal preference under Art. 363 of the Civil Code, no child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order. Child must be under seven years of age at the time either parent is given the custody or at the time the decision is rendered Adultery of the parent during the child’s formative years may be considered in questions involving the custody of children o Not logical to assume that a woman be a good mother and an adulteress at the same time; one who des not possess these principles can hardly be expected to teach them to others Maternal preference is not an absolute rule o Intended to serve only the function as a “tie-breaker” in those rare instance when parental qualities are so equally balanced between litigants that resort to the preference is necessary o Compelling reason must be clearly shown by positive and clear evidence of the unfitness of the mother and its determination is left to the sound judgment of the courts Custody may be awarded to persons who are strangers to the family if such award would best serve the paramount interest of the child. The court may either designate: 1. Paternal or maternal grandparents of the child 2. Oldest brother or sister 3. Some reputable and discreet persons to take charge of such child 4. Commit to any suitable asylum, children’s home, or benevolent society Decisions of the courts, even the Supreme Court, on the custody of minor children are always open to adjustments as the circumstances relevant to the matter may demand in the light of the paramount interest of the children

In case of death, absence or unsuitability of the parents, substitute parental authority shall be exercised by the surviving grandparent. In case several survive, the one designated by the court, taking into account the same consideration mentioned in the preceding article, shall exercise the authority. •

In the absence or incapacity of the parents, the grandparents are the most natural, suitable and logical persons to exercise parentally authority

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• Article 215

Grandparents have the legal preference in the matter of substitute parental authority

No descendant shall be compelled, in a criminal case, to testify against his parents and grandparents, except when such testimony is indispensable in a crime, against the descendant or by one parent against the other. • •

The reason for the privilege is to foster family unity and tranquility, which is solely addressed to the descendant-witness No descendant shall be compelled, in a criminal case, to testify against his parents and grandparents

SUBSTITUTE PARENTAL AUTHORITY Article 216 . In default of parents or a judicially appointed guardian, the following persons shall exercise substitute parental authority over the child in the order indicated: 1) The surviving grandparent, as provided in Article 214; 2) The oldest brother or sister, over twenty one years of age, unless unfit or disqualified; and 3) The child’s actual custodian, over twentyone years of age, unless unfit or disqualified. Whenever the appointment of a judicial guardian over the property of the child becomes necessary, the same order of preference shall be observed • • • •

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Article 217

They shall have all the rights of the parents enumerated in Article 220. The person exercising substitute parental authority shall have the same authority over the person of the child as the parents (Article 233). Shall be civilly liable for the injuries and damages caused by the acts or omissions of the unemancipated children living in their company and under their parental authority. Even if the unemancipated child is adopted or a stranger to the one with parental authority, the one who has actual custody of the said child may be held liable for all injuries and damagaes which the said child had caused. In taking care of the child, the one exercising substitute parental authority shall not inherit from the said child upon the latter’s death o Because he or she is not an heir at all. The paramount interest of the child is the basis of custody and care. o Hence if the brothers or sisters are more qualified than the grandparents then substitute parental authority should be granted to the brothers or sisters. o However the order must, as much as possible, be observed especially if all are equally fit to take care of the children.

In case of foundlings, abandoned, neglected or abused children and other children similarly situated, parental authority shall be entrusted in summary judicial proceedings to heads of children’s homes, orphanages and similar institutions duly accredited by the proper government agency. •

Unfortunate Children: o 1. Foundling – is a newborn child abandoned by its parents who are unknown o Abandoned child – one who has no proper parental care or guardianship, or whose parents or guardian have deserted him for a period of at least 6 continuous months o 2. Neglected child – is one whose basic needs have been deliberately unattended or inadequately attended ! a. Physical neglect – when child is malnourished, ill clad and without proper shelter. A child is unattended when left by himself without procisions for his needs and/or without proper supervision. ! b. Emotional neglect – exists when children are maltreated, raped or seduced when children are exploited, overworked or made to work under conditions not conducive to good health; or made to beg in the streets or public places, or when children are in moral danger, or exposed to gambling, prostitution or other vices. o 3. Abused child – can come within the SECOND KIND OF NEGLECT o 4. Dependent Child – one who is without a parent, guardian or custodian; or one whose

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ART. 218

ART. 219

parent, guardian or other custodian for good cause desires to be relieved of his and custody. And is dependent upon the public for support. CHILD WELFARE AGENCY o No private person, natural or juridical shall establish temporarily or permanently, any child welfare agency without first securing a license from Department of Social Welfare and Development. ! License shall not be transferrable. ! No license shall be granted unless the purpose or function of the agency is clearly defined and stated in writing. • shall include the geographical area to be served, the children to be accepted for care and the services to be provided (Article 118, PD 603). • The protection and best interests of the child or children therein shall be the first and basic consideration in the granting, suspension or revocation of the license (Article 119, PD 603). Parental authority over such children shall be entrusted in a SUMMARY PROCEEDING to heads of children’s homes, orphanages and similar institutions duly accredited by the proper government agency. Transfer of legal and parental authority over the child can be done in two ways, namely, involuntary or voluntary. o Involuntary – DSWD, or any duly licensed child-placement agency having knowledge of a child who appears to be dependent, abandoned or neglected, may file a verified petition to the proper court for involuntary commitment of said child to the care of any duly licensed child-placement agency. ! After due hearing and upon the order of the court, the parents or guardians shall exercise no authority over the child expect upon such conditions as the court may impose. ! DSWD will be responsible for support. o Voluntary – the parents or guardian may voluntarily commit the child to DSWD or childwelfare agency or individual ! No child shall be committed UNLESS HE IS SURRENDERED IN WRITING by his parents or guardians to the care and custody of the DSWD. ! In case of death or legal incapacity of either parent or abandonment of the child for a period of at least one year, the other parent alone shall have the authority to make the commitment. ! Once transferred to DSWD, the parents’ authority shall cease.

The school, its administrators and teachers, or the individual, entity or institution engaged in child care shall have special parental authority and responsibility over the minor child while under their supervision, instruction or custody. Authority and responsibility shall apply to all authorized activities whether inside or outside the premises of the school, entity or institution. Those given the authority and responsibility under the preceding Article shall be principally and solidarily liable for damages caused by the acts or omissions of the unemancipated minor. The parents, judicial guardians or the persons exercising substitute parental authority over said minor shall be subsidiarily liable. The respective liabilities of those referred to in the preceding paragraph shall not apply if it is proved that they exercised the proper diligence required under the particular circumstances. All other cases not covered by this and the preceding articles shall be governed by the provisions of the Civil Code on quasi-delicts. ! Special parental authority " School, administrators and teachers or the individual, entity or institution engaged in child care ! S.P.A. can be exercised only over minors while under their supervision, instruction or custody. ! The authority and supervision also attach to all authorize activities whether inside or outside school. ! They are civilly laible for acts and omissions of the unemancipated minor. o However, the liablities shall NOT APPLY if it is proved that they exercised proper DUE Diligence required under the particular circumstances. o The teacher must be the teacher-in-charge. He or she is the one designated by the dean, principal or other administrative superior to exercise supervision over the pupils in the specific classes or sections to which he or she is assigned and thus is the one immediately involved in the students’ discipline as he or she has direct control and influence over

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them. LIABILITY OF PARENTS OR PERSONS EXERCISING SUBSTITUTE PARENTAL AUTHORITY. o Parents, judicial guardians or the persons exercising parental authority over the minor shall be subsidiarily liable. o The liability is subsidiary because, while in school or in an institution engaged in child care, the said persons do not have the direct custody of their children. They shall be liable only if the persons with special parental authority cannot satisfy their liability. Quasi-delict o The “teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices so long as they remain in their custody.’’ o Liability shall attach only upon a clear showing of negligence or laxness in the enforcement of discipline. o This article applies if the students, pupils or apprentices are not anymore minor children. o A teacher, who must be a teacher-in-charge, will be liable for damages committed by his or her students or pupils in an academic institution of learning. o Heads of establishments of arts and trades, which are non-academic institution but technical or vocational ones, shall be liable for damages caused by their apprentices. These heads must likewise have direct control and influence over their apprentices. o While the school itself cannot be held liable under Article 2180, it can nevertheless be held liable under the principle of respondeat superior considering that it is the employer of the liable teacher or the head. ! In any event, the school, the teacher of an academic institution, and the head of establishment of arts and trades (nonacademic) may exculpate themselves from liability upon showing that they had taken the necessary precautions to prevent the injury complained of

EFFECT OF PARENTAL AUTHORITY UPON THE PERSONS OF THE CHILDREN Article 220

The parents and those exercising parental authority shall have with respect to their unemancipated children or wards the following rights and duties: 1) To keep them in their company, to support, educate and instruct them by right precept and good example, and to provide for their upbringing in keeping with their means; 2) To give them love and affection, advice and counsel, companionship and understanding; 3) To provide them with moral and spiritual guidance, inculcate in them honesty, integrity, self discipline, self-reliance, industry and thrift, stimulate their interest in civic affairs, and inspire in them compliance with the duties of citizenship; 4) To enhance, protect, preserve and maintain their physical and mental health at all times; 5) To furnish them with good and wholesome educational materials, supervise their activities, recreation and association with others, protect them from bad company, and prevent them from acquiring habits detrimental to their health, studies and morals; 6) To represent them in all matters affecting their interests; 7) To demand from them respect and obedience; 8) To impose discipline on them as may be required under the circumstances; and 9) To perform such other duties as are imposed by law upon parents and guardians ! Presumption that parents posses what a child lacks – maturity, experience and capacity for judgment. ! The parents are recognized as natural guardians of the child. However, it is said that the natural rights of a father (and, for that matter, of the mother) are recognized in law not as guardian, but as father (as mother), and that such rights are greater than those, which any guardian can have. o The relationship between the parents and their minor children naturally gives rise to various rights and obligations affecting the welfare of, and the parents’ control over, the child. Some of these are recognized in law. o Every parent and every person holding substitute parental authority shall see to it that the rights of the child are respected and his duties complied with, and shall particularly, by precept and example, imbue the child with high-mindedness, love for country, veneration for the national heroes, fidelity to democracy as a way of life, and attachment to the ideal

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Article 221

Article 222

of permanent world peace. ! Duties of parents " Child and Youth Welfare Act ! In cases involving child discipline, the child shall be given a chance to present his side. ! The parents shall see to tit that the child lives in a safe and wholesome place and under responsible adult care and supervision. ! The Parents shall have the DUTY TO REPRESENT their unemancipated children. ! DISCIPLINE o Children shall always observe respect and reverence toward their parents and are obliged to obey them as long as the children are under their parental authority o Parents have the right to demand form the children respect and obedience and to impose discipline on them as they may be required o Parents may inflict A REASONABLE MEASURE OF CORPORAL PUNISHMENT. ! Delinquent behavior does not carry with the termination of support from the parents. ! The child’s right to support, the parents right to custody and services are reciprocal ! RIGHTS OF CHILDREN: Article 356of the Civil Code of 1950 still effectively provides that every child: o (1) is entitled to parental care; o (2) shall receive at least elementary education; o (3) shall be given moral and civic training by the parents or guardian; and o (4) has a right to live in an atmosphere conducive to his physical, moral and intellectual development. PD 603: Child and Youth Welfare Code Parents and other persons exercising parental authority shall be civilly liable for the injuries and damages caused by the acts or omissions of their unemancipated children living in their company and under their parental authority subject to the appropriate defenses provided by law. • The parents are principally and primarily liable for acts or omissions of their unemancipated children resulting in injuries to others o However, for liability on the part of the parents to attach, the unemancipated child must be living in their company and under their parental authority. ! vicarious liability, or the doctrine of “imputed negligence” • Responsibility for the negligence of those persons whose acts or omissions are imputable, by legal fiction, to others who are in a position to exercise an absolute or limited control over them o The civil law assumes that when an unemancipated child living with its parents commits a tortiuous act, the parents were negligent in the performance of their legal and natural duty closely to supervise the child who is in their custody and control. Parental liability is, in other words, anchored upon parental authority coupled with presumed parental dereliction in the discharge of the duties accompanying such authority. o the adoption decree shall be effective as of the date of the filing of the petition, cannot apply in issues of vicarious liability of parents which can only attach if, at the time of the incident, the child were under their custody and parental authority o the natural parents should still be held liable and not the adopting parents • POSSIBLE DEFENSE o DILIGENCE OF A GOOD FATHER OF A FAMILY. To be able to remove themselves from liability under Article 221, the parents must show that they exercised the diligence of a good father of a family o The diligence of a good father of a family required by law in a parent and child relationship consists, to a large extent, of the instruction and supervision of the child The courts may appoint a guardian of the child’s property, or a guardian ad litem when the best interests of the child so require. • A guardianship is a trust relation of the most sacred character, in which one person, called a “guardian,” acts for another, called the “ward,” whom the law regards as incapable of managing his own affairs. • Guardians ad litem are considered officers of the court in a limited sense, and the office of such guardian is to represent the interest or the incompetent or the minor. • GUARDIAN – WARD RELATIONSHIP: Guardianship, therefore, has been said to be a trust of the highest and most sacred character. The law looks on the guardian as a trustee, and as such, he cannot be allowed by law to have any inducement to neglect his ward’s interest.

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•

Chapter 4

Appointment of a guardian ad litem is addressed to the sound discretion of the court and designed to assist the court in the determination of the best interest of the child.

Effect of Parental Authority Upon The Property of The Children The father and the mother shall jointly exercise legal guardianship over the property of their unemancipated common child without the necessity of a court appointment. In case of disagreement, the father’s decision shall prevail, unless there is a judicial order to the contrary. Where the market value of the property or the annual income of the child exceeds P50,000, the parent concerned shall be required to furnish a bond in such amount as the court may determine, but not less than ten per centum (10%) of the value of the property or annual income, to guarantee the performance of the obligations prescribed for general guardians. A verified petition for approval of the bond shall be filed in the proper court of the place where the child resides, or, if the child resides in a foreign country, in the proper court of the place where the property or any part thereof is situated. The petition shall be docketed as a summary special proceeding in which all incidents and issues regarding the performance of the obligations referred to in the second paragraph of this Article shall be heard and resolved. All such incidents and issues shall be decided in an expeditious and inexpensive manner without regard to technical rules. The ordinary rules on guardianship shall be merely suppletory except when the child is under substitute parental authority, or the guardian is a stranger, or a parent has remarried, in which case the ordinary rules on guardianship shall apply. (320a) Notes: Legal Guardian -No more need for a judicial court order appointing the parents as guardians. They are guardians ipso jure of the child's property regardless of the value of the property of the child. In case of disagreement the father's decision prevails without prejudice to the mother's right to go to court to question such decision. Prohibition Two cases where a parent cannot be the administrator of the property of his or her children 1) Art. 923 - Children and descendants of the person disinherited shall take his or her place and shall preserve the rights of compulsory heirs with respect to the legitime, but the disinherited parent shall not have the usufruct or administration of the property which constitutes the legitime. Ex. A has a legitimate son B who in tuen has a legitimate son C. A executed a will where he validly disinherited B and bequeathed all his properties to C. At the time of the death of A, his net estate is P100,000. Considering that C is the only heir who can inherit, he will inherit all of the P100,000. According to Article 888 of the Civil Code, the legitime of C shall be one-half of the estate of the deceased. Hence C's legitime is P50,000. The other half P50,000 shall be the free portion. Considering that A bequeathed all his property to C, C will inherit P50,00 as his legitime in his capacity as a compulsory heir and the other P50,000 in his capacity as an instituted voluntary heir in A's will. According to Article 923 of the Civil Code, V cannot administer the P50,000 constituting the legitime. However, B can administer the other P50,000 constituting C's inheritance as a voluntary heir. 2) Article 1035 - If the person excluded from the inheritance by reason of incapacity should be a child or descdant of the decedent and should have children or descendants, the latter shall acquire his right to the legitime.

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The person so excluded shall not enjoy the usufruct and administration of the property thus inherited by his children. Ex. A has a legitimate son B who, in turn, has legitimate children C and D. B groundlessly accused A of murder which accusation made B incapacitated to succeed due to unworthiness as provided for in Article 1032(3) of the Civil Code. At the time of the death of A, his net estate is P100,000. Considering that C and D are the only heirs who can inherit, they will inherit all of the P100,000. Since there is no last will and testament, they shall divide the P100,000 equally as their inheritance in accordance with Article 979 of the Civil Code. P50,000 will go to C and the other P50,000 will go to D. According to the second paragraph of Article 1035, B will not enjoy the usufruct and administration of the said amounts respectively inherited by C and D. BOND The law “speaks of the market value of the property or the annual income of the child, which means, therefore, the aggregate of the child’s property or annual income; if this exceeds P50,000.00 a bond is required.” Any act done without or before the giving of the bond is a nullity. Where the natural guardian is empowered to take possession of and administer on the assets of his ward upon giving bond, the giving of the required bond is a prerequisite to this right to exercise such power The purpose of the bond is to guarantee the performance of the obligations prescribed for general guardians. CASE: Jocson v. Empire Insurance Co. - where the bond of the guardian-father was sought to be forfeited on the ground that, although he had court approval to use some of the money, which the children inherited from their mother, for the children’s clothing and education, such expenditure was illegal because support cannot be taken from the property of the children but from the guardian father’s own property considering that, according to the law, parents were obliged to support their children, the Supreme Court held that, since support was dependent also on the need of the recipient and that, for payment thereof, demand was a necessary requisite and considering that there was no demand, the use of the children’s money by the guardian-father to buy them clothes and pay their education, which was made with court approval, was valid and therefore the bond cannot be forfeited. “Furthermore,” the Supreme Court said, “the claim for support should be enforced in a separate action and not in these guardianship proceedings.” Alienation and Encumbrance The parent’s authority over the estate of the ward as a legal guardian would not extend to acts of encumbrance or disposition, as distinguished from acts of management or administration. An abdicative waiver of rights by a guardian is an act of disposition. It cannot bind his ward, being null and void as to the ward unless duly authorized by the proper court. Thus, a parent guardian cannot waive the rights of his or her children over property inherited from the father. A parent has no power to compromise their children’s claims, for a compromise has always been deemed equivalent to an alienation, and is an act of strict ownership that goes beyond mere administration

Art. 226

Guardianship Proceeding If the guardian are the parents, the rules on guardianship are merely suppletory but if the child is under substitute parental authority, or the guardian is a stranger, or a parent has remarried, the ordinary rules on guardianship shall apply. The property of the unemancipated child earned or acquired with his work or industry or by onerous or gratuitous title shall belong to the child in ownership and shall be devoted exclusively to the latter’s support and education, unless the title or transfer provides otherwise. The right of the parents over the fruits and income of the child’s property shall be limited primarily

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to the child’s support and secondarily to the collective daily needs of the family. (321a, 323a)

Art. 227

Art . 228

Notes: Ownership of The Child's Property Being a part of a family which the state seeks to strengthen, if the child’s property is more than sufficient to maintain the said child, the said properties may be used to defray the collective daily needs of the family. It must likewise be emphasized that a child is obliged to support his or her parents in accordance with Article 195 of the Family Code and from his or her separate property can be taken the support to be given to the parents if the same needs it and if the child can afford it. If the parents entrust the management or administration of any of their properties to an unemancipated child, the net proceeds of such property shall belong to the owner. The child shall be given a reasonable monthly allowance in an amount not less than that which the owner would have paid if the administrator were a stranger, unless the owner, grants the entire proceeds to the child. In any case, the proceeds thus given in whole or in part shall not be charged to the child’s legitime. (322a) Notes: The words "in whole" refer to the "entire proceeds" while the words "in part" refer to the "allowance." Parental authority terminates permanently: (1) Upon the death of the parents; (2) Upon the death of the child; or (3) Upon emancipation of the child. (327a) Notes: Emancipation attained at age of majority - 18 years. The adult would then be qualified to do all acts of civil life save for exceptions established by existing laws in special cases.

Art. 228

Effect of Article 228 This article contemplates a situation where the events happen with no fault on the part of the parents. Unless subsequently revived by a final judgment, parental authority also terminates: (1) Upon adoption of the child; (2) Upon appointment of a general guardian; (3) Upon judicial declaration of abandonment of the child in a case filed for the purpose; (4) Upon final judgment of a competent court divesting the party concerned of parental authority; or (5) Upon judicial declaration of absence or incapacity of the person exercising parental authority. (327a) Notes: Effect of Article 229 The terminations enumerated in this article are not permanent as parental authority can be revived by court order. The revival is allowed because the ground enumerated in Art. 229 generally are events without the fault of the parents or with the fault of the parents but without malice. Judicial Termination of Parental Authority Termination of Parental Authority can only be allowed on the basis of legal grounds provided by law. Adoption Except in cases where the biological parent is the spouse of the adopter, all legal ties between the biological parent(s) and the adoptee shall be severed and the same shall then be vested on the adopter(s) upon the finality of a judicial adoption decree. In case the adoption decree is rescinded, such rescission of the adoption shall extinguish all reciprocal rights and obligations between the adopters and the adopted arising from the relationship of parent and child. Upon rescission, the parental authority of the adoptee’s biological parent(s), if known, or the legal custody of the Department of Social Welfare and Development if the adoptee is still a minor or incapacitated shall be restored

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Judicial Declaration of Abandonment Abandonment imports any conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child. It means neglect or refusal to perform the natural and legal obligations of care and support which parents owe to their children. This particular ground refers to a judicial decision arising from a case precisely filed for the declaration of abandonment. This is the meaning of the phrase “a case filed for the purpose.” Divestment by Final Court Judgment The court may divest the parents of their parental authority over their children if the welfare of the children demands.

Art. 230

Judicial Declaration of Absence or Incapacity Parental authority cannot be expected from an absentee or one who is incapacitated. Parental authority is suspended upon conviction of the parent or the person exercising the same of a crime which carries with it the penalty of civil interdiction. The authority is automatically reinstated upon service of the penalty or upon pardon or amnesty of the offender. (330a) Notes: Civil Interdiction Civil interdiction is an accessory penalty imposed on an accused found guilty of certain crimes. It involves the deprivation of the offender during the time of his or her sentence of the rights of parental authority, or guardianship, either as to the person or property of any ward, of marital authority, of the right to manage his property and of the right to dispose of such property by any act or conveyance inter vivos.

Art. 231

Parental Authority automatically resumes when civil interdiction ceases without need of a court order. The court in an action filed for the purpose or in a related case may also suspend parental authority if the parent or the person exercising the same: (1) Treats the child with excessive harshness or cruelty; (2) Gives the child corrupting orders, counsel or example; (3) Compels the child to beg; or (4) Subjects the child or allows him to be subjected to acts of lasciviousness. The grounds enumerated above are deemed to include cases which have resulted from culpable negligence of the parent or the person exercising parental authority. If the degree of seriousness so warrants, or the welfare of the child so demands, the court shall deprive the guilty party of parental authority or adopt such other measures as may be proper under the circumstances. The suspension or deprivation may be revoked and the parental authority revived in a case filed for the purpose or in the same proceeding if the court finds that the cause therefore has ceased and will not be repeated. (332a) Notes: Excessive Harshness or Cruelty While parents have the duty to discipline their children which authorizes them to inflict some form of corporal punishment, the same should not be excessive. Corrupting orders, counsel or example If the parents themselves are the ones who teach the children how to steal, rob, lie, hurt people and other negative traits, suspension or, in case of grave acts, termination of parental authority is but proper considering that by their actions they show their unfi tness to provide the children with the upbringing that is due them under the law. Culpable Negligence

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The grounds enumerated in Article 231 are deemed to include cases which have resulted from culpable negligence of the parent or the person exercising parental authority. For example, if a stepfather forces his stepson to beg and the mother acts indifferently or does not care about such act of the stepfather, she can be considered culpably negligent, warranting the suspension of parental authority.

Art. 232

Suspension, Deprivation Revival The grounds under Article 231 are grounds to suspend parental authority. However, Article 231 also provides that, if the ground under the said article exists and if the degree of seriousness so warrants, or the welfare of the child so demands, the court shall deprive the guilty party of parental authority or adopt such other measures as may be proper under the circumstances. Like Article 229, the suspension or deprivation may be revoked and the parental authority revived in a case filed for the purpose or in the same proceeding if the court finds that the cause therefore has ceased and will not be repeated. If the person exercising parental authority has subjected the child or allowed him to be subjected to sexual abuse, such person shall be permanently deprived by the court of such authority. (n). Notes: IMPORTANT NOTE If such perverse ground as sexual abuse occurs parents are PERMANENTLY deprived of their parental authority over their children. Such authority can no longer be revived. CASES It has been held that where a 10-year-old girl was sexually molested by her adoptive father and the natural mother was aware of her husband’s behavior and failed to take steps to prevent the abuse and where it was shown that, though the mother indicated that she was separating from her abusive husband and though she actually separated from him but returned less than one month after with the abused child to live again with the adoptive father, a court order terminating the parental rights of the mother was justified. Also, in the case of Re Armentrout, 58 ALR 3d 1065, where the evidence clearly showed that two minor children were sexually molested by their stepfather who was consequently convicted of statutory rape as to one of the minor children, but the mother consistently refused to believe the stepfather’s guilt despite the conviction and categorically manifested that she wanted to continue the marriage with the molesting stepfather and would bring the same back into the home when and if he were released regardless of the consequences, a court order permanently severing parental rights of the mother was considered proper as she fails, neglects and/or refuses to appreciate the potential jeopardy into which the little girls would be placed and the attending apprehension and probable ultimate harm on them.”

Art. 233

Grounds for terminating Parental Authority under the RPC Article 278 of the Revised Penal Code provides, among others, that it is unlawful for any ascendant, guardian, teacher or person entrusted in any capacity with the care of a child under sixteen years of age to deliver, either gratuitously or in consideration of any price, compensation or promise, such child to any habitual vagrant or beggar, or to any person who, being an acrobat, gymnast, rope-walker, diver, wild animal tamer or circus manager or engaged in a similar calling who employs said children in exhibitions. In case it is the parents who entrust such child, he or she may be deprived, temporarily or perpetually, in the discretion of the court, of their parental authority and they shall be punished by the penalty of prision correccional in its minimum and medium periods and a fi ne not exceeding P500. The person exercising substitute parental authority shall have the same authority over the person of the child as the parents. In no case shall the school administrator, teacher or individual engaged in child care exercising special parental authority inflict corporal punishment upon the child. (n) Notes: Corporal Punishment It must be noted that only persons exercising special parental authority cannot inflict corporal punishment. Parents and persons exercising substitute parental authority can inflict corporal punishment. CASE While a teacher may be administratively or civilly liable in the event that he or she inflicts corporal

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punishment to a student, it has been held that where there was no criminal intent on the part of the teacher who angrily and repeatedly whipped a student resulting in slight physical injuries to the said student and where the purpose of the teacher was to discipline a student, the said teacher cannot be held feloniously liable for the criminal offense of slight physical injuries (Bagajo v. Marave, 86 SCRA 389). Please refer to the Group Report on RA 7610 for the rest of the details on this article. Title X. - Funerals Article 305

The duty and the right to make arrangements for the funeral of a relative shall be in accordance with the order established for support, under Article 294. In case of descendants of the same degree, or of brothers and sisters, the oldest shall be preferred. In case of ascendants, the paternal shall have a better right. Order is now governed by Article 199 of the Family Code: 1. Spouse 2. Descendants in nearest degree 3. Ascendants in the nearest degree 4. Brothers and sisters

Article 306

Every funeral shall be in keeping with the social position of the deceased.

Article 307

The funeral shall be in accordance with the expressed wishes of the deceased. In the absence of such expression, his religious beliefs or affiliation shall determine the funeral rites. In case of doubt, the form of the funeral shall be decided upon by the person obliged to make arrangements for the same, after consulting the other members of the family. • • • •

The wishes of the deceased shall be mainly followed In the absence of such expression, his or her religious beliefs or affiliation shall determine the funeral rites In case of doubt, he form of the funeral shall be decided upon by the person obliged to make arrangements for the same, after consulting the other family members In all cases, law mandates that every funeral shall be in keeping with the social position of the deceased

Article 308

No human remains shall be retained, interred, disposed of or exhumed without the consent of the persons mentioned in Articles 294 and 305.

Article 309

Any person who allows disrespect to the dead, or wrongfully interferes with a funeral shall be liable to the family of the deceased for damages, material and moral. •

Article 310

The construction of a tombstone or mausoleum shall be deemed a part of the funeral expenses, and shall be chargeable to the conjugal partnership property, if the deceased is one of the spouses. •

Title XIII - Use of Surnames

Any undertaking that would, in a way, “disturb” the dead must be with the consent of those who will be greatly affected

If the deceased is married, the law provides that the tombstone or mausoleum be deemed part of the funeral expenses and chargeable to the conjugal partnership property

A person's name is defined as the word or combination of words by which a person is distinguished from other individuals and, also, as the label or appellation which he bears for the convenience of the world at large addressing him, or in speaking of or dealing with him. It is both of personal as well as public interest that every person must have a name. Two parts:

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1) Given or proper name -Name given to the individual at birth or at baptism, to distinguish him from other individuals -It may be freely selected by the parents for the child 2) Surname or Family Name -That which identifies the family to which he belongs and is continued from parent to child. -The surname to which the child is entitled is fixed by law. Characteristics of A Name: 1) Absolute, intended to protect the individual from being confused with others. 2) Obligatory in certain respects for nobody can be without a name 3) It is fixed, unchangeable, or immutable, at least at the start and maybe changed only for good cause and by judicial proceedings 4) It is outside the commerce of man, and therefore inalienable and intransmissible by act inter vivos or mortis causes 5) It is imprescriptible The significance of the middle name lies in the fact that it serves as an identification of a person's maternal lineage. It could further distinguish two people who have the same given name and surname. Art. 364

Legitimate and legitimated children shall principally use the surname of the father. Notes: In Alfon v. Republic the Supreme Court ruled that the word "principally" is not equivalent to "exclusively" so that there is no legal obstacle if a legitimate or legitimated child should choose to use the surname of the mother to which it is equally entitled.

Art. 365

An adopted child shall bear the surname of the adopter. Notes: Section 17, Article 5 of RA 8552 a.k.a. Domestic Adoption Act of 1998 -The adoptee shall be considered the legitimate son/daughter of the adopters for all intents and purposes and as such is entitled to all the rights and obligations provided by law to legitimate sons/daughters without discrimination of any kind and, to this end, the adoptee is entitled to love, guidance and support in keeping with the means of the family.

Art. 366

A natural child acknowledged by both parents shall principally use the surname of the father. If recognized by only one of the parents, a natural child shall employ the surname of the recognizing parent.

Art. 367

Natural children by legal fiction shall principally employ the surname of the father

Art. 368

Illegitimate children referred to in Article 287 shall bear the surname of the mother Notes: Under the family code there are only two classes of children viz. legitimate and illegitimate.

Art. 369

Children conceived before the decree annulling a voidable marriage shall principally use the surname of the father Notes: Remember that legitimate children are those conceived or born inside a valid marriage. An annullable marriage is valid until annulled or terminated. Hence, a child conceived inside a marriage prior to its annulment is legitimate.

Art. 370

A married woman may use: 1) Her maiden first name and surname and add her husband's surname, or 2) Her maiden first name and her husband's surname, or 3) Her husband's full name, but prefexing a word indicating that she is his wife, such as "Mrs."

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Notes: Art. 370 is directory and permissive in character because when a woman gets married, she does not change her name but only her civil status. A married woman can maintain her name and surname or follow any of the three aforementioned modifications. Thus a validly married woman has actually four alternatives in the use of a name. Ex. Corazon Cojuangco married to Benigno Aquino Jr. could use any of the ff: 1) Corazon Cojuangco (Maintaining her original name) 2) Corazon Cojuangco-Aquino (Following #1) 3) Corazon Aquino (Following #2) 4) Mrs. Benigno Aquino, Jr. (Following #3) IMPORTANT CASE: In Remo v. Honorable Secretary of Foreign Affairs The SC ruled that a married woman who opted to use the surname of her husband in her passport must continue to use it in case of renewal. She cannot revert to using her maiden surname because, pursuant to RA 8239 which is the law regulating the issuance of passports, a married woman who used the surname of her husband in initially obtaining a passport may only change her surname to her maiden surname only if the marriage were annulled nullified or the woman obtained a valid divorce abroad. The court ruled as such because RA 8239 is a more specific law than the Civil Code thus the former should prevail HOWEVER, it is submitted that the SC decision in the Remo case should have been the other way around. The court should not have been swayed more by statutory construction than by a rights-based perspective. Art. 370 deals with a substantive and fundamental right to the use of a surname by a woman. RA 8239 was merely a procedural rule. Art. 371

In case of annulment of marriage, and the wife is the guilty party, she shall resume her maiden name and surname. If she is the innocent spouse, she may resume her maiden name and surname. However, she may choose to continue employing her former husband’s surname, unless: (1) The court decrees otherwise, or (2) She or the former husband is married again to another person. Notes: Ex. If Maria Clara-De la Cruz's marriage to Juan De la Cruz is annulled and Maria is the guilty party then she must resume using Maria Clara (omitting the name of his former husband). If she is the innocent spouse she could choose either to keep using her husband's surname or revert back to her maiden surname unless the court decrees otherwise or unless she marries another man in which case she must again follow the guidelines set in Art. 370.

Art. 372

When legal separation has been granted, the wife shall continue using her name and surname employed before the legal separation. Notes: Remember that in legal separation the marriage bond is not severed thus the wife may use her name and surname employed before the legal separation in accordance with Art. 370 whatever that may be.

Art. 373

A widow may use the deceased husband’s surname as though he were still living, in accordance with Article 370.

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Art. 374

In case of identity of names and surnames, the younger person shall be obliged to use such additional name or surname as will avoid confusion. Note: If parents would want to name their son after his godfather who is not related to them, the said son must use an additional name or surname. Ex. Godfather: Juan de la Cruz Godson: Juan PEDRO de la Cruz

Art. 375

In case of identity of names and surnames between ascendants and descendants, the word “Junior” can be used only by a son. Grandsons and other direct male descendants shall either: (1) Add a middle name or the mother’s surname, or (2) Add the Roman numerals II, III, and so on. Note: Only the son can use the word "junior" in case of identity of names between ascendants and descendants. Any other direct descendant other than a son could either add a middle name or the mother's surname, or add the Roman numerals II, III, and so on.

Art. 376

No person can change his name or surname without judicial authority. Note: RA 9048 - This law lays down the procedure by which a person could correct a clerical or typographical error in an entry in the Civil Register without need of Judicial Order. The following are the substantive portions of the law: Section 1. Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname – No entry in a civil register shall be changed or corrected without a judicial order, except for clerical or typographical errors and change of first name or nickname which can be corrected or changed by the concerned city or municipal civil registrar or consul general in accordance with the provisions of this Act and its implementing rules and regulations. Section 3. Who May File the Petition and Where. – Any person having direct and personal interest in the correction of a clerical or typographical error in an entry and/or change of first name or nickname in the civil register may file, in person, a verified petition with the local civil registry office of the city or municipality where the record being sought to be corrected or changed is kept. In case the petitioner has already migrated to another place in the country and it would not be practical for such party, in terms of transportation expenses, time and effort to appear in person before the local civil registrar keeping the documents to be corrected or changed, the petition may be filed, in person, with the local civil registrar of the place where the interested party is presently residing or domiciled. The two (2) local civil registrars concerned will then communicate to facilitate the processing of the petition. Citizens of the Philippines who are presently residing or domiciled in foreign countries may file their petition, in person, with the nearest Philippine Consulates. The petitions filed with the city or municipal civil registrar or the consul general shall be processed in accordance with this Act and its implementing rules and regulations. All petitions for the clerical or typographical errors and/or change of first names or nicknames may be availed of only once. Section 4. Grounds for Change of First Name or Nickname. – The petition for change of first name or nickname may be allowed in any of the following cases: (1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce. (2) The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that by that first name or nickname in the community: or (3) The change will avoid confusion. Section 5. Form and Contents of the Petition. – The petition shall be in the form of an affidavit,

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subscribed and sworn to before any person authorized by the law to administer oaths. The affidavit shall set forth facts necessary to establish the merits of the petition and shall show affirmatively that the petitioner is competent to testify to the matters stated. The petitioner shall state the particular erroneous entry or entries, which are sought to be corrected and/or the change sought to be made. The petition shall be supported with the following documents: (1) A certified true machine copy of the certificate or of the page of the registry book containing the entry or entries sought to be corrected or changed. (2) At least two (2) public or private documents showing the correct entry or entries upon which the correction or change shall be based; and (3) Other documents which the petitioner or the city or municipal civil registrar or the consul general may consider relevant and necessary for the approval of the petition. In case of change of first name or nickname, the petition shall likewise be supported with the documents mentioned in the immediately preceding paragraph. In addition, the petition shall be published at least once a week for two (2) consecutive weeks in a newspaper of general circulation. Furthermore, the petitioner shall submit a certification from the appropriate law enforcement agencies that he has no pending case or no criminal record. The petition and its supporting papers shall be filed in three (3) copies to be distributed as follows: first copy to the concerned city or municipal civil registrar, or the consul general; second copy to the Office of the Civil Registrar General; and third copy to the petitioner. Section 7. Duties and Powers of the Civil Registrar General. – The civil registrar general shall, within ten (10) working days from receipt of the decision granting a petition, exercise the power to impugn such decision by way of an objection based on the following grounds: (1) The error is not clerical or typographical; (2) The correction of an entry or entries in the civil register is substantial or controversial as it affects the civil status of a person; or (3) The basis used in changing the first name or nickname of a person does not fall under Section 4. The civil registrar general shall immediately notify the city or municipal civil registrar or the consul general of the action taken on the decision. Upon receipt of the notice thereof, the city or municipal civil registrar or the consul general shall notify the petitioner of such action. The petitioner may seek reconsideration with the civil registrar general or file the appropriate petition with the proper court. If the civil registrar general fails to exercise his power to impugn the decision of the city or municipal civil registrar or of the consul general within the period prescribed herein, such decision shall become final and executory. Where the petition is denied by the city or municipal civil registrar or the consul general, the petitioner may either appeal the decision to the civil registrar general or file the appropriate petition with the proper court. Notes: A change of name is considered as a privilege not a substantive right. Thus any change must have a proper or reasonable cause or any compelling reason to justify such change. A change of surname is however, a matter of judicial discretion which must be exercised in the light of the reasons adduced and the consequences that will likely follow. The purpose of the law in allowing a change of name or surname is to give a person an opportunity to improve his or her personality and to promote his or her best interest. The following have been held to constitute proper and reasonable causes or compelling reasons for change of surname: 1) A Ridiculous name, a name tainted with dishonor, or a name extremely difficult to write or pronounce 2) A Change of Civil Status and 3) A need to avoid confusion 4) Sincere desire to adopt a Filipino name to erase signs of a former alien nationality which unduly hamper social and business life CASES:

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Recall Silverio v. Republic where the SC held that a male person who had surgical sexual reassignment where she became biologically a woman cannot use that ground as reason to change his name as a person's sex is immutable from birth. Recall Republic v. Cagandahan where the SC held that a change of name from "Jennifer" to "Jeff" was allowed even without surgical sexual reassignment in a case where the person was found to have Congenital Adrenal Hyperplasia which makes a person hermaphroditic. In a case where a divorced woman subsequently remarried and desired to have her child's surname changed to the surname of her second husband the SC ruled that such a change of name would be premature and may eventually be a cause of confusion in terms of the paternity of the child. However the court also said bearing in mind that the child was indeed a minor, "if the time comes, he may decide the matter for himself and take such action as our law may permit." In a subsequent case a change of surname of an illegitimate child was allowed by the SC when it was proven that it was for the best interest of the child since it eliminates what constitutes as a stigma of illegitimacy which the child would continue to bear if her surname is that of her legitimate father. Nature of Proceedings Judicial Proceeding in rem governed by Rule 103 of The Rules of Court which refers to change of "name." Because of RA 9048 however it (Rule 103) should now just refer to surname. It has been held that publication of the petition for change of name is essential for the court to acquire jurisdiction. Art. 377

Usurpation of a name and surname may be the subject of an action for damages and other relief.

Art.378

The unauthorized or unlawful use of another person’s surname gives a right of action to the latter. Notes: Tolentino v. Court of Appeals - where the current filed an action to prevent the former wife of her husband to use the surname of the said husband the SC ruled that there was no usurpation. The SC said, "The usurpation of name implies some injury to the interests of the owner of the name. It consists in the possibility of confusion of identity between the owner and the usurper."

Art. 379

The employment of pen names or stage names is permitted, provided it is done in good faith and there is no injury to third persons. Pen names and stage names cannot be usurped.

Art. 380

Except as provided in the preceding article, no person shall use different names and surnames. Notes: People using pen names and stage names can have a vested right on such names because the law also provides that it cannot be usurped.

PROVISIONAL MEASURES IN CASE OF ABSENCE Article 381 When a person disappears from his domicile, his whereabouts being unknown, and without leaving an agent to administer his property, the judge, at the instance of an interested party, a relative, or a friend, may appoint a person to represent him in all that may be necessary. This same rule shall be observed when under similar circumstances the power conferred by the absentee has expired. Article 382

The appointment referred to in the preceding article having been made, the judge shall take the necessary measures to safeguard the rights and interests of the absentee and shall specify the powers, obligations and remuneration of his representative, regulating them, according to the circumstances, by the rules concerning guardians.

Article 383

In the appointment of a representative, the spouse present shall be preferred when there is no legal separation. If the absentee left no spouse, or if the spouse present is a minor, any competent person may be appointed by the court.

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DECLARATION OF ABSENCE Article 384

Article 385

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COURT APPOINTMENT. It is necessary that the appointment of a representative of an absentee be made by way of a court order and it must be noted that a spouse must likewise fi le an application for appointment with the courts with respect to the properties of his or her very own absent spouse. If there is no legal separation, the spouse present shall be preferred. The phrase “or if the spouse present is a minor” in the second paragraph of Article 383 has already been repealed by Republic Act No. 6809 which lowered the age of emancipation to 18 years of age.

Two years having elapsed without any news about the absentee or since the receipt of the last news, and fi ve years in case the absentee has left a person in charge of the administration of his property, his absence may be declared. (184) The following may ask for the declaration of absence: (1) The spouse present; (2) The heirs instituted in a will, who may present an authentic copy of the same; (3) The relatives who may succeed by the law of intestacy; (4) Those who may have over the property of the absentee some right subordinated to the condition of his death. (185)

Article 386

The judicial declaration of absence shall not take effect until six months after its publication in a newspaper of general circulation. (186a)

JUDICIAL DECLARATION OF ABSENCE: o A judicial declaration of absence is necessary for interested persons to be able to protect their rights, interests and benefits in connection with the person who has disappeared. • SPOUSE o a sufficient cause for an involuntary judicial separation of property between spouses under Article 135 of the Family Code and, therefore, a basis for the termination of the absolute community property or the conjugal partnership of gains pursuant to Articles 99, 126, 134 to 138 of the Family Code; o a ground for the transfer of all classes of exclusive properties of a spouse to his or her other spouse under Article 142 of the Family Code; and a basis that can be used for the termination of parental authority under Article 229 of the FamilyCode. • TESTAMENTARY HEIRS. If a person executes a will and he institutes another person as the one who will succeed him or her in his or her property, such person can seek for the judicial declaration of absence of the testator. • INTESTATE HEIRS: The legitimate and illegitimate relatives of the deceased, the spouse, and the collateral relatives are the intestate heirs • INTERESTED PARTIES: The law also provides that those who may have over the property of the absentee some right subordinated to the condition of the absentee’s death may seek the judicial declaration of absence. • EFFECTIVITY: The law provides that the judicial declaration of absence shall not take effect until six months after its publication in a newspaper of general circulation. o However, the absence of the absentee shall be counted not from the effectivity of the judicial decree but from the date on which the last news of the absentee was received ADMINISTRATION OF THE PROPERTY OF THE ABSENTEE Article 387 An administrator of the absentee’s property shall be appointed in accordance with Article 383. •

388. Article 387

Theadministrator wife who is appointed as an administratrix ofbe theappointed husband’sinproperty cannot An of the absentee’s property shall accordance withalienate Article or encumber the husband’s property, or that of the conjugal partnership, without judicial 383. authority.

Article 388.

The wife who is appointed as an administratrix of the husband’s property cannot alienate

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PROHIBITION ON ALIENATION. While Article 388 refers only to the wife, a husband likewise is prohibited from alienating the properties of the wife without her consent. The administration shall cease in any of the following cases: •

Article 389

(1) When the absentee appears personally or by means of an agent; (2) When the death of the absentee is proved and his testate or intestate heirs appear; (3) When a third person appears, showing by a proper document that he has acquired the absentee’s property by purchase or other title. In these cases, the administrator shall cease in the performance of his offi ce, and the property shall be at the disposal of those who may have a right thereto. (190) • APPEARANCE OF ABSENTEE: The purpose of appointing an administrator is to protect the properties of the owner during his or her absence. If the owner appears, the very reason for the administrator’s appointment ceases. The owner must be allowed to take care of his or her own property. • DEATH. Upon the death of a person, the executor mentioned in his or her will shall usually be appointed as the administrator of his or her estate in accordance with the said decedent’s wishes which must be pursuant to law. • SUPERIOR INTEREST. The administrator must always act within his or her mandate and authority. An administrator has no right to administer property which does not belong to the owner. Hence, if somebody presents any valid or authentic document showing that the property being administered really belongs to somebody else, the administration over such property shall and must necessarily cease. PRESUMPTION OF DEATH Article 390

Article 391

After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession. The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-fi ve years, an absence of five years shall be sufficient in order that his succession may be opened. (n) The following shall be presumed dead for all purposes, including the division of the estate among the heirs: (1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane; (2) A person in the armed forces who has taken part in war, and has been missing for four years; (3) A person who has been in danger of death under other circumstances and his existence has not been known for four years.

Article 392

If the absentee appears, or without appearing his existence is proved, he shall recover his property in the condition in which it may be found, and the price of any property that may have been alienated or the property acquired therewith; but he cannot claim either fruits or rents. • ABSENCE: The word “absence” in the rule that a presumption of death is raised by the “absence” of a person from his domicile when unheard of for seven years, means that a person is not at the place of his domicile and his actual residence is unknown, and it is for this reason that his existence is doubtful, and that, after seven years of such absence, his death is presumed. But removal alone is not enough • PRESUMPTION OF DEATH: This presumption may arise and be invoked and made in a case, either in an action or in a special proceeding, which is tried or heard by, and submitted for decision to, a competent court. Neither is there a prayer for the final determination of his right or status or for the ascertainment of a particular fact • PERIOD: For purposes of remarriage under Article 41 of the Family Code, four consecutive years is enough for a person to be judicially declared presumptively dead. For other purposes, there is no need of a judicial declaration but the required period for one to be presumed dead is seven years except for the opening succession. In the latter case, an absence of 10 years is mandated by law except when the person disappeared after the age of seventy-five years in which

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ABSENCE: The word “absence” in the rule that a presumption of death is raised by the “absence” of a person from his domicile when unheard of for seven years, means that a person is not at the place of his domicile and his actual residence is unknown, and it is for this reason that his existence is doubtful, and that, after seven years of such absence, his death is presumed. But removal alone is not enough PRESUMPTION OF DEATH: This presumption may arise and be invoked and made in a case, either in an action or in a special proceeding, which is tried or heard by, and submitted for decision to, a competent court. Neither is there a prayer for the final determination of his right or status or for the ascertainment of a particular fact PERIOD: For purposes of remarriage under Article 41 of the Family Code, four consecutive years is enough for a person to be judicially declared presumptively dead. For other purposes, there is no need of a judicial declaration but the required period for one to be presumed dead is seven years except for the opening succession. In the latter case, an absence of 10 years is mandated by law except when the person disappeared after the age of seventy-five years in which case an absence of five years is enough. In these cases, the person shall be presumed dead at the end of the seven-year period.

EFFECT OF ABSENCE UPON THE CONTINGENT RIGHTS OF THE ABSENTEE Article 393 Whoever claims a right pertaining to a person whose existence is not recognized must prove that he was living at the time his existence was necessary in order to acquire said right. •

Article 394.

Without prejudice to the provisions of the preceding article, upon the opening of a succession to which an absentee is called, his share shall accrue to his co-heirs, unless he has heirs, assigns, or a representative. They shall all, as the case be, make an inventory of the property may. •

ART. 395

PROOF OF EXISTENCE. If a person is known to be dead and there is a controversy as to the validity of a transaction or contract allegedly entered into by him, the person claiming the validity of the transaction, contract or obligation must prove that, at the time it was entered into, the person who entered the contract or incurred the obligation was alive.

ACCRETION: The disposition of the inheritance of an absentee shall benefit either his or her co-heirs or his or her own heirs, assigns or representatives.

The provisions of the preceding article are understood to be without prejudice to the action or petition for inheritance or other rights which are vested in the absentee, his representatives or successors in interest. This right shall not be extinguished save by lapse of time fixed for prescription. In the record that is made in the Registry of the real estate which accrues to the co-heirs, the circumstance of its being subject to the provisions of this article shall be stated. CLAIM. In the event that the property supposed to be inherited by the absentee accrues to the co-heirs, the title or record of the said property in the proper registry of property shall have an annotation stating that, within the prescriptive period provided by law, the property can be subject to the claim of any person having an interest in the said property especially the absentee, or his or her representative or successors. Those who may have entered upon the inheritance shall appropriate the fruits received in good faith so long as the absentee does not appear, or while his representatives or successors do not bring the proper actions. •

Article 396

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APPROPRIATION OF FRUITS. Anyone who obtains the inheritance of the absentee in accordance with law can make use or appropriate the fruits of the inheritance as long as they are in good faith. However, if the absentee appears or his or her representatives or successors already filed a claim in court, those who may have entered upon the inheritance cannot anymore make such appropriation

• CIVIL REGISTRY Article 407 Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register.

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Article 408

Article 409

Article 410

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Duties of Local Civil Registrar (In each city or municipality) • File registerable certificates and documents presented to them for entry • Compile monthly • Prepare and send any information required by the civil registrar general • Issue certified transcripts or copies of any certificate or document registered, upon payment of the proper fees • Order the binding, properly classified, of all certificates or documents registered during the year • Send to the civil registrar-general = first 10 days of each month – copy of the entries made during previous month (for filing) • Index – to facilitate search and identification in case any information is required • Administer oaths, free of charge, for civil register purposes The following shall be entered in the civil register: 1. Births 2. Marriages 3. Deaths 4. Legal separations 5. Annulment of marriages 6. Judgments declaring marriages void from the beginning 7. Legitimations 8. Adoptions 9. Acknowledgments of natural children 10. Naturalization 11. Loss of citizenship 12. Recovery of citizenship 13. Civil interdiction 14. Judicial determination of filiation 15. Voluntary emancipation of a minor 16. Changes of name In cases of legal separation, adoption, naturalization and other judicial orders mentioned in the preceding article, it shall be the duty of the clerk of court which issued the decree to as- certain whether the same has been registered, and if this has not been done, to send a copy of said decree to the civil registry of the city or municipality where the court is functioning. The books making up the civil register and all documents relating thereto shall be considered public documents and shall be prima facie evidence of the facts therein contained. Public Documents • Books making up the civil registrar and all documents • Open to the public during office hours • Kept in a suitable safe o Furnished to the local civil registrar • Expense: general fund of municipality • LCR – not permit any document to be removed from office except by COURT ORDER • LCR may issue certified copies – upon payment of proper fees • Civil Register Law does not provide for a constructive notice to all persons for any document filed in the Office of the LCR/Civil Registrar General • Birth records o Strictly confidential o Cannot be revealed except when obtained by the following ! Person himself or any person authorized by him ! Spouse ! Parent or parents ! Direct descendants ! Guardian or institution legally in charge of him if minor ! Court or proper public official • Whenever absolutely necessary in administrative, judicial or other official proceedings to determine: o Identity of the child’s parents o Other circumstances surrounding his birth ! In case of the person’s death = nearest of kin Prima Facie Evidence

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Article 411

Article 412

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Proofs which, if remaining unrebutted or uncontradicted, is sufficient to maintain the fact such evidence seeks to substantiate • Creates presumption of fact • Conflict between presumption of fact and law – presumption of law will prevail • Barbiera v. Catotal o Legitimate child filed a suit to cancel the birth certificate of her housemaid’s child who claimed to be her sister and therefore also the legitimate child of her parents o SC rejected – birth certificate must be considered authentic as it enjoys presumption of regularity o Not signed by the local civil registrar o Mother’s signature = different from signatures in other documents o No evidence of Hermogena’s pregnancy (medical records, prescriptions) o Hermogena was already 54 years old – advanced age required proper medical care, not available at that time o Hermogena states she did not give birth to petitioner Every civil registrar shall be civilly responsible for any unauthorized alteration made in any civil register, to any person suffering damage thereby. However, the civil registrar may exempt himself from such liability if he proves that he has taken every reasonable precaution to prevent the unlawful alteration. No entry in a civil register shall be changed or corrected, without judicial order. Administrative or Judicial Proceeding • Typographical or clerical errors – corrected administratively through office of the LCR • Proceeding o Summary o Adversarial • Clerical or typographical error o mistake committed in the performance of clerical work in writing, copying, transcribing, or typing an entry in the civil registrar that is harmless and innocuous o visible to the eyes or obvious to the understanding and can be corrected or changed by reference to other existing records • no correction must involve the change of nationality, age, status or sex of the petitioner • Judicial and adversarial – if change involves SUBSTANTIAL or CONTROVERSIAL matters o Civil status, nationality, citizenship o Should be in a court proceeding especially for that purpose • Change that will alter STATUS of person – NOT under Article 412 of Civil Code Rule 108 of the Rules of Court • Procedural rules for cancellation or correction of entries in the civil registry Section 1. Who may file petition • Any person interested • File verified petition for cancellation or correction with Court of First Instance of province located Section 2. Entries subject to cancellation or correction • Upon good and valid grounds, the entries in Article 408 may be cancelled or corrected by the civil register Section 3. Parties • Civil registrar + all persons who have interest = parties to proceeding Section 4. Notice and publication • Upon the filing of the petition, the court shall, by an order, fix the time and place for the hearing • Reasonable notice = persons named in the petition • Published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province Section 5. Opposition • Civil registrar + person having or claiming any interest – within 15 days from notice of the petition or from last date of publication of notice = file his opposition Section 6. Expediting proceedings • Court where proceeding is brought o Make orders expediting the proceedings o Grant preliminary injunction for the preservation of the rights of the parties pending proceedings •

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Article 413

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Section 7. Order • After hearing o Dismiss petition o Issue an order granting the cancellation or correction prayed for Certified copy of the judgment = served upon the civil registrar = annotate it in his record • Republic v. Valencia o Entries in record of birth = not considered as summary anymore even if followed Rule 108 o Opposition to petition filed + actively prosecuted ! Become ADVERSARY proceedings • Under Article 412 o Only clerical and innocuous errors corrected by summary proceedings • Substantial changes cannot be corrected under 412 • Changes are allowed if all the requirements under Rule 108 are fulfilled • Proceedings turned into an adversarial one which is the appropriate judicial proceedings with respect to substantial changes All other matters pertaining to the registration of civil status shall be governed by special laws. Act 3753 aka Civil Registry Law o Provides for the registration of documents evidencing the acquisition or termination of a particular civil status such as legitimation, adoption, change of name, marriage, termination of such marriage and others

APPENDIX A: Domestic Adoption DOMESTIC ADOPTION Republic Act No. 8552: “AN ACT ESTABLISHING THE RULES AND POLICIES ON THE DOMESTIC ADOPTION OF FILIPINO CHILDREN AND FOR OTHER PURPOSES” ART. 1: General Provisions “Domestic Adoption Act of 1998” SEC. 2. Declaration of Policies. – a. It is hereby declared the policy of the State to ensure that every Child remains under the care and custody of his/her parent(s) and be provided with love, care, understanding and security towards the full and harmonious development of his/her personality. Only when such efforts prove insufficient and no appropriate placement or adoption within the child’s extended family is available shall adoption by an unrelated person be considered. b. In all matters relating to the care, custody and adoption of a child, his/her interest shall be the paramount consideration in accordance with the tenets set forth in the United Nations (UN) Convention on the Rights of the Child; UN Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children with Special Reference to Foster Placement and Adoption, Nationally and Internationally; and the Hague Convention on the Protection of Children and Cooperation in Respect of Inter-country Adoption. Toward this end, the State shall provide alternative protection and assistance through foster care or adoption for every child who is neglected, orphaned, or abandoned. c. It shall also be a State policy to: S – safeguard the biological parent(s) from making hurried decisions to relinquish his/her parental authority over his/her child; P – prevent the child from unnecessary separation from his/her biological parent(s); P – protect adoptive parent(s) from attempts to disturb his/her parental authority and custody over his/her adopted child; C – conduct public information and educational campaigns to promote a positive environment for adoption; E – ensure that sufficient capacity exists within government and private sector agencies to handle adoption inquiries, process domestic adoption applications, and offer adoption-related services including, but not limited to, parent preparation and postadoption education and counseling; and E – encourage domestic adoption so as to preserve the child’s identity and culture in his/her native land, and only when this is not available shall inter-country adoption be considered as a last resort. SEC. 3. Definition of Terms. – 1. “Department” – Department of Social Welfare and Development (DSWD) 2. “Child” – a person below eighteen (18) years of age. 3. “A child legally available for adoption” – refers to a child who has voluntarily or involuntarily committed to the Department or to a duly licensed and accredited child-placing or child-caring agency, free of the parental authority of his/her biological

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parent(s) or guardian or adopter(s) in case of rescission of adoption. 4. "Voluntarily committed child" is one whose parent(s) knowingly and willingly relinquishes parental authority to the Department. 5. "Involuntarily committed child" is one whose parent(s), known or unknown, has been permanently and judicially deprived of parental authority due to abandonment; substantial, continuous, or repeated neglect; abuse; or incompetence to discharge parental responsibilities. 6. "Abandoned child" refers to one who has no proper parental care or guardianship or whose parent(s) has deserted him/her for a period of at least six (6) continuous months and has been judicially declared as such. 7. "Supervised trial custody" is a period of time within which a social worker oversees the adjustment and emotional readiness of both adopter(s) and adoptee in stabilizing their filial relationship. 8. "Child-placing agency" is a duly licensed and accredited agency by the Department to provide comprehensive child welfare services including, but not limited to, receiving applications for adoption, evaluating the prospective adoptive parents, and preparing the adoption home study. 9. "Child-caring agency" is a duly licensed and accredited agency by the Department that provides twenty four (24)-hour residential care services for abandoned, orphaned, neglected, or voluntarily committed children. 10. "Simulation of birth" is the tampering of the civil registry making it appear in the birth records that a certain child was born to a person who is not his/her biological mother, causing such child to lose his/her true identity and status. What is ADOPTION? ! Adoption is purely a statutory creation ! All requirements, according to the law, must first be met and decreed by a court before adoption of a certain child will be recognized ! Likewise, no rights will be acquired by the child and the adopter will be bound to no obligations without following the necessary steps according to statute ! If it can be shown that there is substantial compliance of the mandatory requirements despite having some irregularities, adoption will not be void ! Burden of proof in establishing adoption rests upon the person claiming such relationship What is the philosophy behind adoption? ! Adoption used to be for the benefit of the adopter ! Its concern is now primarily the promotion of the welfare of the child and the enhancement of his/her opportunities for a better life Art. II: Pre-Adoption Services SEC. 4. The principal parties in the adoption process will undergo counseling sessions in order to prepare them for what they will be going through. Counseling Services The DSWD shall provide counseling to the following parties: 1. Biological Parents 2. Prospective Adoptive Parents 3. Prospective Adoptee SEC. 5. Location of Unknown Parents• Natural parents are given the preference in the custody and care of their biological children ! Sec. 5 expressly implies that all efforts must be made into locating the biological parents of a child e.g. use of media ! If such efforts fail, the child shall be registered as a foundling and subsequently be the subject of legal proceedings where he/she shall be declared abandoned SEC. 6. Support Services – 2 Phases of the Adoption Process: 1. Administrative Phase – handled by the DSWD 2. Judicial Phase – done by the family court which will issue the decree of adoption ! !

It is the DSWD’s job to declare and issue the certification that a child is legally available for adoption This process is governed by R.A. No. 9523 (An Act Requiring Certification of the DSWD to Declare A “Child Legally Available for Adoption” As A Prerequisite for Adoption Proceedings)

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** R.A. No. 9523 amends and repeals certain provisions of the Domestic Adoption Act, Inter-Country Adoption Act, and the Child and Youth Welfare Code ** Abandoned Children – now only have to be deserted in 3 continuous months, as opposed to 6 continuous months in the definition found in the Domestic Adoption Act ART. III: Eligibility Who may adopt? Filipino Citizens who… ! Are of legal age, in possession of full civil capacity ! Have not been convicted of any crime involving moral turpitude (conduct that is against community standards of justice, honesty, or good morals) ! Are emotionally and psychologically capable of caring for children ! Are at least 16 years older than adoptee Aliens (foreigners) who… ! Have the same qualifications as Filipino nationals ! There must be existing diplomatic relations between the Philippines and the home country of the adopting alien ! Must have lived in the Philippines 3 years prior to the application for adoption ! Must have legal capacity certified by his/her respective consular office ! The foreign national’s government allows the adoptee as the former’s child Waiver of requirements: ! The requirements on residency and certification may be waived on the following grounds: – A former Filipino citizen (adopting a relative within the fourth degree of consanguinity) – One who wants to adopt the legitimate child of his/her spouse – Foreign national married to a Filipino adopting a relative up to the fourth degree of consanguinity Guardian of a ward: ! A guardian may adopt his/her ward after the termination of the guardianship and the clearance of his/her financial liabilities ** Joint adoption (by husband and wife) is mandatory. Who may be adopted? ! Any minor declared available for adoption ! Legitimate child of one spouse by the other spouse ! Illegitimate children by qualified adopter ! Person of legal age if before adoption has been treated by the adopter as his/her own child since minority ! A child whose adoption has been previously rescinded ! A child whose biological parents have died Necessary Consent: ! Adoptee, if above 10 years of age ! Biological parents ! Legitimate and adopted children of adopter and adoptee above 10 years of age (if any) ! Illegitimate children of adopter below 10 years of age if they are living with the adopter and his/her spouse ! The spouse of adopter or adoptee ART. IV: Procedure SEC. 10. Hurried Decisions ! Proof must be provided that biological parent(s) has been counseled. o To make sure no hurried decisions have been made o To make sure that all measures to strengthen the family have been exhausted o To make sure that any prolonged stay of the child will not benefit his/her welfare and interest SEC. 11. Case Study. ! A case study must be made by a licensed social worker of DSWD or child-placing/child-caring agency must be secured prior to obtaining a judicial decree

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o Case study must be of the biological parent(s), prospective adopter(s) and the adoptee o Findings and recommendations must be submitted to the court The social worker will be responsible to confirm with the civil registry the real identity of the adoptee o Adoptee should be registered Case study must establish that adoptee is legally available for adoption o All documents must be valid and authentic Must guarantee that the adopters genuine intentions are for the Must guarantee that adoption in the best interest of the child The Department shall intervene if: o According to the case study, the petition to adopt should be denied The case study and all documents and records on the adoptee shall be preserved by the Department

SEC. 12. Supervised Trial Custody. ! A supervised trial custody given to the adopter(s) by the court is required before petition for adoption is granted ! The supervised trial custody will be for 6 months ! Parties are expected to adjust psychologically and emotionally with each other and establish a bonding relationship ! Temporary Parental authority will be granted to the adopter(s) for the duration of the supervised trial custody ! Court may reduce time of supervised trial custody if it’s in the best interest of the adoptee ! Court must sate the reason for the reduction of time ! If child is below 7 years old and is under pre-adoption placement authority, prospective adoptive parents shall enjoy benefits entitled to biological parents upon placement SEC. 13. Decree of Adoption. Will be obtained after: ! Court is convinced that: o The publication of the hearing has been compiled and no opposition has been interposed o The consideration of the case study o The consideration of qualifications of the adopter(s) o The consideration of the evidence submitted o Petitioners are qualified to adopt o Adoption would redound to the best interest of the adoptee o **Effective as of the date the original petition was filed o A decree of adoption shall be entered ! Section 13 shall also apply if the petitioner dies prior to the issuance of decree of adoption o To protect the interest of the adoptee o The decree shall state which name the child shall be known ! No person can or may be adopted unless there is a judicial decree of a competent court ! Only adoption made through the court is valid ! Only a family court can hear adoption cases ! Adoption decrees can’t be collaterally attacked SEC. 14. Civil Registry Record. ! Amended birth certificate shall be issued by the civil registry o Attesting to the fact that adoptee is now child of the adopter(s) o Adoptee shall use adopter’s surname o Adoptee’s original birth certificate shall be: • Stamped cancelled • Annotated with the issuance an amended birth certificate • Sealed in the civil registry ! The Birth certificate to be issued to the adoptee shall not bear any notation that it is an amended issue ! This is to preserve the confidentiality of the adoption process ! Adopter shall be responsible to register in the local civil registry ! Local civil registry who holds the original birth certificate of the child must be given a copy of the decision SEC. 15. Confidential Nature of Proceedings and Records— ! All hearings in adoption cases shall be confidential and shall not be open to the public ! All records, books, papers and documents relating to the adoption shall be kept confidential ! Court may merit the necessary information to be released if: o For purposes connected with adoption

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o For purpose arising out of the adoption o For the best interest of the adoptee To Promote efficacy To Protect the rights of o Biological parent(s) o Adopter(s) o Adoptee ! Right to privacy ! Preserve the integrity of the adoptive process

ART. V: Effects of Adoption SEC. 16. Parental Authority – Except in cases where the biological parent is the spouse of the adopter, all legal ties between the biological parent(s) and the adoptee shall be served and the same shall then be vested on the adopter(s). Severance of Legal Ties: • The right to parental authority may be renounced by adoption (other instances being: guardianship and surrender to a children’s home or an orphanage) • Adoption causes the severance of legal ties between biological parents and child • Upon finalization of the adoption decree, parental authority of biological parents is effectively cut • Exception: when the biological parent is the spouse of the adopter SEC. 17. Legitimacy. – The adoptee shall be considered the legitimate son/daughter of the adopter(s) for all interests and purposes and as such is entitled to all the rights and obligations provided by law to legitimate sons/daughters born to them without discrimination of any kind. To this end, the adoptee is entitled to love, guidance, and support in keeping with the means of the family. Effects of Adoption: • The adopted child becomes the natural child of the adoptive parents • Adopted child attains the same legal relation to the adoptive parent as a child of his body • Natural parents are divested of their former relation with the child • The adopting parents have the right to the care and custody of the adopted child and exclusive parental care and authority over him (Cervantes v. Fajardo) • The death of the adoptive parents does not reestablish the rights and duties of the natural parents • Coming of age and marriage do not affect the status of the adopted child • The relation established by adoption is limited to the adopting parent(s) SEC. 18. Succession. – In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal rights of succession without discrimination from legitimate filiation. However, if the adoptee and his/her biological parents had left a will, the law on testamentary succession shall govern. Legal or Intestate Succession: • Reciprocal rights of succession • Legal and intestate heir – The adopter and adoptee are mutually legal and intestate heirs of each other – All rights of a legitimate child shall attach to an adopted child regarding inheritance from the adopter – If the adoptee dies and the only survivor is the adopter: adopter gets " of the estate as legitime – The biological parents will not get anything – If decedent-adoptee has legitimate children of his/her own, only these children will inherit to the exclusion of the adopter – If illegitimate: " goes to adopter and " goes to the illegitimate children • Right of representation – If the adopter predeceases his/ her parent, the adoptee cannot inherit from the adopter’s parent (because this is not a reciprocal right between adoptee and adopter) Testate Succession: ! If the adoptee and his/her biological parent/s had left a will, the law on testamentary succession shall govern. ! Preterition by last will and testament ! Adoptee may stipulate that his/her biological parents inherit by last will and testament ! If adoptee does not make a will, everything will go to the adopter by intestate succession

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ART. VI: Rescission of Adoption SEC. 19. Grounds for Rescission of Adoption— ! For a adopted child to rescind or reverse the adoption, he or she, may do so provided that the adopting parents committed any of the following acts: o repeated physical violence and verbal maltreatment by the adopter(s) despite having undergone counseling o attempt on the life of the adoptee o sexual assault or violence o abandonment and failure to comply with parental obligations. ! The rescission may commence upon petition of the adoptee, and may have assistance from the Department (DSWD) if a minor or if over 18 years of age but is incapacitated What are the effects of rescission? ! If the petition is granted, the prior legal custody of the adopted child shall be restored to whom it was vested upon before ! The reciprocal rights and obligations of the adopter(s) and the adoptee shall likewise be extinguished ! The court will also order the civil registrar to cancel the amended birth certificate and restore the old birth certificate. If the criminal acts are proven, they shall likewise be imposed, if they are proven. What if a father does not recognize his adopted son as his “son” and the adopted child does not live in the same house and treats the father the same way. May the father reverse the adoption? What option does the father have? ! The father cannot reverse or rescind the adoption, as this option is only available to the adoptee, but the father may disinherit his adopted son. The reason for this is that adoption is for the best interest of the child. What are the effects of disinheritance? ! It is the deprivation of the legitime of a compulsory heir, which is done by operation of law. This act of disinheritance can be done through a ‘will’ wherein the legal cause for such action will be stated. As, we know, adoption has the effect of vesting upon the adoptee the status a legitimate child, which carries with it the effect of having a compulsory legitime. What are the causes for disinheritance? (as provided for in Article 919 in the Civil code) (1) When a child or descendant has been found guilty of an attempt against the life of the testator, his spouse, descendants, or ascendants; (2) When a child or descendant has caused the testator of a crime for which the law prescribed imprisonment of six years or more, if the accusation has been found groundless; (3) When the child or descendant has been convicted of adultery or concubinage with the spouse of the testator; (4) When a child or descendant by fraud, violence, intimidation, or undue influence caused the testator to make a will or to change one already made; (5) a refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant; (6) maltreatment of the testator by word or deed, by the child or descendant; (7 When a child or descendant leads a dishonorable or disgraceful life; (8) The conviction of a crime which carries with it the penalty of civil interdiction. ART. VII: Violations and Penalties ! The law is clear on how those who violate or act with malice or ill intent should be punished. ! Article VII provides the punishment or penalties for such acts. ART. VIII: Final Provisions SEC. 23. – establishes the Adoption Resources and Referral Office in the DSWD ! The DSWD-ARRO is tasked to monitor existence of legally available for adoption, maintaining a nationwide information campaign about adoption, generate resources to assist in child care and child placement Some hypothetical questions: Suppose a person already has children of his or her own, may he or she adopt? " Yes, article 183 of the Family code states that “A person of age and in possession of full civil capacity and legal rights may adopt, provided he is in a position to support and care for his children, legitimate or illegitimate, in keeping with the means of the family.” (Paragraph 1, article 183)

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Are there any effects to adoption? " According to sec 16, of Republic act 8552: Section 16. Parental Authority. – Except in cases where the biological parent is the spouse of the adopter, all legal ties between the biological parent(s) and the adoptee shall be severed and the same shall then be vested on the adopter(s). According to sec 17, of Republic act 8552: Section 17. Legitimacy. – The adoptee shall be considered the legitimate son/daughter of the adopter(s) for all intents and purposes and as such is entitled to all the rights and obligations provided by law to legitimate sons/daughters born to them without discrimination of any kind. To this end, the adoptee is entitled to love, guidance, and support in keeping with the means of the family. According to sec 18, of Republic act 8552: Section 18. Succession. – In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. However, if the adoptee and his/her biological parent(s) had left a will, the law on testamentary succession shall govern. Who are the persons who may not be adopted? " According to Article 187 of the Family Code, a person who has already been adopted unless such adoption has been previously revoked or rescinded. An alien with whose government the Republic of the Philippines has no diplomatic relations A person of legal age, unless he or she is a child by nature of the adopter or his or her age spouse, or, prior to the adoption, said person had been consistently considered and treated by the adopter as his or her own child during minority. Let us suppose that Spouses Mike Villanueva, a natural born US citizen and Mariana Doromal, a former Filipino who became naturalized US citizen, decided to file a petition for adoption to adopt Julian, a minor and the younger brother of Mariana. The trial court decided to grant the petition; is decision correct? " Under paragraph 3 of Article 184 of the Family code, Mr Mike Villanueva is not qualified to adopt under the exceptional cases. Julian is not a relative by consanguinity nor is he the legitimate child of his spouse. Another problem is that when the petition was filed, Mariana was no longer a citizen of the Philippines. Mariana may adopt Julian, but she cannot do this alone. She would have to adopt Julian jointly as mandated by the rules of adoption. (section 7, RA 8552 and Article III)

APPENDIX B: RA 9710 RA 7610: AN ACT PROVIDING FOR STRONGER DETERRENCE AND SPECIAL PROTECTION AGAINST CHILD ABUSE, EXPLOITATION AND DISCRIMINATION, AND FOR OTHER PURPOSES - Title: Special Protection of Children Against Abuse, Exploitation and Discrimination Act (Sec. 1) - Provides for the protection of children from all forms of abuse and exploitation, and provides punishment for the same (Sec. 2) - “Other purposes” include situations that are challenging to child development: working at a young age, living in situations of armed conflict, and being part of indigenous cultural communities (ICCs) Art. 1: Definition of Terms A. “Children” – persons below 18y/o or those who can’t fend for themselves because of a physical or mental disability B. "Child Abuse" refers to the maltreatment, whether habitual or not, of the child which includes any of the following: 1. 2. 3. 4.

Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment; Any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being; Unreasonable deprivation of his basic needs for survival such as food and shelter; or Failure to immediately give medical treatment to an injured child resulting in serious impairment of his growth and development or in his permanent incapacity or death.

C. “Circumstances which gravely threaten or endanger the survival and normal development of children" include, but are not limited to, the following:

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1. 2. 3. 4. 5. 6.

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Being in a community where there is armed conflict or being affected by armed conflict-related activities; Working under conditions hazardous to life, safety and morals which unduly interfere with their normal development; Living in or fending for themselves in the streets of urban or rural areas without the care of parents or a guardian or any adult supervision needed for their welfare; Being a member of an indigenous cultural community and/or living under conditions of extreme poverty or in an area which is undeveloped and/or lack or has inadequate access to basic services needed for a good quality of life; Being a victim of a man-made or natural disaster calamity; or Analogous Circumstances

Art. II: Program on Child Abuse, Exploitation and Discrimination - DSWD and DOJ to be lead agencies in implementing RA 7610 (Sec. 4) -

Update: • EO No. 53, amending EO No. 275 o Strengthening the Committee for the Special Protection of Children (CSPC) o Makes the CSPC the body principally responsible for implementing RA 7610 and other child-related criminal laws • RA 9208 (Sec. 16) a) Department of Foreign Affairs (DFA) " to assist trafficked persons, regardless of their manner of entry to the receiving country. b) Department of Labor and Employment (DOLE) " shall be responsible for monitoring, documenting and reporting cases of trafficking in persons involving employers and labor recruiters c) Department of Justice (DOJ) " ensure the prosecution of persons accused of trafficking. Provide free legal assistance. d) Bureau of Immigrations (BI) " adopt measures to apprehend suspected traffickers both at the place of arrival and departure e) Philippine National Police (PNP) " primary law enforcement agency f) Philippine Overseas Employment Administration (POEA) " offers pre-employment orientation and predeparture counsellings g) Department of the Interior and Local Government (DILG) " maintain an databank for the effective monitoring, documentation and prosecution of cases on trafficking in persons • EO No. 56 o Authorizes the DSWD to take protective custody of child prostitutes and sexually exploited children • RA 9262 (Anti-VAWC) o Section 8 provides for the issuance of Protection Orders to prevent further acts of violence against concerned woman and/or her child

Art. III: Child Prostitution and Other Sexual Abuse - “Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse” (Sec. 5) -

Reclusion temporal in its medium period to reclusion perpetua imposable on: a.

Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited to, the following: i. Acting as a procurer of a child prostitute; ii. Inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means; iii. Taking advantage of influence or relationship to procure a child as a prostitute; iv. Threatening or using violence towards a child to engage him as a prostitute; or v. Giving monetary consideration, goods or other pecuniary benefit to a child with the intent to engage such child in prostitution. • “Sweet heart theory” may not be invoked in cases of child prostitution and other sexual abuse prosecuted under Section 5, Article III of RA7610 (Michael John Malto v. People of the Philippines, G.R. No. 164733)

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b.

“Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse. . .”

c.

“Those who derive profit or advantage therefrom, whether as manager or owner of the establishment where the prostitution takes place. . .”

Attempt to commit prostitution (Sec. 6) a.

“When any person who, not being a relative of a child, is found alone with the said child inside the room or cubicle of a house, an inn, hotel, motel, pension house, apartelle or other similar establishments, vessels, vehicle or any other hidden or secluded area under circumstances which would lead a reasonable person to believe that the child is about to be exploited in prostitution and other sexual abuse;”

b.

When any person is receiving services from a child in a sauna parlor or bath, massage clinic, health club and other similar establishments.

* Consent is not an accepted defense in this special law (People of the Philippines v. Honorable Court of Appeals and Gaspar Olayon, G.R. No. 171863) Art. IV: Child Trafficking and Attempt to Commit Child Trafficking - Child trafficking is committed by “any person who shall engage in trading and dealing with children including, but not limited to, the act of buying and selling of a child for money, or for any other consideration, or barter” -

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Attempt to commit child trafficking under Section 7 of this Act: 1.

When a child travels alone to a foreign country without valid reason therefor and without clearance from the DSWD or written permit from the child's parents or guardian;

2.

When a pregnant mother executes an affidavit of consent for adoption for a consideration;

3.

When a person, agency, establishment or child-caring institution recruits women or couples to bear children for the purpose of child trafficking;

4.

When a doctor, hospital or clinic official or employee, nurse, midwife, local civil registrar or any other person simulates birth for the purpose of child trafficking; or

5.

When a person engages in the act of finding children among low-income families, hospitals, clinics, nurseries, day-care centers, or other child-caring institutions who can be offered for the purpose of child trafficking.

Update: Mindanao o o o o

Child trafficking hotspot Trafficked to major cities and neighboring countries Usually for sex trade High incidence in tourist areas

Art. V: Obscene Publications and Indecent Shows - Makes it punishable (prision mayor, medium period) to hire, employ, use, persuade, induce or coerce a child to perform in obscene exhibitions and indecent shows (Sec. 9) - Ascendant, guardian, or person entrusted with child’s care who consents to such use of the child shall be similarly punished -

If offended child is below 12 y/o, prision mayor in maximum period imposable

Art. VI: Other Acts of Abuse - Provides for punishment of other acts of abuse (Sec. 10) a. Responsibility for conditions prejudicial to child’s development, including acts by parents toward children under Art. 59 of PD 603: ! Concealment or abandonment to make him or her lose civil status ! Abandonment to cause deprivation of love, care, and protection

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! Sale or abandonment for consideration ! Deprivation of education consistent with family’s means ! To cause, abate, or permit truancy in school ! Exploitation in begging ! Infliction of cruel and unusual punishment ! To cause or encourage an immoral life ! Permission to possess or handle deadly weapon ! To allow or require child to drive without valid license To have or keep in one’s company a minor, 12 years or under or 10 years his junior in a public or private place (hotel, motel, beer joint, etc.) unless related to him or her within the fourth degree of consanguinity or affinity, or if he or she should be acting in the performance of a social, moral, or legal duty To offer, induce, deliver or offer a minor for prohibited company under preceding paragraph Manager of public or private place of accommodation that allows such prohibited company shall also incur liability To exploit a street child or any child in begging, drug trafficking or any other illegal activity

Victims under this section shall be entrusted to the care of the DSWD

Art. VII: Sanctions for Establishments or Enterprises - Establishments or enterprises that promote or facilitate abuses under this act are subject to immediate closure and the cancellation of their license to operate - Adverse presumption: “An establishment shall be deemed to promote or facilitate child prostitution and other sexual abuse, child trafficking, obscene publications and indecent shows, and other acts of abuse if the acts constituting the same occur in the premises of said establishment under this Act or in violation of the Revised Penal Code, as amended.” Art. VIII: Working Children (with pertinent amendments in RA 9321) - Children below 18 years old shall not be employed except (Sec. 12) o When he/she works under responsibility of parents/legal guardian o When participation essential in public entertainment or information in cinema, radio, or television, except in commercials or ads promoting alcohol and tobacco and their byproducts, gambling, violence, pornography (Sec. 14) - Regarding wages, salaries, earnings (see Sec. 12-B of RA 9321) o They are to be owned by the working child, to be spent for their own support, primarily o Secondarily, and only up to a maximum of 20% thereof, wages may be spent for collective needs of family o Subject to administration by parents unless absent or incapacitated - RA 9321 provides for setting up a Trust Fund where 30% of a child’s income (if at least P200,000 annually) shall be saved until he reaches age of majority - Hours of work for working children (see Sec. 12-A of RA 9321) o Below 15 years of age: ! maximum of 4 hours a day, not more than 20 hours a week ! no work from 8:00 pm to 6:00 am of following day o Above 15 years of age but below 18 years: ! maximum of 8 hours a day, not more than 40 hours a week, ! no work from 10:00 pm to 6:00 am of following day - Update: o 5.5 million working children, 3 million of which are engaged in hazardous labor (As reported by the International Labor Organization) Art. IX: Children of Indigenous Cultural Communities (ICCs) - Provides for the protection, survival, and development of children of ICCs in a manner consistent with their customs and traditions (Sec. 17) - Provides for an alternative system of education to be developed and implemented by DECS (Sec. 18) - Mandates respect for health practices and equal attention in hospitals to ICCs (Sec. 19) - Provides for protection of children of ICCs against discrimination, and making discrimination punishable (Sec. 20) - Participation of ICCs in government plans involving their children (Sec. 20) Art. X: Children in situations of armed conflict - Children declared to be “zones of peace,” the state committing to the following (Sec. 22)

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o Resolve armed conflict o Protect children from violence o Non-recruitment policy by the AFP o Ensure continuous delivery of essential services such as health and education o Protect infrastructure critical to children’s welfare (schools, hospitals, etc.) o Reunite families separated in conflict Policies on evacuation o Children must be prioritized (Sec. 23) o Separate accommodation for families, “whenever possible” (Sec. 24) o Sufficient food and opportunity for play (Sec. 24) Rights of children arrested for reasons related to conflict (Sec. 25) o Separate detention from adults o Immediate notice to parents/guardian o Free legal assistance o Release on recognizance within 24 hours o Suspended sentence Mandates monitoring and reporting of children in conflict situations (Sec. 26) Update: o Armed conflict continues to disrupt children’s lives o Recruitment of children by armed groups persists ! Reported cases: 54 (2010), 24 (2010) ! 432 children (366 boys and 66 girls) may be associated with the MILF in 2011 ! Violations of children’s rights perpetrated by all armed groups • AFP and CAFGU– use of children in intelligence operations, recruitment • MILF, NPA, ASG, etc. – recruitment, attacks o Schools, hospitals, health centers are often targeted or misused by armed groups as barracks, arms depots 52 cases of such abuses occurred in 2011 !

Intensifies particularly during elections

ART. XI: Remedial Procedures (with pertinent amendments in RA 9231) - Who may file a complaint (Sec. 27) o Offended party o Parents or guardians o Ascendant or collateral relative within 3rd degree of consanguinity o Officer, social worker of DSWD or child-care institution o Barangay chairman where the violation occurred, where the child resides or is employed o At least 3 concerned citizens - Offended child to be immediately placed under protective custody of DSWD (Sec. 28) - Identity of offended child may be kept confidential (Sec. 29) o To cause “undue and sensationalized” publicity punishable (Sec. 29) - Jurisdiction: Juvenile and Domestic Relations Court in the RTC (Sec. 30) o Original jurisdiction belongs to family courts, otherwise RTC and MTC shall have concurrent jurisdiction (as amended in RA 9231)