Persons

San Beda College of Law 1

MEMORY AID

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CIVIL LAW

PERSONS AND FAMILY RELATIONS I. NEW CIVIL CODE  took effect on August 30, 1950 Effectivity of laws GENERAL RULE: Laws take effect 15 days following the completion of its publication EXCEPTION: Unless otherwise provided by the law. This refers to the 15 day period and NOT to the requirement of publication. (Tanada vs. Tuvera) NOTE: Administrative rules and regulations must also be published if their purpose is to enforce or implement existing laws pursuant to a valid delegation. The publication must be in full since its purpose is to inform the public of the contents of the law. (Phil. Int’l Trading Corp. vs. Angeles) Ignorance of the law excuses no one  considered a CONCLUSIVE presumption and applies only to mandatory and prohibitory laws. (Consunji vs. CA) Non-retroactivity of laws GENERAL RULE: Laws have no retroactive effect. EXCEPTIONS: (UCIPELT) 1.Unless the law otherwise provides 2. Curative statutes 3. Interpretative statutes 4. Procedural/remedial 5. Emergency laws 6. Laws creating new rights 7. Tax laws EXCEPTIONS TO THE EXCEPTIONS: 1. Ex post facto laws 2. Laws that impair obligation of contracts Acts Contrary To Law

GENERAL RULE: Acts which are contrary to mandatory or prohibitory laws are void.

EXCEPTIONS: 1. When the law itself authorized its validity (ex. lotto, sweepstakes) 2. When the law makes the act only voidable and not void (ex. voidable contracts where consent is vitiated) 3. When the law makes the act valid but punishes the violator (ex. marriage solemnized by a person without legal authority) Waiver of rights  Requisites: (EKI) 1. Existence of a right 2. Knowledge of the existence of a right 3. Intention to relinquish the right GENERAL RULE: Rights can be waived. EXCEPTIONS: 1. If the waiver is contrary to law, public order, public policy, morals or good customs (LPPMG) 2. If the waiver is prejudicial to a third party with a right recognized by law. NOTE: A stipulation requiring the recipient of a scholarship grant to waive his right to transfer to another school, unless he refunds the equivalent of his scholarship in cash is null and void. The school concerned obviously understands scholarship awards as a business scheme designed to increase the business potential of an educational institution. Thus, conceived, it is not only inconsistent with sound policy, but also

CIVIL LAW COMMITTEE  CHAIRPERSON: Romuald Padilla  ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad  EDP: Alnaiza Hassiman, Dorothy Gayon  SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

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with good morals. (Cui vs. Arellano University) Laws applicable 1. Penal laws and laws of public security  territoriality rule governs  laws of the Philippines will govern upon ALL those who live or sojourn in it 2. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons  nationality rule applies  laws of the Philippines will govern its citizens, regardless of their residence EXCEPTION: When 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 the capacity to remarry under Philippine law. (Article 26(2) Family Code) NOTE: domiciliary rule supplants the nationality rule in cases involving stateless persons

3. Laws on property  lex rei sitae applies  real property, as well as personal property is subject to the law of the country where it is situated

4. Laws on forms and solemnities  lex loci celebrationis applies Rules on Personal Law DOMICILIARY NATIONALITY RULE RULE Basis for determining personal law of an individual is his domicile

LEX NATIONALII Art.

15,

basis for determining personal law of an individual is his citizenship

LEX REI SITAE Art. 16, CC

LEX LOCI CELEBRATIONIS Art. 17, CC

CC Citizenshi p is the basis for determini ng the personal law applicable Covers family rights & duties, status, condition & legal capacity Exception : Art. 26, par. 2 of Family Code

Law of the place where the property is situated is the basis for determinin g law applicable Covers both real & personal property

Law of the place where the contract was executed is the basis for determining law applicable

Exceptions: (CIAO) 1. Capacity to succeed 2. Intrinsic validity of the will 3. Amount of successiona l rights 4. Order of succession

Exceptions: 1. Art. 26, par. 1 of Family Code (marriage involving Filipinos solemnized abroad, when such are void in the Philippines) 2. Intrinsic validity of contracts

Covers only the forms & solemnities (extrinsic validity)

Renvoi Doctrine  Where the conflict rules of the forum refer to a foreign law, and the latter refers it back to the internal law, the latter (law of the forum) shall apply. NOTE: If the foreign law refers it to a third country, the said country’s laws shall govern, and is referred to as the transmission theory. Doctrine of Processual Presumption  The foreign law, whenever applicable, should be proved by the proponent thereof; otherwise, such law shall be presumed to be exactly the same as the law of the forum. Rule on Prohibitive Laws GENERAL RULE: Prohibitive laws concerning persons, their acts or property and laws which have for their

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE

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SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics). Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 3

MEMORY AID object public order, public policy or good customs are not rendered ineffective by laws, judgments promulgated or conventions agreed upon in foreign country.  EXCEPTION: Art. 26, par. 2 Family Code  Example: Divorce law

Human Relations  Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. (Art. 19 of NCC) NOTE: The elements of an abuse of right under Art. 19 are: 1. There is a legal right; 2. Which is exercised in bad faith; 3. For the sole intent of prejudicing or injuring another. (Albenson Ent. Corp. vs. CA) The SC in Velayo vs. Shell held the defendant liable under Art. 19 for disposing of its property (a perfectly legal act) in order to escape the reach of a creditor. Likewise, in Globe Mackay Cable and Radio Corp. vs. CA, the employer corporation was held liable for damages for an abusive manner in dismissing an employee, as well as for the inhuman treatment the latter got from them.  Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same. (Art. 20 of NCC)  Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public

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policy shall compensate the latter for the damage. (ART. 21 of NCC) NOTE: Art. 21 deals with acts contra bonus mores, and has the following elements: 1. There is an act which is legal; 2. But which is contrary to morals, customs, public order; 3. and it is done with intent to injure. Arts. 19, 20 and 21 are related to each other and, under these articles, an act which causes injury to another may be made the basis for an award of damages. There is a common element under Arts. 19 and 21, and that is, the act must be done intentional. However, Art. 20 does not distinguish, the act may be done either “willfully” or “negligently.” (Albenson Ent. Corp. vs. CA)

 The SC in Pe vs. Pe, applying Art. 21 ruled that a married man had seduced a girl through an ingenious and tricky scheme, i.e. on the pretext of teaching her how to pray the rosary, to the extent of making her fall in love with him. Verily, he has committed an injury to the girl’s family in a manner contrary to morals, good customs and public policy. However, in Tanjanco vs. CA, the SC denied the award of moral damages based on the fact that for one year, from 1958-1959, the plaintiff, a woman of adult age, maintained intimate sexual relations with defendant, with repeated acts of intercourse. Such conduct is incompatible with the idea of seduction. Plainly, there is here voluntariness and mutual passion; for had the plaintiff been deceived, had she surrendered exclusively because of the deceit, artful

CIVIL LAW COMMITTEE  CHAIRPERSON: Romuald Padilla  ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad  EDP: Alnaiza Hassiman, Dorothy Gayon  SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

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persuasions and wiles of defendant, she would not have again yielded to his embraces, much less for one year without exacting early fulfillment of the alleged promises of marriage and would have cut short all sexual relations upon finding that defendant did not intend to fulfill his promises. Hence, no case is made under Art. 21 of Civil Code.

 While a breach of promise to marry is not actionable, it has been held that to formally set a wedding and go through and spend for all the wedding preparation and publicity, only to walk out of it when the matrimony was about to be solemnized is a different matter. This palpably and unjustifiably contrary to good customs for which the defendant must be held answerable for damages in accordance with Art. 21 of the Civil Code. (Wassmer vs. Velez)

 The obligation of cohabitation of husband and wife is not enforceable by contempt proceedings. In private relations, physical coercion is barred under the the old maxim – “Nemo potest preciso cogi ad factum.” However, the refusal of the wife to perform her wifely duties, her denial of consortium and her desertion of her husband would certainly constitute a willful infliction of injury upon her husband’s feelings in a manner which is contrary to morals, good customs and public policy for which Arts. 21 and 2210 (10) of the CC authorize an award for moral damages. (Tenchavez vs. Escano) Prejudicial Question  GENERAL RULE: If both criminal and civil cases are filed in court, the criminal case takes precedence. EXCEPTION: When there is a prejudicial question or a question that arises in a case, the resolution of which is a logical antecedent of the issue

involved herein, and the cognizance of which pertains to another tribunal.  Requisites (Sec. 7, Rule 111, Rules of Court) a. Previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action, and b. The resolution of such issue determines whether or not the criminal action may proceed NOTE: The Civil Code has suppletory application in matters governed by special laws

PERSONS CIVIL PERSONALITY  aptitude of being the subject, active or passive, of rights and obligations JURIDICAL CAPACITY

CAPACITY TO ACT

Fitness to be the subject of legal relations Passive Inherent Lost only through death Can exist without capacity to act Cannot be limited or restricted

Power to do act with legal effects Active Merely acquired Lost through death and other causes Cannot exist without juridical capacity Can be restricted, modified or limited

THEORIES ON CAPACITY TO ACT THEORY OF THEORY OF GENERAL SPECIAL CAPACITIES CAPACITIES Applies to natural persons One has the ability to do all things with legal effects except only in those specific circumstances where the capacity to act is restrained

Applies to juridical persons This limits the power of juridical persons only to those that are expressly conferred upon them or those which can be implied therefrom or incidental thereto

Natural persons

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE

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SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics). Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 5

MEMORY AID  GENERAL RULE: Birth determines personality. EXCEPTION: The law considers the conceived child as born for all purposes favorable to it if born alive. Therefore, the child has a presumed personality, which has two characteristics: 1. limited; and 2. provisional/conditional (Quimiguing vs. Icao) NOTES:  The presumption as to the child’s personality applies only in cases beneficial to the child.

 The

concept of provisional personality CANNOT be invoked to obtain damages for and in behalf of an aborted child. (Geluz vs. CA)

When is a Child Considered Born GENERAL RULE: For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the mother’s womb. EXCEPTION: If the fetus had an intrauterine life of less than 7 months, it is not deemed born if it dies within 24 hours after its complete delivery from the maternal womb. Presumption of survivorship  Two or more persons, called to succeed each other, shall be presumed to have died at the same time, subject to the following conditions: 1. parties are heirs to one another 2. no proof as to who died first 3. with doubt as to who died first NOTE: Article 43 applies when the parties are called to succeed each other. But if the parties are not called to succeed each other, Rule 131, Sec. 3 (jj) of the Rules of Court applies. Both are

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to be applied only in the absence of facts. Juridical persons WHO: a. State and its political subdivisions b. Corporations, institutions and entities for public purpose or interest c. Corporations, partnership and associations for private interest HOW CREATED: For (a) and (b), by the laws creating or recognizing them; private corporations are governed by BP 68 and partnership and associations are governed by the provisions of this Code concerning partnerships. NOTE: The Roman Catholic Church is a corporation by prescription, with acknowledged juridical personality, inasmuch as it is an institution which antedated, by almost a thousand years, any other personality in Europe, and which existed when Grecian eloquence still flourished in Antioch and when idols where still worshipped in the temple of Mecca. (Barlin vs. Ramirez) The estate of a deceased person should be considered an artificial or juridical person for the purposes of the settlement and distribution of his estate which, of course, include the exercise during the judicial administration thereof of those rights and the fulfillment of those obligations of his which survived after his death. (Limjoco vs. Intestate Estate of Pedro Fragrante) Cessation of Civil Personality 1. If natural persons: by death 2. If juridical persons: by termination of existence CITIZENSHIP AND DOMICILE RESIDENCE DOMICILE

CIVIL LAW COMMITTEE  CHAIRPERSON: Romuald Padilla  ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad  EDP: Alnaiza Hassiman, Dorothy Gayon  SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

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Used to indicate a PLACE OF ABODE, whether permanent or temporary There can be several places of residence

denotes a FIXED PERMANENT RESIDENCE, which when absent, one has the intention of returning There can only be ONE place of domicile

Elements of Domicile a. Physical presence in a fixed place b. Intention to remain permanently (animus manendi) Kinds of Domicile 1. Domicile of origin - received by a person at birth. 2. Domicile of choice - the place freely chosen by a person sui juris. 3. Constructive domicile - assigned to a child by law at the time of his birth. II. FAMILY CODE  took effect August 3, 1988 MARRIAGE  A special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. Its nature, consequences and incidents are fixed by law and cannot be the subject of stipulation. Essential requisites: (LC) 1. Legal capacity of the contracting parties, who must be a male and a female 2. Consent freely given in the presence of a solemnizing officer Formal requisites: (ALM) 1. Authority of the solemnizing officer 2. Valid Marriage License 3. Marriage ceremony where the contracting parties appear before the solemnizing officer, with their personal declaration that the take each other as husband and wife in the presence of not less than two witnesses of legal age

Effects: 1. Absence of essential or formal requisites  the marriage is void ab initio 2. Defect in any of the essential requisites  The is marriage voidable 3. Irregularity in any of the formal requisites  Does NOT affect the validity of the marriage BUT will hold the party responsible for such irregularity liable Persons Authorized To Solemnize Marriages: (PMJCCC) 1. priests, rabbis, and ministers of any church 2. municipal and city mayors 3. members of the judiciary 4. ship captains or air plane chiefs 5. commanders of military unit, in the absence of chaplain 6. consul generals, consuls or viceconsuls Authorized Venues Of Marriage  GENERAL RULE: Must be solemnized publicly, and not elsewhere, in the: 1. chambers of the judge or in open court 2. church, chapel or temple 3. office of consul-general, consul or vice-consul EXCEPTIONS: 1. marriage at the point of death (articulo mortis); 2. marriage in remote places 3. marriage at a house or place designated by the parties with the written request to the solemnizing officer Marriages Exempt From License Requirement: (MOLAR) 1. among Muslims or members of ethnic cultural communities, provided such were solemnized in accordance with their customs, rites and practices 2. solemnized outside the Phil. where NO marriage license is required by the country where they were

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE

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SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics). Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 7

MEMORY AID solemnized

3. of a man and a woman who have lived together as husband and wife for at least 5 years and without legal impediment to marry each other NOTE: The 5-year period should be computed on the basis of a cohabitation as husband and wife where the only missing factor is the marriage contract to validate the union. This 5-year period should be the years immediately before the day of the marriage and it should be a period of cohabitation characterized by exclusivity meaning no third party was involved at any time within the 5 years and continuity - that is unbroken (Ninal vs. Bayadog, GR No. 133778 March 14, 2000). NOTE: In the case of Manzano vs. Sanchez (G.R. No. MTJ-00-1329, March 08, 2001), the Supreme Court laid down the requisites to avail the exemption under Article 34 of the Family Code: a. The man and woman must have been living together as husband and wife for at least five years before the marriage; b. The parties must have no legal impediment to marry each other; c. The fact of absence of legal impediment between the parties must be present at the time of marriage; d. The parties must execute an affidavit stating that they have lived together for at least five years [and are without legal impediment to marry each other; and e. The solemnizing officer must execute a sworn statement that he had ascertained the qualifications of the parties and that he had found no legal impediment to their marriage

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4. in articulo mortis 5. in remote places NOTE: A marriage license is valid only for 120 days from date of issue, in any part of the Philippines. Foreign Marriages  Validity of marriage:  GENERAL RULE: Where one or both parties to the marriage are citizens of the Philippines, the foreign marriage is valid in this country if solemnized in accordance with the laws of the country of celebration. EXCEPTIONS: Foreign marriages shall not be recognized in the Philippines if prohibited because: (MABB-PIP) 1. contracted by a national who is below 18 years of age 2. bigamous or polygamous (except as provided for in Art. 41, FC) 3. contracted through mistake of one party as to the identity of the other 4. contracted following the annulment or declaration of nullity of a previous marriage but before partition 5. void due to psychological incapacity 6. incestuous 7. void for reasons of public policy  Validity of divorce: GENERAL RULE: A divorce validly obtained abroad by the alien spouse, capacitating him/her to remarry can allow the Filipino to remarry. EXCEPTION: The rule will not apply if the divorce was obtained by the Filipino spouse. NOTE: A Filipino wife remains the lawful wife of the Filipino husband despite a decree of divorce obtained abroad by the wife. However, if the wife is already a foreigner at the time of the divorce, she ceases to be the lawful wife of the

CIVIL LAW COMMITTEE  CHAIRPERSON: Romuald Padilla  ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad  EDP: Alnaiza Hassiman, Dorothy Gayon  SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

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2005 CENTRALIZED BAR OPERATIONS

Filipino husband. This, notwithstanding, if at the time of the marriage the wife was still a Filipino, and subsequently acquires citizenship of another country, thereby rendering her to have the legal capacity to obtain a decree of divorce, the Filipino husband remains a spouse of the former. This situation is not covered by Art. 26, par.2 which requires that, at the time of the marriage, one of the parties is already an alien. VOID MARRIAGES A. Due to absence of any of the essential requisites: (BB-LAPIS) 1. contracted by any party below 18 years of age even with parental consent 2. solemnized by any person not legally authorized to perform marriages unless one or both of the parties believed in good faith that the solemnizing officer had the legal authority to do so 3. solemnized without a license except as otherwise provided 4. bigamous or polygamous marriages 5. marriages contracted through mistake of one of the parties as to the identity of the other 6. subsequent marriages that are void under Article 53 of the Family Code 7. contracted by a party who at the time of the marriage was psychologically incapacitated B. Incestuous marriages, whether the relationship be legitimate or illegitimate (Article 37): 1. between ascendants & descendants of any degree 2. between brothers & sisters whether full or half-blood C. Those contrary to public policy (Article 38): (SCAPS-SAKA) 1. between collateral blood relatives whether legitimate or illegitimate up to the 4th civil degree 2. between step-parents & step children 3. between parents-in-law & children-in-law

4. between the adopting parent & the adopted child 5. between the surviving spouse of the adopting parent & the adopted child 6. between the surviving spouse of the adopted child & the adopter 7. between an adopted child & 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 the latter’s spouse, or his/her spouse. NOTE: Under the FC, the following can now marry each other: a. Brother-in-law and sister-in-law; b. Stepbrother and stepsister; c. Guardian and ward; d. Adopted and illegitimate child of the adopter; e. Parties who have been convicted of adultery or concubinage. D. Subsequent marriages 1. without judicial declaration of nullity of previous void marriage (Article 40) 2. without judicial declaration of presumptive death of absent spouse (Article 41) 3. where the spouse was presumed dead, and both the present spouse and would-be spouse were in bad faith in contracting marriage (Article 44) NOTE: Where there was failure to record in the civil registry and registry of property the judgment of annulment or of absolute nullity of the marriage, partition and distribution of the property of the spouses and the delivery of the children’s presumptive legitimes it shall not affect third persons (Articles 52-53). NOTE: Even if a marriage is void, it must be declared void first because the parties cannot decide for themselves the invalidity of their marriage.

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE

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SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics). Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 9

MEMORY AID VOID

VOIDABLE

Decree of nullity

Decree of annulment Never be ratified Ratified by free cohabitation Attacked directly or Attacked directly collaterally only Co-ownership Conjugal Partnership Always void Valid until annulled Action for Action prescribes declaration of nullity does not prescribe

Psychological Incapacity  no exact definition but is restricted to psychological incapacity “to comply with the essential marital obligations of marriage”  involves a senseless, protracted and constant refusal to comply with the essential marital obligations by one or both of the spouses although he, she or they are physically capable of performing such obligations (Chi Ming Tsoi vs. CA)

 Essential elements: (MAVFFCCI) a. Mental condition b. Applies to a person who is maritally contracted to another entered into with volition Failure to perform or comply with the essential obligations in marriage Failure to perform is chronic Cause is psychological in nature Cause is serious, with juridical antecedence and must be incurable Incapacity results in the failure of the marriage.

c. Marriage d. e. f. g. h.

JURISPRUDENTIAL GUIDELINES: (Republic vs. Molina) 1. burden of proof belongs to the plaintiff 2. root cause of the psychological CIVIL LAW COMMITTEE

3. 4. 5. 6. 7.

8.

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incapacity must be: a. medically or clinically identified b. alleged in the complaint c. sufficiently proven by experts d. explained in the decision incapacity must be existing at the time of the celebration of marriage incapacity must be permanent or incurable illness is grave enough to bring about disability to assume marital obligations marital obligations refer to Art. 6871 of FC as well as Art. 220,221 and 225 of the FC interpretations of the National Appellate Matrimonial Tribunal of the Catholic Church of the Philippines while not controlling should be given great respect. trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear for the state.

JUDICIAL OF DECLARATION OF NULLITY  The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. NOTES:  For purposes of remarriage, the only legally acceptable basis for declaring a previous marriage an absolute nullity is a final judgment declaring such previous marriage void, whereas, for purposes other than remarriage, other evidence is acceptable. (Domingo vs. CA)  In a case for concubinage, the accused need not present a final judgment declaring his marriage void for he can adduce evidence in the criminal case of the nullity of his marriage other than proof of a final judgment declaring his marriage void. Hence, the pendency of the civil action for nullity of marriage does not pose a prejudicial question in a

 CHAIRPERSON: Romuald Padilla  ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad  EDP: Alnaiza Hassiman, Dorothy Gayon  SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

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criminal case for concubinage.  Parties to the marriage should not be permitted to judge for themselves its nullity, for the same must be submitted to the judgment of the competent courts and only when the nullity of the marriage is so declared can it be held as void, and so long as there is no such declaration, the presumption is that the marriage exists for all intents and purposes. Therefore, he who cohabits with a woman not his wife, before the judicial declaration of nullity of the marriage, assumes the risk of being prosecuted for concubinage. (Beltran vs. People, June 20, 2000)

remain valid except if the donee contracted the marriage in bad faith; 4. The innocent spouse may revoke the designation of the spouse in bad faith as the beneficiary in any insurance policy; and 5. The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate or intestate succession. NOTE: The above effects apply in voidable bigamous marriages. Except for (1), the above effects also apply to marriages which are annulled or declared void ab initio under Art. 40 of the Code.

BIGAMOUS MARRIAGES

DECLARATION OF PRESUMPTIVE DEATH  Requisites: (MR-BF) 1. That the absentee spouse has been missing for 4 consecutive years or 2 consecutive years if the disappearance occurred where there is danger of death under circumstances laid down in Art.391 of the NCC 2. The present spouse wishes to remarry; 3. The present spouse has well-founded belief that the absentee is Dead; 4. The present spouse files a summary proceeding for the declaration of presumptive death.

 GENERAL RULE: A marriage contracted by any person during the subsistence of a previous valid marriage shall be null and void.(Gomez vs. Lipana) EXCEPTIONS: When the following conditions concur, the subsequent bigamous marriage shall be valid: 1. absence of the other spouse must have been for four consecutive years, or two years where there was danger of death 2. well-founded belief of the present spouse that absent spouse was already dead 3. judicial declaration of presumptive death EFFECTS OF TERMINATION OF SUBSEQUENT MARRIAGE: (ICADI) 1. Children of the subsequent marriage conceived prior to its termination shall be considered legitimate; 2. The absolute community or conjugal partnership shall be dissolved and liquidated. If either spouse acted in bad faith, his/her share in the net profits shall be forfeited: a. in favor of the common children; b. if none, in favor of the children of the guilty spouse by previous marriage; or c. in default of children, in favor of the innocent spouse; 3. Donations by reason of the marriage

NOTE: The present spouse must establish that he had a well-founded belief required by law that his absent wife was already dead that would sustain the issuance of a court order declaring presumptive death. In the case of RP vs. Nolasco, The SC believed that respondent Nolasco failed to conduct a search for his missing wife with such diligence as to give rise to a “wellfounded belief” that she is dead. When he arrived in San Jose, Antique after learning of his wife’s departure, instead of seeking the help of local authorities or of the British embassy, he secured another seaman’s contract and went to London, a vast city of many millions of inhabitants, to look for her there. (RP vs. Nolasco)

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE

AND

SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics). Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 11

MEMORY AID Effect of Reappearance of Absent Spouse:  GENERAL RULE: The subsequent bigamous marriage under Article 41 remains valid despite reappearance of the absentee spouse. EXCEPTION: If the reappearance was made in a sworn statement recorded in the civil registry, the subsequent marriage is “automatically terminated.” EXCEPTION TO THE EXCEPTION: If there was a previous judgment annulling or declaring the first marriage a nullity, the subsequent bigamous marriage remains valid. VOIDABLE MARRIAGES  Grounds: (UP-FAVS) 1. Age of the party in whose behalf it is sought to have the marriage annulled was 18 years of age or over but below 21, and the marriage was solemnized without the consent of the parents, guardian or person exercising substitute parental authority over the party, in that order, and both lived together as husband and wife; 2. Unsound mind of either party 3. Fraudulent means of obtaining consent of either party 4. Vitiated consent of either party through force, intimidation or undue influence 5. Physical incapability of either party to consummate the marriage with the other, and such incapacity continues and appears to be incurable 6. Sexually-transmissible disease of either party found to be serious and appears to be incurable NOTE: Mode of ratification for Nos. 1-4 is COHABITATION. In Nos. 5 & 6, there is no ratification to speak of since the defect is permanent. The latter can be convalidated only by prescription, i.e. 5 years from the date of marriage. Specifically, in no.5, the healthy spouse CIVIL LAW COMMITTEE

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may still annul the marriage within 5yrs. after celebration. Circumstances amounting to Fraud under Article 46: (SPND) 1. Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude; 2. Concealment by the wife of the fact that at the time of the marriage, she was Pregnant by a man other than her husband; 3. Concealment of a Sexually transmissible disease, regardless of its nature, existing at the time of the marriage; and 4. Concealment of Drug addiction, habitual alcoholism, homosexuality or lesbianism existing at the time of the marriage. NOTES:

 Misrepresentation

as to character, health, rank, fortune or chastity is not a ground for annulment.  The enumeration in Article 46 is EXCLUSIVE. (Anaya vs. Palaroan) Ground (F2I2NS)

Persons Who May Sue

1.Force, Injured party intimidation , or undue influence

2. Fraud

Injured party

Prescripti ve Period w/in 5 years from the time the force, intimidatio n, or undue influence ceased w/in 5 years from the discovery of fraud

 CHAIRPERSON: Romuald Padilla  ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad  EDP: Alnaiza Hassiman, Dorothy Gayon  SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

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2005 CENTRALIZED BAR OPERATIONS

3. incapabi- Injured party lity to consummate

4. Insanity

5. Nonconsent

6. STD

(a) sane spouse who has no knowledge of the insanity (b) relatives, guardians or persons having legal charge of the insane (c) insane spouse (a) parent/ legal guardian having charge of the “noconsent” party (b) ”no consent “ party Injured party

w/in 5 years after the celebration of the marriage (a) anytime before the death of either party (b) anytime before the death of either party (c) during lucid interval or after regaining sanity (a) anytime before the “no consent” party reaches 21 (b) w/in 5 years after reaching 21 w/in 5 years after the celebration of the marriage

NOTE: In Nos. 1, 2, 4, and 5, when cohabitation takes place after the defect ceases to exist, the prescriptive period is rendered moot and academic. Whichever comes first may convalidate the marriage: Cohabitation or Prescription. Requisites for annulment due to Impotence under Art.45(5) (CUPIN) a. Impotence exists at the time of the celebration of the marriage b. The impotence is permanent c. incurable d. The impotence is unknown to the other spouse e. The other spouse must not also be impotent Doctrine of Triennial Cohabitation  presumption that

the

husband is impotent should the wife still remain a virgin after 3 years of living together with her husband. Requisites for annulment due to Disease under Article 45(6) (ICSIIF) 1. Either party is inflicted with a sexually transmissible disease (STD) ADDITIONAL REQUIREMENTS FOR ANNULMENT OR DECLARATION OF NULLITY 1.Prosecuting attorney or fiscal should: a. Take steps to prevent collusion between the parties b. Take care that evidence is not fabricated or suppressed 2.The following must be accomplished: a. Partition and distribution of the properties of the spouses b. Delivery of the children’s presumptive legitimes c. Recording of the judgment of annulment or absolute nullity. NOTES:

 There will be collusion only if the parties had arranged to make it appear that a ground existed or had been committed although it was not, or if the parties had connived to bring about a matrimonial case even in the absence of grounds therefore. (Ocampo vs. Florenciano)  A grant of annulment of marriage or legal separation by default is fraught with danger of collusion. If the defendant spouse fails to answer the complaint, the court cannot declare him or her in default but instead, should order the prosecuting attorney to determine if collusion exists between the parties. However, petitioner’s vehement opposition to the annulment proceedings negates the conclusion that collusion existed between the parties. Under these circumstances, the non-intervention of a prosecuting attorney to assure lack of collusion between the contending parties is not fatal to the validity of the proceedings in the trial court. (Tuason vs. CA, GR 116607, April 10, 1996)

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE

AND

SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics). Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 13

MEMORY AID RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARRIAGES AND ANNULMENT OF VOIDABLE MARRIAGES (A.M. 00-11-01-SC)  took effect on March 15, 2003  this Rule shall govern petitions for declaration of absolute nullity of void marriages and annulment of voidable marriages under the Family Code of the Philippines.  the Rules of Court has suppletory application  for a more comprehensive discussion on the procedural aspects of the Rule, please refer to the Remedial Law Memory Aid. LEGAL SEPARATION  Grounds: (SAMBA-LIPAD) 1. repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner 2. attempt of the respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement 3. attempt by the respondent against the life of the petitioner 4. final judgment sentencing the respondent to imprisonment of more than 6 years even if pardoned 5. drug addiction or habitual alcoholism of the respondent 6. lesbianism or homosexuality of the respondent 7. abandonment of the petitioner by the respondent without justifiable cause for more than 1 year 8. physical violence or moral pressure to compel petitioner to change religious or political affiliation 9. contracting by respondent of a subsequent bigamous marriage; and CIVIL LAW COMMITTEE

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10. sexual infidelity or perversion. NOTES:  Cooling-off Period – 6 months period designed to give the parties enough time to further contemplate their positions with the end in view of attaining reconciliation between them.  The enumeration in Article 55 regarding legal separation is EXCLUSIVE. (Lacson vs. San JoseLacson) Grounds for denial of petition: (CCCC-MP-DR) a. Condonation -NOTE: failure of the husband to look for his adulterous wife is NOT condonation to wife's adultery. (Ocampo vs. Florenciano) b. Consent c. Connivance d. Collusion e. Mutual Guilt f. Prescription g. Death of either party during the pendency of the case (Lapuz-Sy vs. Eufemio) h. Reconciliation of the spouses during the pendency of the case Effects of filing petition: a. The spouses shall be entitled to live separately from each other. b. The husband shall have no more right to have sexual intercourse with his wife. c. In the absence of an agreement between the parties, the court shall designate the husband, the wife, or a 3rd person to manage the absolute community or conjugal partnership property.

Effects of decree of legal separation: a. The spouses shall be entitled to

 CHAIRPERSON: Romuald Padilla  ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad  EDP: Alnaiza Hassiman, Dorothy Gayon  SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

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live separately from each other but the marriage bond is not severed. b. The absolute community or conjugal partnership shall be dissolved and liquidated. c. The custody of the minor children shall be awarded to the innocent spouse subject to the provisions of Art. 213 of the Code. d. The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession and the provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked by operation of law. e. The innocent spouse may revoke the donations made by him/her in favor of the offending spouse, as well as the designation of the latter as beneficiary in any insurance policy, even if the designation be irrevocable. Effects of Reconciliation of the Spouses: a. The legal separation proceedings, if still pending, shall thereby be terminated at whatever stage. b. The final decree of legal separation shall be set aside, but the separation of property and any forfeiture of share of the guilty spouse already effected shall subsist, unless the spouses agree to revive their former property regime. RULE ON LEGAL SEPARATION (A.M. 02-11-11-SC)  took effect on March 15, 2003  this Rule shall govern petitions for legal separation under the Family Code in the Philippines; the Rules of Court shall apply suppletorily  please refer to the Remedial Law Memory Aid for the procedural provisions of the Rule MARITAL RIGHTS AND OBLIGATIONS (JL-FORM) 1. live together 2. observe mutual love, respect & fidelity 3. render mutual help & support

4. fix the family domicile 5. joint responsibility for the support of 6.

the family management of the household

Exercise of Profession  GENERAL RULE: Husband & wife can engage in any lawful enterprise or profession without the consent of the other. EXCEPTION: Upon objection of the other spouse only on valid, serious and moral grounds, may the former’s consent be necessary. Property Relations Between Husband & Wife  Governed by: 1. marriage settlements executed before the marriage or antenuptial agreements 2. provisions of the Family Code 3. local customs (when spouses repudiate absolute community) MARRIAGE SETTLEMENTS  It is a contract entered into by the future spouses fixing the matrimonial property regime that should govern during the existence.  Requisites: 1. made before celebration of marriage 2. in writing (even modifications) 3. signed by the parties 4. not prejudice third persons unless registered in the civil registry 5. to fix terms and conditions of their property relations 6. additional signatories a. 18-21: parents b. civil interdictees & disabled: guardian  Not applicable when: 1. both spouses are aliens, even if married in the Philippines 2. as to extrinsic validity of contracts 3. contrary stipulation DONATIONS BY REASON OF MARRIAGE  Requisites: (COBB) 1. made before celebration of marriage

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE

AND

SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics). Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 15

MEMORY AID 2. 3.

in consideration of marriage in favor of one or both future

spouses BASES

DONATIONS PROPTER NUPTIAS

Formalities Governed by the

rules on ordinary donations except that if future property is donated, it must conform with formalities of wills

ORDINARY DONATIONS Governed by rules on donations (Arts. 725773, NCC)

Present May be donated but No limit Property up to 1/5 of except that donor’s present donor shall property leave property enough for his support Future May be included Cannot be property provided donation included is mortis causa

Grounds Art. 86, FC for revocation

Arts. 760, 764, & 765, NCC

Rule on Donation Between Spouses During Marriage GENERAL RULE: VOID, either direct or indirect donation EXCEPTIONS: 1. moderate gifts on occasions of family celebrations 2. donations mortis causa NOTE: This rule also applies to common-law spouses. (Article 87, Family Code) Grounds for Revocation (VIRAL-CN) 1. marriage Not celebrated or declared Void ab initio except those made in marriage settlements 2. marriage without parental Consent 3. marriage is Annulled and donee is in bad faith 4. upon Legal separation, the donee being the guilty spouse 5. complied Resolutory condition

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6. donee commits acts of Ingratitude SYSTEM OF ABSOLUTE COMMUNITY (AC)  The property regime of the spouses in the absence of a marriage settlement or when the marriage is void. This is so because it is more in keeping with Filipino culture. GENERAL RULE: Community property shall consist of all property owned by the spouses at the time of the marriage or acquired thereafter. EXCEPTIONS: (BEG) 1. property acquired before the marriage by either spouse who has legitimate descendants by a former marriage 2. property for personal and exclusive use except jewelry 3. property acquired during the marriage by gratuitous title, except when the donor, testator or grantor expressly provides otherwise NOTE: No waiver of rights allowed during the marriage except in case of judicial separation of property. The waiver must be in a public instrument. Administration of the community property GENERAL RULE: It shall belong to both spouses jointly. EXCEPTIONS: 1. In case of disagreement, husband’s decision shall prevail. 2. In case one spouse is incapacitated or unable to participate in the administration of the common properties, other spouse may assume sole powers. NOTE: These powers do not include: a. Disposition b. encumbrance NOTE: Any alienation or encumbrance is void if without the written consent of the other spouse

CIVIL LAW COMMITTEE  CHAIRPERSON: Romuald Padilla  ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad  EDP: Alnaiza Hassiman, Dorothy Gayon  SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

2005 CENTRALIZED BAR OPERATIONS

16

Rule on Game of Chance  LOSS: Shall be borne by the loser-spouse and shall not be charged to the community property  WINNINGS: Shall form part of the community property Steps in Liquidation of AC: (IP-DDP) 1. Inventory a. Inventory of Community Property b. Inventory of separate property of the wife c. Inventory of separate property of the husband 2. Payment of Community Debts 

First, pay out of community assets, if not enough, husband and wife are solidarily liable

3. Delivery to each spouse his/her separate property if any

4. Division of the net community assets 5. Delivery of presumptive legitimes, if any, to the children CONJUGAL PARTNERSHIP OF GAINS (CP)  It is that formed by a husband and wife whereby they place in a common fund the fruits of their separate property, and the income from their work or industry, the same to be divided between them equally (as a general rule) upon the dissolution of the marriage or the partnership. Conjugal Partnership Property: (LC2 FONT) 1. obtained from labor, industry, work or profession 2. acquired by chance 3. acquired during the marriage with conjugal funds 4. fruits of the conjugal property 5. acquired through occupation 6. net fruits of their exclusive property 7. share of either spouse in hidden treasure Exclusive Property Of Each Spouse: (OGRE) 1. that which is brought to the marriage as his/her own 2. acquired during the marriage by

3. 4.

gratuitous title acquired by right of redemption, barter or exchange with property belonging to either spouse purchased with exclusive money of either spouse

Rules In Cases Of Improvement Of Exclusive Property 1. Reverse Accession – if the cost of the improvement and the plus value is more than the value of the principal property at the time of the improvement, the property becomes conjugal 2. Accession – if the cost of the improvement of the plus value is equal to or less than the value of the principal property at the time of the improvement, the entire property becomes the exclusive property of the spouse. Steps In Liquidation Of CP: (DIRDO-DIP) 1. Inventory of the Conjugal Partnership of Gains assets 2. Restitution of advances made to each spouse 3. Payment of debts to each spouse 4. Payment of obligations to third parties 5. Delivery of exclusive properties 6. Payment of losses and deterioration of movables belonging to each spouse 7. Delivery of presumptive legitimes 8. Division of the net conjugal partnership properties NOTE: Property bought on installments paid partly from exclusive funds of the spouses and partly form conjugal funds: a. If full ownership was vested before the marriage – it shall belong to the buyer-spouse b. If full ownership was vested during the marriage - it shall belong to the conjugal partnership Charges Upon and Obligations Of AC and CP: 1. Support for family except for illegitimate children of either

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE

AND

SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics). Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 17

MEMORY AID spouse; 2. Debts and obligations which must have been contracted: a. by administrator-spouse for the benefit of the family; b. by both spouses; or c. by one spouse with the consent of the other; 3. Debts and obligations without marital consent provided the family was benefited; 4. All taxes, liens, charges and expenses including major or minor repairs upon the community or conjugal property; NOTE: However, in conjugal partnership, actual use need not be proved because it is presumed. 5. All taxes and expenses for mere preservation made during the marriage upon the exclusive property of either spouse used by the family; 6. Expenses for education or selfimprovement of either spouse; 7. Ante-nuptial debts of either spouse insofar as they have redounded to the benefit of the family; 8. The value of what is donated or promised by both spouses in favor of their common legitimate children for education or self-improvement; and 9. Expenses of litigation between spouses unless found to be groundless. NOTES:  The separate properties shall be solidarily and subsidiarily liable for the obligations if the community or conjugal properties are insufficient.  The absolute community property shall also be liable for ante-nuptial debts mentioned above, support of illegitimate children, and liabilities incurred by either spouse by reason of a crime or quasi-delict in case of insolvency of the exclusive property of the debtor-spouse. Payment of which shall be advanced by the absolute community property, CIVIL LAW COMMITTEE





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subject to deduction from the share of the debtor-spouse. The conjugal partnership property shall likewise be liable for the payment of the personal debts of either spouse insofar as they have redounded to the benefit of the family. Indirect benefits that might accrue to a husband in his signing a surety or guarantee agreement not in favor of the family but in favor of his employer corporation are not the benefits that can be considered as giving a direct advantage accruing to the family. Hence, the creditors cannot go against the conjugal partnership property of the husband in satisfying the obligation subject of the surety agreement. A contrary view would put in peril the conjugal partnership property by allowing it to be given gratuitously as in cases of donation of conjugal partnership property, which is prohibited. (Ayala Investment Corp. vs. CA)

Grounds For Termination Of Absolute Community And Conjugal Partnership: (LADS) 1. decree of legal separation 2. annulment or declaration of nullity of marriage 3. death of either spouses 4. judicial separation of property REGIME OF SEPARATION OF PROPERTY  Causes: (CLAAPS) a. petitioner’s spouse has been sentenced with a penalty which carries with it civil interdiction; b. loss of parental authority of the petitioner’s spouse as decreed by the court; c. petitioner’s spouse has been judicially declared an absentee; d. abandonment by the petitioner’s spouse and failure to comply with the obligations to the

 CHAIRPERSON: Romuald Padilla  ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad  EDP: Alnaiza Hassiman, Dorothy Gayon  SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

2005 CENTRALIZED BAR OPERATIONS

18

family;

e.

spouse granted power of administration in marriage settlement abused such power; and f. at the time of the petition, spouses are separated in fact for at least 1 year and the possibility for reconciliation is highly improbable. NOTE: The spouses contribute to the family expenses proportionately with their income and the value of their properties. However, the liability of the spouses to the creditors for family expenses is solidary. PROPERTY REGIME WITHOUT MARRIAGE Art. 147 Applicability

1. Without legal impediment to marry 2. Void marriages due to absence of formal requisite

Salaries & Owned in Wages equal shares

OF

UNIONS

Art. 148 1. With legal impediment to marry 2. Adulterous relationships 3. Bigamous or polygamous marriages 4. Incestuous void marriages under Art. 37 5. Void marriages by reason of public policy under Art. 38 Separately owned by the parties

Property Belongs to such Belongs to Acquired party provided such party Exclusively there is proof by Either that he/she Party acquired it by exclusive funds Property Acquired by Both Parties

Governed by the rules on coownership

Presumption (prima facie)

Presumption of joint acquisition and equal sharing as to property

Owned by them in common in proportion to their respective contributions No presumption of joint acquisition. When there is evidence of

acquired while they live together.

Forfeiture When only

one of the parties is in good faith, the share of the party in bad faith in the coownership shall be forfeited: a. in favor of their common children; or b. in default of or in case of waiver by any or all of the common children or their descendants, in favor of the innocent party.

joint acquisition but none as to the extent of actual contribution, there is a presumption of equal sharing. If one of the parties is validly married to another, his/her share in the coownership 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 or if both parties are in bad faith, such share shall be forfeited in the manner provided in the last paragraph of Article 147.

NOTE: Under Art. 148, 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 proportion to their respective contributions. It must be stressed that actual contribution is required by this provision, in contrast to Art. 147 which state that efforts in the care and maintenance of the family and household, are regarded as contributions to the acquisition of common property by one who has no salary or income or work or industry. If the actual contribution of the party is not proved, there will be no coownership and no presumption of equal shares. (Agapay vs. Palang). Hence, mere cohabitation without proof of

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE

AND

SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics). Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 19

MEMORY AID contribution will not result in a coownership. (Tumlos vs. Fernandez). THE FAMILY  Basic social institution which public policy cherishes and protect hence, no suit between members of the family shall prosper unless the compromise between the parties have failed  FAMILY RELATIONS INCLUDE: 1. between husband and wife 2. between parents and children 3. among ascendants and descendants 4. among brothers and sisters whether full or half-blood

FAMILY HOME GENERAL RULE: The family home is exempt from execution, forced sale or attachment. EXCEPTIONS: (PLMN) 1. debts incurred prior to constitution 2. debts due to laborers, mechanics, architects, builders, material men and others who have rendered service or furnished materials for the construction of the building 3. debts secured by mortgages 4. non-payment of taxes  Guidelines: 1. deemed constituted from time of actual occupation as a family residence 2. must be owned by person constituting it 3. must be permanent 4. rule applies to valid and voidable and even to common-law spouses under Articles 147 and 148 5. continues despite death of one or more spouses or unmarried head of

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the family for 10 years, or as long as a minor beneficiary lives 6. can constitute one (1) family home only PATERNITY AND FILIATION Rule on Children Conceived as a Result of Artificial Insemination  Status is legitimate child, provided both husband and wife authorized or ratified the insemination in a written instrument which they executed and signed before the birth of the child Legitimate Children GENERAL RULE: Only those who are conceived or born during a valid marriage EXCEPTIONS: (CAVALAC) Those children who are 1. Conceived as a result of artificial insemination 2. Born of a voidable marriage before decree of annulment 3. Conceived or born before judgment of annulment or absolute nullity under Art. 36 has become final & executory 4. Conceived or born of subsequent marriage under Art. 53 5. Of mothers who may have declared against its legitimacy or was sentenced as an adultress 6. Legally adopted 7. Legitimated, conceived and born outside of wedlock of parents without impediment at the time of conception and had subsequently married Illegitimate Children GENERAL RULE: Those conceived and born outside a valid marriage are illegitimate. EXCEPTIONS: Children who are: 1. born of marriages which are void ab initio such as bigamous and incestuous marriages and

CIVIL LAW COMMITTEE  CHAIRPERSON: Romuald Padilla  ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad  EDP: Alnaiza Hassiman, Dorothy Gayon  SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

20

2005 CENTRALIZED BAR OPERATIONS

marriage was declared void for being contrary to law and public policy 2. of voidable marriages born after the decree of annulment Rules on Impugning Legitimacy A. Grounds (PBA) 1. physical impossibility of the husband to have sexual intercourse with his wife within the 1st 120 days of the 300 days immediately preceding the child’s birth, due to: a. physical incapacity of the husband; b. husband and the wife were living separately; or c. serious illness of the husband which absolutely prevented sexual intercourse 2. biological or scientific proof that the child could not have been that of the husband; and 3. written authorization or ratification of either parent for artificial insemination was obtained through mistake, fraud, violence, intimidation or undue influence. B. Prescriptive periods 1. one year, from knowledge of birth or recording in the civil register, if husband or heirs lives in the SAME city/municipality 2. two years, if resides in the Phils. 3. three years, if abroad C. Parties GENERAL RULE: Only the husband may impugn EXCEPTION: The heirs, if the husband dies before the end of the prescription of the action, or after filing complaint, or child was born after death NOTE: The question of legitimacy cannot be collaterally attacked, it can be impugned only in a direct action. Rule on the Status of Children born after 300 days following Termination of Marriage A. Requisites (TS-WBN) 1. first marriage terminated

2.

mother contracted subsequent marriage 3. subsequent marriage was contracted within 300 days after termination of previous marriage 4. child was born 5. no evidence as to status of child B. Rules as to whom the child belongs 1. to first marriage, if child was born before the lapse of 180 days after celebration of 2nd marriage provided born within 300 days after termination of the 1st marriage. 2. to second marriage, if child was born after 180 days following celebration of 2nd marriage whether born within 300 days after termination of 1st marriage or afterwards. Proof of Filiation GENERAL RULE: Filiation of legitimate (or illegitimate) children is established by any of the following: 1. The record of birth appearing in the civil registrar or a final judgment 2. An admission of legitimate (or illegitimate) filiation in a public document or a private handwritten instrument and signed by the parent concerned. EXCEPTION: In the absence of any of the foregoing evidence, such legitimate or illegitimate filiation shall be proved by: 1. Open and continuous possession of the status of a legitimate or illegitimate child; 2. Any other means allowed by the Rules of Court and special laws. NOTES:

 Continuous does not mean that the concession of status shall continue forever but only that it shall not be of an intermittent character while it is continuous. The possession of such status means that the father has treated the child as his own, directly and not through others, spontaneously and without concealment though without publicity. There must be a showing

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE

AND

SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics). Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 21

MEMORY AID of permanent intention of the supposed father to consider the child as his own by continuous and clear manifestation of paternal affection and care. (Mendoza vs. CA). The paternal affection and care must not be attributed to pure charity. “Such acts must be of such a nature that they reveal not only the conviction of paternity, but also the apparent desire to have and treat the child as such in all relations in society and in life, not accidentally, but continuously.” (Jison vs. CA)  The SC in Lim vs. CA, ruled that petitioner was the father of his illegitimate children because the evidences convincingly show this. Hence, it was the petitioner who paid the bills for the hospitalization of the mother when she gave birth. He was the one who caused the registration of the name of the child using his surname in the birth certificate. He also wrote handwritten letters to the mother and the child stating his promise “to be a loving and caring husband and father to both of you.” There were also pictures of the petitioner on various occasions cuddling the child.  In view of the fact that filiation may be proved by “any means allowed by the Rules of Court and special laws” this may consist of baptismal certificate, a judicial admission, a family bible in which his name has been entered, common reputation respecting his pedigree, admission by silence, the testimony of witnesses and such other kinds of proof admissible under Rule 130 of RC. (Mendoza vs. CA) For a baptismal certificate to be proof of filiation under the Rules of Court, it must be shown that the father therein participated in the preparation of the same. A birth certificate not signed by the alleged father indicated in said certificate is not competent evidence of paternity. CIVIL LAW COMMITTEE

IN

CIVIL LAW

(Fernandez vs. CA)  Proof of filiation of petitioners to the late Enrique Baluyut is not sufficient to confer upon them any hereditary right in the estate of the deceased. What is necessary to be established by an illegitimate not natural child in order that he may be entitled to successional rights under Art 887 of NCC, is not the fact of his bare filiation but a filiation acknowledged by the putative parent.(Baluyut vs. Baluyut) Rights of the Children LEGITIMATE ILLEGITIMATE Use of father & mother’s surname

Receive support from parents Entitled to the legitime & other successional rights

Use of mother‘s surname NOTE: However, RA 9255 amended Article 176, FC Receive support according to FC Legitime is ½ of the legitime of a legitimate child

R.A. No. 9255  An Act Allowing Illegitimate Children to use the surname of their Father, amending for the purpose Article 176 of EO No. 209, otherwise known as the "FAMILY CODE OF THE PHILIPPINES":  Approved February 24, 2004 Illegitimate children may use the surname of their father if: 1. their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or 2. when an admission in a public document or private handwritten instrument is made by the father LEGITIMATION

 Requisites: (NIM) a. The child is illegitimate b. The parents at the time of the child’s

conception

are

not

 CHAIRPERSON: Romuald Padilla  ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad  EDP: Alnaiza Hassiman, Dorothy Gayon  SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

2005 CENTRALIZED BAR OPERATIONS

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disqualified from marrying each other c. There is a valid marriage subsequent to the child’s birth ADOPTION A. Domestic Adoption Act of 1998 (R.A. NO. 8552) Who may adopt: (LPG-CANE) 1. Filipino Citizen: a. of legal age b. in a position to support and care for his/her children in keeping with the means of the family c. good moral character d. in possession of full civil capacity or legal rights e. at least 16 years older than the adoptee, except when: 1) adopter is the biological parent of the adoptee 2) adopter is the spouse of the adoptee’s parent f. has not been convicted of any crime involving moral turpitude g. emotionally and psychologically capable of caring for children

2. Alien: a. same qualifications as a Filipino b. country has diplomatic relations with the Phil. c. has been living in the Phil. for at least three (3) continuous years prior to the application for adoption and maintains such residence until the adoption decree is entered, except when 1) former Filipino citizen who seeks to adopt a relative within the 4th degree of consanguinity or affinity 2) one who seeks to adopt the legitimate or illegitimate child of his/her Filipino spouse 3) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the 4th degree of consanguinity or affinity of the Filipino

spouse d. certified to have legal capacity to adopt by his/her diplomatic or consular office e. certified by said office that his government allows the adoptee to enter his/her country as his/her adopted child

3. Guardian – with respect to the ward after termination of the guardianship and clearance of his/her financial accountabilities Pre-Adoption Services  the DSWD shall provide for the following services: a. counselling services for the biological parents, prospective adoptive parents and prospective adoptee b. exhaust all efforts to locate the biological parents, if unkown Rule on Adoption by Spouses GENERAL RULE: The husband and the wife shall JOINTLY adopt. EXCEPTIONS: 1. one spouse seeks to adopt the legitimate child of the other 2. one spouse seeks to adopt his/her own illegitimate child 3. the spouses are legally separated Who may be adopted: 1. any person below 18 years of age who has been voluntarily committed to the DSWD under P.D. 603 or judicially declared available for adoption 2. legitimate stepchild 3. illegitimate stepchild 4. qualified adult, who, prior to the adoption, has been consistently considered by the adopter as his/her own child since minority; 5. child whose adoption has been previously rescinded 6. child whose biological or adoptive parents have died, provided that no proceedings shall be initiated within 6 months from the time of death of

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE

AND

SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics). Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 23

MEMORY AID said parents Consent in Adoption (BAILAS)  The WRITTEN CONSENT to the adoption is required in the following cases: 1. the adoptee, if 10 years of age or over 2. biological parents or government instrumentality 3. the legitimate/adopted children, 10 years old or over, of the adopter and adoptee 4. the illegitimate children, 10 years old or over, of the adopter if living with the adopter and the latter's spouse 5. spouse of the adopter and adoptee Effectivity of Decree of Adoption  a decree of adoption shall be effective as of the date the original petition was filed. It applies also in case the petitioner(s) dies before the issuance of the decree of adoption to protect the interest of the adoptee.

IN

CIVIL LAW

NOTE: Where the petition for adoption was granted after the child had shot and killed a girl, the SC did not consider the retroactive effect to the decree of adoption so as to impose a liability upon the adopting parents accruing at the time when the adopting parents had no actual or physical custody over the adopted child. Retroactive effect may perhaps be given to the granting of the petition for adoption where such is essential to permit the accrual of some benefit or advantage in favor of the adopted child. To hold that parental authority had been retroactively lodged in the adopting parents so as to burden them with liability for a tortious act that they could not have foreseen and which they could have prevented would be unfair and unconscionable. (Tamargo vs. CA 209 S 518) Effects of Adoption: (SAL) 1. Severance of legal ties between the biological parents and the adoptee and the same shall be vested in the adopters. EXCEPTION: if the biological parent is the spouse of the adopter 2. Adoptee shall be considered as a legitimate child of the adopter(s) for all intents and purposes. 3. In legal or intestate succession, the adoptee and the adopter(s) shall have reciprocal rights of succession without distinction from legitimate filiation. However, if there is a will, the rules on testamentary succession shall be followed. Rescission of Adoption  Grounds: (ASAR) 1. attempt on the life of the adoptee 2. sexual assault or violence 3. abandonment and failure to comply with parental obligations 4. repeated physical or verbal

CIVIL LAW COMMITTEE  CHAIRPERSON: Romuald Padilla  ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad  EDP: Alnaiza Hassiman, Dorothy Gayon  SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

2005 CENTRALIZED BAR OPERATIONS

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maltreatment by the adopter NOTES:  Only the adoptee is given the right to rescind the decree of adoption  The adopter can NOT rescind the decree of the adoption but he or she may disinherit the adoptee.  Effects: a. Parental authority of adoptee’s biological parents or legal custody of DSWD shall be restored if adoptee is still a minor or incapacitated. b. Reciprocal rights and obligations of the adopter(s) and the adoptee to each other shall be extinguished. c. The amended certificate of birth of the adoptee shall be cancelled and its original shall be restored. d. Succession rights shall revert to its status prior to the adoption, but vested rights shall not be affected. B. Inter-Country Adoption Act of 1995 (R.A. No. 8043) Inter-Country Adoption  The socio-legal process of adopting a Filipino child by a foreigner or a Filipino citizen permanently residing abroad where the petition is filed, the supervised trial custody is undertaken, and the decree of adoption is issued outside the Philippines. Who may be adopted: a. Only a “legally-free child” may be the subject of inter-country adoption NOTE: “Legally-free Child” - a child who has been voluntarily or involuntarily committed to the DSWD of the Philippines, in accordance with the Child Youth and Welfare Code. b. No child shall be matched to a foreign adoptive family unless it is satisfactorily shown that the child cannot be adopted locally. Who may adopt:

1.

2. 3.

4. 5. 6.

7.

8.

9.

 Any alien or Filipino citizen permanently residing abroad may file an application for inter-country adoption of a Filipino child if he/she: is at least 27 years of age and at least 16 years older than the child to be adopted, at the time of the application unless the adopter is the parent by nature of the child to be adopted or the spouse of such parent if married, his/her spouse must jointly file for the adoption has the capacity to act and assume all rights and responsibilities of parental authority under his national laws, and has undergone the appropriate counselling from an accredited counsellor in his/her country has not been convicted of a crime involving moral turpitude is eligible to adopt under his/her national law is in a position to provide the proper care and support and to give the necessary moral values and example to all his children, including the child to be adopted agrees to uphold the basic rights of the child as embodied under Philippine laws, the U.N. Convention on the Rights of a Child, and to abide by the rules and regulations issued to implement the Inter-Country Adoption Act comes from a country with whom the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that adoption is allowed under his/her national laws possesses all the qualifications and none of the disqualifications under the Inter-Country Adoption Act and other applicable Philippine laws

Inter-Country Adoption Board  acts as the central authority in matters relating to inter-country adoption.  The Board shall ensure that all possibilities for the adoption of the child under the Family Code have been exhausted and that inter-

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE

AND

SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics). Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 25

MEMORY AID country adoption is in the best interest of the child. Trial Custody:  6 months from the time of placement 1. starts upon actual physical transfer of the child to the applicant who, as actual custodian, shall exercise substitute parental authority over the person of the child. 2. the adopting parent(s) shall submit to the governmental agency or authorized and accredited agency, which shall in turn transmit a copy to the Board, a progress report of the child’s adjustment. NOTES:  If the pre-adoptive relationship is found unsatisfactory by the child or the applicant or both, or if the foreign adoption agency finds that the continued placement of the child is not in the child’s best interest, said relationship shall be suspended by the Board and the foreign adoption agency shall arrange for the child’s temporary care.  If a satisfactory pre-adoptive relationship is formed between the applicant and the child, the Board shall submit the written consent to the adoption to the foreign adoption agency within 30 days after receipt of the latter’s request.  A copy of the final decree of adoption of the child, including certificate of citizenship/naturalization whenever applicable, shall be transmitted by the foreign adoption agency to the Board within 1 month after its issuance. NOTE: For a comprehensive discussion of the procedural aspects of adoption, please refer to A.M. No. 02-06-02-SC or the Remedial Law Memory Aid

IN

CIVIL LAW

SUPPORT  everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation in keeping with the financial capacity of the family Kinds: (LJC) 1. Legal – that which is required or given by law 2. Judicial – required by the court to be given whether pendente lite or in a final judgment 3. Conventional – given by agreement Characteristics: (PIN-ERV) 1. Personal 2. Intransmissible 3. Not subject to waiver or compensation 4. Exempt from attachment or execution 5. Reciprocal on the part of those who are by law bound to support each other 6. Variable Persons obliged to support each other: 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 NOTE: Support shall be in proportion to the resources or means of the giver and to the necessities of the recipient. Order of liability if several persons are obliged to give support: 1. spouse 2. descendants in the nearest degree

CIVIL LAW COMMITTEE  CHAIRPERSON: Romuald Padilla  ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad  EDP: Alnaiza Hassiman, Dorothy Gayon  SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

26

2005 CENTRALIZED BAR OPERATIONS

3. ascendants in the nearest degree 4. brothers and sisters NOTES:  When the obligation to give support falls upon 2 or more persons payment shall be divided between them in proportion to the resources of each, but in case of urgent need and special circumstances, the court may order one of them to furnish the support provisionally subject to the right to claim from the other obligors the share due them  When two or more recipients at the same time claim for support and the obligor does not have sufficient means to satisfy all claims: a. the order of liability provided by law shall be followed b. if the concurrent obligees should be the spouse and child subject to parental authority, the child shall be preferred PARENTAL AUTHORITY (PA) Rules as to the exercise of PA: 1. 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 2. If the child is illegitimate, parental authority is with the mother. Parental Preference Rule  the natural parents, who are of good character and who can reasonably provide for the child are ordinarily entitled to custody as against all persons Rule in case of legal separation of parents:  parental authority is exercised by the parent designated by the court. GENERAL RULE: No child under 7 years of age shall be separated from the mother. EXCEPTION: When the court finds compelling reason to order otherwise.

NOTE: Paramount consideration in matters of custody of a child is the welfare and well-being of the child. (Tonog vs. CA) Persons Exercising Substitute PA: 1. surviving grandparent 2. oldest brother or sister over 21 years of age unless unfit or disqualified 3. actual custodian unless unfit or disqualified Persons Exercising Special PA: 1. school 2. administrators and teachers 3. individual, entity or institution engaged in child care NOTES:  Parental authority and responsibility are inalienable and may not be transferred and renounced except in cases authorized by law.  Parents may exercise parental authority over their child’s property Kinds of Properties of a Minor ADVENTITIOUS PROFECTITIOUS 1. earned or acquired by the child through his work or industry by onerous or gratuitous title 2. owned by the child

1. property given by the parents to the child for the latter to administer

3. child is also the usufructuary, but the child’s use of the property shall be secondary to the collective daily needs of the family 4. property administered by the parents

the

Termination of PA PERMANENT 1. death of the parents 2. death of the child 3. emancipation of the child 4. subjected child to sexual abuse

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE

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2. owned by parents 3. parents are usufructuary

the

4. property administered by the child

TEMPORARY 1. adoption of the child 2. appointment of a general guardian 3. judicial declaration of abandonment 4. final judgment

SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics). Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 27

MEMORY AID divesting the parents of parental authority 5. judicial declaration of absence or incapacity of the parents exercising parental authority over the child

Grounds for suspension of PA (CHOBAN) 1. conviction of a crime with the penalty of civil interdiction 2. harsh or cruel treatment against the child 3. orders, counsel and example which are corrupting, given by the person exercising authority 4. begging is compelled of the child 5. acts of lasciviousness, allowed for the child to be subjected to, or himself subjects the child to 6. negligence, which is culpable, committed by the person exercising authority FUNERALS GENERAL GUIDELINES 1. duty and right to make arrangement in funerals in accordance with Article 199, FC 2. the funeral shall be in keeping with the social position of the deceased 3. the funeral shall be in accordance with the expressed wishes of the deceased a. in the absence of the expressed wishes, his religious beliefs or affiliation shall determine b. in case of doubt, the persons in Article 199, FC shall decide 4. any person who disrepects the dead or allows the same shall be liable for damages Grounds for Change of First Name or Nickname under R.A. No. 9048 (An act CIVIL LAW COMMITTEE

IN

CIVIL LAW

authorizing City or Municipal Civil Registrar or the Consul General to Correct a Clerical or Typographical Error in an Entry and/or Change of First Name or Nickname in the Civil Registrar Without need of a Judicial Order, Amending for this Purpose Articles 376 and 412 of the Civil Code)) 1. The petitioner finds the first name or nickname to be ridiculous, tainted with dishonour 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 first name or nickname in the community 3. The change will avoid confusion NOTE: Please refer to Remedial Law Memory Aid for a comprehensive discussion of the procedural aspects of change of name. ABSENCE DECLARATION OF ABSENCE WITHOUT WITH ADMINISTRATOR ADMINISTRATOR 2 years from the lapse of time without news about the absentee or since the receipt of the last news

5 years from the lapse of time without news about the absentee or since the receipt of the last news

PRESUMPTION OF DEATH ORDINARY ABSENCE

EXTRAORDINARY/ QUALIFIED ABSENCE

a. 7 YEARS, person presumed dead for all purposes except for those of opening succession b. 10 YEARS, person presumed dead for purposes of opening succession except if he disappeared after the age of 75, in which

For all purposes including those of opening succession, a period of 4 YEARS, and for purposes of remarriage of the spouse present, a period of 2 YEARS, is sufficient under the following circumstances:

 CHAIRPERSON: Romuald Padilla  ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad  EDP: Alnaiza Hassiman, Dorothy Gayon  SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

2005 CENTRALIZED BAR OPERATIONS

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case, a period of 5 years is sufficient c. 4 YEARS, person presumed dead for purposes of remarriage of the spouse present

a. person on board a vessel lost during a sea voyage or an aeroplane which is missing; period is counted from the loss of the vessel or aeroplane b. person in the armed forces who has taken part in war c. person in danger of death under other circumstances and his existence has not been known

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE

AND

SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics). Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)