RABUYA Family Relations Reviewer

Family Code of the P hilippines (Rabuya)

FAMILY CODE OF THE PHILIPPINES (RABUYA) Took effect on August 3, 1988

TITLE I. MARRIAGE Chapter 1 REQUISITES OF MARRIAGE ART. 1 • Marriage is more than a contract because once executed, a relation between the parties is created which they cannot change - Unlike marriage, other contracts may be modified, restricted or enlarged or entirely released upon the consent of the parties • Marriage between rapist and the raped person - Subsequent valid marriage between the offender and offended extinguishes the criminal action or penalty imposed - If the legal husband is the offender, subsequent forgiveness by the wife as offended party shall extinguish the criminal action or penalty, but not if the marriage is void ab initio • Marriage creates a social status or relation between contracting parties in which the State is also interested

• 3 Components of legal capacity 1. Age requirement - Must be at least 18 years of age - Qualified by Art. 14 • PARENTAL CONSENT is required if the contracting party is below 21 years old • Absence of parental consent renders the marriage voidable - Required minimum age for marriage should be reckoned ON THE DATE OF MARRIAGE, not on the date of the filing of application for the issuance of marriage license **Parties contract marriage on the date of solemnization of marriage 2.

Parties must be of Opposite Sex - Indispensable

3.

Absence of Impediments mentioned in Arts. 37 and 38 - See Arts. 37 and 38

• Consent - Must be MUTUAL - Parties must in fact consent and there must be physical assent to the contract - Manifestation of consent: Appear personally before the solemnizing officer and declare in the present of not less than two witnesses of legal age that they take each other as husband and wife - Must be freely, voluntarily and intelligently given

• To determine validity of marriage - To be tested by the law in force at the time the marriage was contracted - GR: Nature of marriage already celebrated cannot be changed by a subsequent amendment to the law **Void marriages can NEVER be ratified

• Authority of solemnizing officer - If not authorized under the law, marriage is void ab initio - EXCPN: However, if either or both parties believed in good faith that the solemnizing officer had legal authority to do so, then the marriage shall remain valid despite the solemnizer’ s lack of authority - Only the following persons are authorized to solemnized marriage: 1. Incumbent members of the judiciary within the court’s jurisdiction 2. Priest, rabbi, imam or minister of any church or religious sect duly authorized by his church or religious sect 3. Ship captain or airplane chief, in case of articulo mortis 4. Military commanders of a unit, in cases of articulo mortis 5. Consul-general, consul or vice consul, in limited cases 6. Mayos

ART. 2 - ART. 3 • Requisites of Marriage: 1. Essential and formal requisites 2. Legal capacity 3. Consent 4. Authority of the solemnizing officer 5. Valid marriage license 6. Marriage ceremony

• Valid marriage license - To notify the public that the two persons are about to be united in matrimony and that anyone who has knowledge of any impediment shall make it known to the local civil registrar - When marriage license can be dispensed with: 1. Art. 27 2. Art. 28 3. Art. 33 4. Art. 34

• Art. II, Sec. 12, Constitution - State recognizes the Filipino family as the foundation of the nation - Sec. 2, Art. 15 Constitution - Lawful marriage does not shed the spouses’ integrity or their privacy as individuals - Legislative regulation of marriage must not contravene the mandates of the Constitution - Marriage settlements must be within the limits of the Family Code

• Art. 2 ESSENTIAL REQUISITES: 1. Legal capacity 2. Consent • Art. 3 FORMAL REQUISITES: 1. Authority of solemnizing officer 2. Valid marriage license 3. Marriage ceremony

Abesamis, Austinne Joyce D.

• Marriage ceremony/ Solemnization of Marriage - In this jurisdiction, informal or common-law marriages are not recognized - Marriage by proxy is not recognized - The requirements of at least 2 witnesses of legal age is merely directory so that a failure to comply therewith does not invalidate the marriage

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Family Code of the P hilippines (Rabuya) - Mere private act of signing a marriage contract without the ART. 4 • Effect of Absence of any Requisite - ABSENCE of any essential or formal requisite: Marriage is VOID ab initio • EXCPN: Art. 35(2): The only exception to the rule expressed in par. 1, Art. 4 - The following marriages are VOID ab initio: 1. Where consent is lacking 2. Contracted by any party who is not legally capacitated 3. Solemnized by any person not authorized to perform marriages, except Art. 35(2) 4. Solemnized without a valid marriage license, except those exempt from license requirements 5. Common law marriages and marriages by proxy • Effect of DEFECT or IRREGULARITY in the requisites - If any of the ESSENTIAL requisites is DEFECTIVE: Marriage is VOIDABLE - If there is IRREGULARITY in any of the FORMAL requisites: Validity of marriage is not affected but the party/parties responsible for such irregularity shall be civilly, criminally or administratively liable • Marriage Void ab initio where consent is totally lacking - Consent must be lacking from BOTH the contracting parties - The fact that marriage is fraudulent on the part of one party will not render it void where other party is deceived and believed it to be a valid marriage • May be inferred from Art. 44 which declares a subsequent marriage as Void ab initio only if both spouses acted in bad faith • Marriages contracted through mistake of one contracting party as to the identity of the other - Void ab initio - There is no real consent • Where there is consent but same is vitiated by reason of fraud, force, intimidation or undue influence, or either party is of unsound mind - Marriage is voidable - Consent is defective but present • Marriage celebrated without a valid Marriage License - Void ab initio - A marriage which preceded the issuance of such license is void; subsequent issuance of such license cannot render valid or even add an iota of validity to the marriage - However, if there is a license but is wrongfully or fraudulently obtained or there is an irregularity in its issuance, the validity of marriage is not affected - Marriage celebrated 120 days after the issuance of marriage license is void ab initio (Art. 20) • Failure of parties to sign the marriage certificate will not likewise affect the validity of marriage - Purpose of the certificate: Evidence of marriage - Absence of marriage certificate is not proof that no marriage took place because other evidence may be presented to prove the marriage ART. 5 - ART. 6 • For a marriage to exist, it is essential that contracting parties must appear personally before the solemnizing officer and that their consent to the contract of marriage be given in the latter’s presence

Abesamis, Austinne Joyce D.

presence of solemnizing officer does not amount to a marriage ceremony • 3 Requisites in a marriage ceremony: 1. Personal appearance of contracting parties before solemnizing officer 2. Personal declaration that they take each other as husband and wife 3. Declaration done in the presence of the solemnizing officer and at least two witnesses of legal age ART. 7 • Members of the Judiciary 1. They must be incumbent members 2. They must solemnize the marriage within their court’s jurisdiction • The following are members of the Judiciary 1. CJ and AJ of the SC- national jurisdiction 2. PJ and J of CA- national jurisdiction 3. PJ and J of Sandiganbayan- national jurisdiction 4. Judges of the RTCs, CTA, MTC, MMTC- jurisdiction within a limited territory designated by law • Marriages outside the court’s jurisdiction - Outside of their court’s jurisdiction, they are not clothed with authority to solemnize marriages - Ex. If marriage is solemnized by a judge of RTC outside of their court’s jurisdiction, there in an ABSENCE of a formal requisite; the marriage will be considered void ab initio • There is a TOTAL ABSENCE of a FORMAL REQUISITE • Marriage in Good Faith - Art. 35(2) - If the good faith of the parties consists in their mistaken belief that a judge has the authority to solemnize marriages outside of his court’s jurisdiction, marriage is VOID ab initio • This is a case of ignorance of law - HOWEVER, if their good faith consists in their mistaken belief that the solemnizer is a judge of the locality where the marriage is celebrated, then good faith may be invoked in this case since there is a clear case of ignorance of fact • Priest, Rabbi, Imam or Minister - Requisites: 1. Must be duly authorized by his respective church or sect 2. Must be duly registered with the Civil Registrar General 3. Must act within the limits of his written authority 4. At least one of the contracting parties must belong to the solemnizing officer’s church or sect - If any of the requisites is not present, the religious solemnizer is not clothed with authority to solemnize a marriage • Marriage is Void ab initio - If none of the parties belonged to the solemnizing officer’s church or sect, it is submitted that good faith may not be invoked • This is a case of ignorance of law • The issuance by the Civil Registrar General of the authorization is purely a ministerial duty • Pursuant to Art. 33, marriages among Muslims or members of the ethnic cultural communities may be solemnized without need of securing a marriage license

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- However, Art. 33 does not dispense with the requirement of

Family Code of the P hilippines (Rabuya) 3.

registration of the solemnizing officer • Mayors - Their authority was restored by the LGC - Ordinarily, the powers of a mayor are confined only within his territorial jurisdiction • But the fact that a mayor had solemnized a marriage outside of his jurisdiction will NOT AFFECT the validity of the marriage; this is a mere irregularity in the exercise of his authority • Different from the authority of the members of the judiciary which is confined by law to their court’s jurisdiction • LGC states that mayors are authorized to solemnize marriages without limiting the exercise of such authority to their territorial jurisdiction ART. 8 • Venue or place of marriage 1. If to be solemnized by a member of the judiciary, it must be held in the chamber of the judge or in his sala in open court 2. If to be solemnized by a religious solemnizer, it must be held in the church, chapel or temple of the religious solemnizer concerned 3. If to be solemnized by consul-general, consul or viceconsul, the marriage must be celebrated in his office • In the following cases, marriage may be celebrated elsewhere 1. In cases contracted at the point of death 2. In cases of marriages contracted in remote places in accordance with the provisions of Art. 29 3. In cases where both of the parties to the marriage requested the solemnizing officer in writing and under oath to solemnize the marriage elsewhere • Art. 8 is merely DIRECTORY - It only refers to the venue of marriage and does not alter or qualify the authority of the solemnizing officer - Non-compliance will not affect the validity of the marriage since this is a mere irregularity - But not in the case of marriages solemnized by judges outside their territorial jurisdiction ART. 9 - ART. 10 • If the license is obtained elsewhere, the validity of marriage is not affected since this is a mere irregularity • If the marriage is between a Filipino and an alien, it appears that consular officials are not clothed with authority to solemnize such marriage - They have no authority to solemnize marriages outside of the country where they hold office ART. 11 - ART. 21 • Application for issuance of license must be filed in the local civil registrar of the city or municipality where either contracting party habitually resides - Although a license obtained elsewhere shall not affect the validity of the marriage • Documents accompanying the Application 1. Birth or Baptismal Certificate 2. Death Certificate of Spouse, Divorce Decree, etc.

Abesamis, Austinne Joyce D.

4. 5. 6.

Parental Consent - Absence of parental consent is a ground to annul marriage Parental Advice Certificate of Marriage Counselling Certificate of Legal Capacity - The absence thereof is a mere irregularity

• If the license is issued prior to the lapse of the 10-day period of publication or issued in the absence of such requisite publication, it will not affect the validity of the marriage celebrated on the basis of the license so issued • Issuance of a license is a ministerial duty of the civil registrar • Marriage celebrated on the basis of such cancelled license is void ab initio for want of a formal requisite of marriage ART. 22 - ART. 25 • Marriage certificate or marriage contract is the best documentary evidence of a marriage • Absence thereof is not proof that no marriage took place since other evidence may be presented to prove the existence of marriage • There mere fact that no record of marriage exists in the registry of marriage does not invalidate said marriage, as long as in the celebration thereof, all requisites for validity are present ART. 26 • The following marriages are void ab initio even if valid in the place where it was celebrated 1. If both parties are Filipinos and either one or both of them is below 18 2. If one of the parties to a marriage is a citizen of the Ph and he or she is below 18 3. Bigamous or polygamous marriage 4. If contracted through the mistake of one contracting party as to the identity of the other 5. If one of the parties in a subsequent marriage is a party to a prior marriage which has been annulled or judicially declared void but fails to comply with the requirement of Art. 52 6. If one of the parties to a marriage, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations 7. Incestuous marriages 8. If void by reason of public policy • It is a condition sine qua non that the divorce must have been obtained by the alien spouse and NOT by the Filipino spouse • RP v. ORBECIDO III - Art. 26, par. 2 should be interpreted to apply cases involving parties who at the time of the celebration of marriage were Filipino citizens, but later on, one of them becomes naturalized as a foreign citizen and obtains a divorce decree - The Filipino spouse should also be allowed to remarry as if the other party were a foreigner at the time of the solemnization of marriage **Reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but their citizenship at the time a valid divorce was obtained abroad by the alien spouse

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Family Code of the P hilippines (Rabuya) Chapter 2 MARRIAGES EXEMPTED FROM THE LICENSE REQUIREMENT ART. 27 - ART. 30 • Marriages EXEMPT from the license requirement 1. In cases where either or both of the contracting parties are at the point of death 2. If the residence of either party is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar 3. Marriages among Muslims or among members of ethnic cultural communities provided the same are solemnized according to their customs, rites or practices 4. Marriages of a man and a woman who have lived together as husband and wife for at least five years and without any legal impediment to marry each other

• Nature of Cohabitation - The requirement of absence of legal impediment should apply during the entire 5-year cohabitation - NIÑAL v. BAYADOG • Cohabitation must be in the nature of a perfect union that is valid under the law but rendered imperfect only by the absence of the marriage contract and characterized by EXCLUSIVITY — meaning no third party was involved at anytime within the 5 years and CONTINUITY — that is unbroken • If that continuous 5-year cohabitation is computed without any distinction as to whether the parties were capacitated to marry each other during the entire 5 years, then the law would be sanctioning immorality and encouraging the parties to have common law relationships and placing them on the same footing with those who lived faithfully with their spouse - The 5-year common-law cohabitation period, which is counted back from the date of celebration of marriage, should be a period of legal union had it not been for the absence of marriage

• The absence of the affidavit of the solemnizing officer in cases of marriages performed in articulo mortis will not affect the validity of the marriage Chapter 3 VOID AND VOIDABLE MARRIAGES ART. 31 - ART. 32 • Authority of the ship captain or airplane chief to solemnize marriages is subject to the following conditions and/or requisites 1. Must be in articulo mortis 2. Must be between passenger or crew members - Authority may be exercised not only while the ship is at sea or the plane is in flight but also during stopovers at the ports of call - Airplane pilot refers to an “airplane chief” who is the head of the crew, in the same way that the same authority is granted only to the ship captain • Military commander of a unit has the authority to solemnize marriage if the following conditions and/or requisites are present 1. Must be a commissioned officer, or an officer in the armed forces holding rank by virtue of a commission from the President 2. The assigned chaplain to his unit must be absent 3. Must be in articulo mortis 4. Must be solemnized within the zone of military operations - Contracting parties may either be members of the armed forces or civilians ART. 33 - ART. 34 • Rationale behind Art. 34 - To avoid exposing the parties to humiliation, shame and embarrassment concomitant with the scandalous cohabitation of persons outside a valid marriage due to the publication of every applicant’s name for a marriage license - The following requisites must concur 1. The man and woman must have been living together as husband and wife for at least five years before the marriage 2. Parties must have no legal impediment to marry each other 3. Fact of absence of legal impediment must be present at the time of marriage 4. Parties must execute an affidavit stating that they have lived together for at least 5 years 5. Solemnizing officer must execute a sworn statement that he had ascertained the qualifications of the parties that he had found no legal impediment to their marriage

Abesamis, Austinne Joyce D.

VOID MARRIAGE

VOIDABLE MARRIAGE

Deemed never to have taken place at all and cannot be the source of rights

Considered valid and produces all its civil effects, until it is set aside by final judgment

Can NEVER be ratified and is not subject to prescription

Can be generally ratified or confirmed by free cohabitation or prescription

Can be attacked collaterally

Can be assailed only in a direct proceeding for that purpose and not collaterally

Can be question even after the death of either party

Can be assailed only during the lifetime of the parties

• Only parties to a voidable marriage can assail it but any proper interested party may attack a void marriage • Children conceived before a voidable marriage is annulled are legitimate • Petition for Declaration of Absolute Nullity of void marriage may be filed solely by the husband or the wife - But a void marriage is still subject to a collateral attack - For purposes other than remarriage, such as but not limited to determination or heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime, the court may pass upon the validity of marriage even in a suit not directly instituted to question the same so long as it is essential to the determination of the case • Marriages VOID from the beginning - Arts. 35, 36, 37, 38, 44 - Also, absence of any of the essential or formal requisites renders the marriages void ab initio - Marriages between persons of the same sex if celebrated in the Ph - Marriages where consent is totally lacking

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Family Code of the P hilippines (Rabuya) - Incapacity must be grave or serious that the party

- Common-law marriages and marriages by proxy - Marriages where exchange of vows was not done personally by the contracting parties in the presence of the solemnizing officer

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ART. 35 • Marriage contracted by any party below 18 years of age - Absence of legal capacity • Solemnized by any person not authorized to perform marriages - Rule is not absolute - Even if solemnizing officer has no legal authority as long as either or both contracting parties believed in good faith that he had the legal authority to do so, marriage is still valid, not only with respect to the parties to such marriage but also with respect to third persons and the State - If contracting parties will go before a person not specifically mentioned by law as having authority to solemnize marriages, the exception does not apply - If they go before a person enumerated in Art. 7 but who is not authorized to perform marriages for failing to comply with the requirements laid down by law, marriage will still be valid if either or both parties relied in good faith in his apparent authority • Lack of marriage license - Marriage license obtained after the celebration of marriage does not cure it’s invalidity • Bigamous and Polygamous Marriages - A second or subsequent marriage is void ab initio for being bigamous, even if the other party had acted in good faith and was not aware of the existence of the previous marriage at the time of the celebration of the subsequent marriage - Not absolute because a subsequent bigamous marriage may be considered valid if all the requisites under Art. 41 are present • Mistake in Identity - Mistake in identity must be with reference to the actual physical identity of the other party, not merely a mistake in the name, personal qualifications, character, social standing, etc. - There is absence of real consent • Non-compliance with procedure under Art. 52 - Only after complying with the requirements may either of the spouses be allowed to remarry ART. 36 • No precise definition of Psychological Incapacity as to allow some resiliency in its application • Whether or not psychological incapacity exists depends crucially on the facts of the case • Psychological incapacity should refer to no less than mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which include their mutual obligations to live together, observe love, respect and fidelity and render help and support • Psychologic condition must EXIST at the time the marriage is celebrated • Characteristics of Psychological Incapacity - SANTOS v. CA 1. Gravity

Abesamis, Austinne Joyce D.

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would be incapable of carrying out the ordinary duties required in marriage Grave enough to bring about the disability of the party to assume essential obligations of marriage Illness must be shown as downright incapacity or inability, NOT a refusal, neglect or difficulty, much less ill will There is natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really appreciating and thereby complying with the obligations essential to marriage

2.

Juridical Antecedence - Must be rooted in the history of the party antedating the marriage, although overt manifestations may emerge only after the marriage - Manifestation of the illness need not be perceived at the time of their “I Do’s”, but the illness itself must have attached at such moment, or prior thereto

3.

Incurable - It must be incurable or, even if it were otherwise, the cure would be beyond the means of the party involved - Medically or clinically permanent or incurable - Incurability may be absolute or even relative only in regards to the other spouse, not necessarily absolutely against everyone of the same sex - Must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage

• Rule on Declaration of Absolute Nullity of Marriages and Annulment of Voidable Marriages - AM No 02-11-10-SC which took effect on March 15, 2003 1. Burden of proof to show the nullity of the marriage belongs to the plaintiff - Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity 2. A petition under Art. 36 shall specifically allege the complete facts showing that either or both parties were PI from complying with the essential marital obligations of marriages at the time of the celebration of marriage even if incapacity becomes manifest only after its celebration - Expert opinion need not be alleged 3. Incapacity must be proven to be existing at the time of the marriage 4. Incapacity must be shown to be medically or clinically permanent or incurable - Declaration by a physician or psychologist is not a requirement - If the totality of the evidence presented is enough to sustain a finding of psychological incapacity, then actual medical examination of the person concerned need not be resorted to 5. Illness must be grave enough to bring about the disability of the party to assume essential obligations of marriage 6. Essential marital obligations must be those embraced by Arts. 68-71 as regards husband and wife as well as Arts. 220, 221 and 225 in regard to parents and their children 7. Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Ph, while not controlling or decisive, should be given respect in out courts • In proving PI, there is no distinction between an alien spouse and a Filipino spouse to that of Filipino spouses

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• CHI MING TSOI v. CA - Love is useless unless it is shared with another :)) • No award of Moral Damages in PI • Legal Separation - Marriage is valid and the grounds for LS occur only after the celebration of marriage - Marital bond is not broken ART. 37 • Incestuous Marriages • Even if solemnized abroad in accordance with the laws in force in the country where they are solemnized, and valid there as such, such incestuous marriage is not recognized as valid in the Ph ART. 38 • Void by reason of Public Policy • The intention of the law is to prohibit marriages between persons who were once related to each other by affinity as parents-in-law and children-in-law, even if marriage, which serves as the source of relationship of affinity, is already dissolved or terminated by reason of death or final judgment of annulment or of absolute nullity • The adopted child is prohibited from marrying only the “legitimate child” of the adopting parent - Prohibition does not extend to adopter’s illegitimate child • An adopted child is prohibited from marrying the following 1. Adopter 2. Surviving spouse of the adopter 3. Legitimate children of the adopter 4. Other adopted children of the same adopter • The adopter is prohibited form marrying the following 1. Adopted child 2. Surviving spouse of the adopted child • Intentional Killing of Spouse - A prior criminal conviction is not necessary to render the marriage void - The killing, whether perpetrated by the spouse or by another person, must be animated primarily by the intention or desire to do away with the victim, who is an obstacle to a contemplated marriage, for the purpose of marrying the surviving spouse - So long as killing is for the purpose of contracting a marriage with the surviving spouse, the marriage will be void ab initio even if the surviving spouse was not aware of such plan ART. 39 • An action or defense based on the absolute nullity of marriage is IMPRESCRIPTIBLE - Void marriages can be questioned even after death of either party • AM No. 02-11-10-SC - Provides that a petition for declaration of absolute nullity of a void marriage may be filed solely by the husband or wife and, if filed, the case shall be closed and terminated upon the death of either parties at any stage of the proceeding prior to entry of judgment, it now appears that a direct proceeding for the purpose of obtaining a judicial declaration of nullity of a void marriage may no longer be filed after the death of either party to such void marriage

Abesamis, Austinne Joyce D.

Family Code of the P hilippines (Rabuya) - It may still be subject to a collateral attack ART. 40 • Need for judicial declaration of nullity of a void marriage - 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 - However, other than for purposes of remarriage, no judicial action is necessary to declare a marriage an absolute nullity • Ex. For purposes of determination of heirship, settlement of estate, etc., the court may pass upon the validity of the marriage even in a suit not directly instituted to question the same so long as it is essential to the determination of the case • Subsequent marriage without judicial declaration of nullity of previous marriage is Void ab initio - The intention of the FC is to declare a marriage void ab initio by reason of non-compliance with the provisions of Art. 40 - A subsequent marriage entered into in violation of Art. 40 is a void marriage under Art. 35(4) - The applicable property regime is that provided for my Art. 148 • Void marriages under Art. 40, in relation to Art. 50, 35(4), 35(6), in relation to Arts. 53 and 52 - Property Relations • In a void marriage, regardless of cause thereof, the property relations shall be governed by the provisions of Art. 147 or 148, as the case may be; it is neither ACP or CPG • In bigamous marriage which is void under Art. 35(4), the property regime is governed by Art. 148 • Art. 147 governs the property regime of void marriages under Art. 35(6), in relation to Arts. 53 and 52, since it applies to unions of parties who are legally capacitated and not barred by any impediments to contract marriage, but whose marriage is nonetheless void for other reasons • Par. 2 of Art. 43 is made applicable to void marriages under Art. 40 - Filiation • Children conceived or born before the judgment of absolute nullity of marriage under Art. 53 are considered legitimate • Children born or conceived of void marriages under Arts. 35(4) and Art. 40, in relation to Art. 50 are illegitimates • Art. 40 is applicable to remarriages entered into after the effectivity of the FC on August 3, 1988 regardless of the date of the first marriage • MERCADO v. TAN - A judicial declaration of nullity of a previous marriage is necessary before a subsequent one can be legally contracted - One who enters into a subsequent marriage without first obtaining such judicial declaration is guilty of bigamy - This principle applies even if the earlier union is characterized by statutes as “void” • Without a judicial declaration of its nullity, the first marriage is presumed to be subsisting ART. 41 - ART. 42 • GR: Any marriage contracted by any person during the subsistence of a previous marriage be null and void and may be found guilty of bigamy

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• EXCPN: Subsequent bigamous marriage may be exceptionally considered valid if the following conditions concur: 1. Prior spouse of the contracting party must have been absent for 4 consecutive years, or 2 years where there is danger of death 2. Spouse present has a well-founded belief that the absent spouse is already dead 3. A judicial declaration of presumptive death of the absentee for which purpose the spouse present can institute a summary proceeding in court • There must be a judicial declaration of presumptive death; otherwise, the subsequent marriage is void ab initio • Requisites for Declaration of Presumptive Death - RP v. NOLASCO 1. Absent spouse has been missing for 4 consecutive years, or 2 consecutive years if disappearance occurred where there is danger of death 2. Present spouse wishes to remarry 3. Present spouse has a well-founded belief that the absentee spouse is dead 4. Present spouse files a summary proceeding for the declaration of presumptive death of absentee • Effects of judicial declaration of presumptive death - Absentee shall be presumed dead, but only for the purpose of allowing the present spouse to contract a subsequent marriage - Present spouse will then be capacitated to contract a subsequent marriage - It is without prejudice to the effect of his reappearance - Once reappearance is established, the presumption of death is rendered ineffective - FC is not clear on the effects of the declaration upon the property regime of the previous marriage • Effects of recording of affidavit of reappearance - The mere reappearance of the absentee spouse DOES NOT terminate the subsequent marriage - It is the RECORDING of the affidavit of reappearance of the absentee spouse which results in the automatic termination of the subsequent marriage - Since the termination of the subsequent marriage is “automatic” and without need of judicial intervention, the second spouse, barring the existence of other impediments, may immediately contract another marriage sine the requirements in Art. 52 do not apply in case of extrajudicial termination of the subsequent marriage under Art. 41 • The affidavit or reappearance may be executed and filed by “any interested person” and not only by the reappearing spouse ART. 43 - ART. 44 • The custody and support of the children may be the subject of an agreement between the spouses to the subsequent marriage - In case of dispute, the matter shall be decided by the court in a proper proceeding • Upon termination of subsequent marriage, the AC or CG shall be dissolved and liquidated • Donation Propter Nuptias - Donations by reason of marriage are those which are made before its celebration, in consideration of the same, and in favor of one or both of the future spouses - As a rule, it shall remain valid

Abesamis, Austinne Joyce D.

Family Code of the P hilippines (Rabuya) - If the donee contracted the marriage in bad faith, such donations are revoked by operation of law

- If both spouses are in bad faith, in which case the subsequent marriage is void, all donations by reason of marriage are likewise revoked by operation of law • In the subsequent marriage referred to in Art. 41, if one of the spouses acted in bad faith in contracting the marriage and he/she had been designated as the beneficiary in any insurance policy of the innocent spouse, the latter has the right to revoke such designation even if the designation is irrevocable • If the subsequent marriage is contracted in the absence of a judicial declaration of presumptive death of the absentee spouse, subsequent marriage is void for being a bigamous marriage • The law requires that the good faith should last up to the time of the celebration of the subsequent marriage • If both parties in subsequent marriage have acted in bad faith, their marriage is considered bigamous and they shall be liable for the crime of bigamy notwithstanding the existence of the judicial declaration of presumptive death • The existence of such declaration does not immunize the parties from liability for bigamy ART. 45 - ART. 47 • A marriage that is annulled presupposes that it subsists but later ceases to have legal effects when it is terminated through a court action • Characteristics of Voidable marriage 1. Valid until otherwise declared by the court 2. Defect must exist at the time of the celebration of marriage 3. Cannot be assailed collaterally except in a direct proceeding 4. Can be assailed only during the lifetime of the parties and not after death of either 5. Only parties to a voidable marriage can assail it 6. Action for annulment is subject to prescription 7. Defect is generally subject to ratification except for grounds mentioned in Art. 45 (5) and (6) • The law deems to be insufficient the consent given by a party who is at least 18 years old but below 21 - Consent is defective • Ratification cleanses the contract from all its defects from the moment it was constituted • To successfully invoke the ground of unsound mind to annul a marriage, it is essential that the mental incapacity of one of the parties must relate specifically to the contract of marriage - Test: Whether the party at the time of the marriage was capable of understanding the nature and consequences of the marriage - Burden of proof rests upon him who alleges insanity - If the sane spouse had knowledge of the other’s insanity at the time of marriage, the action may be filed by: 1. Any relative or guardian or person having legal charge of the insane; or 2. The insane spouse during a lucid interval or after regaining sanity - The law authorizes ONLY the INSANE person, after gaining sanity, to ratify the marriage • The sane spouse is not entitled to ratify the marriage even if he/she had no knowledge of the other’s insanity at the time of the marriage

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Family Code of the P hilippines (Rabuya)

- The provision authorizing the sane spouse who had no knowledge of the other’s insanity at the time of the marriage to file an action must be interpreted as exercisable only prior to the ratification of marriage by the insane spouse after coming to reason • Because after ratification, the contract is cleansed of its defect and the action for annulment is extinguished • Fraud as a ground for annulment of marriage refers to nondisclosure or concealment of some facts deemed material to the marital relations - Marriage is subject to ratification by the injured party by freely cohabiting with the guilty spouse as husband and wife after gaining full knowledge of the facts constituting fraud - Pregnancy by another man at the time of marriage is not by itself a ground for annulment • It is the CONCEALMENT of such fact at the time of the marriage that may constitute a ground - Affliction with STD, at the time of the marriage, by itself and even without concealment, is a ground for annulment so long as the disease is serious and appears to be incurable (Art. 45(6)) • If it is not serious and appears to be curable, it is not a ground for annulment UNLESS the existence of the STD is CONCEALED by the party afflicted from the other party at the time of marriage • If the ground is CONCEALMENT of STD, the law does NOT distinguish between serious or non-serious and curable or incurable disease • If the party afflicted was not aware of its existence at the time of the marriage, there is no fraud that will constitute as ground for annulment, although it may be a ground if it is serious and incurable - If the fact of addiction, alcoholism, homosexuality or lesbianism existing at the time of marriage is not concealed and is known to the other party, it is NOT a ground for annulment • Impotency caused by a supervening infirmity does not invalidate the marriage • Physical incapacity for marriage imports a total want of power of copulation, and only as necessary incident thereto the inability for procreation; hence, barrenness or sterility of itself or mere sexual weakness or frigidity are not grounds for annulment - Impotency is the physical ability to have sexual intercourse - Sterility is the inability to procreate - Presumption is in favor of potency - DOCTRINE OF TRIENNIAL COHABITATION • If the wife remains a virgin after three years of cohabitation, the husband will be presumed impotent, and the burden to overcome such presumption will be shifted upon him - Requisites: 1. Incapacity must be existing at the time of the celebration of marriage 2. Continues up to the filing of the action for annulment 3. Appears to be incurable 4. Must be unknown to the other contracting party - Action must be filed within 5 days after the celebration of the marriage and not after discovery of such incapacity - Not subject to ratification • Art. 46(3) v. Art. 45(6) • Art. 45(6); Requisites in order for the existence of STD to be a ground for annulment 1. STC must have existed at the time of the celebration of marriage 2. It is found to be serious

Abesamis, Austinne Joyce D.

3. 4.

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It appears to be incurable It must be unknown to the other party at the time of the marriage The action may be filed by the injured party — the other party who was not aware of the existence of such disease at the time of marriage and who himself/herself was not afflicted with a disease of the same nature Action must be filed within 5 years after celebration of marriage and not after discovery of such disease Not subject to ratification

• Effects of final judgment of Annulment - Dissolves the special contract of marriage as if it had never been entered into nut the effects of marriage are not totally wiped out 1. Termination of marital bond 2. Children conceived or born before the judgment of annulment has become f/e are considered legitimate 3. ACP or CPP is terminated or dissolved and the same shall be liquidated in accordance with Art. 102 and 129, respectively 4. Final judgment must also provide for the custody and support of the common children and the delivery of the common children;s presumptive legitimes, unless adjudicated in the previous judicial proceedings 5. Donations by reason of marriage shall remain valid except if the donee contracted the marriage in bad faith 6. Innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in any insurance policy, even if designation is irrevocable 7. The spouse who contracted marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate or intestate succession 8. If the wife is the guilty party, she shall resume her maiden name and surname; if she is the innocent spouse, she may resume her maiden name and surname; she may choose to continue using her former husband’s surname, unless the court decides otherwise or she or the former husband is married again to another person 9. Parties again are free to remarry but they must comply with the requirements of Art 52; otherwise, the same shall not affect third persons and the subsequent marriage shall be null and void ART. 48 - ART. 49 • Procedure now governed by AM No. 02-11-10-SC and AM No. 02-11-12-SC • FamCourts shall have exclusive jurisdiction; petition shall be filed in the FamCourt of the province or city where the petitioner or respondent has been residing for at least 6 moths prior to the date of the filing, or in case of a non-resident, where he may be found in the Ph, at the election of the petitioner • If the court renders a decision granting the petition, it shall declare therein that the decree sha be issued by the court only after compliance with Arts. 50 and 51 • In case a party dies at any stage of the proceedings before the entry of judgment, the court shall order the case closed and terminated without prejudice to the settlement of the estate in proper proceedings in regular courts • Grant of provisional remedies or protection orders 1. Spousal support 2. Child support 3. Child custody 4. Visitation rights 5. Hold departure order

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6. 7.

Family Code of the P hilippines (Rabuya) - If there is no concealment and it is known to the other

Order of protection Administration of common property

ART. 50 - ART. 51 • Marriage that is void ab initio is considered as having never to have taken place - Judicial declaration of nullity retroacts to the date of the celebration of the marriage insofar as the vinculum between spouses is concerned

6.

7. • All children conceived and born outside a valid marriage are illegitimate, unless the law itself gives them legitimate status ART. 52 - ART. 54 8. TITLE II. LEGAL SEPARATION 9. ART. 55 • Legal separation is a legal remedy available to parties in a VALID BUT FAILED MARRIAGE for the purpose of obtaining a decree from the court entitling him/her to certain reliefs such as right to live separately (without affecting the marital bonds that exists between them), dissolution and liquidation of property regime and child custody - Legal separation does not dissolve the marriage tie, much less authorize the parties to remarry - Cause giving rise to LS exists only after the celebration of marriage - Involves nothing more than the bed-and-board separation - The death of one party to the action of LS causes the death of the action itself • Grounds for LS 1. Infliction of Physical Violence - Repeatedly resorted to by the respondent - If form of violence is against the life of a partner, the same is a ground under par. 9 and it need not be repeated for it to be a ground - Psychological and sexual violence and repeated verbal abuse may qualify as grounds for LS - Grossly abusive conduct 2. Moral Pressure - If resorted to in order to compel the petitioner to change his/her religious or political affiliation 3. Promotion of Prostitution - Under VAWC, it is also punished as a crime if the same is directed against the wife or a child of the wife 4. Final judgment of more than 6 years imprisonment - Ground for LS even if respondent is pardoned and regardless of the nature of the crime for which the respondent is convicted - If convicted prior to marriage, it is a ground for annulment if the crime involves moral turpitude and it is not disclosed to the other party - For LS, the conviction occurs only AFTER the celebration of marriage 5. Drug addiction, habitual alcoholism, lesbianism or homosexuality - If present at the time of marriage but concealed from the other party, there is fraud which constitutes a ground for annulment

Abesamis, Austinne Joyce D.

party at the time of marriage, there is no ground to annul the marriage - Must exist only AFTER the celebration of marriage Contracting of subsequent bigamous marriage - Contracting a subsequent bigamous marriage is a ground to declare subsequent marriage void but it does not affect the validity of the prior marriage - Remedy of the aggrieved party in the prior marriage is LS Sexual Infidelity - It is no longer required that the sexual infidelity be in the form of adultery or concubinage before it may constitute as ground for LS - Any sexual act short of the actual sexual intercourse may fall under “sexual infidelity” Attempt on the life of the Spouse - There must be intent to kill - If the act of attempting to kill the spouse is wholly justified or excused, as in the case of legitimate selfdefense, the same is not ground for legal justification Abandonment - A spouse is deemed to have abandoned the other when he/she has left the conjugal dwelling without intention of returning

ART. 56 - ART. 57 • Condonation - Conditional forgiveness or remission, by husband or wife, of a matrimonial offense which the other had committed - It blots out the imputed offense so as to restore the offending party to the same position he/she occupied before the offense was committed - It is presumed that any cohabitation with the guilty party and with knowledge or belief on the part of the injured party of its commission is condonation • Consent - It is given in advance or prior to the commission of the act which would be a ground for LS, whereas in condonation, the forgiveness of the matrimonial offense is given after commission • Connivance - Implies an agreement, express or implied, by BOTH spouses, unlike in consent, it is unilateral - It involves criminality on the part of the individual who connives, while condonation may take place without imputing the slightest blame to the party who forgives the injury - It is an act of the mind before the offense has been committed • Collusion - Agreement between husband and wife for one of them to commit, or to appear to commit, or to be represented in court as having committed, a matrimonial offense, or to suppress evidence of a valid defense, for the purpose of enabling the other to obtain divorce or LS - It may not be inferred from the mere fact that the guilty party confesses to the offense and thus enables the other party to procure evidence necessary to prove it • Recrimination (mutual guilt) - For LS to prosper, it must be claimed only by the innocent spouse - Where both spouses are offenders, LS cannot be claimed by either of them

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Family Code of the P hilippines (Rabuya) ART. 58 - ART. 59 • To provide the parties a “cooling off” period • The prohibition of hearing during the cooling off period is not an absolute bar to the hearing of a motion for preliminary injunction - The requirement of 6 month cooling off period shall not apply in cases of LS where violence is alleged ART. 60 • The prohibition is predicated on the fact that the institutions of marriage and family are sacred and therefore are as much the concern of the State as the spouses ART. 61 - ART. 62 • During the pendency of the action for LS, the court, motu propio or upon application under oath of any of the parties, guardian or designated custodian, may issue provisional orders and protection orders with or without hearing ART. 63 - ART. 64 • The wife, even after the legal separation has been decreed, shall continue using her name and surname employed before the legal separation - Her married status is unaffected by the separation, there being no severance of the vinculum ART. 65 - ART. 67 • If, after the issuance of the decree of LS, the parties simply reconcile and resume their marital relations previous to the decree but without obtaining a decree of reconciliation from the same court which issued the decree of LS, their de facto reconciliation does not have the effect of setting aside the decree of LS • The FC speaks only of “revival” of the former property regime of the spouses in case of reconciliation and not an adoption of an altogether different property regime - At any rate, they mare not adopt either ACP or CPG as their new property regime since these property regimes can only commence at the precise moment that the marriage is celebrated and any stipulation, express or implied, for the commencement of these regimes at any other time shall be void TITLE III RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE ART. 68 • Cohabitation is public assumption by a man and a woman of the marital relation, and dwelling together as man and wife, thereby holding themselves out to the public as such

• Such obligation to support one’s spouse attaches at the inception of the marriage and ordinarily continues as long as the relationship of husband and wife exists • Of the mutual obligations between the spouses, it is only the obligation of MUTUAL SUPPORT between the spouses which can be enforced through legal action ART. 69 • In the event that one spouse refuses to live with the other in the family dwelling, as fixed either by the spouses or by the court, the court is powerless to enforce the provisions of Art. 69, even if such refusal is not justifiable • The spouse who refuses to live with the other without just cause is not entitled to a separate maintenance or support ART. 70 - ART. 71 • For an article to constitute a family expense, it is essential that it be not only purchased for, but also that it be used, or kept for use, in or by the family, or be benefited thereto - An expense for the family is one which is incurred for an item which contributes to the family’s welfare generally and tends to maintain its integrity ART. 72 • Relief available to spouses a) When spouse leave the conjugal dwelling - Art. 198 - If one spouse had left without the intention of returning, the aggrieved spouse may petition the court for receivership, for judicial separation of property or for authority to be sole administrator b) When spouse commits acts of sexual infidelity - When a philandering husband squanders the properties of the CP or AC to satisfy his vices, the aggrieved spouse may petition the court for injunction to stop his further disposition of property aside from seeking sole administration of the property c) When spouse sells the conjugal or community property without the other’s consent - Aggrieved spouse may seek an injunction to stop further disposition of property without the other’s consent d) When husband commits violation of VAWC - Wife may obtain “protection orders” either from the barangay or from the courts ART. 73 • When the objection is found to be proper by the courts, the spouse who did not consent for such profession, business or activity shall be responsible, with his or her own separate property, for any obligation that may be incurred in connection therewith - UNLESS, it is shown that the same has redounded to the benefit of the family, in which case, the AC or CP shall be liable

• The courts cannot force one of the spouses to cohabit with the other, the law, however, provides for other remedies and sanctions • One of the essential marital obligations is to procreate children based on the universal principle that procreation of children through sexual cooperation is the basic end of marriage

Abesamis, Austinne Joyce D.

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Title IV

Family Code of the P hilippines (Rabuya) - Celebration of marriage is a condition sine qua non for the validity of MS

PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE Chapter 1 General Provisions ART. 74 - ART. 75 • Law allows spouses to fix their property relations during marriage through a marriage settlement subject only to the condition that whatever settlement they may have must be within the limits provided by FC • For spouses who got married on August 3, 1988 or thereafter without any marriage settlement: property relations shall be governed by ACP • For spouses who got married without marriage settlement prior to August 3, 1988 but after August 30, 1950: property relations shall be governed by CPG • The possibility that local customs will govern the property relations of spouses during marriage will only arise if the future spouses execute a marriage settlement and stipulate therein that AC shall not exist between them but without providing for rules or regime that will govern their property relations

Marriage Settlement

Donations Propter Nuptias

The fact of non-celebration of The fact that marriage did not marriage renders the MS void take place does not render the donation void, except if the donation is contained in the MS itself Depends on the celebration of Does not depend upon the marriage to be valid marriage taking place Art. 86(1) only makes the donation revocable at the instance of the donor if the marriage does not take place The fact that marriage did not take place only gives rise to a cause or ground to revoke the DPN If not revoked, it continues to be valid

ART. 76 - ART. 79 • MARRIAGE SETTLEMENT or ante nuptial contract is a contract which is entered into before, but in contemplation and in consideration of marriage, whereby the property relations of the spouses during marriage are fixed and determined

• The rule that the non-happening of marriage shall render any stipulation in the MS void does not apply to any provision therein that does not depend upon the celebration of marriage for its validity

• It is not possible for the parties to execute a marriage settlement during the marriage if there is not at the start at the start of the marriage

Chapter 2 Donations by Reason of Marriage

• Marriage settlement is an agreement made in consideration of marriage; hence, it is governed by the Statute of Frauds - A contract which infringes the SF is not a void contract but cannot be enforced unless ratified - An oral MS is merely unenforceable under SF ART. 80 • Future spouses are free to stipulate in their MS what laws shall govern their property relations, especially, if they are residents in a foreign country - However, with respect to mandatory provisions of FC, the latter shall still govern since the freedom of the parties to stipulate in their MS must be done within the limits provided for the under the Code • Issues relating to property, whether real or personal, are to be governed by the law of the country where the property is situated • While the present article seems to limit the inapplicability of Ph laws only to extrinsic validity of contracts affecting property not situated in the Ph, the rule must likewise be extended to any issues relating to such properties, including the intrinsic validity of contracts affecting the same ART. 81 • If marriage does not take place, everything stipulated in the MS, including donations between prospective spouses made therein, shall be rendered void

Abesamis, Austinne Joyce D.

ART. 82 • It is essential that donee/s be either of the future spouses or both of them, although the donor may either be one of the future spouses or a third person • The following are not DPN: 1. Made in favor of spouses after celebration of marriage 2. Those executed in favor of the future spouses but not in consideration of the marriage 3. Those granted to persons other than the spouses even though they may be founded on the marriage • The marriage in DPN is rather a resolutory condition which presupposes the existence of the obligation which may be resolved or revoked, and is not a condition necessary for the birth of the obligation ART. 83 • DPN must follow the formal requirements of Arts. 748 and 749 NCC • Implied acceptance is sufficient for validity of DPN ART. 84 • If property regime agreed upon in MS is other than ACP — donation must not exceed 1/5 of the present property of the donor - If donation exceeds limitations, only the excess is considered void but remainder thereof remains valid

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• If regime agreed upon in MS is ACP — law does not impose any limitations as to the extent of what may be donated by one of the future spouses in favor of the other - Because in ACP, spouses are considered co-owners of all the property owned by them at the time of the celebration of marriage or acquired thereafter, unless otherwise provided in FC or in MS • Rule is based on policy that no spouse should be allowed to take advantage of the love or tender feelings of the other to acquire property from the latter • The rule is also to apply to donations between spouses even outside of the MS, so long as the property regime agreed upon is other than AC • If future spouses did not execute MS, any DPN between them is not subject to 1/5 limitation since they will be governed by a regime of AC by default • DPN of future property between future spouses are not prohibited and shall be governed by provisions on testamentary succession and the formalities of wills - In the nature of donations mortis causa - Arts. 804 to 819 NCC applies

Family Code of the P hilippines (Rabuya) - It is submitted that 1-year prescriptive period for revocation of donations based on acts of ingratitude applies • For other grounds which are not controlled by a particular prescriptive period, resort to ordinary rules of prescription may be had ART. 87 • Any donation between the spouses DURING marriage, direct or indirect, is considered VOID - But the article recognizes the validity of moderate gifts which the spouses may give each other on the occasion of any family rejoicing • H and W are prohibited from selling property to each other and any such sale is void ab initio - EXCPN: 1. When separation of property was agreed upon in MS; or 2. When there has been a judicial separation of property - Excpns do not apply in prohibition between spouses from donating to each other • Spouses are prohibited from donating to each other during marriage whether their property regime is complete separation of property or otherwise

• If donation of future property is to be made by third person, Art. 751 NCC applies and such donation is prohibited Chapter 3 System of Absolute Community ART. 85 • Mere encumbrance does not divest the donor of ownership of property donated

Section 1. — General Provisions

• If donee has constructive notice of encumbrance, such is binding upon the donee and attaches to the property donated

ART. 88 - ART. 90 • In ACP, spouses are considered co-owners of all property brought into and acquired during marriage which are not excluded from the community

ART. 86 • If marriage is not celebrated, the DPN is not rendered ineffective or void, except a donation made in the MS itself

• There is only one instance when waiver during the marriage may be considered valid, and that is, it the waiver is made in case of judicial separation of property

• DPNs in MS are void if marriage does not take place

• Valid waiver may take place after the marriage has been dissolved or annulled

• If marriage is judicially declared void ab initio — DPN remains valid but such fact gives rise to a ground for the revocation of said donation • If marriage is judicially declared void ab initio under Art. 40 — DPN is REVOKED BY OPERATION OF LAW “if the donee contracted the marriage in bad faith” or “ if both spouses of the subsequent marriage contracted the marriage in bad faith” - Art. 50 makes applicable Art. 43(3) and 44 to marriages which are declared void ab initio under Art. 40 • Art. 86 is incompatible and inconsistent with Art. 50, in relation to Art. 43(3) and 44 • To give rise to a ground for revocation, the rule is that a voidable marriage must first be annulled - EXCPN: If marriage is voidable by reason of absence of parental consent, there is no more need for a judgment annulling the marriage for the donation to be revocable because such fact already gives rise to a cause for revocation of donation • Since FC does not expressly provide for prescriptive period of actions to revoke DPN, rules on ordinary donations shall apply

Abesamis, Austinne Joyce D.

Section 2. — What Constitutes Community Property ART. 91 - ART. 93 • Future spouses may execute a MS prior to marriage and adopt ACP as their property regime; they may agree to exclude whatever properties they may have at the time of the celebration of marriage and include therein only the properties that they may acquire during marriage - Exclusion of fruits and income from such properties depends upon the agreement of spouses in MS • They may exclude the fruits and income in their MS • In the absence of such agreement, fruits and income are to be considered part of the community property • In ACP, the presumption in favor of community must relate to all properties of the spouses and not only to the properties acquired during the marriage - In CPG, the properties of each spouse at the time of celebration of marriage are not included in the conjugal property, unless contrary is provided in MS • The presumption of conjugality attaches only to property acquired DURING marriage

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Family Code of the P hilippines (Rabuya) • Spouse-owner retains ownership, possession, administration and enjoyment of the separate or exclusive properties • If the property was gratuitously acquired prior to celebration of marriage or if donor, testator or grantor expressly provided that it shall form part of the community property — it shall belong to the community • Acquisition by gratuitous title by BOTH spouses jointly — the FC is silent and Art. 113 is not made to apply in ACP - In the absence of any special provision, it is Art. 753 NCC which will apply - The share of each spouse in the donation, which is understood to be equal, shall pertain to his or her exclusive property • Purpose of excluding properties of spouse who has legitimate descendants by a prior marriage — to facilitate identification of properties from which the legitimate descendants in prior marriage may later on lay claim - Fruits and interest of these properties are also excluded - Spouses cannot include there properties by agreement in the MS • If an excluded property by reason of MS, in the absence of any agreement, the alienation of such property converts the proceeds or the property acquired in its place to the AC, following Arts. 91 and 93 • If property is excluded by mandatory provisions of law, it is submitted that the policy of the law to stamp there properties with separate character should not be easily defeated by the simple expedient of converting said properties into some new form Section 3. — Charges Upon and Obligations of the Absolute Community ART. 94 - ART. 95 • If debt contracted during marriage by both spouses or by either spouse with the consent of the other, the law conclusively presumes that such debt has redounded to the benefit of the family • If debt is contracted by the designated administrator-spouse or by one spouse without the consent of the other, the AC shall be liable only if it can be proven that the debt benefited the community or the family • Liability of AC extend only to expenses incurred for the preservation of such separate property used by the family and does not extend to expenses incurred for mere improvement or embellishment of such separate property, even if used by the family • Obligations chargeable to Exclusive Property 1. Support of illegitimate children 2. Debts contracted by administrator-spouse during marriage which did not benefit the community 3. Debts contracted during marriage by either spouse without the consent of the other which did not redound to the benefit of the family 4. Ante nuptial debt of either spouse which did not redound to the benefit of the family 5. Taxes and expenses incurred during the marriage for the preservation of separate property of either spouse which is not being used by the family 6. Civil liability of either spouse arising from crime or quasidelict 7. Expenses of litigation between spouses, if suit is found to be groundless

Abesamis, Austinne Joyce D.

8. Losses during marriage in any game of chance, betting, sweepstakes, or any other kind of gambling, whether permitted or prohibited by law, shall be borne by the loserspouse Section 4. — Ownership, Administration, Enjoyment and Disposition of the Community Property ART. 96 - ART. 98 • Alienation of property must have the written consent of the other spouse or the authority of the court without which the disposition or encumbrance is void • When the other spouse or the court eventually gives their consent or authorization, the previous transaction is not deemed ratified since a void contract is not subject to ratification • While AC is a form of co-ownership, neither spouse can dispose of their respective shares in the community property by way of disposition inter vivos - Art. 493 NCC does not find application in this case because prior to liquidation of AC, the interest of each spouse in the community assets is INCHOATE, a mere expectancy, which constitutes neither a legal nor equitable estate, and does not ripen into title until liquidation and settlement - Any disposition of spouses’s respective shares or interest in AC shall be void since right to 1/2 does not vest until the liquidation of the AC • However, the Code expressly authorizes either spouse to dispose his or her interest in the community property if the disposition is in the nature of disposition mortis causa and made in a will Section 5. — Dissolution of Absolute Community Regime ART. 99 - ART. 101 • Existence of property regime is co-terminus with the marriage • The Code allows only a shift to complete separation of property during marriage, either as an incident of the decree of legal separation or pursuant to a petition for judicial separation • The cause for termination of AC of judicial declaration of nullity of marriage is limited only to judicial declaration of void marriage under Art. 40 - AC may exist only in a valid, or at least voidable marriage, and does not, as a rule exist in a void marriage • In a VOID marriage, regardless of the cause thereof, the property relations during the period of cohabitation is governed by Arts. 147 or 148, as the case may be • It is the decree of legal separation which results in the termination of absolute community - A mere separation de facto between spouses does not affect the regime of ACP • Consequences of Separation de facto 1. Spouses retained their right of consortium because in the eyes of law, they are not entitled to live separately from each other 2. Does not affect regimes of AC or CP 3. Spouses continue to be the legal heir of each other in intestate succession 4. There is neither a guilty spouse nor an innocent one

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Family Code of the P hilippines (Rabuya) Chapter 6. — Liquidation of the Absolute Community Assets and Liabilities ART. 102 • NET ASSETS is what remains of the community property after payment of all the charges and obligations for which the community is liable • NET PROFITS represents the increase in the market value of the community property at the time of the celebration of marriage and the market value at the time of its dissolution but minus the charges and obligations for which the community is liable • Legitime to be delivered to common children upon dissolution is merely “presumptive: and provisional since the final legitime can only be determined upon the death of the person whose succession is under consideration ART. 103 - ART. 104 • Termination of AC is produced ipso jure by any of the causes mention in Art. 99, while liquidation involves some positive act on the part of the spouses or surviving spouse, in case AC is terminated by reason of death • Any alienation or encumbrance involving the community property of the terminated marriage prior to liquidation and partition shall be valid to the extent of what may be allotted in the property involved, in the final partition, to the vendor or mortgagor - What the transferee obtains by virtue of such alienation or encumbrance are the same rights as the transferor had as a coowner, in an ideal share equivalent to the consideration given under their transaction

Abesamis, Austinne Joyce D.

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Family Code of the P hilippines (Rabuya) Chapter 4 Conjugal Partnership of Gains Section 1. — General Provisions ART. 105 - ART. 108 • There is no co-ownership between spouses in the properties of CPG • Prior to effectivity of FC, CPG governs the property relations of spouses in the absence of MS or when the same is void - Provisions of FC on CPG are also made applicable to CPG already established before its effectivity unless vested rights have already been acquired under NCC or other laws

• If donation is made during marriage in favor of one spouse but the donor imposes a burden or charges inferior in value to the property donated, property donated remains as exclusive property of doneespouse although paid from conjugal funds - CP shall be reimbursed ART. 115 • Ownership of benefit depends on the manner of acquisition - If obtained out of pure liberality of grantor, benefit is considered as exclusive property of grantee-spouse - If benefit is simply an accumulation or deductions from money earned during the marriage or from salaries of either spouse, the benefit is part of conjugal partnership

Section 2. — Exclusive Property of Each Spouse Section 3. — Conjugal Partnership Property ART. 109 • Does not produce the merger of separate property of each spouse • The right of future spouses to include properties acquired prior to marriage in their CP is subject to the following limitations 1. Future spouses cannot include in their CP more than 1/5 of their present property 2. Future spouses cannot include in their CP properties acquired prior to the marriage by one of them who has legitimate descendants in his/her previous marriage • Property acquired by either spouse during the marriage is to be considered as an exclusive property if acquired through gratuitous title - but, unlike ACP, the fruits and income of the separate properties of the spouses are part of the CP • Property acquired by either spouse through the exercise of right of redemption is an exclusive property of the redemptioner-spouse, regardless of the source of the money used to redeem said property - Even if source of money used in redemption is CP, the property so redeemed shall still be considered as exclusive property of the owner of the right to redemption, subject to reimbursement by redemptioner-spouse ART. 110 - ART. 112 • Transfer of administration to the other spouse must be embodied in a public instrument and recorded in the registry of property of the place where the property is located, otherwise it shall not prejudice the interest of third persons • When any exclusive property property is alienated by administratorspouse without consent of the owner-spouse or without court authorization, such administration is automatically terminated and proceeds of alienation shall be turned other to owner-spouse

ART. 116 • For presumption to apply, it is not necessary to prove that property was acquired with funds of the partnership - Property shown to be acquired during marriage, considered conjugal - Presumption is not rebutted by mere fact that certificate of title or tax declaration is in the name of one of the spouses only • W H AT I S I M P O RTA N T I S T H AT T H E ACQUISITION IS MADE “DURING MARRIAGE” • Presumption does not operate when there is no showing as to when the property alleged to be conjugal was acquired - Proof of acquisition of property during the marriage is a condition sine qua non for the operation of presumption in favor of CP - When property is registered in the name of only one spouse and there is no showing as to when the property was acquired by the same spouse, this is an indication that it is exclusive property of said spouse • In ACP, presumption in favor of community property exists regardless of w/n property is shown to be acquired during the marriage or prior thereto • Person who claims that the property is not CP is burdened to prove the source of the money utilized to purchase the same ART. 117 - ART. 119 • Two-tiered test in determining whether property acquired during marriage is conjugal or exclusive 1. Manner of acquisition test (whether onerous or gratuitous); 2. In case of onerous acquisitions, source of funds test (whether conjugal funds or exclusive money) • If acquired during marriage by gratuitous title by either spouse — Exclusive property

ART. 113 - ART. 114 • If donation is made jointly to persons who are not H and W, the rule is that there is no accretion, accretion taking place only when so expressly provided for by the donor • If donation made to H and W jointly, the rule is that there is accretion between them if the contrary has not been provided for by the donor - Acceptance by one spouse shall be sufficient for perfecting the donation notwithstanding the non-acceptance by the other donee-spouse

Abesamis, Austinne Joyce D.

• If through onerous title — ownership will depend upon the SOURCE of funds used in such acquisition - If from exclusive money = Exclusive property - If from CP = CP, regardless of whether the acquisition is in the name of the CP or in the name of only one of the spouses • For properties purchased on installments by either or both spouses prior to marriage but the payment is completed only during marriage - TIME WHEN FULL OWNERSHIP IS VESTED determines ownership of the property, not the source of fund or time when payment is completed

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Family Code of the P hilippines (Rabuya)

- If full ownership vested BEFORE marriage = Exclusive property -

of buyer/s, even if the purchase price is partly and/or substantially paid from CP If full ownership vested DURING marriage = CP, even if purchase price is partly and/or substantially paid from exclusive funds of either or both spouses In either case, amount advanced shall be reimbursed by owner/s upon liquidation of partnership

• Bear in mind the presumption of conjugality • Wages, salaries, fees or income be earned during marriage is considered CP - If earned prior to marriage = Exclusive property • Requisites in order that things may be acquired by occupation 1. There must be seizure 2. Things must be corporeal 3. There must be intention to appropriate 4. Things must not be owned by anybody 5. Rules laid down by law must be fulfilled ART. 120 • Requisites 1. Property is owned exclusively by one of the spouses 2. Said property has been subject of an improvement, whether for utility or adornment 3. Improvements were made at the expense of the conjugal partnership or through acts or efforts of either or both spouses • Reimbursement may be made even prior to liquidation of property Section 4. — Charges Upon and Obligations of the Conjugal Partnership ART. 121 - ART. 123 • For solidary liability of either spouse to attach, it is incumbent upon the creditor to prove that the assets of the partnership are not sufficient to pay for its obligations • An obligation entered into by H and W is chargeable against their CP and it is the partnership which is primarily bound for its repayment - When spouses are sued for enforcement of an obligation entered into by them, they are being impleaded in their capacity as representatives of the conjugal partnership and not as independent debtors • If the debt is contracted by administrator-spouse or by one spouse without the consent of the other or if prior debt is contracted prior to marriage, the conjugal partnership shall be liable only if it can be proven that the debt redounded to the benefit of the CP or the family - If the husband himself is the principal obligor in the contract, that contract falls within the term “… obligations for the benefit of the conjugal partnership” • Here, no actual benefit may be proved • It is enough that the benefit to the family is apparent at the time of the signing of the contract • When the husband contracts obligations on behalf of the family business, the law presumes that such obligation will redound to the benefit of the CP - If the money or services are given to another person or entity, and the husband acted only as a surety or guarantor, that contract cannot alone be categorized as falling within the context of “obligations for the benefit of the conjugal partnership”

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• The contract of loan or services is clearly for the benefit of the principal debtor and not for the surety or his family The CP should not be made liable for the surety agreement which is clearly for the benefit of a third party The benefits contemplated must be one directly resulting from the loan and cannot be merely be a by-product or a spin-off of the loan itself

Section 5. — Administration of the Conjugal Partnership Property ART. 124 - ART. 125 • Art. 61, FC • Art. 101, FC • The administration of CP is a joint undertaking of the husband and wife • In all instances, the law requires the written consent of the other spouse, or authority of the court for the disposition or encumbrance of CP property without which, the disposition or encumbrance shall be void - Rule may only be applied to any alienation or encumbrance of CP property after effectivity of FC • Rule also applies to donations because it is also a form of disposition - However, either spouse may, even without the consent of the other, to make moderate donations from the CP property for charity or on occasions of family rejoicing or family distress • The right of H/W to one-half of the conjugal assets does not vets until the dissolution and liquidation of CP, or after dissolution of marriage, when it is finally determined that, after settlement of conjugal obligations, there are net assets left which can be divided between the spouses or their respective heirs - Any disposition of the spouse’s respective shares or interest in the CP shall be void since no one can give what he has not - However, the spouses are not prohibited from disposing by will of his or her interest in the CP Section 6. — Dissolution of Conjugal Partnership Regime ART. 126 - ART. 128 • Same as ACP Section 7. — Liquidation of the Conjugal Partnership Assets and Liabilities ART. 129 - ART. 133 • Similar to ACP

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Chapter 5 Separation of Property of the Spouses and Administration of Common Property by One Spouse During the Marriage ART. 134 • Separation of property, when it may take place 1. When future spouses have agreed in the MS that their property relations during marriage shall be governed by regime of SP 2. When previous marriage had been terminated by death of one of the spouses and the surviving spouse contracts a subsequent marriage without subjecting AC or CP in the previous marriage to liquidation within a period of one year from death of the spouse 3. Upon finality of a decree of legal separation, the AC or CP shall be dissolved and liquidated and, thereafter, the spouses shall be governed by a regime of complete separation of property 4. When court approves the joint petition of the spouses for the voluntary dissolution of the AC or CP 5. When the court decrees legal separation of property of spouses following the petition of one of the spouses for such separation under the ground enumerated in Art. 135 • Mere separation de facto does not affect the AC or CP ART. 135 • SP may be resorted to by the spouses during marriage in two ways: 1. By filing a petition for legal separation; or 2. By filing a petition for separation of property, either voluntarily or for a sufficient cause

Family Code of the P hilippines (Rabuya) - However, rights which are previously acquired by creditors prior to judicial SP shall not be prejudiced by the judicial decree of SP ART. 141 • Procedure for revival of previous property regime in case of judicial separation of property is the same as that provided under Art. 67 ART. 142 • Administration of exclusive property of either spouse may be transferred to the other spouse either by agreement or by order of the court - FC allows such transfer by means of public instrument, which shall be recorded in the registry of property of the place where the property is situated • If transfer is by virtue of court order, the same can only be based on the grounds provided for in Art. 142 • The alienation of exclusive property of a spouse administered by the other results in the automatic termination of the administration over such property and the proceeds of the alienation shall be turned over to the owner-spouse

Chapter 6 Regime of Separation of Property ART. 143 - ART. 146

• The power of administration must be granted to the abusive spouse in the MS itself, otherwise the provisions of par. 5, Art. 135 will not apply - If the power of administration has been assumed solely by one of the spouses in view of the incapacity or inability of the other spouse to participate in the administration of AC or CP, and not by virtue of MS, any abuse of power is not the ground contemplated in the article • If the separation in fact for at least one year and reconciliation is highly improbable, either of the spouse may petition for separation of property ART. 136 • Spouses may agree to voluntarily dissolve the AC or CP, but it will not produce any effect if the same is not approved by the courts • Spouses may petition for SP even in the absence of a sufficient cause - The court is not required to look into the reasons of the spouses for resorting to separation of property - Judicial approval is done only to protect the interest of third persons, especially the creditors of AC or CP ART. 137 - ART. 140 • Effects of Decree granting SP 1. AC or CP shall be liquidated 2. After dissolution of AC or CP, the souses shall thereafter be governed by regime of complete SP 3. In order to bind third persons, the petition for SP and final judgment granting the same are required to be recorded in the proper local civil registries and registries of property

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Chapter 7 Property Regime of Unions Without Marriage ART. 147 • Art. 147 applies 1. If two minors coming from opposite sexes live exclusively as H/W without the benefit of marriage since they are not capacitated to marry each other 2. Applies to unions of parties who are legally capacitated and not barred by any impediment to contract marriage, but whose marriage is nonetheless void for other reasons, like absence of a marriage license or by reason of psychological incapacity • Distribution of properties under Art. 147 1. With respect to wages and salaries, the same shall be owned by them in equal shares, even if only one party earned the wages and the other did not contribute thereto; 2. Property acquired by both of them through their work or industry shall be governed by the rules on co-ownership - Any property acquired during the union is prima facie presumed to have been obtained through their joint efforts - However, a party who did not participate in the acquisition of property shall still be considered as having contributed thereto jointly if said party’s “efforts” consisted in the care and maintenance of the family household 3. When only one of the parties to a void marriage is in good faith, the share of the party in bad faith shall be forfeited in favor of the common children - Rules on forfeiture

Family Code of the P hilippines (Rabuya) - It is different from Art. 147 where 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 - Mere cohabitation without proof of contribution will not result in a co-ownership 3. Share of the party validly married to another shall accrue to the property regime of such existing marriage - Property acquired by a man while living with a common-law wife during subsistence of his marriage is AC or CP, even when the property was titled in the name of the common-law wife - In such cases, a constructive trust is deemed to have been created by operation of Art. 1456 NCC over the property which lawfully pertains to the AC or CP of the subsisting marriage 4. If the party who has acted in BF is not validly married to another, his/her share shall be forfeited in the matter already heretofore expressed - Foregoing rules on forfeiture shall likewise apply even if both parties are in BF

• In co-ownership existing between parties under Art. 147, neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during the cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation - Either party may dispose of his/her share in the following instances: 1. If disposition is by way of acts mortis causa; or 2. Even if disposition is by way of acts inter vivos, if the same is with the consent of the other party ART. 148 • Art. 148 applies 1. Bigamous marriages 2. Adulterous relationships 3. Relationships in a state of concubinage 4. Relationships where both man and woman are married to other persons 5. Multiple alliances of the same married man 6. Common-law spouses who suffer from a legal impediment to marry or when they do not live exclusively with each other as H/W 7. Void marriages by reason of public policy 8. Incestuous marriages • Distribution of properties under Art. 148 1. Wages and salaries earned by each party belong to him/her exclusively 2. Only the property acquired by both of them through their actual joint contribution of money, property or industry shall be owned in common and in proportion to their respective contributions - If actual contribution is not proved, there will be no co-ownership and no presumption of equal shares

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TITLE V THE FAMILY

Family Code of the P hilippines (Rabuya) - It is for this reason that the law authorizes the sale of the family home when a judgment creditor has reasonable grounds to believe that the family home “is actually worth more than the maximum amount fixed in Art. 157”

Chapter 1 The Family as an Institution ART. 149 - ART. 150 • The scope and coverage of family relation defined in Art. 150 is exclusive • It is mandatory that the complaint or petition, which must be verified, should allege that earnest efforts toward a compromise have been made but that the same failed; if it is shown that no such efforts were made, the case must be dismissed • “Members of the same family” must be construed in relation to Art. 150 FC - A brother-in-law or a sister-in-law is a stranger with respect to the family of their spouses and, as such, the mandatory requirement of “earnest effort toward a compromise” does not apply to them - “Earnest efforts to compromise” are not jurisdictional prerequisite for the maintenance of an action whenever a stranger to the family is a party thereto, whether as necessary or indispensable one • Art. 151 is NOT applicable to cases which are not subject to compromise (Art. 2035 NCC) 1. Civil status of persons 2. Validity of marriage or legal separation 3. Any ground for legal separation 4. Future support 5. Jurisdiction of the courts 6. Future legitime Chapter 2 The Family Home ART. 152 - ART. 154 • Family home is a real right, which is gratuitous, inalienable and free from attachment, constituted over the dwelling place and the land on which it is situated, which confers upon a particular family the right to enjoy such properties, which must remain with the person constituting it and his heirs • The occupancy of the family home either by the owner or any of its beneficiaries must be actual - That which is “actual” is something real, or actually existing, as opposed to something merely possible, or to something which is presumptive or constructive

ART. 158 • Considering the purpose of the law which affords protection to the family home only to the extent of the value allowed under Art. 157, it is submitted that the alienation or encumbrance in excess of the value allowed under Art. 157 shall be considered valid • However, when the family home is part of the CP or AC, its alienation or encumbrance during the marriage without the consent of the other spouse shall be void ART. 159 • Present article qualifies the rule stated in Article 153 • Rules that will apply in the event of the death of the person/s who constituted the family home: 1. The family home continues to be such for as long as there is a minor beneficiary actually residing therein; 2. But if there is no minor beneficiary, the family home continues to be such only for a period of ten years provided that a beneficiary of legal age actually resides therein • So long as the family home continues as such pursuant to the provisions of the present article, the heirs are prohibited from partitioning the family home unless the court finds compelling reasons therefore ART. 160 • Since the law affords protection to the family home up to the extent of the value allowed in Art. 157, the law directs that the amount mention in Art. 157 shall first be satisfied prior to the satisfaction of the judgment debt and costs ART. 161 - ART. 162 • The effect of Art. 162 is to constitute, by operation of law, all existing family residences at the time of the effectivity of FC into family homes - However, Arts. 152 and 152 do not have retroactive effect - Art. 162 simply means that all existing family residences at the time of effectivity of FC are considered family homes and are prospectively entitled to the benefits accorded to a family home under the FC

• For purposes of availing of the benefits of a family home, a person may only constitute, or be the beneficiary of only ONE family home • The enumeration of beneficiaries of a family home may include the in-laws where the family home is constituted jointly by the H/W ART. 155 - ART. 157 • GR: Family home is exe,pt from execution, forced sale or attachment effective from the time of the constitution and lasts so long as any of its beneficiaries actually resides therein • It appears that the intent of the law is to exempt the family home from execution, forced sale or attachment only to the extent of the value provided for in Art. 157

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Family Code of the P hilippines (Rabuya) TITLE VI PATERNITY AND FILIATION Chapter 1 Legitimate Children ART. 163 - ART. 165 • PATERNITY is the civil status of a father in relation to his child

• The child himself cannot choose his own filiation - If the husband, presumed to be the father does not impugn the legitimacy of the child, then the status of the child is fixed, and the latter cannot choose to be the child of his mother’s alleged paramour - If the presumption of legitimacy is overthrown, the child cannot elect the paternity of the husband who successfully defeated the presumption

• Judgment of adoption is a judicial act whereby the same rights and obligations arising out of filiation by blood are established for the adoptive parent and the adopted child

• Reasons for presumption under Art. 167 1. In a fit of anger, or to arouse jealousy in the husband, the wife may have made this declaration 2. The article is established as a guaranty in favor of the children whose condition should not be under the mercy of the passions of their parents

• Children conceived or born in a voidable marriage are likewise considered legitimate since a voidable marriage is valid until annulled - Art. 54 FC

• Art. 167 covers a situation where the wife denies the husband’s paternity of a child conceived or born during their marriage - It does not contemplated a situation where a child is alleged not to be the child of nature or biological child of a certain couple

• The following children of void marriages are also considered LEGITIMATE 1. Children of marriages which are declared void under Art. 36 (psychological incapacity) 2. Children of marriages which are declared void under Art. 53

• Grounds to Impugn Child’s Legitimacy 1. Physical impossibility to have sexual intercourse - In order to overthrow the presumption of legitimacy, it must be shown beyond reasonable doubt that there was no access as could have enabled the husband to be the father of the child • Where sexual intercourse is presumed or proved, the husband must be taken to be the father of the child

• FILIATION is the civil status of a child in relation to his/her parents

• If the parents of children born outside of wedlock were, at the time of the child’s conception and birth, not legally barred from marrying each other and subsequently do so, the child’s filiation improves as he becomes legitimized - Art. 177 FC • Child conceived as a result of AI is considered legitimate child of both husband and wife, even if the donor of the sperm used in the insemination is not the husband’s - So long as the requirements of Art. 164 are met, the law deems the child to be filiated, by nature, to the H/W - If the H/W indeed authorized or ratified the insemination using the sperm other than that of the husband, the husband may not impugn the child’s legitimacy by claiming that he could not have been the father due to biological or other scientific reasons • The law does not recognize as valid the use of a surrogate mother, even if the sperm is that of the husband - Contrary to law, morals and public policy ART. 166 - ART. 167 • The presumption is grounded in policy to protect innocent offspring from the odium of illegitimacy • The presumption of legitimacy of the child is not conclusive and may be overthrown by evidence to the contrary • GR: Impugning the legitimacy of the child is a strictly personal right of the HUSBAND for the simple reason that he is the one directly confronted with the scandal and ridicule which the infidelity of the wife produces - EXCPN: ART. 171; the HEIRS may be allowed to impugn the child’s legitimacy in the following instances: 1. If the husband should die before the expiration of the period fixed for bringing his action 2. If the husband should die after filing the complaint without having desisted therefrom 3. If the child was born after the death of the husband - Outside of these cases, none — even the husband’s heirs — can impugn legitimacy

Abesamis, Austinne Joyce D.

A. Physical Incapacity • IMPOTENCE which imports a total want of power of copulation and, as a necessary incident thereto, the inability to procreate • While sterility itself is not a sufficient ground to overthrow the presumption of legitimacy, the sterile husband may still successfully impugn the child’s legitimacy by resorting to biological or other scientific reasons B. Living Separately • Separation between the spouses must be such as to make sexual access impossible • They reside in different countries or provinces, and they have never been together during the period of conception • The husband may be in prison during the period of conception, unless it appears that sexual union took place through corrupt violation of or allowed by prison regulations C. Serious Illness of Husband • Illness of the husband must be of such a nature as to exclude the possibility of his having sexual intercourse with his wife • Illness which produced temporary or permanent impotence 2. Biological or other scientific reasons - In issues relating to paternity and filiation, our courts are mandated to apply the results of science in proper cases, since it is one of the remedies made available to a husband in impugning the legitimacy of a child - Blood grouping tests are conclusive on non-paternity, although inconclusive on paternity - DNA analysis that excludes putative father from paternity should be conclusive proof of non-paternity

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- Even if it was the wife whose written authorization or

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ratification was obtained through mistake, fraud, violence, intimidation, or undue influence, she has no right to impugn the legitimacy of the child When the sperm used in AI is that of the husband, he should not be allowed to impugn the child’s legitimacy even if his written authorization or ratification was obtained through mistake, fraud, violence, intimidation or undue influence

ART. 168 • The article applies only in the absence of proof to the contrary - It mere establishes presumptions as to which marriage the child belongs and does not provide for presumptions of legitimacy of the child concerned ART. 169 • It applies to a situation where a marriage has been terminated and the woman gave birth to a child after 300 days following the termination of the marriage • The child born under this situation is neither presumed to be legitimate nor legitimate ART. 170 - ART. 171 • The issue of legitimacy cannot be attacked collaterally - The legitimacy of the child can be impugned only in a direct action brought for that purpose, by the proper parties, and within the period limited by law - The legitimacy of the child cannot be contested by way of defense or as a collateral issue in another action for a different purpose • Upon expirations of the periods provided in Art. 170, the action to impugn legitimacy of a child can no longer be brought - The status conferred by the presumption becomes fixed and can no longer be questioned Chapter 2 Proof of Filiation ART. 172 - ART. 174

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• Baptismal certificate, a private document, which, being hearsay, is not conclusive proof of filiation - No longer public writings, nor kept by duly authorized public officials - Does not attest to the truth of the statements therein as to the parentage of the child baptized; it only attests to the fact of the administration of the sacrament • Admission of legitimate filiation must be made personally by the parent himself or herself - Any admission or recognition made by any brother, sister or relative of the putative father is ineffective - Filiation may likewise be established by holographic as well as notarial wills, except that they no longer need to be probated or to be strictly in conformity with the formalities thereof for the purposes of establishing filiation • Open and continuous possession of the status of legitimate child is meant the enjoyment by the child of the position and privileges usually attached to the status of a legitimate child - To prove open and continuous possession of the status of an illegitimate child, there must be evidence of the manifestation of the permanent intention of the supposed father to consider the child as his • The acts must be of such 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 - Continuous means uninterrupted and consistent, but does not require any particular length of time • Family portrait offered in evidence is not sufficient proof of filiation

Chapter 3 Illegitimate Children ART. 175 - ART. 176 • Paternity or filiation, or the lack of it, is a relationship that must be judicially established and it is for the court to declare its existence or absence - It cannot be left to the will or agreement of the parties • No compromise upon the civil status of persons shall be valid • A birth certificate, being a public document, offers prima facie evidence of filiation and high degree of proof is needed to overthrow the presumption of truth contained in such public document - For a birth certificate to be considered competent evidence of paternity, it is necessary that the putative father must have a participation in its preparation - A certificate of live birth purportedly identifying the putative father is not competent evidence as to the issue of paternity,

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when there is no showing that the putative father had a hand in the preparation of the said certificates If the father did not intervene in the birth certificate, the inscription of his name by the mother or doctor or registrar is null and void The mere certificate by the registrar without the signature of the father is not proof of voluntary acknowledgment on the latter’s part It is not indispensable that the birth certificate be signed by the putative father; what is important is that the putative father had a hand in the preparation of the birth certificate Its evidentiary worth cannot be sustained where there exists strong, complete and conclusive proof of its falsity or nullity

• An action to establish illegitimate filiation may be brought by the child within the same period specified in Art.173, except when the action is based on par. 2 of Art. 172, in which case the action must be brought during the lifetime of the alleged parent • If the action to establish illegitimate filiation is based on the following: (1) record of birth appearing in civil register or final judgment; or (2) admission of paternity in a public document or a private handwritten instrument and signed by the parent concerned — the same may be brought BY THE CHILD AT ANY TIME DURING HIS/HER LIFETIME • If action is based on (1) open and continuous possession of status of illegitimate child; or (2) any other means allowed by ROC and special laws — the same must be brought DURING THE LIFETIME OF THE ALLEGED PARENT • Illegitimate children shall principally use the surname of their mother - They may be allowed to use the surname of their father only in the following instances:

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1. If their illegitimate filiation has been expressly recognized by the father through the record of birth appearing in the civil register; or 2. When an admission of paternity is made by the putative father in a public document or private handwritten instrument If illegitimate filiation is established only through the use of evidence in par. 2, Art. 172, an illegitimate child may not be allowed to use the surname of the father • It is the GR in Art. 176 that shall apply, in which case, such illegitimate child shall use the surname of the mother Chapter 4 Legitimated Children

ART. 177 - ART. 182 • The process of legitimation takes place automatically by the subsequent valid marriage of the parents, and as a result of which, such children born out of wedlock become legitimate children of the spouses • If, at the time of the child’s conception, the parents are disqualified by any impediment to marry each other, the child is not legitimated by the subsequent marriage of the parents - The remedy available to raise the child into the status of legitimacy is that of adoption • What if the child is conceived and born inside a void marriage but the parents are not disqualified by any impediment to marry each other, i.e., in a marriage void by reason of absence of marriage license, may the child be legitimated by the subsequent re-marriage of the parents, now with a valid marriage license? - Yes. What is essential is that the child must be conceived at the time the parents are not disqualified by any impediment to marry each other • If the impediment exists at the time of the conception of the child, the child may not be legitimated • What if the impediment did not exist at the time of the conception but present when the child was born, can he be legitimated? i.e., at the time of conception, the parents were not married but not suffering from any impediment to marry; but prior to child’s birth, his father marries another; marriage is later on terminated and his father subsequently marries his mother, may the child be legitimated? - Yes • If an impediment ceases to exists at the time of the child’s birth, so long as the same existed at the TIME OF CONCEPTION, it is believed that the child is not qualifies for legitimation • Legitimation does not require any additional act on the part of either of the child or parents except that of the valid marriage of the child’s parents - Child is automatically raised to the status of legitimacy which retroacts to the time of the child’s birth • The legal or compulsory heirs of the parents of the legitimated child are to be considered as proper party to impugn legitimation - The cause of action by those who are prejudiced in their rights because of the legitimation accrues only upon the death of the parent whose property is transmitted through succession • Validity of legitimation may only be question in a direct proceeding

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Family Code of the P hilippines (Rabuya) TITLE VII ADOPTION ART. 183 - ART. 193 • Domestic Adoption Act (DAA) of 1998 is intended to govern domestic adoption of Filipino children, whether the adopter is a citizen of the Ph or an alien • Inter-Country Adoption Act (ICA) of 1995 is intended to govern adoption of a Filipino child in a foreign country by a person who may not even be qualified to adopt under the FC or DAA - Adopter may either be a foreigner or a Filipino citizen permanently residing abroad where the petition for adoption is filed • ADOPTION is the process of making a child, whether related or not to the adopter, possess in general, the rights accorded to a legitimate child - Juridical act, a proceeding in rem which creates between two persons a relationship similar to that which results from legitimate paternity and filiation • ONLY adoption that has gone through judicial process is considered ad valid in the Ph I. DOMESTIC ADOPTION • Adopter 1. Citizen of Ph 2. Alien, so long as they are qualified to adopt • Qualifications of Filipino Adopter 1. Must be of legal age and at least 16 years older than adoptee, except if the adopter is the biological parent of the adoptee or the spouse of the adoptee’s parent 2. In possession of full civil capacity and legal rights, of good moral character and has not been convicted of any crime involving moral turpitude 3. Must be emotionally and psychologically capable of caring for children and in a position to support and care for his/her children in keeping with the means of the family • Qualifications of Alien Adopter 1. Must possess the same qualifications of Filipino nationals, and in addition: 2. His/her country must have diplomatic relations with the RP 3. He/she has been certified by his/her diplomatic or consular office or any appropriate government agency to be legally capacitated to adopt in his/her country 4. His/her government allows the adoptee to enter his/her country as his/her adopted son/daughter 5. He/she has been living in the Ph for at least 3 continuous years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered • Requirements on residency and certification of alien’s qualification to adopt may be waived for the following: 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 son/daughter 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

Abesamis, Austinne Joyce D.

• GR: Mandatory for both spouses to JOINTLY ADOPT - EXCPN: 1. If one spouse seeks to adopt the legitimate son/daughter of the other 2. If one spouse seeks to adopt his/her own illegitimate son/daughter, provided, however, that the other spouse has signified his/her consent thereto 3. If the spouses are legally separated from each other • If it is the other spouse who seeks to adopt the illegitimate child of the other spouse, the law requires that both spouses must jointly adopt • Who may be Adopted 1. Any person below 18 years of age who has been administratively or judicially declared available for adoption - Child is “legally available for adoption” a. Below 18 years of age b. Voluntarily or involuntarily committed to DSWD or to a duly licensed and accredited child-placing or child-caring agency c. Freed of the parental authority of his/her biological parent/s or guardian or adopter/s in case of rescission of adoption - A “voluntarily committed child” is one whose parent/s, known or unknown, has been permanently and judicially deprived of parental authority due to: a. Abandonment; b. Substantial, continuous, or repeated neglect; c. Abuse; d. Incompetence to discharge parental responsibilities - Any voluntary or involuntary termination of parental authority shall be administratively or judicially declared 2. Legitimate son/daughter of one spouse by the other spouse 3. Illegitimate son/daughter by a qualified adopter to improve his/her status to that of legitimacy 4. A person of legal age if, prior to the adoption, said person has been consistently considered and treated by the adopter/s as his/her own child since minority 5. A child whose adoption has been previously rescinded; to be legally available for adoption, the child must be below 18 years of age 6. A child whose biological or adoptive parent/s has died provided that the child is below 18 years of age; in this case, the law requires that no adoption proceedings shall be initiated within 6 months from the time of the death of the said parent/s • Our laws do not prohibit relatives, whether by blood or affinity, from adopting one another • Absence of parental authority on the part of a biological parent does not necessarily mean that his/her consent is not required • The law in requiring the written consent of the biological parent/s of the child, if know, does not distinguish between legitimate and illegitimate filiation • Written consent of the natural parent to the adoption, while indispensable to the validity of the decree of adoption may be dispensed with if the parent has abandoned the child or that such parent is insane or hopelessly intemperate • Family Court has exclusive jurisdiction to hear and decide petitions for adoption of children and its revocation - Venue shall be in the province or city where the prospective parents reside

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Family Code of the P hilippines (Rabuya) • Adoption is a proceeding in rem • FOUNDLING refers to a deserted or abandoned infant or child whose parents, guardian or relatives are unknown; or a child committed to an orphanage or charitable or similar institution with unknown facts of birth and parentage and registered in the Civil Register as a foundling • ABANDONED CHILD refers to one who has no proper parental care or guardianship or whose parents have deserted him for a period of at least 6 continuous month and has been judicially declared as such • DEPENDENT CHILD refers to one who is without a parent, guardian or custodian or one whose parents, guardian or other custodian for good cause desires to be relieved of his care and custody and is dependent upon the public for support • NEGLECTED CHILD is one whose basic needs have been deliberately not attended to or inadequately attended to, physically or emotionally, by his parents or guardian • All legal ties between the biological parent/s and the adoptee shall be severed and same shall be vested upon the adopter/s, except in cases where the biological parent is the spouse of the adopter • The adopted is deemed to be a legitimate child of the adopter for all intents and purposes but the relationship established is limited to the adopting parents and does not extend to their other relatives, except as expressly provided by law • Adopted child has the right to use the surname of the adopter/s - However, the provision of law which entitles the adopted minor to the use of the surname of the adopter refers to the adopter’s own surname and not to the surname acquired by virtue of marriage - There is no law prohibiting an illegitimate child adopted by her natural father to use, as middle name, her mother’s surname • The adopted and his/her biological parents are not legally bound to support each other because of the severance of legal ties between them • The adopter and the adoptee are legal heirs of each other, in the same way and in the same manner that a legitimate child and his/her legitimate parents are heirs of each other - DAA amended Art. 190 FC - Under DAA, the adopted and his/her parents by nature may only succeed from each other by way of testamentary succession • The intention of the law is to extinguish the reciprocal rights of succession that exist between the adopted and his/her parents by nature, including the right to the legitimate and rights arising from legal or intestate succession • DAA withdrew the right of an adopter to rescind the adoption decree and gave to the adopted child the sole right to severe the legal ties created by adoption - However, the adopter/s may disinherit the adoptee for causes provided in Art. 919 of the NCC • Grounds for Rescission 1. Repeated physical and verbal maltreatment by the adopter/s despite having undergone counseling; 2. Attempt on the life of the adoptee; 3. Sexual assault or violence; or 4. Abandonment and failure to comply with parental obligations

Abesamis, Austinne Joyce D.

• If incapacitated, adoptee must file the petition for rescission or revocation of adoption within 5 years after he reaches the age of majority • If he incompetent at the time of adoption, file the petition within 5 years after recovery from such incompetency • Effects of Rescission 1. Parental authority of the adoptee’s biological parent/s, if known, of the legal custody of the Department, shall be resorted if the adoptee is still a minor or incapacitated 2. Reciprocal rights and obligations of the adopter/s and adoptee to each other shall be extinguished 3. Court shall order the Civil Registrar to cancel the amended certificate of birth of the adoptee and restore his/her original birth certificate 4. Succession rights shall revert to its status prior to adoption, but only as of the date of judgment of judicial rescission; however, vested rights acquired prior to judicial rescission shall be respected II. INTER-COUNTRY ADOPTION • Policy of the state is to encourage domestic adoption so as to preserve the Filipino child’s identity and culture in his/her native land, and only when this is not available shall ICA be considered as a last resort • Who may Adopt - Any foreign national of Filipino citizen permanently residing abroad who has the qualifications and none of the disqualifications under ICA may file an application if he/she 1. Is at least 27 years of age; 2. Is at least 16 years older than the child to be adopted at the time of the filing of application unless the applicant is the parent by nature of the child to be adopted or is the spouse of such parent by nature; 3. Has the capacity to act and assume all the rights and responsibilities incident to parental authority under his/ her national law; 4. Has undergone appropriate counseling from an accredited counselor in his/her country; 5. Has not been convicted of a crime involving moral turpitude; 6. Is eligible to adopt under his/her national law; 7. Can provide the proper care and support and give the necessary moral values and example to the child and in the proper case, to all his/her other children; 8. Comes from a country: a. with whom PH has diplomatic relations; b. whose government maintains a foreign adoption agency; and c. whose laws allow adoption; and 9. Files jointly with his/her spouse, if any, who shall have the same qualifications and non of the disqualifications to adopt as prescribed above • Who may be Adopted - Only a legally free child may be the subject of ICA who is below 15 years of age

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Family Code of the P hilippines (Rabuya) TITLE VIII SUPPORT ART. 194 • Support applies only to means of subsistence during life; thus funeral expenses are not within the meaning of the word, although the duty and the right to make arrangements for the funeral of a relative shall also be in accordance with the order established for support • Does not include and allowance for the payment of life insurance premiums ART. 195 - ART. 196 • To be entitled to support, the spouse must be the “legitimate spouse” • In legal separation, while the marriage bond is not severed, the obligation of the spouses to support each other ceases upon the finality of the decree of legal separation - In its discretion, the court may order the guilty spouse to give support to the innocent one • Illegitimate descendants, whether from legitimate or illegitimate children, are entitled to support from their grandparents • Children, whether legitimate or illegitimate, are entitled to be supported by their parents - Even an unborn child has the right to support • With respect to brothers and sisters “not legitimately related,” the right and obligation to support each other ceases “when the need for support of the brother or sister, being of age, is due to a cause imputable to the claimant’s fault or negligence ART. 197 • Support of spouses, their common children and legitimate children of either spouse is chargeable to the AC of CP - If insufficient, the spouses shall be solidarily liable with their separate properties ART. 198 • Since the obligation to give support between the spouses proceeds from the marital tie, if the defendant denies the marriage between him and plaintiff, thus putting in issue the very status of the plaintiff, support pendente lite may not be allowed, unless and until the marriage is established as a fact • Adultery is a valid defense in an action for support - However, mere allegation that the wife has committed adultery will not bar her from the right to receive support pendente lite

• Where duty to support is admitted, but in spite of demands the duty is not complied with and the person to be supported has to resort to the court for the enforcement of his right, then the person obliged to give support must pay reasonable attorney’s fees - Recoverable even in the absence of stipulation • Judgment in actions for support is immediately executory and cannot be stayed by an appeal ART. 205 • Characteristics of Right to Support 1. Right to receive legal support, as well as any money or property obtained under such support, cannot be levied upon on attachment or execution for to allow attachment or execution of the right to support, or of what is used for support, would defeat the purpose which the law gives to the recipient against want and misery; 2. Right to receive support cannot be renounced nor can it be transmitted to a third person; 3. Future support cannot be subject of a compromise; and 4. Compensation may not even be set up against a creditor who has a claim for support due by gratuitous title ART. 206 • Payment by Stranger • “Stranger” refers to one who does not have any obligation to give support to the person who received it; must not be one of those enumerated in Arts. 195 and 196 • Obligation to reimburse is one that arises from quasi-contract - It is necessary that support must have been given without the knowledge of the person obliged to give support ART. 207 • Payment by Third Person • The law creates a promise of reimbursement on the part of the person obliged to furnish support, inspite of the deliberate disregard of his legal and moral duty ART. 208 • CONTRACTUAL SUPPORT is not based on law but originates either from will or from the agreement of the parties - Legal support is that which is contemplated in Arts. 195 and 196 - In legal support, the recipient and giver must be mutually obliged to give support; whereas in contractual support, they need not be so - In contractual support, the excess in amount beyond that required for legal support shall be subject to levy on attachment or execution; it can be renounced or waived in contrast to legal support

ART. 199 - ART. 200 • Order of liability for support ART. 201 - ART. 202 • Any judgment granting support never becomes final and is always subject to modification, depending upon the needs of the child and the capabilities of the parents to give support ART. 203 - ART. 204

Abesamis, Austinne Joyce D.

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Family Code of the P hilippines (Rabuya) TITLE IX PARENTAL AUTHORITY Chapter 1 General Provision ART. 209 - ART. 210 • Parental authority, patria potestas, is defined as the mass of rights and obligations which parents have in relation to the person and property of their children until their majority age or emancipation, and even after this under certain circumstances • Exercised over unemancipated children, but in certain circumstances, PA may still be exercised notwithstanding the emancipation of the child, e.g. parental consent is necessary if a person below 21 years of age wants to get married • Majority commences at the age of 18 years • Consequences of PA; parents may exercise the following rights 1. Right to have them in their company (custody); 2. Right to be obeyed and respected 3. Right to impose discipline on them as may required under the circumstances; 4. Right to withhold or give consent in certain matters; 5. Right to exercise legal guardianship over property of unemancipated common children; 6. Limited right of usufruct over child’s property • Parental authority and responsibility are inalienable and may not be transferred or renounced except in cases authorized by law - Law authorizes waiver of PA only in cases of adoption, guardianship and surrender to children’s home or an orphan institution ART. 211 - ART. 212 • Generally, PA is jointly exercised by father and mother, but there are instances where the exercise of PA is primarily lodged in the father - Art. 14 and 78 FC; applies only when children are legitimate - Illegitimate children are under the PA only of their mother • Visitation right is the right of access of a noncustodial parent to his/ child/ren

• Neglect, abandonment; unemployment and immorality; habitual drunkenness; drug addiction, maltreatment of the child, insanity and being sick with a communicable disease • Mere fact that the mother is a lesbian is not a compelling reason • To deprive wife of custody, the husband must clearly establish that her moral lapses have had an adverse effect on the welfare of the child or have distracted the offending spouse from exercising proper parental care • If older than 7 years of age, the child is allowed to state his preference, but the court is not bound by that choice; it is not controlling, decisive, or determinative • Whether a child is under or over 7 years of age, the paramount criterion must always be the child’s interests or the welfare and wellbeing of the child • Couples who are separated in fact are covered under this article ART. 214 - ART. 215 ART. 215 FC

Sec. 25, Rule 130 ROC

Applicable only in criminal May be invoked in both civil proceedings and criminal cases Invoked only by descendants

Invoked either by descendants or ascendants

Invoked only in criminal cases Invoked in civil or criminal against parents and grandparents cases against parents, other direct ascendants, children or other direct descendants Privilege is not absolute since There appears to be no excpn the descendants can be compelled to testify in criminal cases against the parents and grandparents when their testimony is indispensable in a crime against the descendants or by one parent against the other • To preserve family cohesion

ART. 213 • In legal separation, the law only confers on the innocent spouse the “exercise” of PA - The award of custody to the innocent spouse does not deprive the guilty spouse of PA • Par. 3, Art. 63 which states that “the custody of the minor children shall be awarded to the innocent spouse” is subject to the provisions of Art. 213 - As much as possible, FC prohibits the separation of a child below 7 years of age from the mother even if the latter is the guilty spouse in a legal separation case - The mere fact that the mother is the guilty spouse in legal separation does not necessarily mean that she is not fit to be a parent • TENDER-AGE PRESUMPTION - GR: A mother is to be preferred in awarding custody of children under the age of 7 - EXCPN: When the court finds cause to order otherwise; compelling reasons

Abesamis, Austinne Joyce D.

• If the crime is committed by a parent or grandparent against the descendant or against the other parent and the testimony of the descendant is indispensable, he can be compelled to testify Chapter 2 Substitute and Special Parental Authority ART. 216 • See Santos, Sr. v CA, 242 SCRA 407 (1995) • Parental preference rule may not be invoked by the father of an illegitimate child in case of death, absence or unsuitability of the mother since under Art. 176, an illegitimate child is not under parental authority of the father - In the event that both mother and father of an illegitimate child die during the latter’s minority and the child is survived by his grandparents on both maternal and paternal sides, only the grandparents on the maternal side shall be entitled to exercise substitute parental authority, if suitable

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Family Code of the P hilippines (Rabuya) - While the child is already emancipated and no longer under the • SUBSTITUTE PA may only be exercised by the persons designated in Art. 216 “in the case of death, absence or unsuitability” of both parents - Cannot co-exist with parents’ PA ART. 217 • PA shall be entrusted in summary judicial proceedings to heads of children’s homes, orphanages and similar institutions duly accredited by the proper government agency ART. 218 - ART. 219 • SPECIAL PA is granted by law to certain persons, entities or institutions in view of their special relation to children under their supervision, instruction or custody - Extended by law to all authorized activities whether the same is undertaken inside or outside of the premises of the school, entity or institution - Co-exists with parents’ PA

PA of his parents, the parents are still liable for quasi-delict committed by said child if the latter is below 21 • Parents are civilly liable for the felonies committed by their minor children • Art. 221 FC is intended to govern the matter of parental liability for quasi-delicts committed by children below 18; whereas, Art. 2180 NCC governs liability of parents for quasi-delicts committed by their children who are 18 but under 21 years of age - Under Art 2180, enforcement of liability shall be effected against the father and, in case of his death or incapacity, the mother - In Art. 221, there is no such alternative • Whether the liability of the parents arises from quasi-delict or criminal offenses committed by their minor children under their legal authority or control, or who live in their company, the nature of such liability is primary and not subsidiary - Parents are subsidiarily liable only if, at the time of the commission of quasi-delict, the minor children are under special PA

Chapter 3 Effect of Parental Authority upon Persons of the Children ART. 220 - ART. 222 • In case of legitimate children, the father and mother, being the natural guardians, are duty-bound and entitled to keep them in their custody and company • In case of illegitimate child, he/she is under the sole PA of the mother - But the father is entitled to visitation rights • Obligation of parents to support their children is not co-terminus with the exercise of PA - While PA is permanently terminated upon child’s emancipation, the parents’ obligation to support their children is not necessarily terminated upon such emancipation • Parents are the legal representatives of their minor children in court proceedings • Parents are civilly liable for quasi-delicts of their minor children subject to the following conditions 1. Minor is living in the company of his parents 2. Minor is under their PA 3. Parents failed to exercise all the diligence of a good father or a family to prevent damage • Parental liability is anchored upon PA coupled with presumed parental dereliction in the discharge of the duties accompanying such authority • Bases of parental liability for torts of a minor child is the relationship existing between the parents and the minor children living with them and over whom, the law presumes, the parent’s exercise supervision and control • No parental liability can be imposed upon the father of an illegitimate child, especially if the child is not living in his company, since under the law, the child is under the sole PA of the mother • Art. 2180 NCC refers to “minor children” who is below 21 years of age

Abesamis, Austinne Joyce D.

ART. 223 - ART. 224 • Aside from personally disciplining the child, the parents or persons exercising PA may also petition the court for the imposition of appropriate disciplinary measures Chapter 4 Effect of Parental Authority Upon the Property of the Children ART. 225 - ART. 227 • While parents are considered the legal guardian of the minor’s property, the court may, appoint a guardian of the child’s property other than the parents when the best interests of the child so requires • Things given by the parent by way of support or as necessaries, such as clothing and the like, remain the property of the parent and do not belong to the child, notwithstanding the child’s possession of them • Parents have a limited right of usufruct over the property of their minor children Chapter 5 Suspension or Termination of Parental Authority ART. 228 - ART. 233 • Authorized grounds for the appointment of guardian 1. Death, continued absence of incapacity of the minor’s parents; 2. Suspension, deprivation or termination of PA; 3. Remarriage of the minor’s surviving parent, if the latter is found unsuitable to exercise PA; and 4. When the best interests of the minor so require • Upon appointment of the guardian, the PA of the parents is likewise terminated unless the same is subsequently revived by a final judgment • In the absence of judicial declaration of abandonment the PA of the parents remains unaffected

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Family Code of the P hilippines (Rabuya) TITLE X EMANCIPATION AND AGE OF MAJORITY ART. 234 - ART. 237 • Emancipation is effected by operation of law when the child reaches the age of 18 years TITLE XI SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW Chapter 1 Prefatory Provisions ART. 238 Chapter 2 Separation in Fact ART. 239 - ART. 248 Chapter 3 Incidents Involving Parental Authority ART. 249 - ART. 252 Chapter 4 Other Matters Subject to Summary Proceedings ART. 253

TITLE XII FINAL PROVISIONS ART. 254 - ART. 257

Abesamis, Austinne Joyce D.

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