Midterm Exam for Persons & Family Relations

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Memory Aid for Persons & Family Relations

(Family Code)
Article 1: Definition of Marriage

The Supreme Court ruled that a company

policy prohibiting employees of the same company from marrying
each other is an invalid exercise of management prerogative for the
failure of the employer to present any evidence of business
necessity of the prohibition. Absence of such bona fide occupational

Marriage
A special contract which calls for a permanent
union between a man & a woman for the
establishment of a family life. Its nature,
consequences and incidents of marriage are
governed by law and not subject to the agreement
of the parties.
This is an inviolable permanent social institution.

qualification renders the policy invalid.

R.A. No. 6955: The Act Prohibiting Mail

Order Brides
This law penalizes any person or entity who
carries on a business of matching Filipino women
for marriage with a foreigner.

General Rule: The consequences of marriage are

governed by law and cannot be subject to the

compromise of both parties.
Exception: The choice of economic regime that will

govern their property relation during the marriage.

Marriage does not shed a spouses integrity and right to

privacy

The intimacies between husband and wife do not

justify any one of them breaking into the drawers
and cabinets of the other for any telltale evidence
of marital infidelity. Any evidence obtained
therefrom is inadmissible in evidence.
Intersexuality
Applies to human beings who cannot be classified
as either male or female because they have the
biological characteristics of both a man and a
woman.

Article 2-6: Essential & Formal Requisites for Marriage

Essential Requisite

Legal Capacity
Age must be 18 and above
a. For 18-21, parental consent is need absence of
which will render the marriage voidable.

b. For 21-25, parental advise is needed absence of

Where the person is biologically or

naturally intersex, the determining factor in his gender classification
would be what the individual, at the time he reached the age of
majority, with good reason thinks of his/her sex. In this case, the
gender classification at his/her birth is deemed inconclusive since it
is only at maturity is the gender of such person is fixed.

will delay the issuance of the marriage license by

the Local Civil Registrar for 3 months.
Sex must be male and female
Legal Impediments (Absence of legal impediments)
a. Previous marriage and the manner it got dissolved.
b. Relationship of both parties must be not less than
4th degree from ascendant or 1st degree of
consanguinity.

Sex reassignment surgery or sex change

does not make a man into a woman because there is no law that
allows sex change in the entry of the birth certificate due to sex
reassignment furthermore, under the Civil Register Law, a birth
certificate a historical record of the facts as they existed at the time
of birth. Thus, the sex of a person is determined at birth. A man w

Consent Freely Given

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Consent must be given in the presence of the

solemnizing officer with at least 2 witnesses of
legal age.
The consent does not need to be expressed since
it can be deduced from the acts of the parties
showing that they take each as husband and wife.

Valid Marriage Ceremony

The family code does not prescribe any particular

form of a marriage ceremony.

Formal Requisite

It only impose that the party will appear personally

Authority of Solemnizing Officer

The person who solemnized the marriage must be
among those authorized in Article 7 of the Family
Code to solemnize the marriage.
The authority of the solemnizing officer to
solemnize the marriage is presumed unless it is
otherwise proven.
It is not the duty of the solemnizing officer to
scrutinize the marriage license.

before the solemnizing officer and that they take

each other as husband and wife in the presence of
at least two witnesses who are of legal age.
Absence in any of the essential and formal requisite
will render the marriage void.
Defect in any of the essential requisite will make the
marriage voidable or annullable particularly to the
giving of consent.
Irregularities in the formal requisite do not affect the
validity of the marriage but the person responsible for
such irregularity can be held civilly, criminally or
administratively liable.
Instances of Irregularities:
a. Marriage solemnized in a place other than in a church or
chamber of the judge.
b. Absence of two witnesses who are of legal age.
c. Issuance of a license in place where neither of the
parties reside.
d. Issuance of a license w/out the required supporting
papers or documents.
e. Absence of a marriage contract.
f. Issuance of license despite failure of the party to
present parental consent or parental advise when
required.
g. Issuance of license despite absence of posting notice
and publication.
h. Failure to undergo marriage counseling.
i.
Failure to pay the required fee for marriage license.

General Rule: Defect in the authority of the solemnizing

officer will render the marriage void.

Exception: If either one or both of the parties believe in

good faith that the person who solemnized their

marriage is authorized by law to do so, then the
marriage is considered valid.

Valid Marriage License

This is considered the most important requisite in

the validity of marriage since it is in the issuance
of the license that the State can determine
whether or not there are impediments in the
marriage.
The marriage license must be secured from the
Local Civil Registrar of the place where either
party resides, which takes 10 days from
application before it is issued.
The license will be valid for 120 from the date of
issuance.
Absence of marriage license will render the
marriage void only when it is supported by the
certification from the local civil registrar that no
such marriage license was issued to the parties.
Any irregularities in the issuance of the marriage
license will not render the marriage void as long as
it does not affect the legal capacity of both parties.

Marriage certificate is not an essential or

formal requisite of a marriage. Failure to sign a marriage certificate
itself does not render the marriage void.

A marriage which preceded the issuance

of the marriage is license is void and that the subsequent issuance
of such license cannot render the marriage valid or add an iota of
validity to it.
Article 7: Persons Authorized to Solemnize Marriage

This is a manifestation that the State is a party of the contract as it is

represented by the solemnizing officer.

1. Any incumbent member of the judiciary can solemnize

a marriage only when the ceremony is held within its
territorial jurisdiction, otherwise it is a mere irregularity.

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2. A priest, an imam, a rabbi, a minister or pastor following

this certain conditions:
a.
b.

3.

Must be authorize by his/her church or religious sect.

Must act within the limits of the written authority granted
to him by his church or religious sect.
c. At least one of the contracting parties belongs to the
solemnizing officers church or religious sect.
A ship captain or airplane chief can solemnize marriage
only if one of the parties is at the point of death and

Marriage License
This serves as the authority given by the State to
the parties to enter into a contract of marriage.
It is the concern of the state to make marriages
secure and stable institution.

that the parties must be passengers or crew members

of the ship or airplane while it was in transit.
4. Military commander provided they follow the requisites:
He must be a commissioner officer with a rank of 2nd
lieutenant ensign and above of the commanding military
unit where the chaplain is assigned.
b. The assigned chaplain is absent at the time of marriage
is solemnized.
c. The marriage must in articulo mortis
d. The contracting parties must be a member of his unit or
a civilian.
e. The marriage must be done in the zone or area of
military operation.
f. There must be a widespread military activity over an
area and does not refer to a simulated exercise.
Consul-General or Vice Consul or Consul can
a.

5.

Article 11-16: Application for Marriage License

REQUIRED DOCUMENTS FOR APPLICATION OF MARRIAGE

LICENSE
a. The original copy of birth certificate, in the absence
thereof, the original baptismal certificate of the parties.
This document is exempt from documentary stamp tax and
signature of the official person is enough to prove its authenticity.

Except in instances where:

The parents of the party concerned will
personally appear before the local civil
registrar and attest to the fact that the said
party is already of legal age.
When the local civil registrar shall be
convinced by merely looking at the personal
appearance of the party that they are of legal
age.
When the party has been previously married.
b. If either or the parties were previously married, the
death certificate of the deceased spouse or the judicial
decree of absolute divorce, annulment of marriage or
declaration of nullity of marriage.
c. In case either party is between the ages of 18-21, they
must present a parents consent, absence of which will
render the marriage voidable.

solemnize a marriage if both parties are Filipino and

the marriage is done abroad. The consul is not only
the solemnizing officer but performs the duties of the
civil registrar by issuing the marriage license.
The marriage between a Filipino and a foreigner
by a consul is not considered valid.
6. Mayors, vice mayor or acting mayor can solemnize
marriages by virtue of the Local Government Code
which took effect on January 1, 1992.
Article 8: Venue of Marriage

The venue of marriage stated in

this article is directory in nature.

This must be in an affidavit of sworn

statement that the parents gave their consent.

General Rule: a marriage solemnized by a judge

outside of his court room or by a priest outside of the

church is valid however, the solemnizer can be held
liable for it since this will become an irregularity in the
marriage.

Preference is given to the father otherwise

the mother, surviving parent or legal guardian of
persons having charge of them shall give the
consent.

Exception:

a. When one of the party is at the point of death.

b. The marriage was contracted in a remote place.
c. When both of the parties request the solemnizing
officer in writing to solemnize it elsewhere in
sworn statement.

d.

If the party is between the ages of 21-25, parental advice

is required.

Absence of which will not affect the validity

of the marriage but will delay the issuance of the

Article 9, 10: Marriage License

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marriage for 3 months following complete

publication of the application.

thereof, but should not turn down the issuance of the

marriage license.

Even if the LCR is made aware of the impediments of

the marriage, h is still duty bound to issue the license
except if he is restrained by the court at his own
instance or of any interested party.
Only the court can intervene in issuing the marriage
license through a court order directing the LCR from
non-issuance.
If there is really a legal impediment in the marriage, the
LCR issuing officer can petition the court to restraint him
from the issuing the marriage license or have the other
party petition for it.

This is in keeping of family tradition

e.

Certificate of marriage counseling in cases where

parental consent or parental advice is required.

Failure to attach the counseling certificate

will cause the suspension of the issuance of
marriage license for 3 months. This is only an
irregularity to the formal requisite.

f.

d. The LCR will collect payment of fees for the issuance

of the marriage license in the amount of 300.
However, it is free of charged for indigent people.
e. It shall be the duty to prepare the documents such as
the marriage certificate and affidavit for the
solemnization of marriage in another place without
charge to all interested parties.
f. The LCR is the also the one to administer oaths to all
parties interested and to prepare the documents
required.
g. The LCR concerned, shall be the one to enter to all
applications for marriage licenses filed with him in a
registry book strictly in order which shall be recorded
in the name of the applicants, the date of the marriage
license was issued and such other data as may be
necessary.

If one or both of the parties are below 25

years old, both of them must attend.
If a party to the marriage is a foreigner, he must present
a certificate of legal capacity to marry issued by his
diplomatic or consular representative in the
Philippines.

g. Place of issue for the Marriage License, the parties should

get a marriage license form the LCR in the municipality or
city where either of the party resides.
Information needed to be specified to the LCR:

a.
b.
c.
d.
e.

Full name of the contracting parties

Place of birth
Age and date of birth
Civil status
If previously married, how, when and where the
previous marriage was dissolved or annulled.
f. Present citizenship and citizenship
g. Degree of relationship of the contracting parties.
h. Full name, residence and citizenship of the father.
i. Full name, residence and citizenship of the
mother.
j. Full name, residence and citizenship of the guardian
or person having charge, in case one of the
parties has neither father nor mother, and is under
21 years old.

Article 20: Life of the Marriage License

The marriage license once issued is

valid anywhere in the Philippine for a period of 120 days, if it
is not used within that period is it automatically expired.
Marriages solemnized using an expired marriage licensed is
considered null & void.
Article 21: Certificate of Legal Capacity to Marry

Article 17-19:

If both party are foreigners:

DUTIES OF THE LOCAL CIVIL REGISTRAR

It is not necessary for them to present a birth

certificate instead they need to present certificate
of legal capacity to contract a marriage duly issued
by their respective diplomatic or consular official.

a. Upon receipt of the application for a marriage license,

the LCR must immediately post a notice to inform the
public of the impending marriage.
b. The notice shall be posted in the bulletin board outside
of the LCR for 10 consecutive days showing the name
and residence of the couple.
This will request any person having knowledge of
any impediment to the marriage to inform the local
civil registrar about it.
c. If the LCR will be informed of any impediment of a
party applying, he shall note down the particulars

The reason for this is that a persons capacity to

marry is determined by his national law.

If the foreigner desires to have their marriage

solemnized by their countrys consul general
assigned in the Philippines, the marriage can be
solemnized w/out a marriage license if their
country allows the same.

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b. It shall also be his duty to keep the 4th copy of the

marriage contract, the original marriage license
and in some cases affidavit of the contracting
parties regarding the solemnization of the
marriage in a place other than his jurisdiction.

If both parties are stateless or

refugees from other countries:
In lieu of the certificate of legal capacity will be

required to submit an affidavit stating the

circumstances showing such capacity to
contract marriage.

Is a photocopy of the Marriage Contract

valid?
No, unless it emanated from the office of the Local Civil
Registrar.

Article 22-25: Marriage Certificate

The rule is that if two persons

dwelling together presenting themselves as married shall be
presumed to be indeed married, in the absence of any
counter-presumption or evidence showing the contrary.

Marriage Certificate
The best evidence to establish or prove marriage.
It is a certification issued by the solemnizing officer
that he performed or solemnized the marriage
between the parties. Absence of which will not
invalidate the marriage since it is not an essential
or a formal requisite.
What should be declared in the Marriage Contract?
1. The full name, sex and age of contracting parties.
2. Their citizenship, religion and habitual residence.
3. The date and precise time of the celebration of the
marriage so as to determine at what point will
govern the property relation of the parties.
4. Must indicate that the proper marriage license has
been issued according to law
Except in cases of:
a. Articulo Mortis
b. Marriage in a far and remote place
c. Marriages among Muslims or members of
ethnic cultural communities
d. Ratification of marital cohabitation
5. That both or either parties have secured the
parental consent in appropriate cases.
6. Either or both parties have complied with the legal
requirement regarding parental advice in
appropriate cases.
7. That the parties have entered into a marriage
settlement, it any, attaching the copy thereof.
Duty of the Solemnizing Officer
a. It his duty to furnish either of the contracting
parties the original marriage certificate and to send
the duplicate and triplicate copies of it not later
than 15 days to the Local Civil Registrar of the
place where the marriage was solemnized, the
LCR in turn will issue a receipt to the solemnizing
officer.
- 1 copy to the couple
- 2 copies to the LCR
- 1 copy to keep for the solemnizing officer

Semper Praesumitur Pro

Patrimonio: Always presume marriage
The law favors morality over and immorality, marriage
and not concubinage, legitimacy and not bastardy.

A marriage may be proved by evidence of

any kind such as parol evidence or testimony by one of the parties
or the witnesses to the marriage or by the person who solemnized
the same.

Competent evidence proving the fact of marriage

1. Public and open cohabitation as husband & wife
after the alleged marriage.
2. Birth & baptismal certificate of children born by the
alleged spouses.
3. Statement of such marriages in subsequent
documents.

It is the burden of proof upon the person

who attacked the validity of marriage to present a strong and
satisfactory evidence to rebut the presumption of its validity. The
evidence to prove the invalidity of the marriage may even be
presented for the first time on appeal.
Article 26: Lex Loci Celebraciones Rule in Marriage

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be capacitated again to remarry according to his

national law. This must be proven as a fact by the
Filipino spouse before he/she is entitled to remarry
again in our court.

Lex Loci Celebraciones

This is based on the concept of international
comity.
This is rule in marriage wherein it means that if the
marriage is celebrated abroad and is considered
valid there, it shall also be considered valid in the
Philippines. However, if the marriage solemnized
abroad is in violation of our countrys laws and
policies, our court is not bound to give effect to its
validity.
The reason for this is that a State is considered
the conservator of its own moral and good order of
society, thus, it has the right to declare what
marriages it will or will not recognize within its
borders.

b.

Except those pointed out under Article 35 (1), (4), (5), (6), 36, 37
and 38.

1.
2.
3.
4.

If the party who is a Filipino is below 18 years old.

If the marriage is bigamous or polygamous.
If contracted through mistake of identity of the other party.
If the party whose previous marriage has been annulled or
declared void, contracts a second marriage but failed to
record the judicial decree with the LCR, to partition the
conjugal properties and deliver the presumptive Legitime of
their children.
Where one of the party is psychologically incapacitated.
Marriages considered incestuous.
Marriages that are against public policy.

5.
6.

7.

If the Filipino spouse has acquired the citizenship of her

husband then such divorce is considered as valid here
in our country because of our adherence to the
nationality principle in so far as the status of the person
is concerned.

What is important or the reckoning point is at the time when

the divorce decree was availed of.

In a case wherein the Filipino citizen is the

one who filed for a divorce in another country to his foreigner
husband/wife, the foreigner spouse cannot anymore claim that he
still an interest to the properties of the Filipino citizen here in the
Philippines or subsequently file an adultery case against the Filipino
since the foreigner spouse has lost his legal standing against the
Filipino for the foreigner is already considered divorced by his
national law.

Exception to the Lex Loci Celebraciones Rule:

In this case the divorced Filipino citizen is not considered an

Ipso Facto capacitated to marry again. The Filipino citizen
must prove as a fact the divorce as enforced by the foreign
judgment by way of declaratory relief since our courts dont
take judicial notice on the laws of other countries.

MARRIAGES EXEMPT FROM LICENSE REQUIREMENT

Article 27-32: Marriage under Articulo Mortis

Articulo Mortis (Point of Death)

Marriage
This is a marriage done wherein one of the party is
at the point of death. This kind of marriage can be
solemnized w/out the need of a marriage license
for necessity and practicability.
This can be solemnized by a ship captain or
airplane chief or a military commander, all of which
must be in according to article 7 of the family
code.
Duty of the person who solemnized the marriage
under Articulo Mortis:
He must execute an affidavit before the LCR
stating that he solemnized the marriage under
articulo mortis and the he took all the necessary
steps to ascertain the age and relationship of the
contracting parties and that he is convinced that
they have no legal impediments to marry each
other.

Common law marriages considered

abroad cannot be recognized here in the Philippines since our laws
require marriages solemnized abroad. The word solemnize
presupposes the performance of a marriage ceremony which is
absent in a common law marriage.

General Rule: Absolute divorce obtained in another

country is not valid here in the Philippines since we adhere
to the National Theory
Requisites:
a. Must be a mixed marriage
b. Foreigner spouse is the one who secured the divorce
abroad
c. After the divorce, the foreigner spouse must again be
capacitated to remarry according to his national law.
Exception:

a. When in a case of marriage between a Filipino

citizen and a foreigner and it is the foreigner who
filed for a divorce and after it was granted he must

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The original affidavit must submitted by him to the

LCR where the marriage was performed within a
period of 30 days
Article 28: Marriage in a Far and Remote Place

When the parties have already

been living together as husband and wife for at least 5
years without any legal impediments to marry each
other, the requirement of a marriage license is no
longer needed.
If the parties are residing in a far
and remote place that it is difficult for them to secure
the required marriage license because their place has
no means of transportation, they will exempted from
the license requirement.
Duty of the person who solemnized the marriage:
He must execute an affidavit after the celebration
of the marriage stating that he solemnized the
marriage in a far and remote place and the
ascertained the age and relationship of the parties
and the absence of any legal impediments.
The reason for this is to encourage couples to
marry and legalize their relationship instead of
cohabiting in an illicit relationship.

Requisites:
1. The party must live together as husband and wife
for at least 5 years.
2. There must be no legal impediments for them to
marry each other.
What to do:
1. Both parties must execute a joint affidavit stating
the foregoing fact and have it notarized by a
person duly authorized to administer the oath.
2. The Solemnizing officer must ascertain first the
qualifications of the contracting parties if there are
any legal impediments.

Article 33: Marriages among Muslims or Members of Ethnic Cultural

Communities
The falsity of an affidavit of marital
cohabitation, where the parties have in truth fallen short of the
minimum 5 year requirement, effectively renders the marriage void
ad initio for lack of marriage license.

VOID AND VOIDABLE MARRIAGES

Two Kinds of Defective Marriages

VOID
VOIDABLE
Defective from the very
Not defective from the
beginning
beginning
Cannot be ratified
Can be ratified
Can be attacked
Can only be attacked
collaterally
directly
The nullity of marriage can While voidable marriage
be raised even after the
can only be questioned
death of the parties
during the partys lifetime.
The action to nullify the
The annulment of a
marriage has no
voidable marriage
prescriptive period
prescribes
General rule: void
Voidable marriages can be
marriages can only be
questioned by other
assailed by the parties of
persons not a party to the
the marriage.
marriage.

Code of Muslim Personal Laws of

the Philippines
Signed into law on Feb. 4, 1977
This is the governing law on persons and family
relations among Muslims.
- Under this law, marriage license is not
required for the validity of the marriage.

For Muslims and Ethnic Cultural

Communities
- Under the family code, marriage license is not
a requirement for the validity of the marriage
provided that both parties must be a Muslim or
a member of the Ethnic Community.

Article 34: Ratification of Marital Cohabitation

Void Ab Initio:
1. Those contracted by any party below eighteen
years of age even with the consent of parents or
guardians
2. Those solemnized by any person not legally
authorized to perform marriages unless such
marriages were contracted with either or both

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parties believing in good faith that the solemnizing

officer had the legal authority to do
-

No clear definition of the psychological incapacity was given since the

intention of the legislation was to leave the determination of it to the
courts on a case-to-case basis, as to whether a particular situation falls
under the psychological incapacity.
The Reason:

The presence of psychological incapacity depends upon the facts

of the case and it can be clearly deduced that the absence of
definition was deliberately done because the situations
contemplated by the law vary from one case to another.

One of the situations where good faith is taken into

considerations.

3. Those solemnized without a license, except those

covered by the preceding Chapter
4. Those bigamous or polygamous marriages not
falling under article 41 which states presumptive
death
-

Another instance where good faith is recognized

5. Those contracted through mistake of one

contracting party as to the identity of the other
6. Those subsequent marriages that void under
Article 53
Psychological Incapacity
The basic determination of the existence of
psychological incapacity is the failure to comply
with the marital obligation.
This is not insanity or mental illness
It refers to the inability of a party to the marriage to
comply with the essential marital obligations
because of psychological reason. It is not a
physical defect because a person who is
psychological incapacitated is one who cannot
perform the essential marital obligations as he/she
refuses to do even if physically capacitated to do
so.
It can also refer to lack of appreciation of ones
marital obligation and has nothing to do with
consent.

Collateral Attack of a Void

Marriage
The nullity of the marriage is not the principal or
main issue of the case but is necessary to the
resolution of the main case.

Good faith of the parties in entering

the marriage is immaterial and it does not validate an
otherwise void marriage.

The general guide as to the determination

as to whether there is psychological incapacity or not is the fact the
Psychological Incapacity refers to the failure to comply with the
essential marital obligation.

Divorce vs. Void Marriages

Divorce
There is a valid marriage but the ground
occurred subsequent to the celebration of the
marriage.

Quarrels and financial difficulties not

constitute psychological incapacity. Sexual infidelity on the other
hand, is not considered a psychological incapacity if it is not proven
that it already existed before the marriage

Void in Ab Initio
From the very beginning there was no
marriage.
The ground for declaration of its nullity already
existing at the time the marriage was
celebrated but only manifested after its
solemnization.

Article 36: Void because of Psychological Incapacity

This was introduced by E.O. No. 227 on July 17, 1987 as an amendment
to the Family Code.

Duty of the Solicitor General

To uphold the sanctity of marriage if the marriage is
truly valid and also to expose a void marriage if the
ground of nullity also exists.
Its duty is to ensure that there is no collusion or
connivance as between the contracting parties.

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psychologist or psychiatrist is not a requirement for a

declaration of psychological incapacity and that it is not a

ESSENTIAL CHARACTERISTICS OF PSYCHOLOGICAL INCAPACITY

1. Juridical antecedent
- It must already be existing at the of the
celebration of the marriage
2. Gravity
- It must be a very serious defect
3. Incurability
- It is not curable
- Also refers to party not being able to afford the
cure

condition sine qua non for such declaration. The court

may base its decision on the totality of the evidence other
than the findings of such expert witness. However, expert
testimonies may help in the resolution of the case.
Testimony of the Psychologist did NOT constitute as sufficient
evidence for Psychological Incapacity:

The diagnosis was only based on interviews with

petitioning spouse and that the psychologist did not
actually hear, see and evaluate the respondent who
was alleged to be psychologically incapacitated.
The testimony of the psychologist constituted as
hearsay. Furthermore, the psychologist failed to
explain how such personality disorder made the
respondent psychologically incapacitated and to
prove the same is so grave and permanent.

It is clear from the foregoing elements that

the intention of the law has been to confine the meaning of
psychological incapacity to the most serious cases of personality
disorders clearly demonstrative of an utter insensitivity or inability to
give meaning and significance to the marriage.

(Jordan Chan Paz vs. Jeanice Paz G.R. No. 166579)

Testimony of the Psychologist CONSTITUTE as sufficient

evidence for Psychological Incapacity:

The Supreme Court ruled that lack of personal

examination and interview of the respondent or any
person diagnosed with personality disorder, does
not per se invalidate the testimony of the doctors.
Neither do their findings automatically constitute
hearsay that would result in their exclusion in
evidence. If the psychiatrist or psychologists
assessment were not based solely on the narration
or personal interview of the petitioner but also on
other informants such as respondents own son,
siblings and in-laws and sister-in-law who all
testified on their own observations of respondents
behavior and interactions with them.

The decisions of the matrimonial tribunal

of the Catholic Church involving psychological incapacity as a group
to annul the marriage is greatly helpful and persuasive to our Civil
Courts. Although our courts are not bound by the decision of the
matrimonial tribunal, the said decision can be used by our Civil
Court as a guide in the determination of the existence psychological
incapacity.

(Reyes vs. Reyes G.R. No. 185286)

Guilty Party can petition for nullity of

-

marriage
The action to declare the marriage void on the ground of
psychological incapacity can be filed even by the
incapacitated party. The law does not prohibit the guilty
party from bringing the action in court as a void marriage
is not ratifiable and the Pari Delicto Rule will not apply
here.

The testimony of the psychiatrist is found

to be general, not in depth, does not establish link between actions
of party and his supposed psychological incapacity

The Party who is declared psychologically

incapacitated may still contract another marriage
The party who is declared psychologically incapacitated
by the court may still contract marriage since this is a very
limited and personal ground. Moreover, it does not mean
that just because a person is psychologically
incapacitated to perform his/her marital obligations with
his or her current spouse, he/she will also psychologically
incapacitated by another partner.

Moral Damages
-

MOLINA DOCTRINE AS AMENDED BY A.M. NO. 20-11-10-SC

a. The burden of proof to show the nullity of marriage

belongs to the plaintiff.
b. The parties may medically or clinically identify the root
cause of the psychological incapacity alleged in the

Expert Testimonies
-

Moral damages cannot be recovered from the guilty party

in an action for declaration of nullity of marriage on the
ground of psychological incapacity. This is because a
psychological incapacitated person is not aware of his
incapacity and therefore cannot be held answerable for
moral damage.

During the trial for declaration of nullity of marriage on the

ground of psychological incapacity, expert testimonies of a

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complaint by an expert; however this is not anymore

required but regarded as an option which may be
helpful in deciding the case.
c. The incapacity must be proven to exist at the time of
the celebration of the marriage, although it only
becomes apparent after the celebration of the
marriage.
d. The incapacity must be shown to be medically or
clinically permanent or incurable, however this is not
regarded as an absolute fact against everyone in the
same gender.
e. The illness must also be grave enough to prevent the
party from assuming the essential marital obligations.
f. The essential marital obligations must be those
mentioned in article 68-71 of the Family Code, as well
as Article 220, 221 and 225.
g. The interpretations given by the National Appellate
Matrimonial Tribunal of the Catholic Church in the
Philippines, while not controlling or decisive, should be
given great respect by our courts.

Community of life and love

Rendering of mutual help
The procreation and education of offspring
(c) The inability must be tantamount to a psychological
abnormality.

It is not enough to prove that the spouse

failed to meet his responsibility and duty as a married person; it is
essential that he must be shown to be incapable of doing so due to
some psychological illness.

Marcos vs. Marcos G.R.

No. 136490, 343 SCRA 755
"Psychological incapacity must be characterized by (a) gravity, (b) juridical
antecedence, and (c) incurability." The foregoing guidelines do not require that a
physician examine the person to be declared psychologically incapacitated. In fact,
the root cause may not be "medically or clinically identified." What is important is the
presence of evidence that can adequately establish the party's psychological
condition. For indeed, if the totality of evidence presented is enough to sustain a
finding of psychological incapacity, then actual medical examination of the person
concerned need not be resorted to.

CANON 1095: CASES F PSYCHOLOGICAL DISORDERS

a. Hypersexuality-nymphomania
b. Hypersexuality-styriasis
c. Homosexuality
d. Lesbianism
e. Schizophrenia
f. Affective immaturity
g. Anti-social personality disorder
h. Dependent personality disorder
i.
Vaginismus or psychic impotence
j.
Sexual disorder
k. Psychoneurosis
l.
Lack of interpersonal integration
m. Immature personality
n. Obsessive-compulsive Personality
o. Frigidity
p. Alcoholism and gambling
q. Liar, cheat and swindler
r. Sexual neurosis
s. Hysterical personality
t. Psychic immaturity

Najera vs. Najera

Barcelona vs. Court of

Appeals G.R. 130087
The obvious effect of the new Rules providing that expert opinion need not be
alleged in the petition is that there is also no need to allege the root cause of the
psychological incapacity. Only experts in the fields of neurological and behavioral
sciences are competent to determine the root cause of psychological incapacity.
Since the new Rules do not require the petition to allege expert opinion on the
psychological incapacity, it follows that there is also no need to allege in the petition
the root cause of the psychological incapacity.

G.R. No. 164817, July 3,

2007:

The decision of the National Appellate Matrimonial Tribunal to be

given weight and respect by our courts, it must be anchored in
Canon 1095, par. 3 which is the basis of Article 36. Thus, if the
decision of the said tribunal is based on par. 2 of Canon 1095, the
court should not give weight to it.

Dedel vs. Court of

Appeals G.R. 151867, Jan. 29, 2004
In this case, respondents sexual infidelity can hardly qualify as being mentally or
psychically ill to such an extent that she could not have known the obligations she
was assuming, or knowing them, could not have given a valid assumption thereof. It
appears that respondents promiscuity did not exist prior to or at the inception of the
marriage. What is, in fact, disclosed by the records is a blissful marital union at its
celebration, later affirmed in church rites, and which produced four children.

REQUISITES FOR PSYCHOLOGICAL INCAPACITY AS A

GROUND FOR ANNULLMENT

(a) A true inability to commit oneself to the essentials of

marriage.
(b) This inability to commit oneself must refer to the
essential obligations of marriage:
Conjugal act

Respondents sexual infidelity or perversion and abandonment do not by

themselves constitute psychological incapacity within the contemplation of the
Family Code. Neither could her emotional immaturity and irresponsibility be equated
with psychological incapacity. It must be shown that these acts are manifestations of

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a disordered personality which make respondent completely unable to discharge the

essential obligations of the marital state, not merely due to her youth, immaturity16
or sexual promiscuity.

(d) Between the adopting parent & the adopted child

(e) Between the surviving spouse of the adopted child and
the adopter
(f) Between the adopted children of the same adopter
(g) Between parties where on, with the intention to marry
the other, killed the other persons spouse or his or her
own spouse.
No prior criminal conviction by the court is required
by the law. Mere preponderance of evidence is
required to prove the killing.

Republic vs. QuinteroHamano G.R. No. 149498

In proving psychological incapacity, we find no distinction between an alien spouse
and a Filipino spouse. We cannot be lenient in the application of the rules merely
because the spouse alleged to be psychologically incapacitated happens to be a
foreign national. The medical and clinical rules to determine psychological
incapacity were formulated on the basis of studies of human behavior in general.
Hence, the norms used for determining psychological incapacity should apply to any
person regardless of nationality.

Tongol vs. Tongol G.R.

No. 157610
it is true that the marital obligations of a husband and wife enumerated under the
Family Code include the mutual responsibility of the spouses to manage the
household and provide support for the family, which means that compliance with this
obligation necessarily entails the management of the income and expenses of the
household. While disagreements on money matters would, no doubt, affect the
other aspects of one's marriage as to make the wedlock unsatisfactory, this is not a
sufficient ground to declare a marriage null and void. In the present case,
respondent's disagreement with her husband's handling of the family's business and
finances and her propensity to start a fight with petitioner spouse regarding these
matters can hardly be considered as a manifestation of the kind of psychological
incapacity contemplated under Article 36 of the Family Code. In fact, the Court takes
judicial notice of the fact that disagreements regarding money matters are a
common, and even normal, occurrence between husbands and wives.

These marriages are considered

against public policy because they do not serve the
fundamental objective of the state which is to nurture a
stable family unit that can effectively be the foundation of
society.
Valid Marriages:
1. Between adopted and the parents of his adopter.
2. Between adopted and illegitimate children his adopter.
3. Between adopted and the relatives of his adopter.
4. Between the adopted and the former spouse of his adopter or
between the adopter and the former spouse of his adopted.
5. Between step-brother and step-sister.
Article 39: Prescriptive Period
Declaration for Absolute Nullity of a Marriage

Article 37: Void because incestuous

Marriages between the following are incestuous and

void from the beginning whether the relationship
between the parties is legitimate or illegitimate:
1. Between ascendants and descendants of any
degree.
2. Between brothers and sisters, whether of full or
half-blood.
The reason why incestuous marriages are prohibited
by law:
1. It would tend to create confusion of rights and duties
incident to family relations.
2. It is abhorrent to the nature, not only of civilized men,
but of barbarous and semi-civilized people.
3. Such intermarriages often result in deficient and
degenerate offspring.

Article 40: Void Subsequent Marriages

When a marriage is void, a party to that marriage can

contract a subsequent marriage only after he/she has
the previous marriage judicially declared null and void.
A subsequent marriage contracted without having the
first marriage declared judicially null and void is
considered void an initio.

The reason why it is important that the

nullity of the marriage should be ascertained and
declared by the court of competent jurisdiction is for
the sake of good order of society and for the peace of
mind of all persons concerned.

Article 37: Void because against public policy

Has no prescription period as amended by E.O No.

227 dated July 17, 1987 and further amended by R.A.
No. 8533 dated on Feb. 23, 1998.
There is no prescriptive period for an action to
declare the marriage void since a null and void
marriage produces no legal effect, it being nonexistent.

The enumeration of void marriages in this article are exclusive and good
faith is immaterial.

(a) Between collateral blood relatives, whether legitimate

or illegitimate, up to 4th degree
(b) Between step-parents and step-children
(c) Between parents-in-law and children-in-law

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One should not put the law in his hands

and decide for himself the nullity of his marriage. He should let the
court declare the nullity of such before he can contract another
marriage.

The nullity of a previous marriage can only

or solely be established by a final judgment of the court declaring
such marriage void.

When the first marriage is undoubtedly

void and a party to that marriage contracted a 2nd marriage w/out
obtaining first a judicial declaration of nullity of marriage, would the
said party be guilty of bigamy?
Article 41-44: Declaration of Presumptive Death

Spouse is Presumed Dead

This is the only instance where there is a valid bigamous marriage

If a spouse is absent for 4 consecutive years and the

present spouse has a reasonable and well-founded
belief that the absent spouse is already dead, he/she
may contract a second marriage provided that he/she
first obtain a judicial declaration of presumptive death
of the absent spouse.

Well-founded Belief
Supreme Court states that the meaning of the term
well-founded belief is the exercise of that degree of
due care diligence required in searching for a missing
spouse.

REQUIREMENTS FOR DECLARATION OF PRESUMPTIVE DEATH

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1. The absentee spouse must have been absent for 4 or

2 years under the circumstance prescribed by law.
2. The present spouse must not know the whereabouts
of the absent spouse.
3. There must be a well-founded belief that the absent
spouse is already dead.
4. There must be an institution of a summary action for
the declaration of presumptive death of the absent
spouse.
5. There must be final judgment declaring the absent
spouse presumptively dead.

Republic of the Philippines vs. Gregorio Nolasco

The Supreme Court denied the petition of a Filipino seaman to declare his
wife presumptively dead for his failure to conduct a search for his missing
wife with such diligence to give rise to a well found belief that she was dead.

The 4-year period can be shorted to 2 years if the

presumptive death is under the circumstances of great
danger (Article 391 of the Civil Code)
If the absent spouse was on a vessel and the
same was lost during sea voyage and he has
not been heard of for two years since the loss.
The absent spouse was on an airplane which
was missing and such spouse was not heard
of for two years since the loss of the airplane.
The absent spouse who was in the armed
forces has taken part in the war and has been
missing for two years.

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When the absent spouse has been in danger

of death under other circumstances.

The judicial declaration of presumptive

death under Article 41 of the Family Code is mandatorily required by
law only for the purpose of capacitating the present spouse to
remarry.

If the
absent spouse turns out to be alive, then the
subsequent marriage contracted by the present
spouse will be automatically terminated but only upon
the execution of the affidavit of reappearance by the
reappearing spouse or any of the interested party.

The extraordinary absence is only for the

purpose of remarriage of the remaining spouse however, for the
division and liquidation of the estate and money of the previous
marriage, this will only happen after 4 years of consecutive absence
of the absentee spouse.

General Rule: Judicial declaration of presumptive death is

required as such is a presumption that arises from law.

Affidavit of Reappearance:
- This shall be recorded in the office of the Local Civil
Registrar of the place where the present and the
subsequent spouse resides.
- The recording of this document is the operative act
that terminates the subsequent marriage without
prejudice to the outcome of any judicial proceeding
questioning the reappearance.

Exception: No judicial declaration of presumption of death is

needed in cases of Article 390 and 391 of the Civil Code before
the effectivity of the Family Code, since these are presumption
that arises from law
Article 390:

The person has been absent for 7 years, it being

unknown whether or not the absentee still lives.
The absentee shall be presumed dead for all purposes
except for succession, in which cases, the absentee
shall be presumed dead after the lapse of 10 years.

Who can execute the Affidavit?

(a) Reappearing spouse
(b) Or any interested party such as the parents of
spouses, their children, the remarried spouse or
even the subsequent spouse of the remarried
spouse.

Article 391:

An absentee who is 75 years old and above is

presumed dead if he has been absent for 5 years, still
unknown whether or not the absentee is still alive.

Bigamous but Valid Marriage:

- The fact that the absent spouse is still alive renders
the subsequent marriage as a bigamous but valid
marriage.
- This means that the second marriage is bigamous yet
it is still valid by virtue of the judicial declaration of
presumptive death.

The decision of the court declaring the

spouse presumptively dead under article 41 is unappealable and is
immediately executor since it falls under the Summary Judicial
Proceedings in the Family Law.

ABSENT SPOUSE TURNS OUT TO BE ALIVE

EFFECTS OF TERMINATION OF THE SUBSEQUENT MARRIAGE

1. The children of the subsequent marriage conceived are

considered legitimate. However, children born after the
second marriage is dissolved are considered
illegitimate.
2. The property relations of the parties; be it absolute or
conjugal partnership, shall be dissolved and liquidated.
The party who contracted the marriage in bad faith
shall forfeit his/her share in the net profit community
property in favor of their common children, or if

there none, the children of the guilty spouse by a

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previous marriage or in default thereof, by the

innocent spouse.

2. Either party was of unsound mind, unless such party

after coming to reason freely cohabited with other as
husband and wife.

3. A donation by reason of marriage made by the innocent

spouse in favor of the guilty spouse is revoked by
operation of law.

3. The consent of either party was obtained by fraud,

unless such party afterwards, with full knowledge of
the facts constituting the fraud, freely cohabited with
other as husband and wife.

4. The designation of the guilty spouse as the beneficiary

of the insurance policy of the innocent spouse may be
revoked by the latter even if there is a designation that it
is irrevocable.

Vitiated consent must be proven by preponderance of evidence which

may include the actuation of the parties previous to the marriage.

4. The consent of either party was obtained through

force, intimidation or undue influence, unless when
such has disappeared or ceased to exist, the party
thereafter freely cohabited with the other as husband
and wife.

5. The party who contracted the subsequent marriage in

bad faith shall be disqualified to inherit from the
innocent spouse.

This is appreciated only when the one of the contracting parties is

compelled by a reasonable and well-founded fear of an imminent and
grave evil upon his person and property or upon the person or
property of his/her spouse, descendants or ascendants, to give his
consent.
To determine the degree of the of intimidation, the age, sex and
condition of the person shall be borne in mind.

CANNOT be ratified by Cohabitation

5. Either party was physically incapable of consummating
the marriage with the other, or such incapacity
continues and appears to be incurable.
-

If both parties are

guilty of bad faith, the marriage shall be void ab initio

and all donations are revoked by law. Since the

marriage is void, the separation of property will be
governed by co-ownership under Article 147 or 148 of
the Family Code.

This refers to impotency and not sterility.

Potency is always presumed, thus, whoever claims that his/her
spouse is impotent has the burden of proving it. However, the
presumption of potency is rebutted if the wife remains a virgin after
three years from the time of their cohabitation, which is called the
Doctrine of Triennial Cohabitation.

6. Either party was inflicted with a sexually transmissible

disease found to be serious and appears to be
incurable.
-

This is a ground to annul of marriage if it is both serious and

incurable. It can be a ground a ground if it already existed at the time
of the marriage and it was concealed by the guilty spouse.

Any of the following circumstances shall constitute

fraud:
1. Non-disclosure of a previous conviction by final
judgment of the other party of a crime involving moral
turpitude.

The subsequent marriage entered into

after the judicial declaration of presumptive death can only be
terminated when the first spouse files an affidavit of reappearance.

2. Concealment by the wife of the fact that the time of the

marriage, she was pregnant by a man other than his
husband.

Article 45-46: Grounds for Annulment of Marriage

It is not necessary for the spouse to verify first before the marriage
whether or not the other spouse has a previous conviction since the
burden of proof is on the convicted party to divulge is criminal
records

The grounds for the annulment of a voidable

marriage enumerated in article 45 of the Family Code
must already be existing at the time of celebration of
the marriage. If the grounds occurred only after the

celebration of the marriage it cannot be used as a ground to

annul the marriage.

Can be Ratified by Cohabitation

This could only be appreciated as a fraud when the concealment of

the pregnancy is still very possible. Thus, the husband could no
longer claim concealment of pregnancy when it is very obvious that
the woman is already pregnant.
The reason why this is a ground for annulment is because, any child
born after the celebration of marriage is considered a legitimate child
of the husband, and it would be unfair for the man to take care of the
child which is not his.

3. Concealment of sexually transmissible disease,

regardless of nature, existing at the time of the
marriage.

(Cohabitation means sexual intercourse)

1. Absence of parental consent for a party who is over 18

but below 21 years of age. Unless, after reaching the
age of 21, such party freely cohabitated with the other
and both lived together as husband and wife.

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4. Concealment of drug addiction, habitual alcoholism or

homosexuality or lesbianism existing at the time of
marriage.
-

Only when it already existed at the time of the marriage and was
concealed by said party from the other

No other misrepresentation or deceit as to character,

health, rank, fortune or chastity shall constitute such
fraud as will give grounds for action for the annulment
of marriage.

If the ground is vitiated consent through

force, intimidation or undue influence

The prescriptive period is 5 years from the time

the force, intimation or undue influence ceased to
exist.
The party may only be instituted by the party
whose consent was vitiated.

The grounds for annulment is exclusive,

thus, only those specified in Articles 45-46 of the Family Code shall
be considered.
Article 47: Prescriptive Period for Annulment of Marriage

If the ground is physical incapability to

consummate the marriage or sexually transmissible
disease

If the ground is absence of parental

consent

The prescriptive period is 5 years from the time

the party who did not secure the parental consent
reaches 21 years old.
The parents of the party who did not acquire a
parental consent can also annul the marriage at
any time before their son/daughter reaches 21
years old.
In this order: father, mother, legal guardian

Article 48-49: Procedures in Annulment & Nullity of Marriage

STEP 1:
Filing in the Family Court the complaint for Annulment or
Declaration of Marriage

No prescriptive period but will be ratified by

cohabitation if after the insane becomes sane still
continued to cohabit with the other spouse.
The sane spouse or the relatives or guardian of
the insane spouse may annul the marriage at any
time before the death of either spouse.
The insane spouse may annul the marriage only
during his lucid interval.

If the ground is fraud

The defendant shall be served with summons and a

copy of the complaint whereby he is given 15 days to
file his answer from receipt thereof.

If no answer is filed by the defendant within 15 days:

The court cannot declare the defendant in default
The court will order the prosecuting attorney or fiscal
assigned to it to enter his appearance for the State
- To take steps to prevent collusion between the
parties
- To insure that evidence is not fabricated or
suppressed
- To defend a valid marriage
- To expose an invalid one
After conducting an investigation, the fiscal is
mandated by law to make a report to the court on the
result of his investigation. If there is no collusion the
fiscal will submit a report of no collusion to the court.

If the ground is insanity

This is physical incapability to do the sexual act.

The action for annulment can be filed by the
injured party within 5 years from the time of the
celebration of the marriage.

The action prescribed after 5 years from the

discovery of the fraud.

16

The court cannot render judgment on the basis of stipulation of facts

or confession of judgment. An Annulment case cannot be
terminated compromise agreement and no valid compromise is
legally possible on the issue of the validity of marriage
A full blown hearing is required in case where the plaintiff is required
to prove his case in court. The policy of the State is to be cautious
and strict in granting annulment of marriage, thus, the law strictly
prohibits the annulment of marriage w/out trial.

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parent designated by the court. The court shall take into

account all relevant considerations, especially the choice
of the child over 7 years old, unless the parent chosen is
unfit.
No child under 7 years old shall be separated from the
mother unless the court finds compelling reasons to order
otherwise.

The State shall be represented by the OSG or by the

Fiscal in all cases of nullity and annulment of marriage:

Although Article 48 does not specifically state the

OSG, such office is nevertheless can intervene in the
proceeding considering that issue of validity of the
marriage is vested with public interest.

Republic vs. Joy, G.R. No. 152577, September 21, 2005:

Should the court award the custody of the child to one

parent during the pendency of the case, the other
spouse should have visitorial rights unless the court, for
some compelling reason, deprives him or her of such
rights. However, visitorial can be reinstated if it showed
that the deprivation is too harsh or is no longer present.

It is their duty not only to defend the validity of the marriage and
prevent collusion between the parties but also to expose an invalid
one. The prosecuting attorney is required to actively participate in
the proceedings and submit a memorandum.

General Rule: The Fiscal must actively intervene in the

case and submit a report to the court that there was no
collusion between the parties.

STEP 3:
Upon receipt of verified petition for declaration of absolute
nullity of Marriage or Annulment of Marriage or Legal
Separation

Exception: If the annulment or declaration of nullity of

marriage was strongly opposed & heatedly contested by
the defendant by hiring a lawyer who filed several
pleadings and actively participated in the trial of the case.

The Court may issue Provisional Orders:

This upon application under oath of any parties may issue
provisional orders and protection orders with or w/out a
bond, for such period and under such terms and conditions
as the court may deem necessary.
Includes:

The non-intervention of the fiscal to assure lack of collusion

between the parties is not fatal to the validity of the
proceedings in court especially when it was not shown that
evidence was suppressed or fabricated by any of the parties.
In this case, the strict application of Article 48 and 60 of the
Family Code is unwarranted.

1)
2)
3)
4)
5)

Spousal support
Child support
Child custody
Visitation rights
Hold departure order
6) Order of protection
Article 50-54: Decree of Annulment and Nullity of Marriage

Compromise Agreement of Property Separation:

The partial voluntary separation of property agreed
upon by the parties through a compromise agreement
approved by the court prior to the declaration of nullity
of marriage is valid.

Effects of Annulment and Nullity of Marriage

Manquilan vs. Manquilan, G.R. No. 155409, June 8, 2007:

The non-participation of the prosecuting attorney or the Solicitor

General in the nullity of marriage case does not invalidate the
compromise agreement previously entered into the by the parties.
An agreement to separate property is not itself an indicator of
collusion. In fact, there is no need for the Fiscal to participate in the
negotiation leading to the agreement.

Shall be according to Article 43 of

the Family Code
1. Children under voidable marriage will still be
considered legitimate however for children born
under a void marriage, they will become
illegitimate children

STEP 2:
During the Pendency of the Action of Annulment or
Declaration of Nullity of Marriage

Except:

Children conceived and born before the nullity

of marriage on the ground of psychological
incapacity under 36 became final are
considered legitimate
Children conceived and born of subsequent
void marriage under Article 53 are also
considered legitimate.
Properties may be separated to whatever
agreement they may have agreed to.
Donations to one another will remain valid but if
the done is the guilty spouse, then the donation
will be revoked by operation of law.
Insurance beneficiaries designated to the guilt
spouse may be revoked even if it is irrevocable.
The guilty spouse is barred from inheritance to the
innocent spouse either by testate or intestate
succession.

The support of the spouses and the

custody & support of the common children:

General Rule: The support of the spouses and the

custody and support of the common children will be
primarily governed by whatever agreement the parties
have made.

2.
3.

In the absence of such agreement:

The support of the spouse and common children

Shall be taken from the conjugal or absolute community
until the marriage is dissolved.
The custody of the common children
This shall be resolved in accordance with Article 213 of
the Family Code which states that in case of separation

4.
5.

of the parents, parental authority shall be exercised by the

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In the eyes of the law, the husband and wife are

still married to each other but they are already
allowed to live separately.

Article 55: Grounds for Legal Separation

Grounds for Legal Separation:

Dissolution of the conjugal

partnership
a. The properties will be liquidated and distributive
according to the comprise agreement of the
spouses or to their pre-nuptial agreement.
However, absence of which, the absolute
community of property regime will govern.
b. If the union is without marriage
-

The property regime shall be governed by the rule of co-ownership

provided for in Articles147 & 148, and not the conjugal partnership
of gains or absolute community property.

c.

All creditors of both parties must be notified and

the conjugal dwelling shall be adjudicated in favor
of the spouse with whom majority of the common
children choose to remain.

1. Repeated physical violence or grossly abusive conduct

directed against the petitioner, a common child or a
child of the petitioner.
2. Physical violence or moral pressure to compel the
petitioner to change religious or political affiliation.
3. Attempt of respondent to corrupt or induce the
petitioner, a common child, or child of the petitioner to
engage in prostitution or connivance in such corruption
or inducement.
4. Final judgment sentencing the respondent to
imprisonment of more than 6 years, even if pardoned.
5. Drug addiction or habitual alcoholism of the
respondent.
6. Lesbianism or homosexuality of the respondent.
7. Contracting of the respondent of a subsequent
bigamous marriage, whether in the Philippines or
abroad.
8. Sexual infidelity or perversion
9. Attempt by the respondent against the life of the
petitioner
- This must not be justified by self-defense or that
the spouse attacked was caught in flagrante
delicto having carnal knowledge with another man
or woman.
- Criminal conviction is not required as the attempt
on the life of another spouse may be proven by
preponderance of evidence.
10. Abandonment of petitioner by respondent without
justifiable cause for more than 1 year.

Presumptive Legitime
This is the part of the testators property which he
cannot dispose of because the law has reserved it
for certain heirs called compulsory heirs.

The presumptive Legitime of the children shall be delivered to

them in cash, property or sound security and it must be
provided in the decree

These are exclusive grounds and therefore no other grounds

for legal separation can be invoked except those stated in
Article 55
These grounds need not to exist prior to the marriage as
they even usually occur after the marriage

This is only required only in the dissolution of marriage

in Article 40. It is not required in other forms of void
marriages because said marriages are to be governed
by co-ownership.

The partition and distribution of

the properties of the spouses and the delivery of the
presumptive legitimes to be children shall be recorded
in the Office of the LCR and in the Registry of Deeds
in order to bind the 3rd person.
- Non-compliance of the said requirement will
render the subsequent marriage of the parties null
and void

Criminal conviction of adultery or

concubinage
is not required in the action for legal separation. The
court may grant legal separation by mere
preponderance of evidence.

LEGAL SEPARATION

Legal Separation a.k.a. Relative Divorce

- This does not dissolve the marriage as it is nothing
more than a separation in bed-and-board (a
mensa et thoro) of the spouses.

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Other acts of sexual infidelity short of

adultery and concubinage are enough as long as the said
acts constitute a clear betrayal of the trust of one spouse.

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Thus, even a husband single act of sexual intercourse with

another woman is already ground for legal separation.

Recrimination
This means that both parties are at fault or have
given ground for legal separation.

Lesbianism, homosexuality, drug

addiction and habitual alcoholism
Can only be a ground for legal separation if they occur
during the marriage.
If said defects already existed before the marriage and
they were concealed from the other spouse, they could
be grounds for annulment of marriage.
Article 56-57: Defense for Legal Separation

Grounds for Dismissal for Legal Separation:

1. Where the aggrieved party condoned the offense
or act complained of
2. Where the aggrieved party has consented to the
commission of the offense or act constituting the
grounds for legal separation
3. Where there is connivance between the parties in
the commission of the offense or act constituting
the ground for legal separation
4. Where both parties have given ground for legal
separation
5. Where there is collusion between the parties to
obtain the decree of legal separation
6. Where the action is barred by prescription

Collusion
This refers to an arrangement between the
spouses to obtain a decree of legal separation by
secret maneuvers or pretensions by making it
appear that a valid ground exist even if there is
none.
Article 58-59: Procedures for Legal Separation

STEP 1:
Filing in the Family Court the complaint for Annulment or
Declaration of Marriage

Death of one party extinguishes a pending action for legal

separation.

An action for legal separation shall be filed within 5 years

from the time of occurrence of the cause.
The court may take judicial notice of prescription. If prescription is
apparent from the allegations in the complaint for legal separation,
the court can dismiss it motu proprio. Thus, even if prescription is
not interposed as a defense but it becomes manifest after trial, the
court may stil dismiss the complaint.

The defendant shall be served with summons and a

copy of the complaint whereby he is given 15 days to
file his answer from receipt thereof.

If no answer is filed by the defendant within 15 days:

The court cannot declare the defendant in default
The court will order the prosecuting attorney or fiscal
assigned to it to enter his appearance for the State
- To take steps to prevent collusion between the
parties
- To insure that evidence is not fabricated or
suppressed
- To defend a valid marriage
- To expose an invalid one
After conducting an investigation, the fiscal is
mandated by law to make a report to the court on the
result of his investigation. If there is no collusion the
fiscal will submit a report of no collusion to the court.

Condonation
An act of forgiving and is given after the fact, while
consent is given after the act that gives rise to the
ground for legal separation.

General Rule: The Fiscal must actively intervene in the

case and submit a report to the court that there was no
collusion between the parties.

Connivance
This happens when the spouse participated in the
downfall of the other as by providing actively the
opportunity for the wrong doing directly or
indirectly.

Exception: If the annulment or declaration of nullity of

marriage was strongly opposed & heatedly contested by

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the defendant by hiring a lawyer who filed several

pleadings and actively participated in the trial of the case.

The non-intervention of the fiscal to assure lack of collusion

between the parties is not fatal to the validity of the
proceedings in court especially when it was not shown that
evidence was suppressed or fabricated by any of the parties.
In this case, the strict application of Article 48 and 60 of the
Family Code is unwarranted.

STEP 2:
Before the court will commence to the hearing of the case,
it should allow a Six Months Cooling-off Period to lapse
from the filing of the complaint
This is intended to give the parties enough time to
further contemplate their positions and allow the
healing balm of time to aid them in the process.
This is a mandatory requirement and its noncompliance renders the decision infirm. However, what
is only prevented is the hearing of the case on its
merits. It does not involve the hearing of other
incidents such as custody of minor children, support
pendete lite and alimony.
The court may also entertain prayers of injunctions
within the period or even motion to dismiss.

Ocampo vs. Florencio 107 Phil. 35

No decree of legal separation may be issued unless the court has taken
steps towards the reconciliation of the spouses and is fully satisfied,
despite such efforts, that reconciliation is highly improbable. Likewise,
the court cannot render judgment on the basis of stipulation of facts or
confession of judgment.

STEP 3:
Spouses are entitled to live separately from each other
After the filing of the petition for legal separation the
parties are already entitled to live separately from each
other.

Administ
ration of Conjugal Properties
- In the absence of written agreement of both
parties as to the administration of the absolute
community or conjugal partnership property shall
be decided by the court.
- If neither of the parties is fit to administer it, the
court may appoint a third person to manage the
community properties.

Support
of the parties and their common children and
custody
- The support for the parties and their common
children will be taken from the absolute community
or conjugal partnership.
- If the court awards the custody of their minor
children to one spouse, the other spouse should
be given visitorial rights.
Article 63-64: Effects of Legal Separation

EFFECTS OF LEGAL SEPARATION

1) The spouses shall be entitled to live separately from
each other, but the marriage bond shall not be
severed.
2) The absolute community or conjugal partnership shall
be dissolved and liquidated but the offending spouse
shall have no right to any share of the net profits,
which shall be forfeited in accordance with article
43(2).
3) The custody of the minor children shall be awarded to
the innocent spouse, subject to the provisions of 213
of this code.
4) The offending spouse shall be disqualified form
inheriting from the innocent spouse by intestate
succession. Moreover, provisions in favor of the
offending spouse in the will of the innocent spouse
shall be revoked by operation of law.
6. A donation by reason of marriage made by the innocent
spouse in favor of the guilty spouse is revoked by
operation of law.
- The action to revoke the donation under Legal
Separation must be brought within five years from
the time the decree of legal separation has
become final.
7. The designation of the guilty spouse as the beneficiary
of the insurance policy of the innocent spouse may be
revoked by the latter even if there is a designation that it
is irrevocable.
Article 65-66: Effects of Reconciliation

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A corresponding joint
manifestation under oath signed by them shall be filed
with the court in the same proceeding for legal
separation
Effects:

This shall continue to subsist, unless the

spouses agree to revive their former
property regime.

Joint Manifestation of
Reconciliation specifications:
1. The properties to be contributed anew to the
restored regime
2. Those to be retained as separate properties of
each spouse
3. The names of all their known creditors, their
addresses and the amounts owing to them

For pending cases

It shall be terminated right away

The agreement of revival must be

in writing and attached to the motion filed in court
trying the legal separation case.

If the decree has already been

issued
- The decree shall be set aside.

Separation of properties and any

forfeiture of share to the guilty party already
effected

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Creditors of both parties must be

duly notified by furnishing them copies of both the
agreement and the motion.
Once the court approves the agreement, the order of the
court must be recorded in the proper registries of properties.
Those creditors that were not listed or not notified shall not
be prejudiced by the recording of the order in the proper
registries.