PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
EFFECT AND
APPLICATION OF
LAWS
A. WHEN LAW TAKES EFFECT
Art. 2, NCC.
Laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it
is otherwise provided. This Code shall take effect one year after
such publication.
Sec. 2, E.O. 200
Article 2 of Republic Act No. 386, otherwise known as the "Civil
Code of the Philippines," and all other laws inconsistent with
this Executive Order are hereby repealed or modified
accordingly.
Administrative Code of 1987 (E.O. No. 292)
Book VII, Chapter 2, Sec. 3(1) and 4
Section 3. Filing.(1) Every agency shall file with the
University of the Philippines Law Center, three (3) certified
copies of every rule adopted by it. Rules in force on the date of
effectivity of this Code which are not filed within three (3)
months shall not thereafter be the basis of any sanction against
any party or persons.
Section 4. Effectivity.In addition to other rulemaking
requirements provided by law not inconsistent with this Book,
each rule shall become effective fifteen (15) days from the date
of filing as above provided unless a different date is fixed by
law, or specified in the rule in cases of imminent danger to
public health, safety and welfare, the existence of which must
be expressed in a statement accompanying the rule. The
agency shall take appropriate measures to make emergency
rules known to persons who may be affected by them.
General Rule: Laws shall take effect after 15 days
following the completion of their publication in the Official
Gazette or in a newspaper of general circulation in the
Philippines.
Exception: Unless otherwise provided by the law.
01 Tanada vs. Tuvera (1985)
- The exception refers to the 15 day period only and not
the requirement of publication = publication is
indispensable; absence of which will render the law
ineffective.
02 PASEI vs. Sec. of Labor (1992)
- The circulars are constitutional but were suspended
because of failure to comply with the statutory requirements
of publication.
- Hence, they are legally invalid, defective and
unenforceable. Administrative rules and regulations must
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also be published if their purpose is to enforce or implement
existing law pursuant to a valid delegation.
- In contrast with Interpretative regulations, the purpose is
only
03 Comm. of Customs vs. Hypermix (2012)
When an administrative rule is merely interpretative in
nature, its applicability needs nothing further than its bare
issuance, for it gives no real consequence more than what
the law itself has already prescribed. When, on the other
hand, the administrative rule goes beyond merely providing
for the means that can facilitate or render least
cumbersome the implementation of the law but substantially
increases the burden of those governed, it behooves the
agency to accord at least to those directly affected a chance
to be heard, and thereafter to be duly informed, before that
new issuance is given the force and effect of law.
04 Accac vs. Azcuna
Posting and Publication of Ordinances with Penal Sanctions
(a) ordinances with penal sanctions shall be posted at
prominent places in the provincial capitol, city, municipal or
Barangay hall, as the case may be, for a minimum period of
three (3) consecutive weeks. Such ordinances shall also be
published in a newspaper of general circulation, where
available, within the territorial jurisdiction of the local
government unit concerned, except in the case of Barangay
ordinances. Unless otherwise provided therein, said
ordinances shall take effect on the day following its
publication, or at the end of the period of posting,
whichever occurs later.
When Rules on Period are Provided by a Statute
1. Shorter/Longer period than 15 days: period provided
prevails
2. Takes effect immediately: shall take effect immediately
with the 15-day period dispensed with.
3. No provision as to effectivity: Art. 2, NCC
Which laws do Art. 2 apply to?
1.) P.Ds 2.) statutes + local & private laws 3.) Admin. Rules
& Regulations 4.) City Charter 5.) Monetary Board Circulars
6.) Circulars & Regulations that penalizes violations
Publication is not required on
1.) Interpretative regulations 2.) Internal in nature 3.)
Letters of Instruction 4.) Municipal Ordinances (LGU Code)
B. IGNORANCE OF THE LAW
Art. 3, NCC.
Ignorance of the law excuses no one from compliance
therewith.
PRESUMPTION OF KNOWLEDGE OF LAW
Everyone is exclusively presumed to know the law.
Once the law has been promulgated and has taken
effect, it is the duty of everyone to know it.
Compliance with it becomes unavoidable, and nobody
can escape its effect by alleging, in good faith or in bad
faith, that he does not know its provision.
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Only Philippine Laws are covered by this presumption.
There is no consclusive presumption when it comes to
foreign laws.
MISTAKE OF FACT
Ignorance may either be law or of fact
Ignorance of fact may excuse a party from the legal
consequences of his conduct; but not ignorance of law.
1. Ignorance of fact
Ex: If an heir is ignorant of the death of his father, he is
ignorant of a fact.
2. Ignorance of Law
Ex. If an, being aware of his fathers death, and of his own
relationship, he is nevertheless ignorant that certain rights
are vested in him, he is ignorant of the law.
05 Kasilag vs. Rodriguez (1939)
- The Civil Code does not expressly define what is meant by
bad faith, but section 433 of the old Civil Code provides
that "Every person who is unaware of any flaw in his title,
or in the manner of its acquisition, by which it is
invalidated, shall be deemed a possessor in good faith"
- Good faith maybe a basis of excusable ignorance of the
law, the petitioner acted in good faith in his enjoyment of
the fruits of the land to which was done through his
apparent acquisition thereof
- In accepting the mortgage of the improvements he
proceeded on the wellgrounded belief that he was not
violating the prohibition regarding the alienation of the
land.
06 Elegado vs. CA (1989)
A judgment which had become final and had been executed
can no longer be disturbed or modified. In this case, it was
discussed that it is illogical to suggest that a provisional
assessment can supersede an earlier assessment which had
clearly become final and executory.
C. RETROACTIVITY OF LAWS
Art. 4, NCC
Laws shall have no retroactive effect, unless the contrary is
provided.
Art. 22, RPC
Retroactive Effect of Penal Laws. Penal laws shall have a
retroactive effect in so far as they favor the person guilty of a
felony, who is not a habitual criminal, as this term is defined in
rule 5 of article 62 of this Code, although at the time of the
publication of such laws a final sentence has been pronounced
and the convict is serving the same.
Art. 256, FC
This Code shall have retroactive effect insofar as it does not
prejudice or impair vested or acquired rights in accordance with
the Civil Code or other laws.
Concept of Retroactive Law
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- A retroactive law is one intended to affect transactions
which occurred, or rights which accrued, before it became
operative, and which ascribes to them effects not inherent
in nature, in view of the law in force at the time of their
occurrence.
- It is one whch changes or injuriously affects a present
right by going behind it and giving efficacy to anterior
circumstances to defeat it, which effect they did not have
when the right accrued.
General Rule: All statutes are to be construed as having
only a propective operation, unless the legislature expressly
declares or is necessarily implies its retroactivity. In case of
doubt, the doubt must be resolved against the retrospective
effect.
Exceptions
Statutes can be given retroactive effect in the following
cases:
1. When the law itself so expressly provides
Limitations:
a. When the retroactivity of a penal statute will make
it an ex post facto law.
b. When the retroactive effect of the statute will
constitute an impairment of the obligation of
contract
*In these two cases, the provision giving the statute a
retroactive effect will be held inoperative.
Penal Laws are given retroactive effect insofar as they
favor the accused.
2. In cases of remedial statutes
Remedial Statutes are those which refer to the method of
enforcing rights or of obtaining redress of their invasion.
Remedial statute, may be made applicable to cases
pending at the time of its enactment. Thus, with respect to
remedies, forms of proceedings, and limitation of action,
legislation may be retroactive in character.
3. In case of curative statutes
Curative statutes are those which undertake to cure
errors and irregularities, thereby validating judicial or
administrative proceedings acts of public officers, or private
deed and contracts which otherwise would not produce their
intended consequences by reason of some statutory
disability or the failure to comply with some technical
requirement.
They operate on conditions already existing, and are
necessarily retroactive in operation.
4. In case of law interpreting others
Those intended to clarify doubts or interpret an exisiting
law.
The principle of retroactivity of such statues is stated by
the civil of Chile, Laws which merely interpret the meaning
of other laws are considered as incorporated in the latter;
but they shall not affect judicial decisions which have
become final in the meantime
5. In case of laws creating new rights
The principle that a new law shall not have retroactive
effect only govern rights arising from acts done under the
rule of the former law
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07 Simon vs. Chan (2011)
- The criminal action for violation of Batas Pambansa Blg.
22 shall be deemed to include the corresponding civil
action. No reservation to file such civil action separately
shall be allowed. Where the civil action has been filed
separately and trial thereof has not yet commenced, it
may be consolidated with the criminal action upon
application with the court trying the latter case. If the
application is granted, the trial of both actions shall
proceed in accordance with section 2 of the Rule
governing consolidation of the civil and criminal actions.
- The aforequoted provisions of the Rules of Court, even if
not yet in effect when Chan commenced Civil Case are
nonetheless applicable. It is axiomatic that the retroactive
application of procedural laws does not violate any right
of a person who may feel adversely affected, nor is it
constitutionally objectionable.
- The reason is simply that, as a general rule, no vested
right may attach to, or arise from, procedural laws.
08 Fransisco vs. CA (1998)
- Pursuant to Art. 256, in relation to Art. 105 (2), FC, the
provisions of FC cannot be invoked if they would impair
prior vested rights Accordingly, the repeal of Art. 158 and
160 of the New Civil Code does not operate to prejudice
or otherwise affect rights which have become vested or
accrued while the said provisions are in force.
09 Pesca vs. Pesca (2001)
- The wife filed her petition for nullity of marriage in 1994,
long before the Santos or Molina cases have been
decided. The SC denied her petition on the doctrine of
Stare Decisis, ruling that she had failed to comply with
the requirements in those cases. Her husband was cruel,
violent, and a habitual drinker.
10 David vs. Agbay (2015)
For those who were naturalized in a foreign country, they
shall be deemed to have reacquired their Philippine
citizenship which was lost pursuant to CA 63, under which
naturalization in a foreign country is one of the ways by
which Philippine citizenship may be lost. As its title declares,
R.A. 9225 amends CA 63 by doing away with the provision
in the old law which takes away Philippine citizenship from
natural-born Filipinos who become naturalized citizens of
other countries and allowing dual citizenship, and also
provides for the procedure for reacquiring and retaining
Philippine citizenship. In the case of those who became
foreign citizens after R.A. 9225 took effect, they shall retain
Philippine citizenship despite having acquired foreign
citizenship provided they took the oath of allegiance under
the new law.
D. MANDATORY OR PROHIBITORY
LAWS
Art. 5, NCC
Acts executed against the provisions of mandatory or
prohibitory laws shall be void, except when the law itself
authorizes their validity.
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Art. 17 (3), NCC
Prohibitive laws concerning persons, their acts or property, and
those which have for their object public order, public policy and
good customs shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions
agreed upon in a foreign country. (11a)
Mandatory vs. Directory Laws
1. Mandatory Laws
Those provisions whichare mere matter of form, or which
are not material, do not affect any substantial right and do
not relate to the essence of the thing to be done, so that
compliance is a matter of convenience rather than
substance.
2. Directory Laws
Provisions which relate to matters of substance, affect
substantial rights and are the very essence of the thing
required to be done.
E. WAIVER OF RIGHTS
Art. 6, NCC
Rights may be waived, unless the waiver is contrary to law,
public order, public policy, morals, or good customs, or
prejudicial to a third person with a right recognized by law. (4a)
Art. 2035, NCC
No compromise upon the following questions shall be valid:
(1) The civil status of persons;
(2) The validity of a marriage or a legal separation;
(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts;
(6) Future legitime. (1814a)
Elements of right
1. Subject subject of rights are persons; rights exist only
in favor of persons
a. Active Subject one who is entitled to demand the
enforcement of the right
b. Passive Subject one who is duty-bound to suffer
its enforcement
2. Object refers to the things and services. They are such
things and services which are intended for the satisfaction
of human wants, physical or spiritual.
3. Efficient Cause it is the fact that gives rise to the legal
relation. It may spring from the will of man or independently
of such will.
Kinds of right
1. Political those referring to the participation of persons
in the Government of the State
2. Civil
a. Rights of personality human rights
b. Family rights include all the rights of a person as
a member of a family
c. Patrimonial rights property rights
i. Real Rights ex. ownership, mortgage, etc.
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ii. Personal Rights ex. right to collect a debt
Waiver: relinquishment of known right with both
knowledge of its existence and intention to relinquish it.
Requisites of a Valid Waiver:
1. Full Capacity to make the waive
2. Waiver must be unequivocal
3. Rights are existent at the time of the waive
4. Waiver must not be contrary to law, public policy, morals
or good customs
5. It must not be prejudicial to a third person w/ a right
recognized by law
6. When formalities are required, the same must be
complied with
General Rule: Rights may be waived.
Exception:
1. Waiver is contrary to l, pp, m, gc
2. Prejudicial to 3rd party
3. Premature waivers (right are not yet existent)
4. Right is a natural right
12 DM Consunji v CA
When a party having knowledge of the facts makes an
election between inconsistent remedies, the election is final
and bars any action, suit, or proceeding inconsistent with
the elected remedy, in the absence of fraud by the other
party. The first act of election acts as a bar. Equitable in
nature, the doctrine of election of remedies is designed to
mitigate possible unfairness to both parties. It rests on the
moral premise that it is fair to hold people responsible for
their choices. The purpose of the doctrine is not to prevent
any recourse to any remedy, but to prevent a double
redress for a single wrong. The choice of a party between
inconsistent remedies results in a waiver by election. Hence,
the rule in Floresca that a claimant cannot simultaneously
pursue recovery under the Labor Code and prosecute an
ordinary course of action under the Civil Code. The claimant,
by his choice of one remedy, is deemed to have waived the
other.
13 Aujero vs. Philcomstat (2012)
- While the law looks with disfavor upon releases and
quitclaims by employees who are inveigled or pressured into
signing them by unscrupulous employers seeking to evade
their legal responsibilities, a legitimate waiver representing a
voluntary settlement of a laborers claims should be
respected by the courts as the law between the parties.
Considering the petitioners claim of fraud and bad faith
against Philcomsat to be unsubstantiated, this Court finds
the quitclaim in dispute to be legitimate waiver.
14 Dona Adela vs. Tidcorp (2015)
- There was no written consent given by petitioner or its
representative, Epifanio Ramos, Jr., that petitioner was
waiving the confidentiality of its bank deposits. The
provision on the waiver of the confidentiality of
petitioners bank deposits was merely inserted in the
agreement. It is clear therefore that petitioner is not
bound by the said provision since it was without the
express consent of petitioner who was not a party and
signatory to the said agreement. Neither can petitioner be
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deemed to have given its permission by failure to
interpose its objection during the proceedings. It is an
elementary rule that the existence of a waiver must be
positively demonstrated since a waiver by implication is
not normally countenanced.
- The norm is that a waiver must not only be voluntary, but
must have been made knowingly, intelligently, and with
sufficient awareness of the relevant circumstances and
likely consequences. There must be persuasive evidence
to show an actual intention to relinquish the right. Mere
silence on the part of the holder of the right should not be
construed as surrender thereof; the courts must indulge
every reasonable presumption against the existence and
validity of such waiver.
F. REPEAL OF LAWS
Art. 7, NCC
Laws are repealed only by subsequent ones, and their violation
or non-observance shall not be excused by disuse, or custom or
practice to the contrary.
When the courts declare a law to be inconsistent with the
Constitution, the former shall be void and the latter shall
govern.
Administrative or executive acts, orders and regulations shall be
valid only when they are not contrary to the laws or the
Constitution.
Sec 3, Art 18, Transitory Provisions, 1987 PC
All exsisting laws, decrees, executive orders, proclamations,
letter of instructions, and other executive issuances not
inconsistent with this constitution shall remain operative until
amended, repealed, or revoked.
Arts. 254, FC
Titles III, IV, V, VI, VII, VIII, IX, XI and XV of Book I of the
Republic Act No. 386, otherwise known as the Civil Code of the
Philippines, as amended and Articles 17, 18, 19, 27, 28, 29, 30,
31, 39, 40, 41 and 42 of Presidential Decree No 603, otherwise
known as the Child and Youth Welfare Code, as amended, and
all laws, decrees, executive orders, proclamations, rules and
regulations, or parts thereof, inconsistent herewith are hereby
repealad.
Arts. 255, FC
If any provision of thise Code is held invalid, all the other
provisions not affected thereby shall remain valid.
Sec 14, RAC
When a law that expressly repeals a prior law is itself repealed,
the first repealed shall not be revived unless so provided.
Sec 22, Chapter 5, Book I, AC, 1987
When a law that impliedly repeals a prior law is itself repeated,
the prior law shall be revived, unless the repealing law provides
otherwise.
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Ways of Repealing Laws
1. Express (Art. 254, 255, FC)
2. Implied -> Conflict between the old and new, must be
resolved in favor of the later law.
*all previous laws inconsistent with the present law
are hereby repealed
*not favored, only presumption as basis
Requisites of Implied Repeals
1. Laws cover the same subject matter
2. Latter is repugnant to the earlier
Requirement of repugnancy: substantial conflict
between new and prior laws
Must be absolutely be incompatible; cannot be
made to stand together
General vs. Special Laws
Generally, special statute prevails.
Special law is to be taken as an exception in the
absence of special circumstances forcing a contrary
conclusion.
General law enacted PRIOR to special law:
Special law exception to the general law
General law enacted AFTER special law:
Special law remains unless:
1. There is an express declaration to the contrary or
2. There is a clear, necessary and irreconcilable conflict
or
3. Unless the sunsequent general law covers the whole
subject and is clearly intended to replace the special
law on the matter.
Effect of Repeal of Law
Cannot impair or affect any vested right, act done, penalty
accrued, or judgement already final before the repeal.
Exception: Criminal cases, penal statutes favorable
to the accused have retroactive effect.
15 Thornton vs. Thornton (2004)
- R.A. 8369 did not repeal R.A. 7902 and B.P. 129 because
nothing in the provisions of the former law revoked the
power and jurisdiction of the CA in issuing a writ of
habeas corpus that is enforceable around the entire
country.
- Furthermore, though there may be implications of an
implied repeal, the welfare of the child is of paramount
importance and such a repeal would impair the States
stand on preserving and protecting the welfare of the
child.
16 Kida vs. Senate (2004)
Petitioners assail the constitutionality of RA 10153 which
resets the next ARMM regular elections to May 2013 to
coincide with the regular national and local elections of the
country instead of August 2011
17 Yinlu Bicol vs. Trans Asia
- Even without a patent, the possessory right of a qualified
locator after discovery of minerals upon the claim is a
property right in the fullest sense, unaffected by the fact
that the paramount title to the land is in the
Government, and it is capable of transfer by conveyance,
inheritance, or devise. The mining claim under
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consideration no longer formed part of the public domain
when the provisions of Article XII of the Constitution
became effective, it does not come within the prohibition
against the alienation of natural resources; and the
petitioner has the right to a patent therefor upon
compliance with the terms and conditions prescribed by
law.
- A state may not impair vested rights by legislative
enactment, by the enactment or by the subsequent
repeal of a municipal ordinance, or by a change in the
constitution of the State, except in a legitimate exercise
of the police power.
G. JUDICIAL DECISIONS
Art. 8, NCC
Judicial decisions applying or interpreting the laws or the
Constitution shall form a part of the legal system of the
Philippines.
Doctrine of Stare Decisis
Enjoins adherence to judicial precedents and is based on
the principle that once a question of law has been examined
and decided, it should be deemed settled and closed to
further argument.
Judicial decisions form part of the legal system of the
Philippines
No retroactive effect, should not prejudice other parties
who relied on the old doctrine
Legal Effects of Judicial Descisons
1. No publication is required
2. Binding between parties after the lapse of appeal period
3. Will bind all future cases with identical facts, until
reversed by the SC.
18 Pesca v. Pesca (2001)
The wife filed her petition for nullity of marriage in 1994,
long before the Santos or Molina cases have been decided.
The SC denied her petition on the doctrine of Stare Decisis,
ruling that she had failed to comply with the requirements in
those cases. Her husband was cruel, violent, and a habitual
drinker.
19 De Castro v. JBC (2010)
- Writ of mandamus does not lie against the JBC.
Mandamus shall issue when any tribunal, corporation,
board, officer or person unlawfully neglects the
performance of an act that the law specifically enjoins as
a duty resulting from an office, trust, or station. It is
proper when the act against which it is directed is one
addressed to the discretion of the tribunal or officer.
- Mandamus is not available to direct the exercise of a
judgment or discretion in a particular way. For
mandamus to lie, the following requisites must be
complied with:
(a) The plaintiff has a clear legal right to the act
demanded;
(b) It must be the duty of the defendant to perform the
act, because it is mandated by law;
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(c) The defendant unlawfully neglects the performance of
the duty enjoined by law;
(d) The act to be performed is ministerial, not
discretionary; and
(e) There is no appeal or any other plain, speedy and
adequate remedy in the ordinary course of law.
20 Ty v. Banco Filipino (2012)
- The case where a 20 year contract was held to be in
force, as reiterated in G.R. Nos. 130088, 131469, 155171,
155201 and 166608, is binding and applicable to the
present case following the salutary doctrine of stare
decisis et non quieta movere, which means to adhere to
precedents, and not to unsettle things which are
established.
- When the Court has once laid down a principle of law as
applicable to a certain state of facts, it will adhere to that
principle, and apply it to all future cases, where facts are
substantially the same; regardless of whether the parties
and property are the same. The doctrine of stare decisis
is based upon the legal principle or rule involved and not
upon the judgment, which results therefrom. In this
particular sense, stare decisis differs from res judicata,
which is based upon the judgment.
21 Virtucio v. Alegarbes (2012)
- Questions of fact are not reviewable in petitions for
review on certiorari under Rule 45 of the Rules of Court
The Supreme Court, however, is not precluded from
reviewing facts when the case falls within the recognized
exceptions such as when the CAs findings are contrary to
those by the trial court.
- Factual findings of the lower courts are entitled to great
weight and respect on appeal and, in fact, are accorded
finality when supported by substantial evidence on the
record. It appears, however, that the conclusion made by
the RTC was not substantially supported.
22 Republic v. Remman Enterprises (2014)
- It is a longstanding policy of this Court that the findings of
facts of the RTC that were adopted and affirmed by the
CA are generally deemed conclusive and binding. This
Court is not a trier of facts and will not disturb the factual
findings of the lower courts unless there are substantial
reasons for doing so
H. DUTY TO RENDER JUDGEMENT
Art. 9, NCC
No judge or court shall decline to render judgement by reason
of the silence, obscurity or insufficiency of the laws.
Art. 10, NCC
In case of doubt in the interpretation or application of laws, it is
presumed that the lawmaking body intended right and justice
to prevail.
Note: Art. 9 does not apply to criminal prosecutions. If there
is no law punishing an act, there is no crime hence, case
must be dismissed, no matter how reprehensible the court
may deem the issue to be.
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Courts, judges cannot dismiss cases for their lack of
expertise on the matter. It is presumed that whatever
the issue may be, there is a law that provides for it, the very
law or laws that the courts must adhere to.
Re: Vague, Obscure and Deficient laws -> Rules of Statutory
Construction must be applied.
Re: Insufficient or Deficient laws-> Resort to customs or
generally accepted principles of law
Re: Unjust laws -> What the law grants, the court cannot
deny. Dura Lex Sed Lex.
Suppletory laws
1. Jurisprudence
2. Custom
Presumption
1. A person who performs a juridical act, not provided for by
law, acts according to the custom of the place or origin.
Custom vs. Law
1. Custom
Origin: Society, Spontaneous
Form: Tacit, manifested in acts or usages
Unwritten law
2. Law
Origin: Governmental power, Conscious
Form: Express, manifested in solemn and official form
Written law
THERE SHOULD BE EQUITY IN APPLICATION OF LAW
Follow the intention of the legislator rather than the
bare legal provision, to adapt the rigid precept of law to
the social life.
23 People v. Ritter (1991)
- Moral and exemplary damages are awarded to the
victims heirs despite acquittal of accused on grounds
of reasonable doubt. Furthermore, it does not necessarily
follow that the appellant is also free from civil liability
which isimpliedly instituted with the criminal action.
- Doctrin (Urbano v IAC) a person while not criminally
liable, may still be civilly liable
24 Alonzo v. Padua (1987)
- The petition is an illustration of the Holmes dictum that
"hard cases make bad laws" as the petitioners obviously
cannot argue against the fact that there was really no
written notice given by the vendors to their co-heirs.
Strictly applied and interpreted, Article 1088 can lead to
only one conclusion to wit, that in view of such deficiency,
the 30 day period for redemption had not begun to run,
much less expired in 1977
25 Barcellano v. Baas (2011)
- The heirs of Bans contest the sale of a land they allege
to be theirs and conveyed their intention to redeem the
property after knowledge that it has been sold to
Barcellano. Medina claims that the heirs failed to pay for
possession of the land, but is at fault for not tendering a
written notice on the matter.
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- Without a written notice, the period of thirty days within
which the right of legal preemption may be exercised,
does not start. Nothing in the records and pleadings
submitted by the parties shows that there was a written
notice sent to the respondents. Without a written notice,
the period of thirty days within which the right of legal
preemption may be exercised, does not start.
I. PRESUMPTION AND
APPLICABILITY OF CUSTOM
Art. 11, NCC
Customs which are contrary to law, public order or public policy
shall not be countenanced
Art. 12, NCC
A custom must be proven as a fact according to the rules of
evicence
Sec 5, Art 17, 1987 PC
The State, subject to the provisions of this Constitution and
national development policies and programs, shall protect the
rights of indigenous cultural communities to their ancestral
lands to ensure their economic, social, and cultural well-being.
The Congress may provide for the applicability of customary
laws governing property rights or relations in determining the
ownership and extent of ancestral domain.
Sec 2, Rule 129, ROC
Judicial notice, when discretionary. A court may take judicial
notice of matters which are of public knowledge, or are capable
to unquestionable demonstration, or ought to be known to
judges because of their judicial functions.
Sec 3, Rule 129, ROC
Judicial notice, when hearing necessary. During the trial, the
court, on its own initiative, or on request of a party, may
announce its intention to take judicial notice of any matter and
allow the parties to be heard thereon.
After the trial, and before judgment or on appeal, the proper
court, on its own initiative or on request of a party, may take
judicial notice of any matter and allow the parties to be heard
thereon if such matter is decisive of a material issue in the
case.
Requisites for Custom of Law to have Force
1. Plurality or repetition of acts
2. Uniformity or identity of the acts or various resolutions to
the juridical question.
3. General practice by the great mass of the social group.
4. Continued performance of the acts for a long period of
time.
5. General conviction that the practice corresponds to a
juridical necessity or that is obligatory.
6. Practice: not contrary to law, morals and public order.
26 Martines vs. Van Burskirk (1910)
Page 7 of 84
- Acts, the performance of which has not proven
destructive or injurious and which have been generally
acquiesced in by society for so long a time as to have
ripened into a custom, cannot be held to be unreasonable
or imprudent and that, under the circumstances, the
driver was not guilty of negligence in so leaving his team
while assisting in unloading his wagon.
27 Tomawis vs. Balindong (2010)
- A general law does not nullify a special law. The general
law will yield to the special law in the specific and
particular subject embraced in the latter. BP 129 and PD
1083 must be read together, then by taking PD 1083 as
an exception to the general law to reconcile the two laws.
- The Sharia District Court (SDC) has exclusive original
jurisdiction over all actions arising from contracts
customary to Muslims to the exclusion of the Regional
Trial Courts (RTCs), as the exception under Presidential
Decree (PD) No. 1083, while both courts have concurrent
original jurisdiction over all other personal actions.
J. LEGAL PERIODS
Art. 13, NCC
When the law speak of years, months, days or nights, it shall be
understood that years are of three hundred sixty-five days each;
months, of thirty days; days, of twenty-four hours; and night
from sunset to sunrise.
If months are designated by name, they shall be computed by
the number of days which they respectively have.
In computing a period, the first day shall excluded, and the last
day included.
Sec. 31, RAC
Legal Periods. - "Year" shall be understood to be twelve
calendar months; "month" of thirty days, unless it refers to a
specific calendar month in which case it shall be computed
according to the number of days the specific month contains;
"day," to a day of twenty-four hours; and "night," from sunset
to sunrise.
Sec 1, Rule 22, ROC
How to compute time.
In computing any period of time prescribed or allowed by these
Rules, or by order of the court, or by any applicable statute, the
day of the act or event from which the designated period of
time begins to run is to be excluded and the date of
performance included. If the last day of the period, as thus
computed, falls on a Saturday, a Sunday, or a legal holiday in
the place where the court sits, the time shall not run until the
next working day.
Sec 2, Rule 22, ROC
Effect of interruption.
Should an act be done which effectively interrupts the running
of the period, the allowable period after such interruption shall
start to run on the day after notice of the cessation of the
cause thereof.
The day of the act that caused the interruption shall be
excluded in the computation of the period.
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
Week
Computed according to calendar: 7 days, Sunday to
Saturday
Measure of duration of time: period of 7 consecutive
days
Month
Lunar month: 28 days
Calendar month: e.g. January 1- February 1
Civil Code: Period of 30 days
Exception
Rules do not apply to computation of ages, each year is
counted based on birth anniversary
28 CIR vs. Primetown (2007)
- While the civil code does not differentiate from an
ordinary year from a leap year, a newer law does, hence;
Court held that Section 31, Chapter VII, Book I of the
Administrative Code of 1987, being the more recent law,
governs the computation of legal periods.
29 Montajes vs. People (2012)
- Considering that May 19, 2007 fell on a Saturday, it was
error for Jose to compute his extension of time on the
first working day after the deadline (Saturday, May 19),
or on May 21, 2007 since when a party is granted an
extension of time, the 15-day reckoning period should
start from the last day which is Saturday, Sunday or
holiday, according to the CA.
- The Court, however, allowed to relax the stringency of
technical rules where it does not impair the proper
admission of justice
K. APPLICABILITY OF PENAL LAWS
Art. 14, NCC
Penal laws and those of public security and safety shall be
obligatory upon all who live and sojourn in Philippine territory,
subject to the principles of public international law and to treaty
stipulations
Art. 17, NCC
The forms and solemnities of contracts, wills and other public
instruments shall be governed by the laws of the country in
which they are executed.
When the acts referred to are executed before the diplomatic or
consular official of the Republic of the Philippines in a foreign
countr, the solemnities established by Philippine laws shall be
observed in their execution.
Prohibitive laws concerning persons, their acts or property, and
those which have for their object public order, public policy and
good customs shall not be rendered ineffective by laws or
judgements promulgated, or by determinations or conventions
agreed upon in a foreign country.
Page 8 of 84
Art 2, RPC
Application of its provisions. Except as provided in the
treaties and laws of preferential application, the provisions of
this Code shall be enforced not only within the Philippine
Archipelago, including its atmosphere, its interior waters and
maritime zone, but also outside of its jurisdiction, against those
who:
1. Should commit an offense while on a Philippine ship or
airship;
2. Should forge or counterfeit any coin or currency note of the
Philippine Islands or obligations and securities issued by the
Government of the Philippine Islands;
3. Should be liable for acts connected with the introduction into
these islands of the obligations and securities mentioned in the
presiding number;
4. While being public officers or employees, should commit an
offense in the exercise of their functions; or
5. Should commit any of the crimes against national security
and the law of nations, defined in Title One of Book Two of this
Code.
GENERAL RULE: All citizens or foreigners who sojourn are
subject to all penal laws and laws meant for public security
and safety
EXCEPTION: Diplomatic agents are immune from suit and
thus cannot be charged.
L. BINDING EFFECT
Art. 15, NCC
Laws relating to family rights and duties, or to the status,
condition and legal capacity of persons are binding upon
citizens of the Philippines, even though living abroad.
Art. 26, FC
All marriages solemnized outside the Philippines, in accordance
with the laws in force in the country where they were
solemnized, and valid ther as such, shall also be valid in this
country, except those prohibited under Articles 35(1), (4), (5),
(6), 36, 37 and 38
When a marriage between a Filipino Citizen and a foreigner is
validly celebrated and a divorce is thereafter validly obtained
abroad by the alien spouse capacitating him or her to remarry,
the Filipino spouse shall likewise have the capacity to remarry
under Philippine law.
Lex Nationalli: Citizenship is the basis for determining the
law applicable
Nationality rule applies regardless of the place of
residence
Covers family rights and duties, status, conditions and
legal capacity of persons
Exception: Art. 26, par. 2, a divorce validly obtained
abroad by alien spouse which capacitates him or her to
remarry capacitates Filipino spouse to remarry under
Philippine law
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
30 Tenchavez vs. Escano (1965)
A Filipino Citizen is prohibited from obtaining a foreign
divorce decree as the Philippines does not admit absolute
divorce, quo ad vincula matrimonii
31 Board of Commissioners vs. De La Rosa (1991)
Philippine law follows the lex loci celebrationis rule, which
states that a marriage formally valid where celebrated is
valid everywhere.
32 Lavadia vs. Heirs of Luna (2014)
Pursuant to the nationality rule, Philippine laws governed
this case by virtue of both Atty. Luna and Eugenio having
remained Filipinos until the death of Atty. Luna on July 12,
1997 terminated their marriage. Hence, there is a
nonrecognition of absolute divorce between Filipinos has
remained even under the Family Code, even if either or both
of the spouses are residing abroad
Art. 16, NCC
Real property as well as personal property is subject to the law
of the country where it is situated.
However, interstate and testamentary successions, both with
respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person
whose succession is under consideration, whatever may be the
nature of the property and regardless of the country wherein
said property may be found.
Lex Rei Sitae: Law of the place where the property is
situated is the basis for determining the law applicable
Covers both real and personal property
Exception:
1. Order and amount of successful rights
2. Intrinsic validity of testamentary provisions
3. Capacity to succeed governed by the national law of
decedent
33 Testate Estate of Amos Bellis, Bellis vs. Bellis
(2014)
- Renvoi doctrine: The doctrine of renvoi is usually
pertinent where the decedent is a national of one country
and is domiciled in another.
- It does not apply to a case where the decedent was a
citizen of Texas and was domiciled therein at the time of
his death. So that, even assuming that Texas has a
conflicts rule providing that the domiciliary law should
govern successional rights, the same would not result in a
reference back (renvoi) to Philippine law, but it would still
refer to Texas law.
- It is, therefore, evident that whatever public policy or
good customs may be involved in our system of legitimes,
Congress has not intended to extend the same to the
succession of foreign nationals. For it has specifically
chosen to leave, the amount of successional rights, to the
decedents national law.
34 Del Soccoro vs. Van Wilsem (2014)
- Foreign law, however, should not be applied when its
Page 9 of 84
application would work undeniable injustice for Filipinos
Art. 17, NCC
The forms and solemnities of contracts, wills and other public
instruments shall be governed by the laws of the country in
which they are executed.
When the acts referred to are executed before the diplomatic or
consular official of the Republic of the Philippines in a foreign
countr, the solemnities established by Philippine laws shall be
observed in their execution.
Prohibitive laws concerning persons, their acts or property, and
those which have for their object public order, public policy and
good customs shall not be rendered ineffective by laws or
judgements promulgated, or by determinations or conventions
agreed upon in a foreign country.
Lex Loci Celebrationis: Law of the place where the
contract was executed is the basis for determining
applicable law.
Covers only forms and solemnities
Exceptions:
Par. 1, Art. 26, FC
Intrinsic validity of Contracts: Validity is determined by:
1. The law stipulated by the parties
2. If parties are same nationality, their national law shall
be applied
3. If not the same nationalities, the law of the place of the
perfection of the obligation shall govern its fulfillment
4. If the above places are not specifid and they cannot be
deduced from the nature and circumstances of the
obligation, then the law of the passive subject shall apply
35 Raytheon vs. Rouzie (2008)
Where the Court held that the local judicial machinery was
adequate to resolve controversies with a foreign element,
the following requisites had to be proved 1. That the
Philippine court is one to which the parties may conveniently
resort 2. That the PC is in a position to make intelligent
decisions as to the law and the facts 3. That the PC has or is
likely to have the power to enforce it decision.
Art. 18, NCC
In matters which are governed by the Code of Commerce and
Special Laws, their deficiency shall be supplied by the provision of
this Code.
In consonance with the principle that on a specific matter, a
special law shall prevail over a general law, which shall be
resorted to only supply the deficiencies in the former.
EXCEPTIONS
1. Transportation Contracts
2. Usurious Contracts
3. Insolvency Laws
35 Tamano vs. Judge Ortiz (1998)
Art. 13 of PD 1083 does not provide for a situation where
the parties were married both in civil and Muslim rites.
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016 Page 10 of 84

36 Llave vs Republic (2011)

The Muslim Code took effect only on February 4, 1977; thus
this law cannot retroactively override the Civil Code which
already bestowed certain rights on the marriage of Sen.
Tamano and Zorayda.

37 Zamoranos vs People (2011)

2 Muslim converts married in 1982 under both Muslim and
civil rites. The Supreme Court ruled that the nature,
consequences, and incidents of such marriage are governed
by P.D. No. 1083 At the very least, the RTC, Branch 6,
Iligan City, should have suspended the proceedings until
Pacasum has litigated the validity of Zamoranos and De
Guzmans marriage before the Sharia Circuit Court and had
successfully shown that it had not been dissolved despite
the divorce by talaq entered into by Zamoranos and De
Guzman.

Reconciliation points: In Llave, the first marriage took place

when the Muslim Code was not in effect; in Zamoranos, the
first marriage took place after the Muslim Code had taken
effect.

38 Villagarcia vs. Sharia (2014)

- This case involves an action for recovery of possession of
real property. As a matter of law, Sharia District Courts
may only take cognizance of a real actionwherein the
parties involved are Muslims. Considering that one of the
parties involved in this case is not a Muslim, respondent
Fifth Sharia District Court had no jurisdiction to hear, try,
and decide the action for recovery of possession of real
property.

Lex Lex Rei Lex Loci

Nationali Sitae Celebrationis
Art. 15 Art. 16 Art. 17
On Law of the Law of the
determining place where place where
Citizenship
Law the property is the contract
Applicable situated was executed
Famly rights
Forms and
and duties, Real and
solemnities
Coverage status, personal
(extrinsic
conditions and property
validity)
legal capacity
1) Capacity to
succeed
2) Intrinsic
1) Par. 1, Art.
validity of the
26, FC
Par. 2, Art. 26 will
Exception 2) Intrinsic
(FC) 3) Amount of
Validity of
successional
contracts
rights
4) Order of
Succession
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
HUMAN RELATIONS
Art. 19, NCC
Every person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his
due, and observe honesty and good faith.
Exercise of right must be in accordance with the purpose
for which it was established, and must not be excessive or
unduly harsh; there must be no intention to injure another.
There is abuse of right when:
1. Existence of a legal right or duty
2. Said right or duty was exercised in bad faith
3. There is intent of prejudicing or injuring another
Good faith
It is an honest intention to abstain taking any
unconscientious advantage of another, even through the
forms or technicalities of the law, together with an absence
of all information or belief of facts which would render the
transaction unconscientious.
Absence of Good Faith is essential to abuse of right.
Promise to marry
Promise to marry has no obligatory force; therefore, as a
rule, its breach cannot give rise to liability for damages.
Absolute rights
Rights in which their exercise can never be the basis of
liability.
Ex: Right of parents to refuse or deny their consent to the
marriage of a minor child; Right to deprive ones legal heirs
of an inheritance by giving all the property of the testator to
others, so long as the legitime is not impaired; and the right
to set up nullity of contracts, legal presumptions, and
prescription of obligation.
Art. 20, NCC
Every person who, contrary to law, wilfully or negligently
causes damage to another, shall indemnify the latter for the
same.
* This article furnishes the general sanction for all other
provisions of law which do not especially provide their own
sanction. It is broad enough to cover all legal wrongs which
do not constitute violations of contract
Moral Negligence A person is required to act with
prudence towards others, but not with charity; the law
imposes diligence and not altruism. Hence the failure to
make sacrifices, or egoism, does not constitute a source of
liability. There is no civil responsibility for moral fault or
negligence.
Page 11 of 84
Art. 21, NCC
Any person who wilfully causes loss or injury to another in
manner that is contrary to morals, good customs or public
policy shall compensate the latter for the damage.
* This article is based on the principle contained in art. 19,
with which it is very intimately related, that a person, even
in the exercise of a formal right, cannot with impunity
intentionally cause damage to another in a manner contrary
to good morals or public policy.
LOSS OR INJURY
The inury suffered by the plaintiff may refer to any
determinate right or property, whether material or
otherwise. So long as the requisites of wilfullness and
contravention of morals or public policy are present, it is
immaterial whether the injury has been caused by a positive
act or by an omission.
The act is within this article only when it done wifully.
The act is wilfull if it is done with knowledge of its injurious
effect; it is not required that the acts be done purposely to
produce the injury.
Conflicts of Interest
Unfair meas employed in the course of conflicts of
interests between individuals or groups may the basis of
liability for damages under this article.
PRINCIPLE OF UNJUST ENRICHMENT
No person should unjustly enrich himself at the expense
of another.
Art. 22, NCC
Every person who through an act of performance by another,
or any other means, acquires or comes into possession of
something at the expense of the latter without just or legal
ground, shall return the same to him.
Concept of Action: Accion in Rem Verso
Action for recovery of what has been paid without just
cause
Application
1. When a thing is acquires by or comes into possession of
another
2. Said acquisition be undue and at the expense of another
Concept of Enrichment
Enrichment of a defendant consists in every patrimonial,
physical, or moral advantage, so long as it is appreciable in
money. It may consist of some positive pecuniary value
incorporated, such as:
1. The enjoyment of a thing belonging to the plaintiff
2. The benefits from service rendered by the plaintiff
to the defendant
3. The acquisition of a right, whether real or personal;
4. The increase of value of property of the defendant
5. The improvement of a right of the defendant, such
as the acquisition of a right of preference
6. The recognition of the existence of a right in the
defendant
7. The improvement of the conditions of life of the
defendant
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016 Page 12 of 84

Requisites for Remedy 2176 of the Civil Code is primary and direct, based on a
1. That the defendant has been enriched persons own negligence which is termed as qausi-delict.
2. That the plaintiff has suffered a loss - Furthermore, as a gun store owner, respondent is
3. That the enrichment of the defendant is without presumed to be knowledgeable about firearms safety and
just or legal ground should have known never to keep a loaded weapon in his
4. That the plaintiff has no other action based on store to avoid unreasonable risk of harm or injury to
contract, quasi-contract, crime, or quasi-delict. others.
* The restitution must cover the loss suffered by the - Respondent has the duty to ensure that all the guns in his
plaintiff, but can never exceed the amount of unjust store are not loaded. With more reason, guns accepted by
enrichment of the defendant if this is less than the loss the store for repair should not be loaded precisely
of the plaintiff. because they are defective and may cause an accidental
discharge such as what happened in this case.
40 People vs. Ritter (1991) - Respondent was clearly negligent when he accepted the
- Court reversed the Trial Courts decision on the crime of gun for repair and placed it inside the drawer without
rape due to the failure of the prosecution to firmly ensuring first that it was not loaded.
establish his guilt.
- It does not, however, necessarily follow that the appellant
is also free from civil liability which is impliedly instituted
with the criminal action. (Rule III, Section 1) The
wellsettled doctrine is that a person while not criminally
liable, may still be civilly liable.
- Ritter was prosecuted for rape with homicide and not
pedophilia, assuming this is a crime by itself. Pedophilia is
clearly a behavior offensive to public morals and violative
of the declared policy of the state to promote and protect
the physical, moral, spiritual and social wellbeing of our
youth. (Article II, Section 13, 1987 Constitution)
- Likewise, The appellant certainly committed acts contrary
to morals, good customs, public order or public policy as
contemplated in Art. 21 of the Civil Code.

41 Carpio vs. Valmonte (2004)

- Incorporated into our civil law are not only principles of
equity but also universal moral precepts which are
designed to indicate certain norms that spring from the
fountain of good conscience and which are meant to
serve as guides for human conduct. First of these
precepts is the principle of abuse of right under Art. 19,
CC.
- To find the existence of an abuse of right, the following
elements must be present: (1) there is a legal right or
duty; (2) Which is exercised in bad faith; (3) For the sole
intent of prejudicing or injuring another
- When a right is exercised in a manner which discards
these norms resulting in damage to another, a legal
wrong is committed for which the actor can be held
accountable.
- Complementing the principle of abuse of rights are the
provisions of Articles 20 and 21 of the Civil Code.

42 Nikko Hotel vs. Reyes (2005)

Doctrine of Volenti Non Fit Injuria (to which a person
assents is not esteemed in law as injury)
It refers to self-inflicted injuries or to the consent
to injury which preclude the recovery of damages
by one who has knowingly and voluntarily exposed
himself to danger, even if his is not negligent in
doing so.

43 Pacis vs. Morales (2010)

- Unlike the subsidiary liability of the employer under Art.
13 of the Revised Penal Code, the liability of the
employer, or any person for that matter, under Article
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016 Page 13 of 84

PERSONS AND
PERSONALITY Classes of
Distinction
Persons and their

1. NATURAL PERSONS (human beings or men)

A. THE CONCEPT OF A PERSON AND Individual or physical beings who exist in nature and
perceptible to the senses; products of procreation.
PERSONALITY
2. JURIDICAL PERSONS (entities formed by the association
Art. 37, NCC of men)
Juridical capacity, which is the fitness to be the subject of legal Have no physical existence, but exist only in
relations, is inherent in every natural person and is lost only contemplation of law; products of legal fiction.
through death. Capacity to act, which is the power to do acts
with legal effect, is acquired and may be lost
Elements of Civil Capacity
1. Juridical Capacity
Art. 38, NCC 2. Capacity to Act
Minority, insanity or imbecility, the state of being a deaf-mute,
prodigality and civil interdiction are mere restrictions on
capacity to act, and do not exempt the incapacitated person
Juridical Capacity vs Capacity to Act
from certain obligations, as when the latter arise from his acts
or from property relations, such as easements. (32a) Juridical Capacity <- CIVIL CAPACITY -> Capacity to Act
Art 37
Art. 39, NCC Aptitude to holding and Aptitude to exercise of
The following circumstances, among others, modify or limit
enjoyment of rights rights
capacity to act: age, insanity, imbecility, the state of being a
deaf-mute, penalty, prodigality, family relations, alienage,
absence, insolvency and trusteeship. The consequences of
Fitness to be subject of Power to do acts with legal
these circumstances are governed in this Code, other codes, legal relations effects
the Rules of Court, and in special laws. Capacity to act is not
limited on account of religious belief or political opinion. Indivisible and inherent Conditional and voidable

A married woman, twenty-one years of age or over, is Can exist without capacity Requires both (1)
qualified for all acts of civil life, except in cases specified by to act intelligence and (2) will.
law. (n)
Capacity is always
presumed
Person
Any being, physical or moral, real or juridical and legal,
susceptible of rights and obligations, or of being the subject *Juridical capacity and capacity to act are not rights, but
of legal relations. qualities of persons; hence, they cannot be alienated or
renounced. (Tolentino)
Personality is:
- Is product of capacity in law B. COMMENCEMENT AND
- External manifestation of capacity
- Synonymous to juridical capacity
TERMINATION OF PERSONALITY
- Generally, cannot be limited
- Specifically, may suffer limitations because its merely the 1. Natural Persons
result of capacity to act
a. Birth
Characteristics of Civil Personality
1. not a being, but a quality of certain beings Art. II, Sec. 12, 1987 Constitution
2. not a physical element, but a juridical concept The State recognizes the sanctity of family life and shall
3. not an object of contract, or of possession, cannot protect and strengthen the family as a basic autonomous
be impaired by agreement social institution. It shall equally protect the life of the mother
and the life of the unborn from conception. The natural and
4. matter of public interest
primary right and duty of parents in the rearing of the youth
for civic efficiency and the development of moral character
shall receive the support of the Government
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
Art. 5, PD 603 (Child and Youth Welfare Code)
Commencement of Civil Personality. - The civil personality of
the child shall commence from the time of his conception, for
all purposes favorable to him, subject to the requirements of
Article 41 of the Civil Code.
Art. 164, FC
Children conceived or born during the marriage of the parents
are legitimate.
Children conceived as a result of artificial insemination of the
wife with the sperm of the husband or that of a donor or both
are likewise legitimate children of the husband and his wife,
provided, that both of them authorized or ratified such
insemination in a written instrument executed and signed by
them before the birth of the child. The instrument shall be
recorded in the civil registry together with the birth certificate
of the child. (55a, 258a)
Art. 164, FC
Children conceived or born during the marriage of the parents
are legitimate.
Children conceived as a result of artificial insemination of the
wife with the sperm of the husband or that of a donor or both
are likewise legitimate children of the husband and his wife,
provided, that both of them authorized or ratified such
insemination in a written instrument executed and signed by
them before the birth of the child. The instrument shall be
recorded in the civil registry together with the birth certificate
of the child. (55a, 258a)
Art. 256, RPC
Intentional abortion. - Any person who shall intentionally cause
an abortion shall suffer:
1. The penalty of reclusion temporal, if he shall use any violence
upon the person of the pregnant woman.
2. The penalty of prision mayor if, without using violence, he
shall act without the consent of the woman.
3. The penalty of prision correccional in its medium and
maximum periods, if the woman shall have consented.
Art. 257, RPC
Unintentional abortion. - The penalty of prision correccional in
its minimum and medium period shall be imposed upon any
person who shall cause an abortion by violence, but
unintentionally.
Art. 258, RPC
Abortion practiced by the woman herself of by her parents. -
The penalty of prision correccional in its medium and maximum
periods shall be imposed upon a woman who shall practice
abortion upon herself or shall consent that any other person
should do so.
Any woman who shall commit this offense to conceal her
dishonor, shall suffer the penalty of prision correccional in its
minimum and medium periods.
If this crime be committed by the parents of the pregnant
woman or either of them, and they act with the consent of said
woman for the purpose of concealing her dishonor, the
offenders shall suffer the penalty of prision correccional in its
medium and maximum periods.
Page 14 of 84
Art. 259, RPC
Abortion practiced by a physician or midwife and dispensing of
abortives. - The penalties provided in Article 256 shall be
imposed in its maximum period, respectively, upon any
physician or midwife who, taking advantage of their scientific
knowledge or skill, shall cause an abortion or assist in causing
the same..
General Rule: Birth determines personality (actual)
Art. 40, NCC
Birth determines personality; but the conceived child shall be
considered born for all purposes that are favorable to it,
provided it be born later with the conditions specified in the
following article. (29a)
Exception: Civil Personality shall commence
Art. 5, PD 603 (Child and Youth Welfare Code)
Commencement of Civil Personality. - The civil personality of the
child shall commence from the time of his conception, for all
purposes favorable to him, subject to the requirements of Article
41 of the Civil Code.
Birth means the removal of the fetus from the mothers
womb; this may take place either naturally or artificially by
surgical means.
Before birth, the fetus is not a person, but merely a part
of the internal ograns of the mother.
Existence of personality of natural persons depends upon
the birth.
Conceived child the law considers the conceived child as
born for all purposes favorable to it, if it is later born alive.
Its personality has two characteristics:
1. It is essentially limited, because it is only for
purposes favorable to the child, and
2. It is provisional or conditional, because it depends
upon the child being thatborn alive late, such that
if it is born not alive, its personality disappers as if
it had never existed.
Rights of a conceived child Since the conceived child is
already considered as born for purposes favorable to it, it
can acquire and enjoy rights while it is in the mothers
womb.
Art. 41, NCC
For civil purposes, the foetus is considered born if it is alive at
the time it is completely delivered from the mother's womb.
However, if the foetus had an intra-uterine life of less than
seven months, it is not deemed born if it dies within twenty-
four hours after its complete delivery from the maternal womb.
(30a)
Intra-uterine life When considered born
7 months or more Alive upon complete delivery,
even if child dies within 24
months
Less then 7 months Alive upon complete delivery +
24 hours life
44 Geluz vs. CA (1961)
The concept of provisional responsibility cannot be invoked
to obtain damages for and in behalf of an aborted child
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
45 Quimguing vs. Icao (1970)
A conceived child is already entitled to support from its
progenitors.
The conceived child shall be considered born for all
purposes that are favorable to it adds further provided it be
born later with the conditions, specified in the following
article (i.e., that the foetus be alive at the time it is
completely delivered from the mothers womb).
46 De Jesus vs. Syquia (1933)
The fact that a fetus is unborn is no impediment to the
acquisition of rights.
A fetus, then, can be acknowledged even before it is born.
47 Continental Steel vs. Montano (2009)
Rolando Hortillano filed a claim for bereavement leave and
death and accident insurance pursuant to the Collective
Bargaining Agreement (CBA) between the company and
their union. His wife had a premature delivery and the
female fetus died during labor. In affirming the grant of the
benefits, the Supreme Court ruled that even a child inside
the womb already has life and is protected under Art. II,
Sec. 12, 1987 PC. The legitimacy or illegitimacy of a child
attaches upon his/her conception. Since Hortillano and his
wife were validly married and their child was conceived
during their marriage, the child was legitimate upon her
conception.
b. Death
Art. 42, NCC
Civil personality is extinguished by death. The effect of death
upon the rights and obligations of the deceased is determined
by law, by contract and by will. (32a)
Upon death of a person, the subject of legal relations
Upon death of a person, the subject of legal relations
disappears. Some of his rights and obligation are
completely extinguished, while others are transmitted to
his successors.
For certain purposes, after the death of a person, his
personality is deemed to continue in his estate.
While some rights and obligations of a deceased person
survive and may devolve upon his estate or his heirs, his
corpse can no longer be considered as a person.
48 Limjoco vs. Intestate Estate of Pedro Fragrante
(1948)
- Despite the death of Fragrante, the PSC found that
Fragrante, at the time of his death, has fulfilled all of
the requisites (Must be a Filipino/American, must have
the means to operate said plant) for the application for
a certificate of public convenience, and as the Court
stated that the estates of a deceased person would
have legal personality and is accorded the rights of the
deceased owner at the time of his existence.
- In this case, the application, nationality, and
investments attached to the application for a public
convenience of Fragrante is accorded to his estate.
Page 15 of 84
- As the Court stated, we hold that within the framework
of the Constitution, the estate of Fragrante should be
considered an artificial or juridical person for the
purposes of the settlement and distribution of his estate
which, of course, include the exercise during the
judicial administration thereof of those rights and the
fulfillment of those obligations of his which survived
after his death.
49 Dumlao vs. Syquia (1976)
Since no jurisdiction was acquired over Oria, the judgment
against him is a patent nullity As far as Oria was concerned,
the lower court's judgment against him in the said civil
cases is void for lack of jurisdiction over his person. He was
not, and he could not have been, validly served with
summons. He had no more civil personality. His juridical
capacity, which is the fitness to be the subject of legal
relations, was lost through death.
50 Eugenio vs. Velez (1990)
- A community of properties and interests which are
governed by law requires that a man and woman living
together must not in any way be incapacitated to contract
marriage.
- Right to bury a dead person does not include a common
law husband who is still married hence the custody of the
dead body of Vitaliana was correctly awarded to her
surviving brothers and sisters
51 Marcos vs. Manglapus (1989)
The threats to the government, to which the return of the
Marcoses has been viewed to provide a catalytic effect,
have not been shown to have ceased.
Note: In the dissenting opinion of Justice Paras, he points
out that the former President, although already dead, is still
entitled to certain rights. It is not correct to say that a dead
man, since he is no longer a human being, has ceased to
have rights. For instance, our Revised Penal Code prohibits
the commission of libel against a deceased individual. And
even if we were to assume the non-existence anymore of
his human rights what about the human rights of his widow
and the other members of his family?
Also, in the dissenting of Justice Padilla, he mentioned the
argument that Mr. Marcos, in cadaver form, has no
constitutional or human rights, to speak of. According to
him, this contention entirely begs the issue. In the first
place, one cannot overlook that the right of Mr. Marcos, as a
Filipino, to be buried in this country, is asserted not for the
first time after his death. It was vigorously asserted long
before his death. But, more importantly, the right of every
Filipino to be buried in his country, is part of a continuing
right that starts from birth and ends only on the day he is
finally laid to rest in his country.
52 Valino vs. Adriano (2014)
Should there be any doubt as to the true intent of the
deceased, the law favors the legitimate family. It is then
provided that no presumption was created in favor of Valino
even if she and the deceased have lived together for a long
time.
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
Pressumption of Survivorship
Art. 43, NCC
If there is a doubt, as between two or more persons who are
called to succeed each other, as to which of them died first,
whoever alleges the death of one prior to the other, shall
prove the same; in the absence of proof, it is presumed that
they died at the same time and there shall be no transmission
of rights from one to the other. (33)
Rule 131, Sec. 3 (jj)-(kk), ROC
(jj) That except for purposes of succession, when two persons
perish in the same calamity, such as wreck, battle, or
conflagration, and it is not shown who died first, and there are
no particular circumstances from which it can be inferred, the
survivorship is determined from the probabilities resulting from
the strength and the age of the sexes, according to the
following rules:
1. If both were under the age of fifteen years, the older is
deemed to have survived;
2. If both were above the age sixty, the younger is deemed to
have survived;
3. If one is under fifteen and the other above sixty, the former
is deemed to have survived;
4. If both be over fifteen and under sixty, and the sex be
different, the male is deemed to have survived, if the sex be
the same, the older;
5. If one be under fifteen or over sixty, and the other between
those ages, the latter is deemed to have survived.
(kk) That if there is a doubt, as between two or more persons
who are called to succeed each other, as to which of them
died first, whoever alleges the death of one prior to the other,
shall prove the same; in the absence of proof, they shall be
considered to have died at the same time. (5a)
Rule 123 of Sec 60 of Revised Rules of Court resorted to
only if there are no inferential/circumstantial evidences to
be inferred from
1. Both under 15- older
2. Both over 60- younger
3. Under 15 and over 60- younger
4. Between 15 60 male or if same sex- older
5. Under 15/over 60 & bet - between the 15 and 60
Applicable only when (1) calamity & (2) involves succession
53 Joaquin vs. Navarro (1953)
Inference can be derived from the evidences so no need to
use presumption. That the mother (Angela) died before her
son was based on speculations, not evidence. Gauged by
the doctrine of preponderance of evidence by which civil
cases are decided, this inference should prevail. Evidence
of survivorship may be (1) direct (2) indirect (3)
circumstantial or (4) inferential. Art 43 speaks about
resolving doubt when 2 or more persons are called to
succeed each other as to which of them died first. In the
Civil Code, in the absence of proof, it is presumed that they
died at the same time, and there shall be no transmission of
rights from one to another. In the Rules of Court, in cases
of calamity, there is a hierarchy of survivorship.
Page 16 of 84
2. Juridical Persons
Art. 44, NCC
The following are juridical persons:
(1) The State and its political subdivisions;
(2) Other corporations, institutions and entities for public
interest or purpose, created by law; their personality begins as
soon as they have been constituted according to law;
(3) Corporations, partnerships and associations for private
interest or purpose to which the law grants a juridical
personality, separate and distinct from that of each
shareholder, partner or member. (35a)
Art. 45, NCC
Juridical persons mentioned in Nos. 1 and 2 of the preceding
article are governed by the laws creating or recognizing them.
Private corporations are regulated by laws of general
application on the subject.
Partnerships and associations for private interest or purpose
are governed by the provisions of this Code concerning
partnerships. (36 and 37a)
Art. 46, NCC
Juridical persons may acquire and possess property of all
kinds, as well as incur obligations and bring civil or criminal
actions, in conformity with the laws and regulations of their
organization. (38a)
Art. 47, NCC
Upon the dissolution of corporations, institutions and other
entities for public interest or purpose mentioned in No. 2 of
article 44, their property and other assets shall be disposed of
in pursuance of law or the charter creating them. If nothing
has been specified on this point, the property and other assets
shall be applied to similar purposes for the benefit of the
region, province, city or municipality which during the
existence of the institution derived the principal benefits from
the same. (39a)
Batas Pambansa Blg. 68
Section 2. Corporation defined. A corporation is an artificial
being created by operation of law, having the right of
succession and the powers, attributes and properties expressly
authorized by law or incident to its existence. (2)
Section 4. Corporations created by special laws or charters.
Corporations created by special laws or charters shall be
governed primarily by the provisions of the special law or
charter creating them or applicable to them, supplemented by
the provisions of this Code, insofar as they are applicable. (n)
Section 17. Grounds when articles of incorporation or
amendment may be rejected or disapproved. The Securities
and Exchange Commission may reject the articles of
incorporation or disapprove any amendment thereto if the same
is not in compliance with the requirements of this Code:
Provided, That the Commission shall give the incorporators a
reasonable time within which to correct or modify the
objectionable portions of the articles or amendment. The
following are grounds for such rejection or disapproval:
1. That the articles of incorporation or any amendment thereto
is not substantially in accordance with the form prescribed
herein;
2. That the purpose or purposes of the corporation are patently
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
unconstitutional, illegal, immoral, or contrary to government
rules and regulations;
3. That the Treasurers Affidavit concerning the amount of
capital stock subscribed and/or paid is false;
4. That the percentage of ownership of the capital stock to be
owned by citizens of the Philippines has not been complied with
as required by existing laws or the Constitution.
No articles of incorporation or amendment to articles of
incorporation of banks, banking and quasi-banking institutions,
building and loan associations, trust companies and other
financial intermediaries, insurance companies, public utilities,
educational institutions, and other corporations governed by
special laws shall be accepted or approved by the Commission
unless accompanied by a favorable recommendation of the
appropriate government agency to the effect that such articles
or amendment is in accordance with law. (n)
Art. 1767, NCC
By the contract of partnership two or more persons bind
themselves to contribute money, property, or industry to a
common fund, with the intention of dividing the profits among
themselves.
Two or more persons may also form a partnership for the
exercise of a profession. (1665a)
Art. 1768, NCC
The partnership has a juridical personality separate and
distinct from that of each of the partners, even in case of
failure to comply with the requirements of article 1772, first
paragraph. (n)
Concept of a Juridical Person
A juridical person is an abstract being, formed for the
realization of collective purposes, to which the law has
granted capacity for rights and obligations.
Kinds of a Juridical Person
1. The State and its political subdivisions, such as provinces,
cities, and municipalities
2. Juridical Persons for public interest or purpose
3. Juridical persons for private interest or purpose
Corporation
An artificial being created by operation of law, habing the
right of succession and the power, attributes, and properties
expressly authorize by law or incident to ites existence.
Classes of Corporation
1. Private Corporations
- Those formed for some private purpose, benefit, aim,
or end.
- Divided into stock corporations and non-stock
corporations.
- Corporation which have a capital stock divided into
shares and are authorized to distribute to the holders of
cuh shares dividends or allotments of the surplus profits
on the basis of the shares held, are stock corporations.
All other private corporations are non-stock.
Page 17 of 84
2. Public Corporations
- Those only which are founded by the government for
public purposes, where the whole interest belong also
the government.
Partnership
By the contract of partnership two or more persons
bind themselves to contribute money, property, or
industry to a common fund, with the intention of
dividing the profits among themselves.
May be constituted in any form, even an oral
agreement. But where the real property and real rights
are contributed to the partnership, the contract must be
in a public instrument.
What governs Juridical Persons
1. The State Constitution
2. Provinces and municipalities Local Government Code
and Revised Administrative Code
3. Corporations (created by special charter) governed
by such charter
4. Corporations (created under general law)
Corporation Law
5. Partnership Provisions on partnership of the Civil
Code
Capacity of Juridical Person
The juridical person is not completely at par with natural
persons as to capacity, because it cannot exercise right
which presuppose physical existence, such as family
rights, making of wills, etc.
But like natural persons, it can have natioanilty, a
domicile, a name, a right to reputation, and the capacity
for relations which do not require ties of blood, such as
guardianship.
Extinguishment of Capacity
The juridical capacity of artificial persons is extinguished
upon the termination of its existence in accordance with the
law governing it or with its articles of association or
incorporation.
C. RESTRICTIONS ON CIVIL
CAPACITY:
1. Presumption of Capacity
Art. 37, NCC
Juridical capacity, which is the fitness to be the subject of legal
relations, is inherent in every natural person and is lost only
through the death. Capacity to act, which is the power to do
acts with legal effect, is acquired and may be lost.
KINDS OF CAPACITY
1. Juridical Capacity: fitness to be the subject of legal
relations
2. Capacity to Act: power to do acts with legal effects
Juridical Capacity Capacity to Act
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016 Page 18 of 84

Static condition of the Dynamic (a) Minority

subject
Aptitude to be the subject of Power to give life to juridical
1. Age of Majority
rights and obligations, the acts, to execute acts with
R.A. No. 6809
abstract possibility of legal effect AN ACT LOWERING THE AGE OF MAJORITY FROM
receiving legal effects TWENTY-ONE TO EIGHTEEN YEARS, AMENDING FOR
One, indivisible, irreducible Does not exist in all men nor THE PURPOSE EXECUTIVE ORDER NUMBERED TWO
and essentially the same does it exist to the same HUNDRED NINE, AND FOR OTHER PURPOSES
always and for all men extent Be it enacted by the Senate and House of Representatives of
It is enough that the person Intelligence and volition is the Philippines in Congress assembled::
Section 1. Article 234 of Executive Order No. 209, the Family
exists; inherent and required
Code of the Philippines, is hereby amended to read as follows:
ineffaceable *since it does not exist in all "Art. 234. Emancipation takes place by the attainment of
men nor to the same majority. Unless otherwise provided, majority commences at the
extent varying levels of age of eighteen years."
capacity to act Section 2. Articles 235 and 237 of the same Code are hereby
Lost only through death May be lost through other repealed.
means or circumstances Section 3. Article 236 of the same Code is also hereby
amended to read as follows:
Cannot be limited or May be limited or restricted
"Art. 236. Emancipation shall terminate parental authority over
restricted in certain circumstances the person and property of the child who shall then be qualified
and responsible for all acts of civil life, save the exceptions
established by existing laws in special cases.
54 Catalan vs. Basa (2007) "Contracting marriage shall require parental consent until the
- The court dismissed the case in favor of respondents as age of twenty-one.
petitioners failed to overcome the presumption that "Nothing in this Code shall be construed to derogate from the
Feliciano was sane and competent. duty or responsibility of parents and guardians for children and
wards below twenty-one years of age mentioned in the second
- The presumption that Feliciano remained competent to
and third paragraphs of Article 2180 of the Civil Code."
execute contracts, despite his illness, is bolstered by the Section 4. Upon the effectivity of this Act, existing wills,
existence of these other contracts. Competency and bequests, donations, grants, insurance policies and similar
freedom from undue influence, shown to have existed in instruments containing references and provisions favorable to
the other acts done or contracts executed, are presumed minors will not retroact to their prejudice.
to continue until the contrary is shown.

2. Restrictions on capacity to act 2. Rules on Guardianship

Art. 38, NCC
Minority, insanity or imbecility, the state of being a deaf-mute,
prodigality and civil interdiction are mere restrictions on
capacity to act, and do not exempt the incapacitated person
from certain obligations, as when the latter arise from his acts
or from property relations, such as easements.
Art. 39, NCC
The following circumstances, among others, modify or limit the
capacity to act: age, insanity, imbecility, the state of being a
deaf-mute, penalty, prodigality, family relations, alienage,
absence, insolvency, and trusteeship. The consequences of
these circumstances are governed in this code, other codes, the
Rules of Court and in special laws. Capacity to act is not limited
on account of religious belief or political opinion.
A married woman, twenty-one years of age or over, is qualified
for all acts of civil life, except in case specified by law.
Sec 1, A.M. No. 03-02-05
Applicability of the Rule. This Rule shall apply to petitions for
guardianship over the person or property, or both, of a minor.
The father and the mother shall jointly exercise legal
guardianship over the person and property of their
unemancipated common child without the necessity of a court
appointment. In such case, this Rule shall be suppletory to the
provisions of the Family Code on guardianship.
Sec. 2, A.M. No. 03-02-05
Who may petition for appointment of guardian. On grounds
authorized by law, any relative or other person on behalf of a
minor, or the minor himself if fourteen years of age or over,
may petition the Family Court for the appointment of a general
guardian over the person or property, or both, of such minor.
The petition may also be filed by the Secretary of Social
Welfare and Development and by the Secretary of Health in the
case of an insane minor who needs to be hospitalized

3. Suffrage
Sec. 1, Art. V, 1987 PC
Suffrage may be exercised by all citizens of the Philippines not
otherwise disqualified by law, who are at least eighteen years
of age, and who shall have resided in the Philippines for at least
one year and in the place wherein they propose to vote for at
least six months immediately preceding the election. No
literacy, property, or other substantive requirement shall be
imposed on the exercise of suffrage
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
4. Marriage
Art. 5, FC
Any male or female of the age of eighteen years or upwards
not under any of the impediments mentioned in article 37 and
38, may contract marriage.
Sec. 1, Art. 45, FC
A marriage may be annulled for any of the following causes,
exsisting at the time of the marriage:
1. That the party in whose behalf it is sought to have the
marriage annulled was 18 years of age or over but below
twenty-one, and the marriage was solemnized without the
consent of the parents, guardian or person having the substitute
parental authority over the party, in that order, unless after
attaining the age of 21, such party freely cohabitated with the
other and both lived together as husband and wife.
5. Contracts
Art. 1327, NCC
The following cannot give consent to a contract:
1. Unemancipated minors
2. Insane or demented persons, and deaf-mutes who do not
know how to write
Par. 1, Art. 1390, NCC
Voidable contracts even though there may have been no
damage to the contracting parties:
Those where one of the parties is incapable of giving consent to
a contract.
Art. 1397, NCC
The action for the annulment of contracts may be instituted by
all who are thereby obliged principally or subsidiarily. However,
persons who are capable cannot allege the incapacity of those
with whom they contracted; nor can those who exerted
intimidation, violence, or undue influence, or employed fraud,
or caused mistake base their action upon these flaws of the
contract.
Art. 1398, NCC
An obligation having been annulled, the contracting parties
shall restore to each other the things which have been the
subject matter of the contract, with their fruits, and the price
with its interest, except in cases provided by law.
In obligations to render service, the value thereof shall be the
basis for damages.
Art. 1399, NCC
When the defect of the contract consists in the incapacity of
one of the parties, the incapacitated person is not obliged to
make any restitution except insofar as he has been benefited by
the thing or price received by him
Par. 3, Art. 1403, NCC
Unenforcable contracts, unless ratified:
Those where parties are incapable of giving consent to the
contract.
Page 19 of 84
Art. 1426, NCC
When a minor between eighteen and twenty-one years of age
who has entered into a contract without the consent of the
parent or guardian, after the annulment of the contract
voluntarily returns the whole thing or price received,
notwithstanding the fact the he has not been benefited thereby,
there is no right to demand the thing or price thus returned.
Art. 1427, NCC
When a minor between eighteen and twenty-one years of age,
who has entered into a contract without the consent of the
parent or guardian, voluntarily pays a sum of money or delivers
a fungible thing in fulfillment of the obligation, there shall be no
right to recover the same from the obligee who has spent or
consumed it in good faith.
55 Mercado vs. Espiritu (1917)
That the statement made by one of the adult parties of said
deed, in reference to certain notes made in a book or
copybook of a private nature, which she said their father
kept during his lifetime and until his death, is not sufficient
to prove the plaintiffs' minority on the date of the execution
of the deed.
56 Bambalan vs. Miranda (1928)
The sale is void as to the plaintiff, because he was a minor
at the time of execution. The Doctrine laid down in the case
of Mercado vs. Espiritu is not applicable to this case,
because the plaintiff did not pretend to be of age, and the
defendant knew him as a minor.
57 Suan & Chiao vs. Alcantara (1950)
The court held that although incompetent to make a deed of
sale because of his minority, the act of ratifying said sale
gave it a legally binding effect.
58 Braganza vs. Villa-Abrille (1959)
Although the written contract is unenforceable because of
nonage, the minor, however, shall make restitution to the
extent that he may have profited by the thing he received.
Additional Note: In order to hold the infant liable the fraud
must be actual and not constructive. It has been held that
his mere silence when making a contract as to his age does
not constitute a fraud which can be made the basis of an
action of deceit.
6. Criminal liability
Par. 2, Art. 12, RPC
Exempting Circumstance - A person under nine years of
age.
Par. 3, Art. 12, RPC
Exempting Circumstance:
A person over nine years of age and under fifteen, unless he
has acted with discernment, in which case, such minor shall be
proceeded against in accordance with the provisions of Art. 80
of this Code.
Par. 2, Art. 13, RPC
Mitigating Circumstance:
That the offender is under eighteen year of age or over seventy
years. In the case of the minor, he shall be proceeded against in
accordance with the provisions of Art. 80
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
Art. 189-204, P.D. No. 603
*Child and Youth Welfare Code
Sec. 5, Rule 3, ROC
Minor or incompetent persons. A minor or a person alleged
to be incompetent, may sue or be sued with the assistance of
his father, mother, guardian, or if he has none, a guardian ad
litem.
Sec. 6, R.A. No. 9344
Minimum Age of Criminal Responsibility. - A child fifteen (15)
years of age or under at the time of the commission of the
offense shall be exempt from criminal liability. However, the
child shall be subjected to an intervention program pursuant to
Section 20 of this Act
A child above fifteen (15) years but below eighteen (18) years
of age shall likewise be exempt from criminal liability and be
subjected to an intervention program, unless he/she has acted
with discernment, in which case, such child shall be subjected
to the appropriate proceedings in accordance with this Act.
The exemption from criminal liability herein established does
not include exemption from civil liability, which shall be
enforced in accordance with existing laws.
Sec. 7, R.A. No. 9344
Determination of Age. - The child in conflict with the law
shall enjoy the presumption of minority. He/She shall enjoy all
the rights of a child in conflict with the law until he/she is
proven to be eighteen (18) years old or older. The age of a child
may be determined from the child's birth certificate, baptismal
certificate or any other pertinent documents. In the absence of
these documents, age may be based on information from the
child himself/herself, testimonies of other persons, the physical
appearance of the child and other relevant evidence. In case of
doubt as to the age of the child, it shall be resolved in his/her
favor.
Any person contesting the age of the child in conflict with the
law prior to the filing of the information in any appropriate court
may file a case in a summary proceeding for the determination
of age before the Family Court which shall decide the case
within twenty-four (24) hours from receipt of the appropriate
pleadings of all interested parties.
If a case has been fiied against the child in conflict with the law
and is pending in the appropriate court, the person shall file a
motion to determine the age of the child in the same court
where the case is pending. Pending hearing on the said motion,
proceedings on the main case shall be suspended.
In all proceedings, law enforcement officers, prosecutors,
judges and other government officials concerned shall exert all
efforts at determining the age of the child in conflict with the
law.
59 Atizado vs. People (2010)
Pursuant to Article 68 (2) of the Revised Penal Code (RPC),
when the offender is over 15 and under 18 years of age, the
penalty next lower than that prescribed by law is imposed.
Page 20 of 84
(b) Insanity
1. Marriage
Sec.2, Art. 45, FC
When Marriage may be Annulled:
When at the time of marriage, either party was of unsound
mins, unless such party after coming to reason, freely
cohabited with the other as husband and wife.
Marriage annullable if, by reason of defect or disease of the
mind, was incapable of intelligently consenting.
What is being assailed?
Not the bad bargain of having an insane partner, but that
the consent of the latter was unreal for lack of intelligence.
Test: Whether or not at the time of marriage, party was
capable of understanding the nature and consequences of
the marriage.
Presumption:
Sane until proven otherwise.
Burden of Proof: On the one alleging insanity
Once general insanity is proven Presumed continuous
Recovery or lucid interval Burden of proof: On the one
alleging such claims
Intoxicated Presumed incapacited to gve consent
Prescriptive Period: Such voidable marriage may only be
assailed during the lifetime of the parties and not on the
death of either.
Subject to Ratification: Only the insane person, after
gaining sanity, is allowed to ratify the marriage by freely
cohabitating with the sane spouse as husband and wife.
2. Contracts
Par. 2, Art. 1327, NCC
Cannot give consent to contracts: Insane or demented persons
and deafmutes who do not know how to write.
Art. 1328, NCC
Contracts entered into during a lucid interval are valid.
Contracts agree to in a state of drunkenness or during a
hypnotic spell are voidable.
3. Criminal liability
Par. 1, Art. 12, RPC
Criminal Liability
An imbecile or an insane person, unless the latter has acted
during a lucid interval.chanrobles virtual law library
When the imbecile or an insane person has committed an act
which the law defines as a felony (delito), the court shall order
his confinement in one of the hospitals or asylums established
for persons thus afflicted, which he shall not be permitted to
leave without first obtaining the permission of the same court.
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
Rule 101, ROC
Section 1. Venue, Petition for commitment. A petition for
the commitment of a person to a hospital or other place for the
insane may be filed with the Court of First Instance of the
province where the person alleged to be insane is found. The
petition shall be filed by the Director of Health in all cases
where, in his opinion, such commitment is for the public
welfare, or for the welfare of said person who, in his judgment,
is insane and such person or the one having charge of him is
opposed to his being taken to a hospital or other place for the
insane
Section 2. Order for hearing. If the petition filed is sufficient
in form and substance, the court, by an order reciting the
purpose of the petition, shall fix a date for the hearing thereof,
and copy of such order shall be served on the person alleged to
be insane, and to the one having charge him, or on such of his
relatives residing in the province or city as the judge may deem
proper. The court shall furthermore order the sheriff to produce
the alleged insane person, if possible, on the date of the
hearing.
Section 3. Hearing and judgment. Upon satisfactory proof,
in open court on the date fixed in the order, that the
commitment applied for is for the public welfare or for the
welfare of the insane person, and that his relatives are unable
for any reason to take proper custody and care of him, the court
shall order his commitment to such hospital or other place for
the insane as may be recommended by the Director of Health.
The court shall make proper provisions for the custody of
property or money belonging to the insane until a guardian be
properly appointed.
Section 4. Discharge of insane. When, in the opinion of the
Director of Health, the person ordered to be committed to a
hospital or other place for the insane is temporarily or
permanently cured, or may be released without danger he may
file the proper petition with the Court of First Instance which
ordered the commitment.
Section 5. Assistance of fiscal in the proceeding. It shall be
the duty of the provincial fiscal or in the City of Manila the fiscal
of the city, to prepare the petition for the Director of Health and
represent him in court in all proceedings arising under the
provisions of this rule.
60 US vs Vaquilar (1914)
- Note: There is a vast difference between an insane
person and one who has worked himself up into such a
frenzy of anger that he fails to use reason or good
judgment in what he does. An extremely angry man,
often, if not always, acts like a madman. The fact that a
person acts crazy is not conclusive that he is insane.
Discussion on US vs Vaquilar
Distinction between passion and insanity
Although there have been some decisions to the
contrary, it is now well settled that mere mental
depravity, or moral insanity, so called, which results,
not from any disease of mind, but from a perverted
condition of the moral system, where the person is
mentally sane, does not exempt one from responsibility
for crimes committed under its influence, Care must be
taken to distinguish between mere moral insanity or
mental depravity and irresistible impulse resulting from
disease of the mind.
For insanity to be an exempting circumstance: proof
beyond reasonable doubt.
Page 21 of 84
61 People vs. Rafanan (1991)
R raped a 14 year old E, he then after alleged he was
suffering from schizophrenia while he did so. The allegation
of insanity or imbecility must be clearly proved. Without
positive evidence that the defendant had previously lost his
reason or was demented, a few moments prior to or during
the perpetration of the crime, it will be presumed that he
was in a normal condition.
62 Standard Oil vs. Arenas (1911)
Capacity to act must be attached to a person who has not
previously been declared incapable, and such capacity is
presumed to continue so long as the contrary is not proved,
that is, at the moment of his acting he was incapable, crazy,
insane or out of his mind; which in the opinion of the court,
has not been proven in this case.
63 People vs. Bugalao (2011)
AAA said B raped her.
B was found to be suffering of mental retardation but such
finding was found years after and even then, the
psychologist testified that accused appellant had the
capacity to discern right from wrong.
Marker: Case where AAA recanted earlier testimony of rape
64 Oropesa vs. Oropesa (2012)
A finding that a person is incompetent should be anchored
on clear, positive and definite evidence
65 Crewlink vs. Teringtering (2012)
The issue of insanity is a question of fact; for insanity is a
condition of the mind not susceptible of the usual means of
proof. As no man would know what goes on in the mind of
another, the state or condition of a persons mind can only
be measured and judged by his behavior. Establishing the
insanity of the accused requires opinion testimony which
may be given by a witness who is intimately acquainted with
the person claimed to be insane, or who has ration basis to
conclude that a person was insane beside on the witness
own perception of the person, or who is qualifies as an
expert, such as a psychiatrist.
(c) Deaf-Mutism
Art. 1327 (2), NCC
The following cannot give consent to a contract:
(2) Insane or demented persons, and deaf-mutes who do not
know how to write. (1263a)
Art. 807, NCC
If the testator be deaf, or a deaf-mute, he must personally read
the will, if able to do so; otherwise, he shall designate two
persons to read it and communicate to him, in some practicable
manner, the contents thereof. (n)
Art. 820, NCC
Any person of sound mind and of the age of eighteen years or
more, and not blind, deaf or dumb, and able to read and write,
may be a witness to the execution of a will mentioned in article
805 of this Code. (n)
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(d) Prodigality
Rule 92, Sec. 2, ROC
Section 2. Meaning of word "incompetent." Under this rule,
the word "incompetent" includes persons suffering the penalty
of civil interdiction or who are hospitalized lepers, prodigals,
deaf and dumb who are unable to read and write, those who
are of unsound mind, even though they have lucid intervals,
and persons not being of unsound mind, but by reason of age,
disease, weak mind, and other similar causes, cannot, without
outside aid, take care of themselves and manage their property,
becoming thereby an easy prey for deceit and exploitation.
(e) Civil Interdiction
Article 31, RPC
Effect of the penalties of perpetual or temporary special
disqualification. - The penalties of perpetual or temporal special
disqualification for public office, profession or calling shall
produce the following effects:
1. The deprivation of the office, employment, profession or
calling affected;
2. The disqualification for holding similar offices or employments
either perpetually or during the term of the sentence according
to the extent of such disqualification.
Art. 34, RPC
Civil interdiction. - Civil interdiction shall deprive the offender
during the time of his sentence of the rights of parental
authority, or guardianship, either as to the person or property of
any ward, of marital authority, of the right to manage his
property and of the right to dispose of such property by any act
or any conveyance inter vivos.
Art. 41, RPC
Reclusion perpetua and reclusion temporal; Their accessory
penalties. - The penalties of reclusion perpetua and reclusion
temporal shall carry with them that of civil interdiction for life or
during the period of the sentence as the case may be, and that
of perpetual absolute disqualification which the offender shall
suffer even though pardoned as to the principal penalty, unless
the same shall have been expressly remitted in the pardon.
(f) Family Relations
Art. 150, FC
Family relations include those:
(1) Between husband and wife;
(2) Between parents and children;
(3) Among brothers and sisters, whether of the full or halfblood.
(217a)
Art. 151, FC
No suit between members of the same family shall prosper
unless it should appear from the verified complaint or petition
that earnest efforts toward a compromise have been made, but
that the same have failed. If it is shown that no such efforts
were in fact made, the same case must be dismissed.
This rules shall not apply to cases which may not be the subject
of compromise under the Civil Code. (222a)
Page 22 of 84
Art. 87, FC
Every donation or grant of gratuitous advantage, direct or
indirect, between the spouses during the marriage shall be void,
except moderate gifts which the spouses may give each other
on the occasion of any family rejoicing. The prohibition shall
also apply to persons living together as husband and wife
without a valid marriage. (133a)
Art. 37, FC
Marriages between the following are incestuous and void from
the beginning, whether relationship between the parties be
legitimate or illegitimate:
(1) Between ascendants and descendants of any degree; and
(2) Between brothers and sisters, whether of the full or half
blood. (81a)
Art. 38, FC
The following marriages shall be void from the beginning for
reasons of public policy:
(1) Between collateral blood relatives whether legitimate or
illegitimate, up to the fourth civil degree;
(2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
(4) Between the adopting parent and the adopted child;
(5) Between the surviving spouse of the adopting parent and
the adopted child;
(6) Between the surviving spouse of the adopted child and the
adopter;
(7) Between an adopted child and a legitimate child of the
adopter;
(8) Between adopted children of the same adopter; and
(9) Between parties where one, with the intention to marry the
other, killed that other person's spouse, or his or her own
spouse. (82)
Art. 1490, FC
The husband and the wife cannot sell property to each other,
except:
(1) When a separation of property was agreed upon in the
marriage settlements; or
(2) When there has been a judicial separation of property under
article 191. (1458a)
Art. 2035, FC
No compromise upon the following questions shall be valid:
(1) The civil status of persons;
(2) The validity of a marriage or a legal separation;
(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts;
(6) Future legitime. (1814a)
Art. 963-967, NCC
Article 963. Proximity of relationship is determined by the
number of generations. Each generation forms a degree. (915)
Article 964. A series of degrees forms a line, which may be
either direct or collateral.
A direct line is that constituted by the series of degrees among
ascendants and descendants.
A collateral line is that constituted by the series of degrees
among persons who are not ascendants and descendants, but
who come from a common ancestor. (916a)
Article 965. The direct line is either descending or ascending.
The former unites the head of the family with those who
descend from him.
The latter binds a person with those from whom he descends.
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
(917)
Article 966. In the line, as many degrees are counted as there
are generations or persons, excluding the progenitor.
In the direct line, ascent is made to the common ancestor.
Thus, the child is one degree removed from the parent, two
from the grandfather, and three from the great-grandparent.
In the collateral line, ascent is made to the common ancestor
and then descent is made to the person with whom the
computation is to be made. Thus, a person is two degrees
removed from his brother, three from his uncle, who is the
brother of his father, four from his first cousin, and so forth.
(918a)
Article 967. Full blood relationship is that existing between
persons who have the same father and the same mother.
Half blood relationship is that existing between persons who
have the same father, but not the same mother, or the same
mother, but not the same father. (920a))
(g) Alienage
Art. IV, Sec. 1-5, 1987 PC
Section 1. The following are citizens of the Philippines:
1. Those who are citizens of the Philippines at the time
of the adoption of this Constitution;
2. Those whose fathers or mothers are citizens of the
Philippines;
3. Those born before January 17, 1973, of Filipino
mothers, who elect Philippine Citizenship upon
reaching the age of majority; and
4. Those who are naturalized in the accordance with
law.
Section 2. Natural-born citizens are those who are citizens of
the Philippines from birth without having to perform any act to
acquire or perfect their Philippine citizenship. Those who elect
Philippine citizenship in accordance with paragraph (3), Section
1 hereof shall be deemed natural-born citizens.
Section 3. Philippine citizenship may be lost or reacquired in
the manner provided by law.
Section 4. Citizens of the Philippines who marry aliens shall
retain their citizenship, unless by their act or omission they are
deemed, under the law to have renounced it.
Section 5. Dual allegiance of citizens is inimical to the national
interest and shall be dealt with by law.
66 Cordora vs COMELEC (2009)
Court differentiates, dual citizenship from dual allegiance.
o Dual citizenship is involuntary and arises when, as a
result of the concurrent application of the different
laws of two or more states, a person is
simultaneously considered a national by the said
states.
o Dual allegiance, on the other hand, is brought about
by the individuals active participation in the
naturalization process.
In Mercado v Manzao case, it was ruled that persons with
mere dual citizenship do not fall under the
disqualifications described in the Local Government Code.
67 Reyes vs. COMELEC (2013)
- Petitioner is in error when she posits that at present it is
the HRET which has exclusive jurisdiction over her
Page 23 of 84
qualifications as a Member of the House of
Representatives. That the HRET is the sole judge of all
contests relating to the election, returns and qualifications
of the Members of the House of Representatives is a
written constitutional provision. It is, however unavailable
to petitioner because she is NOT a Member of the House
at present. The COMELEC never ordered her proclamation
as the rightful winner in the election for such
membership. Indeed, the action for cancellation of
petitioners certificate of candidacy, the decision in which
is the indispensable determinant of the right of petitioner
to proclamation, was correctly lodged in the COMELEC,
was completely and fully litigated in the COMELEC and
was finally decided by the COMELEC.
68 David vs. Agbay (2015)
- Petitioner lost his natural-born status as his situation falls
under the first paragraph of Sec. 3 of RA 9225, which
refers to Filipinos who have lost their Philippine citizenship
by reason of their naturalization as citizens of a foreign
country and are deemed to have reacquired it upon
taking the oath of allegiance.
- Section 3 lays down such conditions for two categories of
natural-born Filipinos referred to in the first and second
paragraphs.
- Under the first paragraph are those natural-born Filipinos
who have lost their citizenship by naturalization in a
foreign country who shall reacquire their Philippine
citizenship upon taking the oath of allegiance to the
Republic of the Philippines.
- The second paragraph covers those natural-born Filipinos
who became foreign citizens after R.A. 9225 took effect,
who shall retain their Philippine citizenship upon taking
the same oath
- Considering that petitioner was naturalized as a Canadian
citizen prior to the effectivity of R.A. 9225, he belongs to
the first category of natural-born Filipinos under the first
paragraph of Section 3 who lost Philippine citizenship by
naturalization in a foreign country.
(h) Absence
Chapter 1 Provisional Measures in Case of Absence
Article 381. When a person disappears from his domicile, his
whereabouts being unknown, and without leaving an agent to
administer his property, the judge, at the instance of an
interested party, a relative, or a friend, may appoint a person to
represent him in all that may be necessary.
This same rule shall be observed when under similar
circumstances the power conferred by the absentee has
expired. (181a)
Article 382. The appointment referred to in the preceding
article having been made, the judge shall take the necessary
measures to safeguard the rights and interests of the absentee
and shall specify the powers, obligations and remuneration of
his representative, regulating them, according to the
circumstances, by the rules concerning guardians. (182)
Article 383. In the appointment of a representative, the
spouse present shall be preferred when there is no legal
separation.
If the absentee left no spouse, or if the spouse present is a
minor, any competent person may be appointed by the court.
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
Chapter 2 Declaration of Absence
Article 384. Two years having elapsed without any news about
the absentee or since the receipt of the last news, and five
years in case the absentee has left a person in charge of the
administration of his property, his absence may be declared.
(184)
Article 385. The following may ask for the declaration of
absence:
(1) The spouse present;
(2) The heirs instituted in a will, who may present an authentic
copy of the same;
(3) The relatives who may succeed by the law of intestacy;
(4) Those who may have over the property of the absentee
some right subordinated to the condition of his death. (185)
Article 386. The judicial declaration of absence shall not take
effect until six months after its publication in a newspaper of
general circulation. (186a)
Chapter 3 Administration of the Property of the
Absentee
Article 387. An administrator of the absentee's property shall
be appointed in accordance with article 383. (187a)
Article 388. The wife who is appointed as an administratrix of
the husband's property cannot alienate or encumber the
husband's property, or that of the conjugal partnership, without
judicial authority. (188a)
Article 389. The administration shall cease in any of the
following cases:
(1) When the absentee appears personally or by means of an
agent;
(2) When the death of the absentee is proved and his testate or
intestate heirs appear;
(3) When a third person appears, showing by a proper
document that he has acquired the absentee's property by
purchase or other title.
In these cases the administrator shall cease in the performance
of his office, and the property shall be at the disposal of those
who may have a right thereto. (190)
Chapter 4 Presumption of Death
Article 390. After an absence of seven years, it being unknown
whether or not the absentee still lives, he shall be presumed
dead for all purposes, except for those of succession.
The absentee shall not be presumed dead for the purpose of
opening his succession till after an absence of ten years. If he
disappeared after the age of seventy-five years, an absence of
five years shall be sufficient in order that his succession may be
opened. (n)
Article 391. The following shall be presumed dead for all
purposes, including the division of the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an
aeroplane which is missing, who has not been heard of for four
years since the loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war,
and has been missing for four years;
(3) A person who has been in danger of death under other
circumstances and his existence has not been known for four
years. (n)
Article 392. If the absentee appears, or without appearing his
existence is proved, he shall recover his property in the
condition in which it may be found, and the price of any
property that may have been alienated or the property acquired
therewith; but he cannot claim either fruits or rents. (194)
Page 24 of 84
Chapter 5 Effect of Absence Upon the Contingent
Rights of the Absentee
Article 393. Whoever claims a right pertaining to a person
whose existence is not recognized must prove that he was living
at the time his existence was necessary in order to acquire said
right. (195)
Article 394. Without prejudice to the provision of the
preceding article, upon the opening of a succession to which an
absentee is called, his share shall accrue to his coheirs, unless
he has heirs, assigns, or a representative. They shall all, as the
case may be, make an inventory of the property. (196a)
Article 395. The provisions of the preceding article are
understood to be without prejudice to the action of petition for
inheritance or other rights which are vested in the absentee, his
representatives or successors in interest. These rights shall not
be extinguished save by lapse of time fixed for prescription. In
the record that is made in the Registry of the real estate which
accrues to the coheirs, the circumstance of its being subject to
the provisions of this article shall be stated. (197)
Article 396. Those who may have entered upon the
inheritance shall appropriate the fruits received in good faith so
long as the absentee does not appear, or while his
representatives or successors in interest do not bring the proper
actions. (198)
Art. 41, FC
A marriage contracted by any person during subsistence of a
previous marriage shall be null and void, unless before the
celebration of the subsequent marriage, the prior spouse had
been absent for four consecutive years and the spouse present
has a well-founded belief that the absent spouse was already
dead. In case of disappearance where there is danger of death
under the circumstances set forth in the provisions of Article
391 of the Civil Code, an absence of only two years shall be
sufficient.
69 Olaguer v Purugganan & Locsin (2007)
Limiting the definition of absence to that provided under
Art. 381, CC negates the effect of the power of attorney by
creating absurd, if not impossible, legal situations. Art. 381
provides the necessarily stringent standard that would
justify the appointment of a representative by a judge.
Among the standards the said article enumerates is that no
agent has been appointed to administer the property. In the
present case, petitioner himself had already authorized
agents to do specific acts of administration and thus, no
longer necessitated the appointment of one by the court. On
the other hand, defining the term absence by its everyday
usage makes for a reasonable construction, that is, the
state of not being present and the inability to act, given
the context that the SPA authorizes the agents to attend
stockholders meetings and vote in behalf of petitioner, to
sell the shares of stock and other related acts. This
construction covers the situation wherein petitioner was
arrested and detained.
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
(i) Insolvency and Trusteeship
Art.1381, NCC
The following contracts are rescissible:
(1) Those which are entered into by guardians whenever the
wards whom they represent suffer lesion by more than one-
fourth of the value of the things which are the object thereof;
(2) Those agreed upon in representation of absentees, if the
latter suffer the lesion stated in the preceding number;
(3) Those undertaken in fraud of creditors when the latter
cannot in any other manner collect the claims due them;
(4) Those which refer to things under litigation if they have
been entered into by the defendant without the knowledge and
approval of the litigants or of competent judicial authority;
(5) All other contracts specially declared by law to be subject to
rescission. (1291a)
Art.1491, NCC
The following persons cannot acquire by purchase, even at a
public or judicial auction, either in person or through the
mediation of another:
(1) The guardian, the property of the person or persons who
may be under his guardianship;
(2) Agents, the property whose administration or sale may have
been intrusted to them, unless the consent of the principal has
been given;
(3) Executors and administrators, the property of the estate
under administration;
(4) Public officers and employees, the property of the State or
of any subdivision thereof, or of any government-owned or
controlled corporation, or institution, the administration of which
has been intrusted to them; this provision shall apply to judges
and government experts who, in any manner whatsoever, take
part in the sale;
(5) Justices, judges, prosecuting attorneys, clerks of superior
and inferior courts, and other officers and employees connected
with the administration of justice, the property and rights in
litigation or levied upon an execution before the court within
whose jurisdiction or territory they exercise their respective
functions; this prohibition includes the act of acquiring by
assignment and shall apply to lawyers, with respect to the
property and rights which may be the object of any litigation in
which they may take part by virtue of their profession;
(6) Any others specially disqualified by law. (1459a)
Art. 2236, NCC
The debtor is liable with all his property, present and future, for
the fulfillment of his obligations, subject to the exemptions
provided by law. (1911a)
70 Umale vs. ASB (2011)
- Corporate rehabilitation is defined as the restoration of
the debtor to a position of successful operation and
solvency, if it is shown that its continuance of operation is
economically feasible and its creditors can recover by way
of the present value of payments projected in the plan
more if the corporation continues as a going concern than
if it is immediately liquidated.
- This concept of preserving the corporations business as a
going concern while it is undergoing rehabilitation is
called debtor-in-possession or debtor-in-place. This means
that the debtor corporation (the corporation undergoing
rehabilitation), through its Board of Directors and
corporate officers, remains incontrol of its business and
properties, subject only tothe monitoring of the appointed
rehabilitation receiver.
Page 25 of 84
- There is nothing in the concept of corporate rehabilitation
that would ipso facto deprive the Board of Directors and
corporate officers of a debtor corporation, such as ASB
Realty, of control such that it can no longer enforce its
right to recover its property from an errant lessee.
(j) Gender
Art. II, Sec. 14, 1987 PC
The State recognizes the role of women in nation-building, and
shall ensure the fundamental equality before the law of women
and men.
Art. 403, NCC
Notwithstanding the provisions of the preceding article, a
daughter above twenty-one but below twenty-three years of
age cannot leave the parental home without the consent of the
father or mother in whose company she lives, except to become
a wife, or when she exercises a profession or calling, or when
the father or mother has contracted a subsequent marriage.
(321a)
Rule 3, Sec. 4, ROC
Spouses as parties. Husband and wife shall sue or be sued
jointly, except as provided by law. (4a)
(k) Physical Incapacity/Disease
Art. 45 (5 & 6), FC
A marriage may be annulled for any of the following causes,
existing at the time of the marriage:
...
(5) That either party was physically incapable of consummating
the marriage with the other, and such incapacity continues and
appears to be incurable; or
(6) That either party was afflicted with a sexually-transmissible
disease found to be serious and appears to be incurable. (85a)
Art. 46, FC
Any of the following circumstances shall constitute fraud
referred to in Number 3 of the preceding Article:
(1) Non-disclosure of a previous conviction by final judgment of
the other party of a crime involving moral turpitude;
(2) Concealment by the wife of the fact that at the time of the
marriage, she was pregnant by a man other than her husband;
(3) Concealment of sexually transmissible disease, regardless of
its nature, existing at the time of the marriage; or
(4) Concealment of drug addiction, habitual alcoholism or
homosexuality or lesbianism existing at the time of the
marriage.
No other misrepresentation or deceit as to character, health,
rank, fortune or chastity shall constitute such fraud as will give
grounds for action for the annulment of marriage. (86a)
Art. 820, NCC
Any person of sound mind and of the age of eighteen years or
more, and not blind, deaf or dumb, and able to read and write,
may be a witness to the execution of a will mentioned in article
805 of this Code. (n)
71 Heirs of Favis, sr. v GONZALES (2014)
- It was an error on the part of CA to dismiss the complaint
based on Art. 151 of the Family Code. The CA ignored the
facts of the case that clearly demonstrated the refusal by
the respondents to compromise. Instead it ordered the
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
dismissal of petitioners complaint on the ground that it
did not allege what in fact was shown during the trial. In
other words, the CA chose to refine it review to the
procedural aspect of the case.
- SC agreed with the findings of the trial court regarding
the validity of the donation. The trial court mentioned in
its decision that state/condition of the Dr. Favis at the
time of execution of the donation must be taken into
account. Factors such as his age, health and environment
among others should be considered. Dr. Favis was already
suffering from different illnesses such as like Hiatal
hernia, Parkinsons disease and pneumonia, and such
illnesses had the effects of impairing his brain or mental
faculties
- As further held by the trial court, although age of senility
varies from one person to another, to reach the age of 92
with all those medications and treatment one have
received for those illnesses, yet claim that his mind
remains unimpaired, would be unusual.
D. DOMICILE AND RESIDENCE OF
PERSONS
1. Juridical Persons
Art. 51, NCC
When the law creating or recognizing them, or any other
provision does not fix the domicile of juridical persons, the same
shall be understood to be the place where their legal
representation is established or where they exercise their
principal functions. (41a)
2. Natural Persons
Art. 50, NCC
For the exercise of civil rights and the fulfillment of civil
obligations, the domicile of natural persons is the place of their
habitual residence. (40a)
Art. 68, FC
The husband and wife are obliged to live together, observe
mutual love, respect and fidelity, and render mutual help and
support. (109a)
Art. 69, FC
The husband and wife shall fix the family domicile. In case of
disagreement, the court shall decide.
Art. 110, NCC
The husband shall fix the residence of the family. But the court
may exempt the wife from living with the husband if he should
live abroad unless in the service of the Republic. (58a)
Art. 55, FC
A petition for legal separation may be filed on any of the
following grounds:
(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
Page 26 of 84
common child, or a 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 six years, even if pardoned;
(5) Drug addiction or habitual alcoholism of the respondent;
(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by 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;
or
(10) Abandonment of petitioner by respondent without
justifiable cause for more than one year.
For purposes of this Article, the term "child" shall include a child
by nature or by adoption. (9a)
Art. 101, FC
If a spouse without just cause abandons the other or fails to
comply with his or her obligations to the family, the aggrieved
spouse may petition the court for receivership, for judicial
separation of property or for authority to be the sole
administrator of the absolute community, subject to such
precautionary conditions as the court may impose.
The obligations to the family mentioned in the preceding
paragraph refer to marital, parental or property relations.
A spouse is deemed to have abandoned the other when her or
she has left the conjugal dwelling without intention of returning.
The spouse who has left the conjugal dwelling for a period of
three months or has failed within the same period to give any
information as to his or her whereabouts shall be prima facie
presumed to have no intention of returning to the conjugal
dwelling. (178a)
Art. 149, FC
The family, being the foundation of the nation, is a basic social
institution which public policy cherishes and protects.
Consequently, family relations are governed by law and no
custom, practice or agreement destructive of the family shall be
recognized or given effect. (216a, 218a)
Art. 152, FC
The family home, constituted jointly by the husband and the
wife or by an unmarried head of a family, is the dwelling house
where they and their family reside, and the land on which it is
situated. (223a)
72 Romualdez-Marcos vs. COMELEC (1995)
Elements of Domicile
1. Physical Presence in a fixed place
2. Intention to remain permanently in said place (animus
manendi)
Kinds of Domicile
1. Domicile of Origin- given by law to a person at birth
2. Domicile of Choice- that which is voluntarily chosen by a
sui juris: as his more or less permanent home to which
whenever absent, he intends to return
3. Domicile by operation of law- attributes to a person a
domicile independent of his own intention or actual
residence, usually by means of marriage or because of
parent
Requirements for the acquisition of New Domicile
1. Bodily presence in new locality
2. Intention to remain therein (animus manendi)
3. Intention to abandon the old domicile (animus revertendi)
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016 Page 27 of 84

73 Jalosjos vs. COMELEC (2012)

- For purposes of the election laws, the requirement of
residence is synonymous with domicile, meaning that a
person must not only intend to reside in a particular place
but must also have personal presence in such place
coupled with conduct indicative of such intention.
- Jurisprudence has laid down the following guidelines to
determine a candidates compliance with the residency
requirement: (a) every person has a domicile or residence
somewhere; (b) where once established, that domicile
remains until he acquires a new one; and (c) a person
can have but one domicile at a time
- As illustrated by the Court in their decision, it was evident
that Jalosjos had every intention to establish his domicile
in Ipil, which is indicative of his compliance with the
above-mentioned requirements.

74 Poe-Llamanzares vs. COMELEC (2016)

- The Constitution requires presidential candidates to have
ten (10) years' residence in the Philippines before the day
of the elections. Since the forthcoming elections will be
held on 9 May 2016, petitioner must have been a resident
of the Philippines prior to 9 May 2016 for ten (10) years.
- There are three requisites to acquire a new
domicile: 1. Residence or bodily presence in a new
locality; 2. an intention to remain there; and 3. an
intention to abandon the old domicile. To successfully
effect a change of domicile, one must demonstrate an
actual removal or an actual change of domicile; a bona
fide intention of abandoning the former place of residence
and establishing a new one and definite acts which
correspond with the purpose. In other words, there must
basically be animus manendi coupled with animus non
revertendi.
- The purpose to remain in or at the domicile of choice
must be for an indefinite period of time; the change of
residence must be voluntary; and the residence at the
place chosen for the new domicile must be actual.
- Coupled with petitioners eventual application to reacquire
Philippine citizenship and her family's actual continuous
stay in the Philippines over the years, the court led to
believe that petitioner's claim that she will have been a
resident for ten (10) years and eleven (11) months on the
day before the 2016 elections, is true.
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
INTRODUCTION TO
FAMILY CODE
A. EFFECT AND RETROACTIVITY
E.O. No. 209, as amended by E.O. No. 207
Sec. 1. Article 26 of the Executive Order No. 209 is hereby
amended to read as follows:
"Art. 26. All marriage solemnized outside the Philippines
in accordance with the laws in force in the country where
they were solemnized, and valid there as such, shall also
be valid in this country, except those prohibited under
Articles 35(1), (4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a
foreigner is validly celebrated and a divorce is thereafter
validly obtained abroad by the alien spouse capacitating
him or her to remarry, the Filipino spouses shall have
capacity to remarry under Philippine law."
Sec. 2. Article 36 of Executive Order No. 209 is hereby amended to
read as follows:
"Art. 36. A marriage contracted by any party who, at the
time of the celebration, was psychologically incapacitated
to comply with the essential marital obligations of
marriage, shall likewise be void even if such incapacity
becomes manifest only after its solemnization."
Sec. 3. Article 39 of the Executive Order No. 209 is hereby
amended to read as follows:
"Art. 39. The action or defense for the declaration of
absolute nullity of marriage shall not prescribe. However,
in the case of marriages celebrated before the effectivity
of this Code and falling under Article 36, such action or
defense shall have taken effect."
Sec. 4. This Executive Order shall take effect upon the effectivity of
the Family Code of the Philippines.
R.A. No. 6809
AN ACT LOWERING THE AGE OF MAJORITY FROM TWENTY-
ONE TO EIGHTEEN YEARS, AMENDING FOR THE PURPOSE
EXECUTIVE ORDER NUMBERED TWO HUNDRED NINE, AND
FOR OTHER PURPOSES
Section 1. Article 234 of Executive Order No. 209, the Family Code
of the Philippines, is hereby amended to read as follows:
"Art. 234. Emancipation takes place by the attainment of majority.
Unless otherwise provided, majority commences at the age of
eighteen years."
Section 2. Articles 235 and 237 of the same Code are hereby
repealed.
Page 28 of 84
Section 3. Article 236 of the same Code is also hereby amended to
read as follows:
"Art. 236. Emancipation shall terminate parental authority over
the person and property of the child who shall then be qualified and
responsible for all acts of civil life, save the exceptions established
by existing laws in special cases.
"Contracting marriage shall require parental consent until the age of
twenty-one.
"Nothing in this Code shall be construed to derogate from the duty
or responsibility of parents and guardians for children and wards
below twenty-one years of age mentioned in the second and third
paragraphs of Article 2180 of the Civil Code."
Section 4. Upon the effectivity of this Act, existing wills, bequests,
donations, grants, insurance policies and similar instruments
containing references and provisions favorable to minors will not
retroact to their prejudice.
Section 5. This Act shall take effect upon completion of its
publication in at least two (2) newspapers of general circulation.
R.A. No. 7610
AN ACT PROVIDING FOR STRONGER DETERRENCE AND
SPECIAL PROTECTION AGAINST CHILD ABUSE,
EXPLOITATION AND DISCRIMINATION, AND FOR OTHER
PURPOSES.
Art. 256, FC
This Code shall have retroactive effect insofar as it does not
prejudice or impair vested or acquired rights in accordance with the
Civil Code or other laws.
Art. 36, FC
A marriage contracted by any party who, at the time of the
celebration, was psychologically incapacitated to comply with the
essential marital obligation of marriage, shall likewise be void ecen
if such incapacity becomes manifest only after its solemnization.
Art. 39, FC
The action or defense for the declaration of absolute nullity of a
marriage shall not prescribe.
Art. 105, FC
In case the future spouses agree in the marriage settlements that
the regime of conjugal partnership of gains shall govern their
property relations during marriage, the provisions in this Chapter
shall be of supplementary application.
Art. 162, FC
The provisions in this Chapter shall also govern existing family
residences insofar said provisions are applicable.
Art. 257, FC
This code shall take effect one year after the completion of its
publication in a newspaper of general circulation, as certified by the
Executive Secretary, Office of the President.
Publication shall likewise be made in the Official Gazette.
Done in the City of Manila, this 6th day of July, in the Year of Our
Lord, 1987.
75 Atienza vs. Judge Brillantes (1995)
The respondent judge that when he married a second time
in civil rights in LA, California on Dec. 1991, he believed, in
all good faith and for all legal intents and purposes, that he
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016 Page 29 of 84

was single because his first marriage was solemnized

without a license. The SC ruled that under Art. 40, FC there
must be judicial declaration of the nullity of a previous
marriage before a party can enter into a second marriage.
The Court further stated that Art. 40 is a rule of procedure
and therefore, has retroactive application.

76 Bernabe vs. Alejo (2002)

Art. 255, FC provides that vested rights cannot be impaired
by the retroactive application of the Family Code. The sons
right to seek recognition when his father died while Adrian
was still a minor (born during the effectivity of the NCC)
cannot be impaired. That right is Art. 285, NCC, a
substantive law that gives Adrian the right to file his petition
for recognition within 4 years from attaining majority age.
*Vested right: one which is absolute, complete and
unconditional, to the exercise of which no obstacle exists,
and which is immediate and perfect in itself and not
dependent upon a contingency

77 Fuentes vs. Roca (2010)

A husband sold property belonging to the conjugal
partnership without the consent of his wife. The parties
were married during the regime of the NCC; the property
was sold on January 11, 1989. The SC ruled that the
applicable law is the FC, as the conjugal property was sold a
few months after the FC took effect on Aug. 3, 1988. Thus,
the sale was void under Art. 125, FC, not voidable as stated
in Art. 173, NCC.

B. REPEAL AND AMMENDMENT

Art. 254, FC
Titles III, IV, V, VI, VIII, IX, XI, and XV of Book 1 of Republic Act
No. 386, otherwise known as the Civil Code of the Philippines, as
amended, and Articles 17, 18, 19, 27, 28, 29, 30, 31, 39, 40, 41,
and 42 of Presidential Decree No. 603, otherwise known as the
Child and Youth Welfare Code, as amended, and all laws, decrees,
executive orders, proclamations, rules andregulations, or parts
thereof, inconsistent herewith are hereby repealed.

Art. 255, FC
If any provision of this Code is held invalid, all the other provisions
not affected thereby shall remain valid.
 PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016 Page 30 of 84

MARRIAGE &
violations.
Termination
Only by death or annulment, Can be dissolved by mutual

PERSONAL not by mutual agreement agreement, and by legal

causes
Kind

RELATIONS Special contract Merely a contract

Nature

BETWEEN SPOUSES Inviolable social institution Merely a contract

Governing Law
Law on Marriage Law on Contracts
Susceptibility to stipulation by parties
A. THE CONCEPT OF MARRIAGE Not subject except in Generally subject
property relations
Art. 1, FC
Marriage is a special contract of permanent union between a man Legal Capacity
and a woman entered into in accordance with law for the Legal capacity is required Minors may contract through
establishment of conjugal and family life. It is the foundation of the parents or guardians or in
family and an inviolable social institution whose nature, some cases by themselves.
consequences, and incidents are governed by law and not subject
to stipulation, except that marriage settlements may fix the
property relations during the marriage within the limits provided by DURATION OF CONTRACTUAL RELATIONSHIP: Forever.
this Code. Unless dissolved by court or death of spouse.

Art. 52, NCC 78 Obergefell vs. Hodges

Marriage is not a mere contract but an inviolable social institution.
- Marriage has evolved over time both legally and socially
Its nature, consequences and incidents are governed by law and
not subject to stipulation, except that the marriage settlements may and that the states were now divided on the issue of
to a certain extent fix the property relations during the marriage. same-sex marriage.
- Due Process Clause: nor shall any state deprive any
Art. 149, FC person of life, liberty, or property, without due process of
The family, being the foundation of the nation, is a basic social law). The liberties protected by this Clause extend to
institution which public policy cherishes and protects. Consequently, choices that are central to a persons dignity and
family relations are governed by law and no custom, practice or autonomy, including intimate choices about personal
agreement destructive of the family shall be recognized or given
beliefs and identity.
effect.
*Constitutional Principles established regarding same-sex
marriage:
Sec. 12, Art. II, PC Right to personal choice in relation to marriage as an
The State recognizes the sanctity of family life and shall protect and inherent aspect of an individuals autonomy;
strengthen the family as a basic autonomous social institution. It Importance of the union of marriage to the two
shall equally protect the life of the mother and the life of the individuals which was unlike any other;
unborn from conception. The natural and primary right and duty of Marriage provides a safeguard for children and families;
parents in the rearing of the youth for civic efficiency and the and
development of moral character shall receive the support of the
Marriage is central to social order, with states offering
Government
married couples rights, benefits and responsibilities. Each
Sec. 2, Art. XV, PC of these principles applies equally to same-sex marriages
Marriage, as an inviolable social institution, is the foundation of the and while limiting marriage may have previously been
family and shall be protected by the State. seen as just and natural, it is now manifest that limiting
marriage to opposite-sex partners is inconsistent with the
central meaning of the right to marry.
MARRIAGE vs ORDINARY CONTRACT
Parties
One Man, One Woman 2 or more parties, regardless
B. NATURE OF MARRIAGE IN
of gender PHILIPPINE LAW
Duration
Permanent contract Parties can fix a period Art. 1, FC
Marriage is a special contract of permanent union between a man
Actions for Breach
and a woman entered into in accordance with law for the
Breach of obligations of Breach of contract gives rise establishment of conjugal and family life. It is the foundation of the
husband and wife do not to an action for damages family and an inviolable social institution whose nature,
give rise to an action for consequences, and incidents are governed by law and not subject
damages. to stipulation, except that marriage settlements may fix the
Law provides penal and civil property relations during the marriage within the limits provided by
sanction for several this Code.
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
Sec. 3, Rule 131, ROC
Disputable presumptions. The following presumptions are
satisfactory if uncontradicted, but may be contradicted and
overcome by other evidence:
xxx
(aa) That a man and a woman deporting themselves as husband
and wife have entered into a lawful contract of marriage.
Xxxx
Courts look upon this presumption with great favor and it
could not be lightly repelled
Can be rebutted only by cogent prood to the
contrary or by evidence of a higher than ordinary
quality
Art. 220, NCC
In case of doubt, all presumptions favor the solidarity of the family.
Thus, every intendment of law or facts leans toward the validity of
marriage, the indissolubility of the marriage bonds, the legitimacy
of children, the community of property during marriage, the
authority of parents over their children, and the validity of defense
for any member of the family in case of unlawful aggression.
Art. 14, P.D. No. 1083
Nature. Marriage is not only a civil contract but a social institution.
Its nature, consequences and incidents are governed by this Code
and the Shari'a and not subject to stipulation, except that the
marriage settlements may to a certain extent fix the property
relations of the spouses.
79 Goitia vs. Campos-Rueda (1916)
A marriage partakes of the nature of an ordinary
contract. But it is something more than a mere contract. It
is a new relation, the rights, duties and obligations of which
rest not upon the agreement of the parties but upon the
general law which defines and prescribes those rights,
duties and obligations. Marriage is an institution, in the
maintenance of which in its purity the public is deeply
interested. It is a relation for life and the parties cannot
terminate it at any shorter period by virtue of any contract
they may make.
The law will not permit the husband to evade or terminate
his obligation to support his wife if the wife is driven away
from the conjugal home because of his wrongful acts. In
the case at bar, the wife was forced to leave the conjugal
abode because of the lewd designs and physical assault of
the husband, she can therefore claim support from the
husband for separate maintenance even outside the
conjugal home.
80 Sermonia vs. Republic
- The prescriptive period for the crime of bigamy should be
counted only from the day on which the said crime was
discovered by the offended party, the authorities or their
agency.
81 Perido vs. Perido (1975)
The presumption that persons living together husband and
wife are married to each other may be overcome only by
cogent proof on the part of those who allege the illegitimacy
of children, explaining the rationale behind this presumption
Page 31 of 84
to be that every intendment of the law leans toward
legalizing matrimony. Semper praesumitur pro matrimonio.
82 People vs. de la Cruz (2010)
The testimony of the accused that he was married to the
victim, in itself, is ample proof of such relationship as the
testimony can be taken as an admission against penal
interest.
83 Desantis vs. Intestate Estate of Jalandoni (2010)
Even a persons birth certificate may be recognized as
competent evidence of the marriage between his parents.
84 Tambuyat vs. Tambuyta (2015)
The case falls under Section 108 of PD 1529 where the
proceeding for the erasure, alteration, or amendment of a
certificate of title may be resorted to as W is the legal
spouse and not Rosario Banguis.
It cannot even be established that Rosario and Adriano had
a common law relationship and even then, Philippine Law
does not recognize common law marriages.
A man and woman not legally married who cohabit for many
years as husband and wife, who represent themselves to
the public as husband and wife, and who are reputed to be
husband and wife in the community where they live may be
considered legally married in common law jurisdictions but
not in the Philippines.
- The provisions of the Civil Code, unless expressly
providing to the contrary as in Article 144, when referring
to a spouse contemplate a lawfully wedded spouse.
85 Calimag vs. Heirs of Macapaz (2016)
It is well settled that other proofs can be offered to
establish the fact of a solemnized marriage. Jurisprudence
teaches that the fact of marriage may be proven by relevant
evidence other than the marriage certificate. Hence, even a
person's birth certificate may be recognized as competent
evidence of the marriage between his parents.
C. AGREEMENTS PRIOR TO
MARRIAGE
1. Stipulations in Marriage
Art. 1, FC (see above)
Art. 221, NCC
(1) Any contract for personal separation between husband and
wife;
(2) Every extra-judicial agreement, during marriage, for the
dissolution of the conjugal partnership of gains or of the absolute
community of property between husband and wife;
(3) Every collusion to obtain a decree of legal separation, or of
annulment of marriage;
(4) Any simulated alienation of property with intent to deprive the
compulsory heirs of their legitime.
86 Espinosa vs. Atty. Omana (2011)
SC has ruled that the extrajudicial dissolution of the
conjugal partnership without judicial approval is void. The
Court has also ruled that a notary public should not facilitate
the disintegration of a marriage and the family by
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
encouraging the separation of the spouses and
extrajudicially dissolving the conjugal partnership, which is
exactly what Omaa did in this case.
2. Breach of Promise to Marry
Art. 19, NCC
Every person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due
and observe honesty and good faith.
Art. 20, NCC
Every person who, contrary to law, willfully or negligently causes
damage to another, shall indemnify the latter for the same.
Art. 21, NCC
Any person who willfully causes loss or injury to another in a
manner that is contrary to morals, good customs or public policy
shall compensate the latter for the damage.
Art. 2176, NCC
Whether by act or omission causes damage to another, there being
fault or negligence is obliged to pay for the damage done. Such
fault or negligence, if there is no pre-exsisting contractual relation
between the parties, is called a quasi-delict and is governed by the
provisions of this Chapter.
Sec. 2, Art. 1403, NCC
Unenforcable Contracts under Obligations and Contracts
Art. 22, FC
The marriage certificate, in which the parties shall declare that they
take each other as husband and wife, shall also state:
(1) The full name, sex and age of each contracting party;
(2) Their citizenship, religion and habitual residence;
(3) The date and precise time of the celebration of the marriage;
(4) That the proper marriage license has been issued according to
law, except in marriage provided for in Chapter 2 of this Title;
(5) That either or both of the contracting parties have secured the
parental consent in appropriate cases;
(6) That either or both of the contracting parties have complied
with the legal requirement regarding parental advice in appropriate
cases; and
(7) That the parties have entered into marriage settlement, if any,
attaching a copy thereof
Simply put, there is no legal provision created for a right of
action against a breach in promise to marry.
Exception:
If the action for damages is based on tort or quasi-delict or
on Art. 19, 21, and 22
On Breach of Promise to Marry:
87 Hermosisima vs. CA (1960)
General Rule: It is not an actionable wrong per se. One
cannot seek specific performance to compel marriage.
Exceptions: To be actionable, there must be another act
independent of the breach of promise to marry which gives
rise to liability as where there was financial damage, social
humiliation and moral seduction.
In this case, a 36 yr. old woman (former hs teacher)
surrendered herself to a man 10 yrs younger (an
insurance agent), because overwhelmed by her love for
him, she wanted to bind him by having a fruit of their
engagement even before they had the benefit of the clergy.
There is no actionable wrong.
Page 32 of 84
Examples of Actionable Breach
88 Wassmer vs. Velez (1964)
Mere breach of promise to marry is not an actionable wrong
but to formally set a wedding and go through all the
preparations and publicity only to walk out of it when the
matrimony is to be solemnized, is quite different. This is
palpably and unjustifiably contrary to good customs for
which defendant must be held answerable in damages
pursuant to Art. 21 of the CC.
89 Tanjanco vs. CA (1966)
When intimate sexual relations continued for one whole
year, without exacting early fulfillment of the alleged
promises of marriage, there is no case made under Art. 21,
CC.
90 Baksh vs. CA (1993)
Where a mans promise to marry was the proximate cause
of giving herself unto him in sexual congress and there is
proof he had no intention of marrying her, the promise
being a deceptive device, damages may be awarded
pursuant to Art. 21, CC because the fraud and deceit behind
it and the willful injury to her honor and reputation.
91 Abanag vs. Mabute (2011)
The Court ruled that it cannot intrude into the question of
whether an adult couple who had been engaged in
consensual sexual relations should or should not marry
D. REQUISITES FOR A VALID
MARRIAGE
91 Mariategui vs. CA (1992)
The laws presume that a man and a woman, deporting
themselves as husband and wife, have entered into a lawful
contract of marriage; that a child born in lawful wedlock,
there being no divorce, absolute or from bed and board is
legitimate; and that things have happened according to the
ordinary course of nature and the ordinary habits of life.
So much so that once a man and a woman have lived as
husband and wife and such relationship is not denied nor
contradicted, the presumption of their being married must
be admitted as a fact.
1. Kinds of requisites & effects of
non-compliance
Art. 2, FC
No marriage shall be valid, unless these essential requisites are
present:
(1) Legal Capacity of the contracting parties who must be
a male and a female; and
(2) Consent freely given in the presence of the
solemnizing officer.
Art. 3, FC
The formal requisites of marriage are:
(1) Authority of the solemnizing officer.
(2) A valid marriage license except in the case provided
for in Chapter 2 of this Title; and
(3) A marriage ceremony which takes place with the
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
appearance of the contracting parties before the
solemnizing officer and their personal declaration that
they take each other as husband and wife in the
presence of not less than two witnesses of legal age.
Art. 4, FC
Absence of any of the essential or formal requisites shall render
the marriage void ab initio, except as stated in Article 35(2).
A defect in any of the essential requisites shall render the
marriage voidable as provided in Article 45.
An irregularity in the formal requisites shall not affect the
validity of the marriage but the party or parties responsible for
the irregularity shall be civilly, criminally and administratively
liable. (n)
Art. 5, FC
Any male or female of the age of eighteen years or upward not
under any of the impediments mentioned in Articles 37 and 38,
may contract marriage. (54a)
Art. 35, FC
Art. 35. The following marriages shall be void from the
beginning:
(1) Those contracted by any party below eighteen years of age
even with the consent of parents or guardians;
(2) Those solemnized by any person not legally authorized to
perform marriages unless such marriages were contracted with
either or both parties believing in good faith that the
solemnizing officer had the legal authority to do so;
(3) Those solemnized without license, except those covered the
preceding Chapter;
(4) Those bigamous or polygamous marriages not failing under
Article 41;
(5) Those contracted through mistake of one contracting party
as to the identity of the other; and
(6) Those subsequent marriages that are void under Article 53.
Art. 45, FC
A marriage may be annulled for any of the following causes,
existing at the time of the marriage:
(1) That the party in whose behalf it is sought to have the
marriage annulled was eighteen years of age or over but below
twenty-one, and the marriage was solemnized without the
consent of the parents, guardian or person having substitute
parental authority over the party, in that order, unless after
attaining the age of twenty-one, such party freely cohabited
with the other and both lived together as husband and wife;
(2) That either party was of unsound mind, unless such party
after coming to reason, freely cohabited with the other as
husband and wife;
(3) That the consent of either party was obtained by fraud,
unless such party afterwards, with full knowledge of the facts
constituting the fraud, freely cohabited with the other as
husband and wife;
(4) That the consent of either party was obtained by force,
intimidation or undue influence, unless the same having
disappeared or ceased, such party thereafter freely cohabited
with the other as husband and wife;
(5) That either party was physically incapable of consummating
the marriage with the other, and such incapacity continues and
appears to be incurable; or
(6) That either party was afflicted with a sexually-transmissible
disease found to be serious and appears to be incurable. (85a)
Page 33 of 84
Art. 350, RPC
Marriage contracted against provisions of laws. - The penalty of
prision correccional in its medium and maximum periods shall
be imposed upon any person who, without being included in the
provisions of the next proceeding article, shall have not been
complied with or that the marriage is in disregard of a legal
impediment.
If either of the contracting parties shall obtain the consent of
the other by means of violence, intimidation or fraud, he shall
be punished by the maximum period of the penalty provided in
the next preceding paragraph.
Art. 351, RPC
Premature marriages. - Any widow who shall marry within three
hundred and one day from the date of the death of her
husband, or before having delivered if she shall have been
pregnant at the time of his death, shall be punished by arresto
mayor and a fine not exceeding 500 pesos.
The same penalties shall be imposed upon any woman whose
marriage shall have been annulled or dissolved, if she shall
marry before her delivery or before the expiration of the period
of three hundred and one day after the legal separation.
Requisites of a valid marriage are classified as:
1. Essential Requisites those which are inherent in
marriage and are considered personal to the parties.
Effect of non-compliance: a defect in an essential, the
marriage is voidable and may be annulled.
2. Formal Requisites those prescribed and are external
to the parties contracting marriage.
Effect of non-compliance: an irregularity in a formal
requisite will not affect the validity of the marriage and
instead makes the party responsible for such irregularity
civilly, criminall or administratively.
Note: Absence of any of the essential or formal requisites
shall render the marriage void ab initio, except as stated in
Article 35(2).
93 De Mijares vs. Villaluz (1997)
All ingredients of a valid marriage are present.
Respondent is undeniably guilty of deceit and grossly
immoral conduct. He has made a mockery of marriage
which is a sacred institution demanding respect and dignity.
He himself asserts that at the time of his marriage to herein
complainant, the decision of the court annulling his marriage
to his first wife, Librada Pea, had not yet attained finality.
Worse, four months after his marriage to petitioner,
respondent married another woman, Lydia Geraldez, in
Cavite, after making a false statement in his application for
marriage license that his previous marriage had been
annulled.
Respondents subterfuge that his marriage to petitioner was
just a sham marriage will not justify his actuations. Even if
the said marriage was just a caper of levity in bad taste, a
defense which amazes and befuddles but does not convince,
it does not speak well of respondents sense of social
propriety and moral values. This is aggravated by the fact
that he is not a layman nor even just an ordinary lawyer,
but a former Judge of the Circuit Criminal Court and,
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
thereafter, a Justice of the Court of Appeals who cannot but
have been fully aware of the consequence of a marriage
celebrated with all the necessary legal requisites.
2. Essential Requisites
(a) Legal Capacity
Legal capacity of the contracting parties is defined in
Art. 5 in relation to Art. 14 of the family code. This
capacity requires, not only the minimum age provided
by law, but also the parties should have no existing
impediment between them. The impediment may be an
existing relationship or a subsisting prior marriage.
(i) Gender
Art. 2 (1), FC
No marriage shall be valid, unless these essential requisites are
present:
(1) Legal Capacity of the contracting parties who must be
a male and a female; and
Cf. Art. 148, FC
In cases of cohabitation not falling under the preceding Article,
only the properties acquired by both of the parties through their
actual joint contribution of money, property, or industry shall be
owned by them in common in proportion to their respective
contributions. In the absence of proof to the contrary, their
contributions and corresponding shares are presumed to be
equal. The same rule and presumption shall apply to joint
deposits of money and evidences of credit.
If one of the parties is validly married to another, his or her
share in the co-ownership shall accrue to the absolute
community or conjugal partnership existing in such valid
marriage. If the party who acted in bad faith is not validly
married to another, his or her shall be forfeited in the manner
provided in the last paragraph of the preceding Article.
The foregoing rules on forfeiture shall likewise apply even if
both parties are in both faith. (144a)
94 Silverio vs. Republic (2007)
A persons sex is an essential factor in marriage and family
relations. It is a part of a persons legal capacity and civil
status. There is no such special law in the Philippines
governing sex reassignment and its effects.
(ii) Age
Art. 5, FC
Any male or female of the age of eighteen years or upward not
under any of the impediments mentioned in Articles 37 and 38,
may contract marriage. (54a)
Art. 35 (1), FC
Art. 35. The following marriages shall be void from the
beginning:
(1) Those contracted by any party below eighteen years of age
even with the consent of parents or guardians;
RA 6809
AN ACT LOWERING THE AGE OF MAJORITY FROM
TWENTY-ONE TO EIGHTEEN YEARS, AMENDING FOR
THE PURPOSE EXECUTIVE ORDER NUMBERED TWO
Page 34 of 84
HUNDRED NINE, AND FOR OTHER PURPOSES
Section 1. Article 234 of Executive Order No. 209, the Family
Code of the Philippines, is hereby amended to read as follows:
"Art. 234. Emancipation takes place by the attainment of
majority. Unless otherwise provided, majority commences at the
age of eighteen years."
Section 2. Articles 235 and 237 of the same Code are hereby
repealed.
Section 3. Article 236 of the same Code is also hereby
amended to read as follows:
"Art. 236. Emancipation shall terminate parental authority over
the person and property of the child who shall then be qualified
and responsible for all acts of civil life, save the exceptions
established by existing laws in special cases.
"Contracting marriage shall require parental consent until the
age of twenty-one.
"Nothing in this Code shall be construed to derogate from the
duty or responsibility of parents and guardians for children and
wards below twenty-one years of age mentioned in the second
and third paragraphs of Article 2180 of the Civil Code."
Section 4. Upon the effectivity of this Act, existing wills,
bequests, donations, grants, insurance policies and similar
instruments containing references and provisions favorable to
minors will not retroact to their prejudice.
Section 5. This Act shall take effect upon completion of its
publication in at least two (2) newspapers of general circulation.
Cf. Art. 21, FC
When either or both of the contracting parties are citizens of a
foreign country, it shall be necessary for them before a
marriage license can be obtained, to submit a certificate of legal
capacity to contract marriage, issued by their respective
diplomatic or consular officials.
Stateless persons or refugees from other countries shall, in lieu
of the certificate of legal capacity herein required, submit an
affidavit stating the circumstances showing such capacity to
contract marriage. (66a)
Art. 344, RPC
Prosecution of the crimes of adultery, concubinage, seduction,
abduction, rape and acts of lasciviousness. - The crimes of
adultery and concubinage shall not be prosecuted except upon
a complaint filed by the offended spouse.
The offended party cannot institute criminal prosecution without
including both the guilty parties, if they are both alive, nor, in
any case, if he shall have consented or pardoned the offenders.
The offenses of seduction, abduction, rape or acts of
lasciviousness, shall not be prosecuted except upon a complaint
filed by the offended party or her parents, grandparents, or
guardian, nor, in any case, if the offender has been expressly
pardoned by the above named persons, as the case may be.
In cases of seduction, abduction, acts of lasciviousness and
rape, the marriage of the offender with the offended party shall
extinguish the criminal action or remit the penalty already
imposed upon him. The provisions of this paragraph shall also
be applicable to the co-principals, accomplices and accessories
after the fact of the above-mentioned crimes.
In the civil code, the minimum age of marriage was 14
for females and 16 for males. Keeping to the
conventional view that people get married to have
children, it was physiological capability to procreate
which determined the minimum age to marry.
The Family Code moved up the minimum marriageable
age and made such requiremtn uniform for both male
and female. The rationale for this was to avoid
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
premature marriages, which have been proven to be
the cause of many broken marriages.
The new law increase the age of consent for marriage
to the age of majority at which time the parties are
deemed to have attained maturity.
(iii) Absence of impediment
Art. 5, FC
Any male or female of the age of eighteen years or upward not
under any of the impediments mentioned in Articles 37 and 38,
may contract marriage. (54a)
Art. 35, FC
Art. 35. The following marriages shall be void from the
beginning:
(1) Those contracted by any party below eighteen years of age
even with the consent of parents or guardians;
(2) Those solemnized by any person not legally authorized to
perform marriages unless such marriages were contracted with
either or both parties believing in good faith that the
solemnizing officer had the legal authority to do so;
(3) Those solemnized without license, except those covered the
preceding Chapter;
(4) Those bigamous or polygamous marriages not failing under
Article 41;
(5) Those contracted through mistake of one contracting party
as to the identity of the other; and
(6) Those subsequent marriages that are void under Article 53.
It is not enough that the parties have the required age
of consent. There must be no legal impediment
between them. The legal impediments are mentioned in
Art. 35-38 of the Family Code.
95 Garcia vs. Recio (2001)
A Filipino was divorced by his Australian spouse prior to his
acquiring Australian citizenship. To enable him to validly
remarry a Filipino, he was required to either present proof
of his legal capacity issued by his Embassy or have the
Australian divorce decree recognized by a Philippine court,
otherwise his second marriage is void-bigamous.
It is well settled in our jurisdiction that our courts cannot
take judicial notice of foreign laws. Like any other facts they
must be alleged and proved. Australian marital laws are not
among those matter that judges are supposed to know by
reason of their judicial function. The power of judicial notice
must be exercised with caution and every reasonable doubt
upon the subject should be resolved in the negative.
96 Te vs. Choa (2000)
The pendency of the civil case for annulment of petitioners
marriage did not give rise to a prejudicial question which
warranted the suspension of the proceedings in his criminal
case for bigamy since at the time of the alleged commission
of the crime, his first marriage was, under the law, still valid
and subsisting.
97 Nollora vs. People (2011)
Even if Nollora was a Muslim at the time of celebration of
both marriages, both marriage ceremonies were not
conducted in accordance with the Code of Muslim Personal
Laws, or PD. No. 1083, thus he cannot assert that he is
entitled to four marriages as a Muslim.
Page 35 of 84
98 Avenido vs. Avenido (2014)
While a marriage certificate is considered the primary
evidence of a marital union, it is not regarded as the sole
and exclusive evidence of marriage. Jurisprudence teaches
that the fact of marriage may be proven by relevant
evidence other than the marriage certificate. Hence, even a
persons birth certificate may be recognized as competent
evidence of the marriage between his parents.
In the case at bar, the establishment of the fact of marriage
was completed by the testimonies of Adelina, Climaco and
Tecla; The unrebutted fact of the birth within the
cohabitation of Tecla and Eustaquio of four (4) children
coupled with the certificates of the childrens birth and
baptism; And the certifications of marriage issued by the
parish priest of the Most Holy Trinity Cathedral of Talibon,
Bohol.
3. Parental Consent
Art. 14, FC
In case either or both of the contracting parties, not having
been emancipated by a previous marriage, are between the
ages of eighteen and twenty-one, they shall, in addition to the
requirements of the preceding articles, exhibit to the local civil
registrar, the consent to their marriage of their father, mother,
surviving parent or guardian, or persons having legal charge of
them, in the order mentioned. Such consent shall be manifested
in writing by the interested party, who personally appears
before the proper local civil registrar, or in the form of an
affidavit made in the presence of two witnesses and attested
before any official authorized by law to administer oaths. The
personal manifestation shall be recorded in both applications for
marriage license, and the affidavit, if one is executed instead,
shall be attached to said applications. (61a)
Art. 45 (1), FC
A marriage may be annulled for any of the following causes,
existing at the time of the marriage:
(1) That the party in whose behalf it is sought to have the
marriage annulled was eighteen years of age or over but below
twenty-one, and the marriage was solemnized without the
consent of the parents, guardian or person having substitute
parental authority over the party, in that order, unless after
attaining the age of twenty-one, such party freely cohabited
with the other and both lived together as husband and wife;
REASON FOR PARENTAL CONSENT
The parental consent of parties below 21 years is
required in order to supplement the natural incapacity of
such parties, whose inexperience may lead them to a union
which is difficult or prejudicial for them.
Such consent is a guaranty for securing, in so far as
humanly possible, a stable marriage, which is indispensable
foundation for a home useful to society.
EFFECT OF PREVIOUS MARRIAGE A person below 21
who has been previously married, but whose marriage has
terminated by death of the spouse does not need parental
consent to remarry even if he or she is still below 21.
(Tolentino)
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
Implementation of RA 6809, lowering the age of
majority and emancipation from 21 to 18 years, does
not affect the requirement of parental consent.
Absence of parental consent renders the marriage
voidable [Art 45 (1)].
4. Consent freely gven by both
spouses
Marriage is a consent-based institution that requires
the consent of both parties that has been freely
given. Absence or defect in the consent of either party
may result to nullity or annulment of the marriage.
(a) Mistake as to identity
Art. 35 (5), FC
The following marriages shall be void from the beginning:
xxx
(5) Those contracted through mistake of one contracting
party as to the identity of the other; and
Xxx
Art. 86 (1), NCC
Any of the following circumstances shall constitute fraud
referred to in number 4 of the preceding article:
(1) Misrepresentation as to the identity of one of the
contracting parties;
xxx
This refers to mistake as to the person himself,
involving a substitution of another person for the party
who is desired in marriage, without the knowledge of
the other contracting party.
(b) Effect of insanity
Art. 45 (2), FC
A marriage may be annulled for any of the following causes,
existing at the time of the marriage:
xxx
(2) That either party was of unsound mind, unless such
party after coming to reason, freely cohabited with
the other as husband and wife;
xxx
The marriage is annullable if either party, by reason of
defect or disease of the mind, was incapable of
intelligently consenting.
The test of insanity as a ground to annul the marriage
is, according to Tolentino, whether the party at the
time of marriage was capable of understanding the
nature and consequences of marriage itself. For Justice
Sempio-Dy, even if the party is mentally weak, so long
as he or she still understands the consequences of the
step he or she is taking, the marriage is still valid.
Having a mental disorder that does not deprive the
contracting party of understanding is not a ground for
annulment.
Intoxication a marriage may be annulled where one
of the parties was so intoxicated he or she had no
mential capacity to give a valid assent.
Page 36 of 84
(c) Effect of fraud
Art. 45 (3), FC
A marriage may be annulled for any of the following causes,
existing at the time of the marriage:
xxx
(3) That the consent of either party was obtained by
fraud, unless such party afterwards, with full
knowledge of the facts constituting the fraud, freely
cohabited with the other as husband and wife;
Xxx
Art. 46, FC
Any of the following circumstances shall constitute fraud
referred to in Number 3 of the preceding Article:
(1) Non-disclosure of a previous conviction by final
judgment of the other party of a crime involving
moral turpitude;
(2) Concealment by the wife of the fact that at the time
of the marriage, she was pregnant by a man other
than her husband;
(3) Concealment of sexually transmissible disease,
regardless of its nature, existing at the time of the
marriage; or
(4) Concealment of drug addiction, habitual alcoholism or
homosexuality or lesbianism existing at the time of
the marriage.
No other misrepresentation or deceit as to character, health,
rank, fortune or chastity shall constitute such fraud as will give
grounds for action for the annulment of marriage. (86a)
Art. 1338-1344, NCC
Article 1338. There is fraud when, through insidious words or
machinations of one of the contracting parties, the other is
induced to enter into a contract which, without them, he would
not have agreed to. (1269)
Article 1339. Failure to disclose facts, when there is a duty to
reveal them, as when the parties are bound by confidential
relations, constitutes fraud. (n)
Article 1340. The usual exaggerations in trade, when the
other party had an opportunity to know the facts, are not in
themselves fraudulent. (n)
Article 1341. A mere expression of an opinion does not signify
fraud, unless made by an expert and the other party has relied
on the former's special knowledge. (n)
Article 1342. Misrepresentation by a third person does not
vitiate consent, unless such misrepresentation has created
substantial mistake and the same is mutual. (n)
Article 1343. Misrepresentation made in good faith is not
fraudulent but may constitute error. (n)
Article 1344. In order that fraud may make a contract
voidable, it should be serious and should not have been
employed by both contracting parties.
Incidental fraud only obliges the person employing it to pay
damages. (1270)
Consent to the marriage obtained through makes the
marriage voidable. The party who was the victim of
fraud, however, may ratify the defect in the marriage
by voluntarily cohabiting with the party after knowledge
of the facts constituting the fraud.
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
99 Anaya vs. Palaraon (1970)
While a woman may detest such non- disclosure of
premarital lewdness or feel having been thereby cheated
into giving her consent to the marriage, nevertheless the
law does not assuage her grief after her consent was
solemnly given, for upon marriage she entered into an
institution in which society, and not herself alone, is
interested. The lawmaker's intent being plain, the Court's
duty is to give effect to the same, whether it agrees with
the rule or not.
(d) Effect of force, intimidation and
undue influence
Art. 45 (4), FC
A marriage may be annulled for any of the following causes,
existing at the time of the marriage:
xxx
(4) That the consent of either party was obtained by
force, intimidation or undue influence, unless the
same having disappeared or ceased, such party
thereafter freely cohabited with the other as husband
and wife;
xxx
Art. 1335-1337, FC
Article 1335. There is violence when in order to wrest
consent, serious or irresistible force is employed.
There is intimidation when one of the contracting parties is
compelled by a reasonable and well-grounded fear of an
imminent and grave evil upon his person or property, or upon
the person or property of his spouse, descendants or
ascendants, to give his consent.
To determine the degree of intimidation, the age, sex and
condition of the person shall be borne in mind.
A threat to enforce one's claim through competent authority, if
the claim is just or legal, does not vitiate consent. (1267a)
Article 1336. Violence or intimidation shall annul the
obligation, although it may have been employed by a third
person who did not take part in the contract. (1268)
Article 1337. There is undue influence when a person takes
improper advantage of his power over the will of another,
depriving the latter of a reasonable freedom of choice. The
following circumstances shall be considered: the confidential,
family, spiritual and other relations between the parties, or the
fact that the person alleged to have been unduly influenced was
suffering from mental weakness, or was ignorant or in financial
distress. (n)
The test of force, intimidation and undue influence is
subjective. The relevant question to be resolved is
whether the person, taking into account his or her
peculiar circumstnaces, had no choice but to yield.
There is lack of consent as a consequence of duress.
RATIFICIATION Although there was duress enough to
overcome the will of the contracting party, the voluntary
cohabitation with the other spouse, no matter how brief,
once the force, intimidation or undue influence has ceased,
will ratify the voidable marriage.
100 Villanueva vs. CA (2006)
When a male spouse is a security guard, it is reasonable to
assume that he knew the rudiments of self-defense, or, at
Page 37 of 84
the very least, the proper way to keep himself out of harms
way; thus, there was neither intimidation nor force exerted
into marriage.
(e) Effect of physical incapacity
Art. 45 (5), FC
A marriage may be annulled for any of the following causes,
existing at the time of the marriage:
xxx
(5) That either party was physically incapable of
consummating the marriage with the other, and such
incapacity continues and appears to be incurable; or
xxx
PHYSICAL INCAPACITY Refers to impotence or the
total inability to have sexual intercourse with ones spouse.
Impotence is the lack of power to copulate and is not
synonymous with sterility.
REQUISITES TO ANNUL MARRIAGE DUE TO
IMPOTENCY:
(1) The impotence must be present at the time of the
marriage;
(2) The impotence is incurable
(3) The impotence is continuous
Thus, if either one of the parties is impotent but its
cause, which could be emotional or physical, is
treatable by drug therapy, psychotherapy, surgery or
some other medical intervention, there is no ground for
annulling the marriage.
101 Jimenez vs. Canizeres (1960)
Since the only evidence presented was Jimenez's testimony,
there was no sufficient basis to establish the wife's
impotency. However, the court refused to decide the case
based on the lone testimony of the husband. According to
them, Impotency being an abnormal condition should not
be presumed. The presumption is in favor of potency." Their
decision then was to remand the case for further
proceeding.
102 Alcazar vs. Alcazar (2009)
Article 45(5) of the Family Code refers to lack of power to
copulate. Incapacity to consummate denotes the permanent
inability on the part of the spouses to perform the complete
act of sexual intercourse. It may be caused by psychogenic
causes, where such mental block or disturbance has the
result of making the spouse physically incapable of
performing the marriage act
No evidence was presented in the case at bar to establish
that respondent was in any way physically incapable to
consummate his marriage with petitioner. No evidence was
presented in the case at bar to establish that respondent
was in any way physically incapable to consummate his
marriage with petitioner. Petitioner even admitted during
her cross-examination that she and respondent had sexual
intercourse after their wedding and before respondent left
for abroad.
(f) Effect of affliction with STD
Art. 45 (5), FC
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016 Page 38 of 84

A marriage may be annulled for any of the following causes, constitutes an absence of formal requisite of marriage;
existing at the time of the marriage: hence, their marriage is void ab initio.
xxx
(6) That either party was afflicted with a sexually-
107 Abbas vs. Abbas (2013)
transmissible disease found to be serious and appears
to be incurable. (85a)
It cannot be said that there was a simple irregularity in the
marriage license that would affect the validity of the
marriage, as no license was presented by the respondent.
The sexually transmissible disease that must have been
No marriage license was proven to have been issued by
present at the time of the celebration of the marriage
Gloria and Syed, based on the certification of the Municipal
must be serious and incurable.
Civil Registrar of Carmona, Cavite and Glorias failure to
produce a copy of the alleged marriage license
NO RATIFICATION FOR THIS CIRCUMSTANCE
The law does not consider the voluntary cohabitation
108 Kho vs. Republic (2016)
by the health spouse with the afflicted spouse as
Respondent failed to present evidence to support her
ratification.
allegation that she and the petitioner was able to obtain a
Despite willingness of the healthy spouse to have
marriage license.
sexual relations with the afflicted spouse, the law, as a
public health measure, offers the healthy spouse a way
The Court claimed that for a marriage to be considered void
out of the marriage in order to shield the latter and any
on the absence of marriage license, the law requires that
possible offspring from acquiring the disease.
the absence of such marriage license must be apparent on
the marriage contract, or at the very least, supported by a
certification from the local civil registrar that no such
5. Formal Requisites marriage license was issued to the parties which the
petitioner was able to present.
(a) Marriage license
1. Where to apply
103 Republic vs. CA (1994) Art. 9, FC
The certification of due search and inability to find issued by the
A marriage license shall be issued by the local civil registrar of the
civil registrar of Pasig enjoys probative value, he being the officer
city or municipality where either contracting party habitually
charged under the law to keep a record of all data relative to the resides, except in marriages where no license is required in
accordance with Chapter 2 of this title.
issuance of a marriage license. Based on said certification, the Court
held that there is absence of a marriage license that would render Art. 10, FC
Marriages between Filipino citizens abroad may be solemnized by a
the marriage void ab initio.
consul-general, consul or vice-consul of the Republic of the
Philippines. The issuance of the marriage license and the duties of
104 Sy vs. CA (2000) the local civil registrar and of the solemnizing officer with regards
The date of issue of the marriage license and marriage certificate,
to the celebration of marriage shall be performed by said consular
September 17, 1974, is contained in their marriage contract. The official.
date of celebration of their marriage, however, is November 15,
1973. Thus, on the day of the marriage ceremony, there was no VENUE OR PLACE OF MARRIAGE:
marriage license. 1. Solemnized by Judiciary member chamber of the judge
or sala in open court
105 Alcantara vs. Alcantara (2007) 2. Religious solemnizer church, temple, chapel of the
The certification issued by the local civil registrar enjoys the solemnizer involved
presumption that official duty has been regularly performed 3. Consul, Consul-general, Vice-Consul celebrated at office
and the issuance of the marriage license was done in the
regular conduct of official business. Issuance of a marriage EXCEPTIONS:
license in a city or municipality, not the residence of either 1. Marriage in point of death
contracting party, and issuance of a marriage license 2. Marriage contracted in a remote places (Art. 29)
despite the absence of publication, or prior to the 3. Both parties request solemnizing officer in writing and
completion of the 10-day period for publication, are under oath to solemnize elsewhere
considered mere irregularities that do not affect the validity
of the marriage. An irregularity in any of the formal 2. Requirements for issuance
requisites of marriage does not affect its validity but the
party or parties responsible for the irregularity are civilly, a. Application
criminally and administratively liable Art. 11, FC
Where a marriage license is required, each of the contracting
106 De Castro vs. De Castro (2008) parties shall file separately a sworn application for such license
The Court ruled that the false affidavit executed by the two with the proper local civil registrar which shall specify the
parties has no value at all for there was no continuous following:
cohabitation that took place. In effect, since the affidavit (1) Full name of the contracting party;
(2) Place of birth;
was considered as a mere scrap of paper, the parties were
(3) Age and date of birth;
not exempted from the marriage license requirement. (4) Civil status;
Thus, their failure to obtain and present a marriage license
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
(5) If previously married, how, when and where the previous
marriage was dissolved or annulled;
(6) Present residence and citizenship;
(7) Degree of relationship of the contracting parties;
(8) Full name, residence and citizenship of the father;
(9) Full name, residence and citizenship of the mother; and
(10) Full name, residence and citizenship of the guardian or person
having charge, in case the contracting party has neither father nor
mother and is under the age of twenty-one years.
The applicants, their parents or guardians shall not be required to
exhibit their residence certificates in any formality in connection
with the securing of the marriage license.
Where? Local Civil Registrar of the City or Municipality
where either contracting party habitually resides.
*license obtained elsewhere --- mere irregularity
What must be specified? Art. 11
Document Accompanying the Application
1. Birth Certificate or Baptismal Certificate (Art.12)
2. Death Certificate of Spouse, Divorce Decree, etc. (Art.13)
3. Parental Consent (Art.14)
4. Parental Advice (Art.15)
5. Certificate of Marriage Counseling (Art. 16)
6. Certificate of Legal Capacity
b. proof of capacity
Art. 12, FC
The local civil registrar, upon receiving such application, shall require
the presentation of the original birth certificates or, in default
thereof, the baptismal certificates of the contracting parties or
copies of such documents duly attested by the persons
having custody of the originals. These certificates or certified
copies of the documents by this Article need not be sworn to and
shall be exempt from the documentary stamp tax. The signature and
official title of the person issuing the certificate shall be sufficient
proof of its authenticity.
If either of the contracting parties is unable to produce his birth or
baptismal certificate or a certified copy of either because of the
destruction or loss of the original or if it is shown by an affidavit of
such party or of any other person that such birth or baptismal
certificate has not yet been received though the same has been
required of the person having custody thereof at least fifteen days
prior to the date of the application, such party may furnish in lieu
thereof his current residence certificate or an instrument drawn up
and sworn to before the local civil registrar concerned or any public
official authorized to administer oaths.
Such instrument shall contain the sworn declaration of two witnesses
of lawful age, setting forth the full name, residence and citizenship of
such contracting party and of his or her parents, if known, and the
place and date of birth of such party.
The nearest of kin of the contracting parties shall be preferred as
witnesses, or, in their default, persons of good reputation in the
province or the locality.
The presentation of birth or baptismal certificate shall not be required
if the parents of the contracting parties appear personally before the
local civil registrar concerned and swear to the correctness of the
lawful age of said parties, as stated in the application, or when the
local civil registrar shall, by merely looking at the applicants upon
their personally appearing before him, be convinced that either or
both of them have the required age.
Page 39 of 84
In case of previous marriage
Art. 13, FC
In case either of the contracting parties has been previously
married, the applicant shall be required to furnish, instead of the
birth or baptismal certificate required in the last preceding article,
the death certificate of the deceased spouse or the judicial
decree of the absolute divorce, or the judicial decree of
annulment or declaration of nullity of his or her previous
marriage.
In case the death certificate cannot be secured, the party shall
make an affidavit setting forth this circumstance and his or her
actual civil status and the name and date of death of the deceased
spouse.
Parental Consent
Art. 14, FC
In case either or both of the contracting parties, not having been
emancipated by a previous marriage, are between the ages of
eighteen and twenty-one, they shall, in addition to the requirements
of the preceding articles, exhibit to the local civil registrar, the
consent to their marriage of their father, mother, surviving parent
or guardian, or persons having legal charge of them, in the order
mentioned. Such consent shall be manifested in writing by the
interested party, who personally appears before the proper local
civil registrar, or in the form of an affidavit made in the presence of
two witnesses and attested before any official authorized by law to
administer oaths. The personal manifestation shall be recorded in
both applications for marriage license, and the affidavit, if one is
executed instead, shall be attached to said applications.
Art. 84, NCC
No marriage license shall be issued to a widow till after three
hundred days following the death of her husband, unless in the
meantime she has given birth to a child.
c. parental advice
Art. 15, FC
Any contracting party between the age of twenty-one and twenty-
five shall be obliged to ask their parents or guardian for advice upon
the intended marriage. If they do not obtain such advice, or if it be
unfavorable, the marriage license shall not be issued till after three
months following the completion of the publication of the
application therefor. A sworn statement by the contracting parties
to the effect that such advice has been sought, together with the
written advice given, if any, shall be attached to the application for
marriage license. Should the parents or guardian refuse to give any
advice, this fact shall be stated in the sworn statement
For Contracting Parties who are 21-23 years old.
If no advice given marriage license shall not be issued till
after 3 months
d. marriage counseling
Art. 16, FC
In the cases where parental consent or parental advice
is needed, the party or parties concerned shall, in addition to the
requirements of the preceding articles, attach a certificate issued
by a priest, imam or minister authorized to solemnize marriage
under Article 7 of this Code or a marriage counselor duly
accredited by the proper government agency to the effect that the
contracting parties have undergone marriage counseling.
Failure to attach said certificates of marriage counseling shall
suspend the issuance of the marriage license for a period of three
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
months from the completion of the publication of the application.
Issuance of the marriage license within the prohibited period shall
subject the issuing officer to administrative sanctions but shall not
affect the validity of the marriage.
Should only one of the contracting parties need parental consent
or parental advice, the other party must be present at the
counseling referred to in the preceding paragraph.
In cases where parental consent/advice needed:
certificate of marriage counseling isseued by religious
solemnizer/marriage counselor also needed.
Needed if parties are between 18-25
Failure of submission 3 month suspension of issuance
If obtained despite suspension: irregularity, marriage still
valid
e. publication
Art. 17, FC
The local civil registrar shall prepare a notice which shall
contain the full names and residences of the applicants for a
marriage license and other data given in the applications. The
notice shall be posted for ten consecutive days on a
bulletin board outside the office of the local civil registrar
located in a conspicuous place within the building and accessible
to the general public. This notice shall request all persons having
knowledge of any impediment to the marriage to advise the local
civil registrar thereof. The marriage license shall be issued after
the completion of the period of publication.
f. investigation of impediments
Art. 18, FC
In case of any impediment known to the local civil registrar or
brought to his attention, he shall note down the particulars
thereof and his findings thereon in the application for marriage
license, but shall nonetheless issue said license after the
completion of the period of publication, unless ordered
otherwise by a competent court at his own instance or
that of any interest party. No filing fee shall be charged for
the petition nor a corresponding bond required for the issuances
of the order.
g. payment of fees
Art. 19, FC
The local civil registrar shall require the payment of the fees
prescribed by law or regulations before the issuance of
the marriage license. No other sum shall be collected in the
nature of a fee or tax of any kind for the issuance of said license.
It shall, however, be issued free of charge to indigent parties,
that is those who have no visible means of income or whose
income is insufficient for their subsistence a fact established by
their affidavit, or by their oath before the local civil registrar.
h. family planning certificate,
P.D. No. 965
A DECREE REQUIRING APPLICANT FOR MARRIAGE
LICENSE TO RECEIVE INSTRUCTIONS ON FAMILY
PLANNING AND RESPONSIBLE PARENTHOOD
3. Place where valid
Art. 20, FC
The license shall be valid in any part of the Philippines for
a period of one hundred twenty days from the date of issue,
Page 40 of 84
and shall be deemed automatically canceled at the expiration of
the said period if the contracting parties have not made use of it.
The expiry date shall be stamped in bold characters on the face
of every license issued.
4. Period of validity
Art. 20, FC
xxx
The expiry date shall be stamped in bold characters on the face
of every license issued.
5. Duties of the Civil Registrar
Art. 24, FC
It shall be the duty of the local civil registrar to prepare the
documents required by this Title, and to administer oaths to all
interested parties without any charge in both cases. The
documents and affidavits filed in connection with applications for
marriage licenses shall be exempt from documentary stamp tax.
Art. 25, FC
The local civil registrar concerned shall enter all applications for
marriage licenses filed with him in a registry book strictly in the
order in which the same are received. He shall record in said
book the names of the applicants, the date on which the
marriage license was issued, and such other data as may be
necessary.
109 Republic v. CA (see above)
110 Alcantara v. Alcantara (see above)
111 Abbas v. Abbas (see above)
112 Kho v. Republic (see above)
6. Marriages exempt from license
requirement
Art. 27-34, FC
Art. 27. In case either or both of the contracting parties are at
the point of death, the marriage may be solemnized without
necessity of a marriage license and shall remain valid even if the
ailing party subsequently survives. (72a)
Art. 28. If the residence of either party is so located that there
is no means of transportation to enable such party to appear
personally before the local civil registrar, the marriage may be
solemnized without necessity of a marriage license. (72a)
Art. 29. In the cases provided for in the two preceding articles,
the solemnizing officer shall state in an affidavit executed before
the local civil registrar or any other person legally authorized to
administer oaths that the marriage was performed in articulo
mortis or that the residence of either party, specifying the barrio
or barangay, is so located that there is no means of
transportation to enable such party to appear personally before
the local civil registrar and that the officer took the necessary
steps to ascertain the ages and relationship of the contracting
parties and the absence of legal impediment to the marriage.
(72a)
Art. 30. The original of the affidavit required in the last
preceding article, together with the legible copy of the marriage
contract, shall be sent by the person solemnizing the marriage
to the local civil registrar of the municipality where it was
performed within the period of thirty days after the performance
of the marriage. (75a)
Art. 31. A marriage in articulo mortis between passengers or
crew members may also be solemnized by a ship captain or by
an airplane pilot not only while the ship is at sea or the plane is
in flight, but also during stopovers at ports of call. (74a)
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
Art. 32. A military commander of a unit, who is a commissioned
officer, shall likewise have authority to solemnize marriages in
articulo mortis between persons within the zone of military
operation, whether members of the armed forces or civilians.
Art. 33. Marriages among Muslims or among members of the
ethnic cultural communities may be performed validly without
the necessity of marriage license, provided they are solemnized
in accordance with their customs, rites or practices. (78a)
Art. 34. No license shall be necessary for the marriage of a
man and a woman who have lived together as husband and
wife for at least five years and without any legal impediment to
marry each other. The contracting parties shall state the
foregoing facts in an affidavit before any person authorized by
law to administer oaths. The solemnizing officer shall also state
under oath that he ascertained the qualifications of the
contracting parties are found no legal impediment to the
marriage. (76a)
Cf, Art. 76, NCC
No marriage license shall be necessary when a man and a
woman who have attained the age of majority and who, being
unmarried, have lived together as husband and wife for at least
five years, desire to marry each other. The contracting parties
shall state the foregoing facts in an affidavit before any person
authorized by law to administer oaths. The official, priest or
minister who solemnized the marriage shall also state in an
affidavit that he took steps to ascertain the ages and other
qualifications of the contracting parties and that he found no
legal impediment to the marriage. (n)
PD 1083
A DECREE TO ORDAIN AND PROMULGATE A CODE
RECOGNIZING THE SYSTEM OF FILIPINO MUSLIM
LAWS, CODIFYING MUSLIM PERSONAL LAWS, AND
PROVIDING FOR ITS ADMINISTRATION AND FOR
OTHER PURPOSES
113 Ninal vs. Bayadog (2000)
Reiterated the rule that the 5 year period of cohabitation
contemplated by law should 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. (That is, that
the man and the woman must have attained the age of
majority, have no impediment, and that, being unmarried,
they have lived together as husband and wife for at least
five years.
114 De Castro vs. De Castro (2008)
The falsity of the allegation in the sworn affidavit relating to
the period of cohabitation, which would have qualified a
marriage as an exception to the requirement for a marriage
license, cannot be a mere irregularity, for it refers to a
quintessential fact that the law precisely required to be
deposed and attested to by the parties under oath. If the
essential matter in the sworn affidavit is a lie, then it is but
a mere scrap of paper, without force and effect. Hence, it is
as if there was no affidavit at all.
115 Republic v Dayot (2008)
The 5-yr period should be the years immediately before the
day of the marriage and it should be a period of
cohabitation characterized by exclusivity- meaning no legal
impediment was present at any time within the 5 year and
continuity- that is unbroken.
Page 41 of 84
(b) Authority of the solemnizing officer
1. Who are authorized
Art. 7, FC
Marriage may be solemnized by:
(1) Any incumbent member of the judiciary within the court's
jurisdiction;
(2) Any priest, rabbi, imam, or minister of any church or
religious sect duly authorized by his church or religious sect and
registered with the civil registrar general, acting within the limits
of the written authority granted by his church or religious sect
and provided that at least one of the contracting parties belongs
to the solemnizing officer's church or religious sect;
(3) Any ship captain or airplane chief only in the case mentioned
in Article 31;
(4) Any military commander of a unit to which a chaplain is
assigned, in the absence of the latter, during a military
operation, likewise only in the cases mentioned in Article 32;
(5) Any consul-general, consul or vice-consul in the case
provided in Article 10. (56a)
Art. 10, FC
Marriages between Filipino citizens abroad may be solemnized
by a consul-general, consul or vice-consul of the Republic of the
Philippines. The issuance of the marriage license and the duties
of the local civil registrar and of the solemnizing officer with
regard to the celebration of marriage shall be performed by said
consular official. (75a)
Art. 31, FC
A marriage in articulo mortis between passengers or crew
members may also be solemnized by a ship captain or by an
airplane pilot not only while the ship is at sea or the plane is in
flight, but also during stopovers at ports of call. (74a)
Art. 32, FC
A military commander of a unit, who is a commissioned officer,
shall likewise have authority to solemnize marriages in articulo
mortis between persons within the zone of military operation,
whether members of the armed forces or civilians. (74a)
Art. 52, CC
Marriage is not a mere contract but an inviolable social
institution. Its nature, consequences and incidents are governed
by law and not subject to stipulation, except that the marriage
settlements may to a certain extent fix the property relations
during the marriage. (n)
Art. 74, CC
A marriage in articulo mortis may also be solemnized by the
captain of a ship or chief of an airplane during a voyage, or by
the commanding officer of a military unit, in the absence of a
chaplain, during war. The duties mentioned in the two
preceding articles shall be complied with by the ship captain,
airplane chief or commanding officer. (n)
Art. 76, CC
No marriage license shall be necessary when a man and a
woman who have attained the age of majority and who, being
unmarried, have lived together as husband and wife for at least
five years, desire to marry each other. The contracting parties
shall state the foregoing facts in an affidavit before any person
authorized by law to administer oaths. The official, priest or
minister who solemnized the marriage shall also state in an
affidavit that he took steps to ascertain the ages and other
qualifications of the contracting parties and that he found no
legal impediment to the marriage. (n
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
RA 7160 - AN ACT PROVIDING FOR A LOCAL
GOVERNMENT CODE OF 1991
Art. I The Municipal Mayor
Sec. 444. The Chief Executive: Powers, Duties, Functions and
Compensation.
(a) The municipal mayor, as the chief executive of the
municipal government, shall exercise such powers and
performs such duties and functions as provided by this
Code and other laws.
(b) For efficient, effective and economical governance the
purpose of which is the general welfare of the municipality
and its inhabitants pursuant to Section 16 of this Code, the
municipal mayor shall:
(1) Exercise general supervision and control over all
programs, projects, services, and activities of the
municipal government, and in this connection, shall:
xxx
(xviii) Solemnize marriages, any provision of law to the
contrary notwithstanding;
Xxx
116 Beso vs. Daguman (2000)
(1) As solemnizing officer, respondent Judge neglected his
duty when he failed to register the marriage of
complainant to Bernardito Yman. Such duty is entrusted
upon him pursuant to Article 23 of the Family Code.
(2) As provided in Art. 8 of the FC, a marriage can be held
outside the judges chambers or courtroom only in the
following instances: (1) at the point of death; (2) in
remote places in accordance with Article 29; or (3)
upon the request of both parties in writing in a sworn
statement to this effect.
In this case, there is no pretense that either complainant
Beso or her fiance Yman was at the point of death or in a
remote place. Neither was there a sworn written request
made by the contracting parties to respondent Judge that
the marriage be solemnized outside his chambers or at a
place other than his sala. What, in fact, appears on record is
that respondent Judge was prompted more by urgency to
solemnize the marriage of Beso and Yman because
complainant was [a]n overseas worker, who, respondent
realized deserved more than ordinary official attention under
present Government policy. Respondent Judge further
avers that in solemnizing the marriage in question, [h]e
believed in good faith that by doing so he was leaning on
the side of liberality of the law so that it may not be too
expensive and complicated for citizens to get married.
117 Ronulo vs. People (2014)
Article 352 of the RPC, as amended, penalizes an authorized
solemnizing officer who shall perform or authorize any
illegal marriage ceremony. The elements of this crime are as
follows: (1) authority of the solemnizing officer; and (2) his
performance of an illegal marriage ceremony.
For the first element, the petitioner admitted that he has
authority to solemnize a marriage. For the second element,
it was proven in the case that the marriage was indeed
illegal due to the absence of a valid marriage license as
required in Art. 3(2) of the Family Code. Hence, both
elements of Art. 352 are present which consequently proves
that petitioner is guilty of solemnizing an illegal marriage.
Page 42 of 84
2. How authorized
Art. 7 (2), FC
Marriage may be solemnized by:
xxx
(2) Any priest, rabbi, imam, or minister of any church or
religious sect duly authorized by his church or
religious sect and registered with the civil registrar
general, acting within the limits of the written
authority granted by his church or religious sect and
provided that at least one of the contracting parties
belongs to the solemnizing officer's church or religious
sect;
Xxx
Cf. Art. 92-96, CC
Art. 92. Every priest, or minister, or rabbi authorized by his
denomination, church, sect, or religion to solemnize marriage
shall send to the proper government office a sworn statement
setting forth his full name and domicile, and that he is
authorized by his denomination, church, sect, or religion to
solemnize marriage, attaching to said statement a certified copy
of his appointment. The director of the proper government
office, upon receiving such sworn statement containing the
information required, and being satisfied that the denomination,
church, sect, or religion of the applicant operates in the
Philippines, shall record the name of such priest or minister in a
suitable register and issue to him an authorization to solemnize
marriage. Said priest or minister or rabbi shall be obliged to
exhibit his authorization to the contracting parties, to their
parents, grandparents, guardians, or persons in charge
demanding the same. No priest or minister not having the
required authorization may solemnize marriage. (34a)
Art. 93. Freedom of religion shall be observed by public officials
in the issuance of authorization to solemnize marriages.
Consequently, no public official shall attempt to inquire into the
truth or validity of any religious doctrine held by the applicant or
by his church. (n)
Art. 94. The public official in charge of registration of priests
and ministers shall cancel the authorization issued to a bishop,
head, priest, rabbi, pastor or minister of the gospel of any
denomination, church, sect, or religion, on his own initiative or
at the request of any interested party, upon showing that the
church, sect or religion whose ministers have been authorized to
solemnize marriage is no longer in operation. The cancellation
of the authorization granted to a priest, pastor or minister shall
likewise be ordered upon the request of the bishop, head, or
lawful authorities of the denomination, church, sect or religion
to which he belongs. (35a)
Art. 95. The public official in charge of registration of priests
and ministers, with the approval of the proper head of
Department, is hereby authorized to prepare the necessary
forms and to promulgate regulations for the purpose of
enforcing the provisions of this Title. Said official may also by
regulations fix and collect fees for the authorization of priests
and ministers to solemnize marriages. (36a)
Art. 96. The existing laws which punish acts or omissions
concerning the marriage license, solemnization of marriage,
authority to solemnize marriages, and other acts or omissions
relative to the celebration of marriage shall remain and continue
to be in force. (n)
118 Villar vs. Paraiso (1995)
A priest must ensure his flock knows whether he is still
authorized to solemnize marriage.
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
3. Effect of absence of Authority
Art. 4, FC
The absence of any of the essential or formal requisites shall
render the marriage void ab initio, except as stated in Article 35.
A defect in any of the essential requisites shall not affect the
validity of the marriage but the party or parties responsible for
the irregularity shall be civilly, criminally and administratively
liable. (n)
Art. 35 (2), FC
The following marriages shall be void from the beginning:
(2) Those solemnized by any person not legally
authorized to perform marriages unless such
marriages were contracted with either or both parties
believing in good faith that the solemnizing officer
had the legal authority to do so;
Art. 352, RPC
Performance of illegal marriage ceremony. - Priests or ministers
of any religious denomination or sect, or civil authorities who
shall perform or authorize any illegal marriage ceremony shall
be punished in accordance with the provisions of the Marriage
Law.
Cf. Tenchavez vs. Escano, 15 SCRA 355, p. 360
The chaplain's alleged lack of ecclesiastical authorization
from the parish priest and the Ordinary, as required by
Canon law, is irrelevant in our civil law, not only because of
the separation of Church and State but also because Act
3613 of the Philippine Legislature (which was the marriage
law in force at the time) expressly provided that
"SEC. 1. Essential requisites, Essential requisites for
marriage are the legal capacity of the contracting parties
consent
The actual authority of the solemnizing officer was thus only
a formal requirement, and, therefore, not essential to give
the marriage civil effects, and this is by section 27 of said
marriage act, which provided the following:
"SEC. 27, Failure to comply with formal requirements. No
marriage shall be declared invalid because of the absence of
one or several of the formal requirements of this Act if,
when it was performed, the spouses or one of them
believed in good faith that the person who solemnized the
marriage was actually empowered to do so, and that the
marriage was perfectly legal."
xxxx
4. Duties of the solemnizing officer
Art. 23, FC
It shall be the duty of the person solemnizing the marriage to
furnish either of the contracting parties the original of the
marriage certificate referred to in Article 6 and to send the
duplicate and triplicate copies of the certificate not later than
fifteen days after the marriage, to the local civil registrar of the
place where the marriage was solemnized. Proper receipts shall
be issued by the local civil registrar to the solemnizing officer
transmitting copies of the marriage certificate. The solemnizing
officer shall retain in his file the quadruplicate copy of the
marriage certificate, the copy of the marriage certificate, the
original of the marriage license and, in proper cases, the
affidavit of the contracting party regarding the solemnization of
the marriage in place other than those mentioned in Article 8.
(68a)
Page 43 of 84
Art. 24, FC
It shall be the duty of the local civil registrar to prepare the
documents required by this Title, and to administer oaths to all
interested parties without any charge in both cases. The
documents and affidavits filed in connection with applications
for marriage licenses shall be exempt from documentary stamp
tax. (n)
5. Effect of Irregularity
Art. 4, FC
The absence of any of the essential or formal requisites shall
render the marriage void ab initio, except as stated in Article 35
(2).
A defect in any of the essential requisites shall not affect the
validity of the marriage but the party or parties responsible for
the irregularity shall be civilly, criminally and administratively
liable. (n)
(c) Marriage Ceremony
1. Form of Ceremony
Art. 3 (3), FC
The formal requisites of marriage are:
(3) A marriage ceremony which takes place with the
appearance of the contracting parties before the
solemnizing officer and their personal declaration that
they take each other as husband and wife in the
presence of not less than two witnesses of legal age.
(53a, 55a)
Art. 6, FC
No prescribed form or religious rite for the solemnization of the
marriage is required. It shall be necessary, however, for the
contracting parties to appear personally before the solemnizing
officer and declare in the presence of not less than two
witnesses of legal age that they take each other as husband and
wife. This declaration shall be contained in the marriage
certificate which shall be signed by the contracting parties and
their witnesses and attested by the solemnizing officer.
Cf Art. 33, FC
Marriages among Muslims or among members of the ethnic
cultural communities may be performed validly without the
necessity of marriage license, provided they are solemnized in
accordance with their customs, rites or practices. (78a)
The law does not prescribe or require any particular
ceremony, whether in a civil or a religious marriage, but
the parties are required to appear before the solemnizing
officer and declare, in the presence of at least two
witnesses of legal age, that they take each other as
husband and wife.
119 Martinez vs. Tan (1909)
A marriage took place as shown by the certificate of the
justice of the peace, signed by both contracting parties,
which certificate gives rise to the presumption that the
officer authorized the marriage in due form, the parties
before the justice of the peace declaring that they took each
other as husband and wife, unless the contrary is proved,
such presumption being corroborated in this case by the
admission of the woman to the effect that she had
contracted the marriage certified to in the document signed
by her, which admission can only mean that the parties
mutually agreed to unite in marriage when they appeared
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
and signed the said document which so states before the
justice of the peace who authorized the same.
120 Morigo vs. People (2004)
Judicial Declaration of Nullity is not needed where no
marriage ceremony at all was performed by a duly
authorized solemnizing officer, as where the parties merely
signed a marriage contract on their own without the
presence of the solemnizing officer.
2. Place for ceremony
Art. 8, FC
The marriage shall be solemnized publicly in the chambers of
the judge or in open court, in the church, chapel or temple, or
in the office the consul-general, consul or vice-consul, as the
case may be, and not elsewhere, except in cases of marriages
contracted on the point of death or in remote places in
accordance with Article 29 of this Code, or where both of the
parties request the solemnizing officer in writing in which case
the marriage may be solemnized at a house or place designated
by them in a sworn statement to that effect. (57a)
Art. 28, FC
If the residence of either party is so located that there is no
means of transportation to enable such party to appear
personally before the local civil registrar, the marriage may be
solemnized without necessity of a marriage license. (72a)
Art. 29, FC
In the cases provided for in the two preceding articles, the
solemnizing officer shall state in an affidavit executed before the
local civil registrar or any other person legally authorized to
administer oaths that the marriage was performed in articulo
mortis or that the residence of either party, specifying the barrio
or barangay, is so located that there is no means of
transportation to enable such party to appear personally before
the local civil registrar and that the officer took the necessary
steps to ascertain the ages and relationship of the contracting
parties and the absence of legal impediment to the marriage.
(72a)
Art. 32, FC
A military commander of a unit, who is a commissioned officer,
shall likewise have authority to solemnize marriages in articulo
mortis between persons within the zone of military operation,
whether members of the armed forces or civilians. (74a)
Art. 33, FC
Marriages among Muslims or among members of the ethnic
cultural communities may be performed validly without the
necessity of marriage license, provided they are solemnized in
accordance with their customs, rites or practices. (78a)
3. Issuance of marriage certificate
Art. 6, FC
No prescribed form or religious rite for the solemnization of the
marriage is required. It shall be necessary, however, for the
contracting parties to appear personally before the solemnizing
officer and declare in the presence of not less than two
witnesses of legal age that they take each other as husband and
wife. This declaration shall be contained in the marriage
certificate which shall be signed by the contracting parties and
their witnesses and attested by the solemnizing officer.
In case of a marriage in articulo mortis, when the party at the
point of death is unable to sign the marriage certificate, it shall
be sufficient for one of the witnesses to the marriage to write
the name of said party, which fact shall be attested by the
solemnizing officer. (55a)
Page 44 of 84
Art. 22, FC
The marriage certificate, in which the parties shall declare that
they take each other as husband and wife, shall also state:
(1) The full name, sex and age of each contracting party;
(2) Their citizenship, religion and habitual residence;
(3) The date and precise time of the celebration of the
marriage;
(4) That the proper marriage license has been issued according
to law, except in marriage provided for in Chapter 2 of this Title;
(5) That either or both of the contracting parties have secured
the parental consent in appropriate cases;
(6) That either or both of the contracting parties have complied
with the legal requirement regarding parental advice in
appropriate cases; and
(7) That the parties have entered into marriage settlement, if
any, attaching a copy thereof. (67a)
Art. 23, FC
It shall be the duty of the person solemnizing the marriage to
furnish either of the contracting parties the original of the
marriage certificate referred to in Article 6 and to send the
duplicate and triplicate copies of the certificate not later than
fifteen days after the marriage, to the local civil registrar of the
place where the marriage was solemnized. Proper receipts shall
be issued by the local civil registrar to the solemnizing officer
transmitting copies of the marriage certificate. The solemnizing
officer shall retain in his file the quadruplicate copy of the
marriage certificate, the copy of the marriage certificate, the
original of the marriage license and, in proper cases, the
affidavit of the contracting party regarding the solemnization of
the marriage in place other than those mentioned in Article 8.
(68a)
121 Madridejo vs. De Leon (1930)
The mere facts that the parish priest failed to send a copy
of the marriage certificate to the municipal secretary does
not invalidate the marriage in articulo mortis, it not
appearing that the essential requisites required by law for
its validity were lacking in the ceremony, and the forwarding
of a copy of the marriage certificate is not one of said
requisites.
122 People vs. Borromeo (1984)
There is no better proof of marriage than the admission of
the accused of the existence of such marriage. Persons
living together in apparent matrimony are presumed, in the
absence of any counter presumption or evidence special to
the case, to be in fact married. The reason is that such is
the common order of society, and if the parties were not
what they thus hold themselves out as being, they would be
living in constant violation of decency and law. The
presumption in favor of matrimony is one of the strangest
known in law. The law presumes morality, and not
immorality; marriage, and not concubinage; legitimacy, and
not bastardy
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
E. LAW GOVERNING VALIDITY OF
MARRIAGES ABROAD
1. General rule in contracts
(a) As to form
Art. 17 (1) & (2), NCC
The forms and solemnities of contracts, wills, and other public
instruments shall be governed by the laws of the country in
which they are executed.
When the acts referred to are executed before the diplomatic or
consular officials of the Republic of the Philippines in a foreign
country, the solemnities established by Philippine laws shall be
observed in their execution.
xxx
(b) As to substantive requirements
Art. 15, NCC
Laws relating to family rights and duties, or to the status,
condition and legal capacity of persons are binding upon citizens
of the Philippines, even though living abroad.
Art. 17 (3), NCC
xxx
Prohibitive laws concerning persons, their acts or property, and
those which have for their object public order, public policy and
good customs shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions
agreed upon in a foreign country.
2. Special rule in Marriage
(a.) Lex Loci Celebrationis
Art. 26, FC
All marriages solemnized outside the Philippines, in accordance
with the laws in force in the country where they were
solemnized, and valid ther as such, shall also be valid in this
country, except those prohibited under Articles 35(1), (4), (5),
(6), 36, 37 and 38
When a marriage between a Filipino Citizen and a foreigner is
validly celebrated and a divorce is thereafter validly obtained
abroad by the alien spouse capacitating him or her to remarry,
the Filipino spouse shall likewise have the capacity to remarry
under Philippine law.
Art. 21, FC
When either or both of the contracting parties are citizens of a
foreign country, it shall be necessary for them before a
marriage license can be obtained, to submit a certificate of
legal capacity to contract marriage, issued by their respective
diplomatic or consular officials.
Stateless persons or refugees from other countries shall, in lieu
of the certificate of legal capacity herein required, submit an
affidavit stating the circumstances showing such capacity to
contract marriage.
Page 45 of 84
Art. 10, FC
In case of doubt in the interpretation or application of laws, it is
presumed that the lawmaking body intended right and justice
to prevail.
123 Yao Kee vs. Sy-Gonzales (1988)
To establish a valid foreign marriage two things must be
proven, namely: 1) the existence of the foreign law as a
question of fact; and 2) the alleged foreign marriage by
convincing evidence
124 Republic vs. Orbecido III (2005)
Art. 26 applies where the parties were Filipino citizens at the
time of the marriage and later on, one of them becomes
naturalized as a foreign citizen and obtains a divorce
decree: the reckoning point is their citizenship at the time
the valid divorce is obtained abroad by the alien spouse
capacitating the latter to marry.
Filipino spouse should be allowed to remarry as if he or she
was a foreigner at the time of the solemnization of
marriage. To rule otherwise would sanction absurdity and
injustice.
125 Fujiki vs. Marinay (2013)
Where the Court reiterated that for Philippine courts to
recognize a foreign judgment relating to the status of a
marriage where one of the parties is a citizen of a foreign
country, the petitioner only need to prove the foreign
judgment as a fact under the Rules of Court.
Petitioner may prove the Japanese Family Court judgment
through: 1) an official publication or 2) a certification or
copy attested by the officer who has custody of the
judgment. The Court further held that A.M. No. 02-11-10-SC
does not apply to a petition for recognition of foreign
judgment as this would mean that the trial court and the
parties will litigate the case anew.
It will defeat the purpose of recognizing foreign judgment,
which is to limit repetitive litigation on claims and issues.
Once a foreign judgment is admitted and proven in a
Philippine Court, it can only be repelled on ground external
to its merits.
There is, therefore, no reason to disallow Fujiki to simply
prove as a fact the Japanese Family Court judgment
nullifying the marriage between Marinay and Maekara on
the ground of bigamy. While Ph has no divorce law, the Jap
Family Court judgment is fully consistent with Ph public
policy, as bigamous marriages are declared void from the
beginning under Art. 35(4), FC.
(b.) Exceptions
Art. 26, FC
See Above
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
Art. 35, FC
Art. 35. The following marriages shall be void from the
beginning:
(1) Those contracted by any party below eighteen years of age
even with the consent of parents or guardians;
xxxx
(4) Those bigamous or polygamous marriages not failing under
Article 41;
(5) Those contracted through mistake of one contracting party
as to the identity of the other; and
(6) Those subsequent marriages that are void under Article 53.
Art. 36, FC
A marriage contracted by any party who, at the time of the
celebration, was psychologically incapacitated to comply with
the essential marital obligations of marriage, shall likewise be
void even if such incapacity becomes manifest only after its
solemnization.
Art. 37, FC
Marriages between the following are incestuous and void from
the beginning, whether relationship between the parties be
legitimate or illegitmate:
(1) Between ascendants and descendants of any degree; and
(2) Between brothers and sisters, whether the full or half-blood.
Art. 38, FC
The following marriages shall be void from the beginning for
reasons of public policy:
(1) Between collateral blood relatives, whether legitimate or
illegitimate, up to the fourth civil degree;
(2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
(4) Between the adopting parent and the adopted child;
(5) Between the surviving spouse of the adopting parent and
the adopted child;
(6) Between the surviving spouse of the adopted child and the
adopter;
(7) Between an adopted child and a legitimate child of the
adopter;
(8) Between adopted children of the same adopter; and
(9) Between parties where one, with the intention to marry the
other, killed that other persons spouse, or his or her own
spouse.
F. COMMON LAW MARRIAGES/ LIVE-
IN RELATIONSHIPS
Property Regime of Union Without Marriages
Art. 147, FC
When a man and a woman who are capacitated to marry each
other, live exclusively with each other as husband and wife
without the benefit of marriage or under a void marriage, their
wages and salaries shall be owned by them in equal shares and
the property acquired by both of them through their work or
industry shall be governed by the rules on co-ownership.
In the absence of proof to the contrary, properties acquired
while they lived together shall be presumed to have been
obtained by their joint efforts, work or industry, and shall be
owned by them in equal shares. For purposes of this Article, a
party who did not participate in the acquisition by the other
party of any property shall be deemed to have contributed
jointly in the acquisition thereof if the formers efforts consisted
in the care and maintenance of the family and of the household.
Neither party can encumber or dispose by acts inter vivos of his
or her share in the property acquired during cohabitation and
owned in common, without the consent of the other, until after
Page 46 of 84
the termination of their cohabitation.
When only one of the parties to a void marriage is in good faith,
the share of the party in bad faith in the co-ownership shall be
forfeited in favor of their common children. In case of default of
or waiver by any or all of the common children or their
descendants, each vacant share shall belong to the respective
surviving descendants. In the absence of descendants, such
share shall belong to the innocent party. In all cases, the
forfeiture shall take place upon termination of the cohabitation.
Art. 148, FC (Property Regime of Bigamous, Adulterous
and Polygamous Relationships)
In cases of cohabitation not falling under the preceding Article,
only the properties acquired by both of the parties through their
actual joint contribution of money, property, or industry shall be
owned by them in common in proportion to their respective
contributions. In the absence of proof to the contrary, their
contributions and corresponding shares are presumed to be
equal. The same rule and presumption shall apply to joint
deposits of money and evidences of credit.
If one of the parties is validly married to another, his or her
share in the co-ownership shall accrue to the absolute
community or conjugal partnership existing in such valid
marriage. If the party who acted in bad faith is not validly
married to another, his or her share shall be forfeited in the
manner provided in the last paragraph of the preceding Article.
The foregoing rules on forfeiture shall likewise apply even if
both parties are in bad faith.
For Article 147 to operate, the man and the woman:
(1) Must be capacitated to marry each other;
(2) Live exclusively with each other as husband and wife;
(3) Their union is without the benefit of marriage or their
marriage is void.
Capacitated - no legal impediment to marry each other
Property Regime Distribution under Art. 147
(1) Wages & Salaries equal shares, even if only one is
working
(2) Property acquired through work & industry Rules on
Co-ownership | Presumption: Joint ownership
(3) One is in bad faith share is forfeited in favor of their
common children, or if no heirs, in favor of innocent party
Rule on disposition of ownership
Only either through 1) acts mortis causa nad 2) inter vivos
+ consent of other party
Art. 148 disposition of properties:
(1) Wages & Salaries - exclusive to earner
(2) Property acquired owned in common and as per their
individual contributions
(3) Even if named under common law wife, properties of the
actual couple are always conjugal
(4) Same: Bad faith parties under Art. 147
Art. 350, RPC
Marriages Contracted Against Provisions of Laws
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
Sec. 3 Rule 131, ROC
(aa) That a man and woman deporting themselves as husbandd
and wife have entered into a lawful contract of marriage;
(bb) That property acquired by a man and a woman who are
capaciteated to marry each other and who live exclusively with
each other as husband and wife without the benefit of marriage
or under a void marriage, has been obtained by their joint
effors, work or industry;
(cc) That in cases of cohabitation by a man and a woman who
are not capacitated to marry each other and who have acquired
property through their actual joint contribution of money,
property or industry, such contributions and their
corresponding shares including joint deposits of money and
evidences of credit are equal.
Art. 26, FC Arts. 484-501, Title III, Book II, NCC
See Above Laws on Co-Ownership
126 Lesaca vs. Lesaca (1952)
The mere fact that money owed was returned or repaid
after marriage cannot convert it to conjugal property if there
is no proof that the sum paid was earned by the joint efforts
of the deceased and his widow.
127 Yaptinchay vs. Torres (1969)
There must be proof that the property acquired by the
labor, industry or efforts of both parties in an amorous
relationship.
128 Eugenio vs. Velez (1990)
A community of properties and interests which are governed
by law requires that the man and woman living together
must not in any way be incapacitated to contract marriage.
129 Estrada vs Escritor (2003)
On the basis of the constitutional freedom in the exercise of
religion, a divided Court remanded to the Office of the Court
Administrator(which had earlier opined that the cohabitation
of persons married to others violated the judiciarys high
standard of morality and decency), to demonstrate how the
interest of preserving the integrity of the judiciary is so
compelling that it should override a plea of religious
freedom nor is it shown that the means employed by the
govt. in pursuing its interest is the least restrictive to
respondents religious exercise.
G. VOID MARRIAGES
Art. 4, FC
Absence of any of the essential or formal requisites shall render
the marriage void ab initio, except as stated in Article 35(2).
A defect in any of the essential requisites shall render the
marriage voidable as provided in Article 45.
An irregularity in the formal requisites shall not affect the
validity of the marriage but the party or parties responsible for
the irregularity shall be civilly, criminally and administratively
liable. (n)
Page 47 of 84
1. Kinds of Void Marriages
(a) Absence of Requisites
Art. 35, FC
Art. 35. The following marriages shall be void from the
beginning:
(1) Those contracted by any party below eighteen years of age
even with the consent of parents or guardians;
(2) Those solemnized by any person not legally authorized to
perform marriages unless such marriages were contracted with
either or both parties believing in good faith that the
solemnizing officer had the legal authority to do so;
(3) Those solemnized without license, except those covered the
preceding Chapter;
(4) Those bigamous or polygamous marriages not failing under
Article 41;
(5) Those contracted through mistake of one contracting party
as to the identity of the other; and
(6) Those subsequent marriages that are void under Article 53.
Art. 234, FC
Emancipation takes place by the attainment of majority.
Unless otherwise provided, majority commences at the age of
eighteen years.
130 So vs. Valera
A married couple cannot simply nullify their marriage
through the non-appearance of one spouse and the
uncorroborated declaration by the other spouse that the
marriage did not really take place.
131 De Castro vs. De Castro
A false affidavit of 5 year cohabitation results in the absence
of a valid marriage license.
132 Republic vs. Dayot (2008)
A marriage performed without the corresponding marriage
license is void, this being nothing more than the legitimate
consequence flowing from the fact that the license is the
essence of the marriage contract, in stark contrast to the
old Marriage Law, whereby the absence of a marriage
license did not make the marriage void; The rationale for
the compulsory character of a marriage license under the
Civil Code is that it is the authority granted by the State to
the contracting parties, after the proper government official
has inquired into their capacity to contract marriage.
133 Abbas vs. Abbas
See case 107
134 Kho vs. Republic
See case 108
(b) Bigamous and Polygamous Marriages
Par. 4, Art. 35, FC
Art. 35. The following marriages shall be void from the
beginning:
xxx
(4) Those bigamous or polygamous marriages not failing under
Article 41;
xxx
Art. 39, FC
The action or defense for the declaration of absolute nullity of a
marriage shall not prescribe.
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
Art. 39, FC
The action or defense for the declaration of absolute nullity of a
marriage shall not prescribe.
Art. 41, FC
A marriage contracted by any person during subsistence of a
previous marriage shall be null and void, unless before the
celebration of the subsequent marriage, the prior spouse had
been absent for four consecutive years and the spouse present
has a well-founded belief that the absent spouse was already
dead. In case of disappearance where there is danger of death
under the circumstances set forth in the provisions of Article
391 of the Civil Code, an absence of only two years shall be
sufficient.
Art. 344, RPC
Prosecution of the crimes of adultery, concubinage, seduction,
abduction, rape and acts of lasciviousness. - The crimes of
adultery and concubinage shall not be prosecuted except upon
a complaint filed by the offended spouse.
The offended party cannot institute criminal prosecution without
including both the guilty parties, if they are both alive, nor, in
any case, if he shall have consented or pardoned the offenders.
The offenses of seduction, abduction, rape or acts of
lasciviousness, shall not be prosecuted except upon a complaint
filed by the offended party or her parents, grandparents, or
guardian, nor, in any case, if the offender has been expressly
pardoned by the above named persons, as the case may be.
In cases of seduction, abduction, acts of lasciviousness and
rape, the marriage of the offender with the offended party shall
extinguish the criminal action or remit the penalty already
imposed upon him. The provisions of this paragraph shall also
be applicable to the co-principals, accomplices and accessories
after the fact of the above-mentioned crimes.
Art. 349, RPC
Bigamy- The penalty of prision mayor shall be imposed upon
any person who shall contract a second or subsequent marriage
before the former marriage has been legally dissolved, or before
the absent spouse has been declared presumptively dead by
means of a judgment rendered in the proper proceedings.
135 Weigel vs. Sempio-Dy (1986)
There is no need for petitioners to prove that her first
marriage was vitiated by force committed against both
parties because assuming this to be so, the marriage will
not be void but merely voidable, and therefore, valid until
annulled. Since no annulment has yet been made, it is clear
that when she married respondent she was still validly
married to her first husband, consequently, her marriafe to
respondent is VOID. There is likewise no need of
introducing evidence about the existing prior marriage of
her first husband at the time they married each other, for
then such a marriage though void still needs a judicial
declaration of such fact and for all legal intents and
purposes she would still be regarded as a married woman at
the time she contracted her marriage; accordingly, the
marriage of petitioner and respondent would be regards
VOID under the law
136 Terre vs. Terre
Dorothy was married to her first cousin and had been
persuaded by Jordan that the marriage was void; thus, he
Page 48 of 84
and Dorothy could marry. Jordan sought to defend himself
by claiming that he had believed in good faith that his prior
marriage with complainant Dorothy Terre was null and void
ab initio and that no action for judicial declaration of nullity
was necessary. The Court considered this as a spurious
defense. Jordan Terre, being a lawyer, knew or should
have known that such an argument ran counter to the
prevailing case law of the court, which holds that for
purposes of determining whether a person is legally free to
contract a second marriage, a judicial declaration that the
first marriage was null and void ab initio is essential. His
second marriage must be regarded as bigamous and
criminal in character.
137 Domingo vs. CA
Marriage here was void from the beginning as the husband
had a prior existing marriage with another woman. The
second wife sought to declare the marriage void, not for
purposes of remarriage, but to settle the property relations.
138 Carino vs. Carino
The first marriage to Susan Nicdao, having been solemnized
without the necessary marriage license, and not being one
of the marriages exempt from the marriage license
requirement, is undoubtedly void ab initio. However, under
Art. 40 of the FC, for purposes of remarriage, there must
first be a prior judicial declaration of the nullity of a previous
marriage, though void, before a party can enter into a
second marriage; otherwise the second marriage would also
be void. Hence, the second marriage in this case to Susan
Yee, is, likewise, void ab initio
139 Mercado vs. 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 statute as void. That he subsequently
obtained a judicial declaration of the nullity of the first
marriage was immaterial. The Court said that the crime has
already been consummated by then.
140 Bobis vs. Bobis (2000)
The pendency of the civil action for nullity of the marriage
does not pose a prejudicial question in a criminal case for
concubinage. This ruling applies in a case of for bigamy by
analogy since both crimes presuppose the substinence of a
marriage.
141 Ty vs. CA (2000)
The first and second marriages were contracted in 1977 and
1979, respectively and thus governed by the provisions of
the Civil Code. The first marriage of private respondent
being void for lack of license and consent, there was no
need for judicial declaration of its nullity before he could
contract a second marriage. Thus, the second marriage is
valid.
142 Morigo vs. People (2004)
Elements of Bigamy are: (1) the offender has been legally
married; (2) The first marriage has not been legally
dissolved, or in case his or her spouse is absent, the absent
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
spouse has not been judicially declared presumptively dead;
(3)He contracts a subsequent marriage; (4) And the
subsequent marriage would have been valid had it not been
for the existence of the first.
The first element of bigamy as a crime requires that the
accused must have been legally married. But in this case,
legally speaking, the petitioner was never married to Lucia
Barrete. Thus, there is no first marriage to speak of. Under
the principle of retroactivity of a marriage being declared
void ab initio, the two were never married from the
beginning. The existence and the validity of the first
marriage being an essential element of the crime of bigamy,
it is but logical that a conviction for said offense cannot be
sustained where there is no first marriage to speak of. The
petitioner, must, perforce be acquitted of the instant charge
143 Tenebro vs. CA (2004)
The subsequent judicial declaration of nullity of marriage on
the ground of psychological incapacity does not retract to
the date of the celebration of the marriage insofar as the
Philippines penal laws are concerned. As such, an individual
who contracts a second or subsequent marriage during the
substinence of a valid marriage is criminally liable for
bigamy, notwithstanding the subsequent declaration that
the second marriage is void ab initio on the ground of
psychological incapacity (Justice Vitug, Concurring Opinion
& Justice Carpio, Dissent)
144 Teves vs. People (2011)
The requirement for a declaration of absolute nullity od a
marriage is also for the protection of the spouse who,
believing that his or her marriage is illegal and void, marries
again. With the judicial declaration of the nullity of his or
her marriage, the person who marries again cannot be
charged with bigamy. A judicial declaration of marriage can
be contracted; or else, what transpires is a bigamous
marriage, reprehensible and immoral.
145 Nollora vs. People (2011)
The circumstances in the present case satisfy all the
elements of bigamy. 1) Nollora is legally married to Pinat; 2)
Nollora and Pinats marriage has not been legally dissolved
prior to the date of the second marriage; 3) Nollora
admitted the existence of his second marriage to Geraldino;
and 4) Nollora and Geraldinos marriage has all the essential
requisites for validity except for the lack of capacity of
Nollora due to his prior marriage.
146 Montanez vs. Cipriano (2012)
The SC held that the felony is consummated on the
celebration of the second marriage or subsequent marriage;
that the annulment of respondents first marriage on the
ground of psychological incapacity was of no effect as there
is a recognition written into the law itself that such a
marriage, although void ab initio, may still produce legal
consequences; and that Art. 40, which is a rule of
procedure, should be applied retroactively because Art. 256,
FC itself provides that said Code shall have retroactive
effect insofar as it does not prejudice or impair vested or
acquired rights.
Page 49 of 84
147 Capili vs. People (2013)
Case where a Bigamy charged lodged, Mr. Capili filed a
Motion to Suspend Proceeding as his second wife had filed a
case for nullity of their marriage on the ground that it was
void. The nullity was granted; thus, Mr. Capili filed a Motion
to Dismiss, which was granted by the criminal court a quo.
The Court ruled that the subsequent declaration of nullity of
the second marriage is not a ground for dismissal of the
criminal case for Bigamy.
148 Abbas vs. Abbas (2013)
The court conveniently overlooked, perhaps intentionally,
their own finding of the fact that Syed and Gloria met and
got married in Taiwan. There is no discussion as to the
validity of this first marriage which, by all intents and
purposes, could well have been merely a ratification of
some sort, and, therefore, no marriage license would have
been needed- following the logic in the Zamoranos case.
149 Fujiki vs. Marinay (2013)
*See case no. 125
150 People vs. Odtuhan (2013)
The SC reversed the CA and opined that in a Motion to
Quash, there is hypothetical admission of the facts alleges in
the information.
In reversing the CA, the Court unfortunately used as bases
the cases of Montanez, Teves and Antone. Unfortunate,
because these cases deal with marriages which are not void
due to absence of a formal requisite, such as a marriage
license.
151 Iwasawa vs. Gangan (2013)
There is no question that the documentary evidence
submitted by petitioner are all public documents. As
provided in the Civil Code:
ART. 410. The books making up the civil register and all
documents relating thereto shall be considered public
documents and shall be prima facie evidence of the facts
therein contained.
As public documents, they are admissible in evidence even
without further proof of their due execution and
genuineness. Thus, the RTC erred when it disregarded said
documents on the sole ground that the petitioner did not
present the records custodian of the NSO who issued them
to testify on their authenticity and due execution since proof
of authenticity and due execution was not anymore
necessary. Moreover, not only are said documents
admissible, they deserve to be given evidentiary weight
because they constitute prima facie evidence of the facts
stated therein. And in the instant case, the facts stated
therein remain unrebutted since neither the private
respondent nor the public prosecutor presented evidence to
the contrary.
152 SSS vs. Azote (2015)
Applying Section 8(e) and (k) of R.A. No. 8282 (SS Law), it
is clear that only the legal spouse of the deceased member
is qualified to be the beneficiary of the latters SS benefits.
In this case, there is a concrete proof that Edgardo
contracted an earlier marriage with another individual as
evidenced by their marriage contract. Edgardo even
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
acknowledged his married status when he filled out the
1982 Form E4 designating Rosemarie as his spouse.
Settled is the rule that whoever claims entitlement to the
benefits provided by law should establish his or her right
thereto by substantial evidence. Edna could not adduce
evidence to prove that the earlier marriage of Edgardo was
either annulled or dissolved or whether there was a
declaration of Rosemaries presumptive death before her
marriage to Edgardo. What is apparent is that Edna was the
second wife of Edgardo. Considering that Edna was not able
to show that she was the legal spouse of a deceased
member, she would not qualify under the law to be the
beneficiary of the death benefits of Edgardo.
(c) Subsequent marriage, upon
reappearance of absent spouse
Art. 41, FC
A marriage contracted by any person during the subsistence of
a previous marriage shall be null and void, unless before the
celebration of the subsequent marriage, the prior spouse had
been absent for four consecutive years and the spouse present
had a well-founded belief that the absent spouse was already
dead. In case of disappearance where there is danger of death
under the circumstances set forth in the provisions of Article
391 of the Civil Code, an absence of only two years shall be
sufficient.
For the purpose of contracting the subsequent marriage under
the preceding paragraph, the spouse present must institute a
summary proceeding as provided in this code for the declaration
of presumptive death of the absentee, without prejudice to the
effect of reappearance of the absent spouse. (83a)
Art. 42, FC
The subsequent marriage referred to in the preceding article
shall be automatically terminated by the recording of the
affidavit of reappearance of the absent spouse, unless there is a
judgment annulling the previous marriage or declaring it void ab
initio.
A sworn statement of the fact and circumstances of
reappearance shall be recorded in the civil registry of the
residence of the parties to the subsequent marriage at the
instance of any interested person, with due notice to the
spouses of the subsequent marriage and without prejudice to
the fact of the reappearance being judicially determined in case
such fact is disputed. (n)
Art. 43, FC
The termination of the subsequent marriage referred to in the
preceding Article shall produce the following effects:
(1) The children of the subsequent marriage conceived prior to
its termination shall be considered legitimate, and their
custody and support in case of dispute shall be decided by
the court in a proper proceeding;
(2) The absolute community of property or the conjugal
partnership, as the case may be, shall be dissolved and
liquidated, but if either spouse contracted said marriage in
bad faith, his or her share of the net profits of the
community property or conjugal partnership property shall
be forfeited in favor of the common children or, if there are
none, the children of the guilty spouse by a previous
marriage or in default of children, the innocent spouse;
(3) Donations by reason of marriage shall be remain valid,e
xcept that if the donee contracted the marriage in bad faith
as beneficiary in any insurance policy, even if such
designation be stipulated as irrevocable; and
Page 50 of 84
(4) The innocent spouse may revoke the designation of the
other spouse who acted in bad faith as beneficiary in any
insurance policy, even if such designation be stipulated as
irrevocable; and
(5) The spouse who contracted the subsequent marriage in
bad faith shall be disqualified to inherit from the innocent
spouse by testate and intestate successon. (n)
Art. 44, FC
If both spouses of the subsequent marriage acted in bad faith,
said marriage shall be void ab initio and all donations by reason
of marriage and testamentary dispositions made by one in favor
of the other are revoked by operation of law. (n)
Art. 390, NCC
After an absence of seven years, it being unknown whether or
not the absentee still lives, he shall be presumed dead for all
purposes, except for those of succession.
The absentee shall not be presumed dead for the purpose of
opening his succession till after an absence of ten years. If he
disappeared after the age of seventy-five years, an absence of
five years shall be sufficient in order that his succession may be
opened. (n)
Art. 391, NCC
The following shall be presumed dead for all purposes, including
the division of the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an
aeroplane which is missing, who has not been heard of for
four years since the loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war,
and has been missing for four years;
(3) A person who has been in danger of death under other
circumstances and his existence has not been known for
four years. (n)
Art. 55, FC
A petition for legal separation may be filed on any of the
following grounds:
XXX
(9) Attempt by the respondent against the life of the
petitioner; or
XXX
Art. 101, FC
If a spouse without just cause abandons the other or fails to
comply with his or her obligations to the family, the aggrieved
spouse may petition the court for receivership, for judicial
separation of property or for authority to be the sole
administrator of the absolute community, subject to such
precautionary conditions as the court may impose.
The obligations to the family mentioned in the preceding
paragraph refer to marital, parental or property relations.
A spouse is deemed to have abandoned the other when her or
she has left the conjugal dwelling without intention of returning.
The spouse who has left the conjugal dwelling for a period of
three months or has failed within the same period to give any
information as to his or her whereabouts shall be prima facie
presumed to have no intention of returning to the conjugal
dwelling. (178a)
General Rule: The subsequent bigamous marriage under
Art. 41, FC remains valid despite reappearance of the
absentee spouse
Exception: Subsequent marriage is automatically
terminated if the reappearance was recorded in a sworn
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
statement in the civil registry of the residence of the parties
to the subsequent marriage at the instance of any
interested person with due notice to said spouses, without
prejudice to the fact of reappearance being judicially
determined in case such fact is disputed.
Exception to the exception: If there was a previous
judgment declaring the first marriage a nullity, the
subsequent marriage remains valid.
153 Jones vs. Hortiguela (1937)
Absence should be counted from the date on which the last
news concerning the absentee was received.
154 Repulic vs. Nolasco (1993)
There is no well-founded belief that the absent spouse is
already dead when the present party fails to conduct a
diligent search for the missing party.
Reason: This is intended to protect the present spouse from
criminal persecution for Bigamy. However, if the bigamous
marriage was committed abroad, the guilty party cannot be
criminally prosecuted for bigamy in the Philippines as our
penal statutes are territorial in nature.
155 Bienvenido vs. CA (1994)
The spouse who left cannot be the spouse who will seek to
declare the other spouse presumptively dead.
156 SSS vs. Jarque (2006)
Old Civil Code applies in the present case since the two
marriages involved were solemnized before effectivity of FC]
Under the Old Civil Code, in cases wherein Art. 83 applies,
marriages under any of the exceptional cases described
therein is deemed valid until declared null and void by a
competent court. It follows that the obligation to prove
nullity of these marriages rests on the part assailing the
second marriage.
If the absentee reappears, but no step is taken to terminate
the subsequent marriage, either by affidavit or by court
action, such absentees mere reappearance, even if made
known to the spouses in the subsequent marriage, will not
terminate such marriage. Since the second marriage has
been contracted because of a presumption that the former
spouse is dead, such presumption continues inspite of the
spouses physical reappearance, and by fiction of law, he or
she must still be regarded as legally an absentee until the
subsequent marriage is terminated as provided by law.
157 Republic vs. Cantor (2013)
Notably, Article 41 of the Family Code, compared to the old
provision of the Civil Code, which it superseded, imposes a
stricter standard. It requires a "well-founded belief" that the
absentee is already dead before a petition for declaration of
presumptive death can be granted.
The law did not define what is meant by "well-founded
belief." It depends upon the circumstances of each
particular case. Its determination, so to speak, remains on a
case-to-case basis. To be able to comply with this
requirement, the present spouse must prove that his/her
belief was the result of diligent and reasonable efforts and
Page 51 of 84
inquiries to locate the absent spouse and that based on
these efforts and inquiries, he/she believes that under the
circumstances, the absent spouseis already dead. It requires
exertion of active effort (not a mere passive one).
158 Republic vs. Hon. Estrada (2015)
Diego's absence for more than 30 years, which far exceeded
the law-required four years of absence, is more than
enough to declare him presumptively dead for all legal
intents and purposes. Further, it can be clearly gleaned from
the totality of evidence that Diego had already died due to
the prevalence of New People's Army in Malaybalay.
159 Republiv vs. Villanueva (2015)
Applying the standard set forth by the Court in the
previously cited cases, particularly Cantor, Ednas efforts
failed to satisfy the required well-founded belief of her
absent husbands death.
Her claim of making diligent search and inquiries remained
unfounded as it merely consisted of bare assertions without
any corroborative evidence on record. She also failed to
present any person from whom she inquired about the
whereabouts of her husband. She did not even present her
children from whom she learned the disappearance of her
husband. In fact, she was the lone witness. Following the
basic rule that mere allegation is not evidence and is not
equivalent to proof, the Court cannot give credence to her
claims that she indeed exerted diligent efforts to locate her
husband
160 Republic vs. Tampus (2016)
The "well-founded belief' in the absentee's death requires
the present spouse to prove that his/her belief was the
result of diligent and reasonable efforts to locate the absent
spouse and that based on these efforts and inquiries,
he/she believes that under the circumstances, the absent
spouse is already dead. It necessitates exertion of active
effort, not a passive one.
Nilda made no further efforts to find her husband. She could
have called or proceeded to the AFP headquarters to
request information about her husband, but failed to do so.
She didn not even seek help of authorities or AFP itself in
finding him. Nilda failed to actively look for her missing
husband, and her purported earnest efforts to find him by
asking Dantes parents, relatives, and friends did not satisfy
the strict standard and degree of diligence required to
create a well-founded belief of his death.
Procedure:
161 Republic vs. Granada (2012)
Citing Republic v. Bermudez-Lorino, the appellate court
noted that a petition for declaration of presumptive death
for the purpose of remarriage is a summary judicial
proceeding under the Family Code. Hence, the RTC Decision
therein is immediately final and executory upon notice to
the parties, by express provision of Article 247 of the same
Code.
Belief is a state of the mind or condition prompting the
doing of an overt act. It may be proved by direct evidence
or circumstantial evidence which may tend, even in a slight
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
degree, to elucidate the inquiry or assist to a determination
probably founded in truth. Any fact or circumstance relating
to the character, habits, conditions, attachments, prosperity
and objects of life which usually control the conduct of men,
and are the motives of their actions, was, so far as it tends
to explain or characterize their disappearance or throw light
on their intentions, competence evidence on the ultimate
question of his death.
The belief of the present spouse must be the result of
proper and honest to goodness inquiries and efforts to
ascertain the whereabouts of the absent spouse and
whether the absent spouse is still alive or is already dead.
Whether or not the spouse present acted on a well founded
belief of death of the absent spouse depends upon the
inquiries to be drawn from a great many circumstances
occurring before and after the disappearance of the absent
spouse and the nature and extent of the inquiries made by
present spouse.
(d) Bad faith of both spouses
Art. 44, FC
If both spouses of the subsequent marriage acted in bad faith,
said marriage shall be void ab initio and all donations by reason
of marriage and testamentary dispositions made by one in favor
of the other are revoked by operation of law. (n)
(e) Psychological Incapacity
Art. 36, FC
A marriage contracted by any party who, at the time of the
celebration, was psychologically incapacitated to comply with
the essential marital obligations of marriage, shall likewise be
void even if such incapacity becomes manifest only after its
solemnization. (As amended by Executive Order 227)
Art. 39, FC
The action or defense for the declaration of absolute nullity shall
not prescribe. However, in case of marriage celebrated before
the effectivity of this Code and falling under Article 36, such
action or defense shall prescribe in ten years after this Code
shall taken effect. (As amended by Executive Order 227) (n)
Art. 68, FC
The husband and wife are obliged to live together, observe
mutual love, respect and fidelity, and render mutual help and
support. (109a)
Art. 69, FC
The husband and wife shall fix the family domicile. In case of
disagreement, the court shall decide.
The court may exempt one spouse from living with the other if
the latter should live abroad or there are other valid and
compelling reasons for the exemption. However, such
exemption shall not apply if the same is not compatible with the
solidarity of the family. (110a)
Art. 70, FC
The spouses are jointly responsible for the support of the
family. The expenses for such support and other conjugal
obligations shall be paid from the community property and, in
the absence thereof, from the income or fruits of their separate
properties. In case of insufficiency or absence of said income or
fruits, such obligations shall be satisfied from the separate
properties. (111a)
Art. 71, FC
Page 52 of 84
The management of the household shall be the right and the
duty of both spouses. The expenses for such management shall
be paid in accordance with the provisions of Article 70. (115a)
Art. 72, FC
When one of the spouses neglects his or her duties to the
conjugal union or commits acts which tend to bring danger,
dishonor or injury to the other or to the family, the aggrieved
party may apply to the court for relief. (116a)
Art. 73, FC
Either spouse may exercise any legitimate profession,
occupation, business or activity without the consent of the
other. The latter may object only on valid, serious, and moral
grounds.
In case of disagreement, the court shall decide whether or not:
(1) The objection is proper, and
(2) Benefit has occurred to the family prior to the objection or
thereafter. If the benefit accrued prior to the objection, the
resulting obligation shall be enforced against the separate
property of the spouse who has not obtained consent.
The foregoing provisions shall not prejudice the rights of
creditors who acted in good faith. (117a)
RA 8533
AN ACT AMENDING TITLE I, CHAPTER 3, ARTICLE 39 OF
EXECUTIVE ORDER NO. 209, OTHERWISE KNOWN AS
THE FAMILY CODE OF THE PHILIPPINES, NULLIFYING
THE PRESCRIPTIVE PERIOD FOR ACTION OR DEFENSES
GROUNDED ON PSYCHOLOGICAL INCAPACITY
Section 1. Title I, Chapter 3, Article 39 of Executive Order No.
209, otherwise known as the Family Code of the Philippines, is
hereby amended to read as follows:
TITLE I MARRIAGE
CHAPTER 3 VOID AND VOIDABLE MARRIAGES
Art. 39. The action or defense for the declaration of absolute
nullity of a marriage shall not prescribe.
162 Santos vs. CA (1995)
Requisites of Psychological Incapacity
1. Juridical Antecedence- must be rooted in the history of
the party antedating the marriage, although the overt
manifestations may emerge only after the marriage
2. Incurability- must be incurable or, even if it were
otherwise, the cure would be beyond the means of the
party involved; and
3. Gravity- must be grave/serious such that the party would
be incapable of carrying out the ordinary duties required in
marriage.
The court ruled that there is psychological incapacity
in the following instances:
163 Chi Ming Tsoi vs CA (1997)
May invoke a senseless, protracted and constant refusal to
comply with the essential marital obligations by one or both
of the spouses although he, she or they are physically
capable of performing such obligations.
169 Antonio vs. Reyes (2005)
A person who is unable to distinguish between fantasy and
reality would be unable to comprehend the legal nature of
the marital bond much less its psychic meaning and the
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
obligations attached to the marriage, including parenting.
One unable to adhere to reality cannot be expected to
adhere as well to any legal or emotional commitments.
164 Republic vs. Molina (1997)
The court herein laid down the following guidelines in the
interpretation and application of Art. 36 of the Family Code:
(1) The burden of proof to show the nullity of the
marriage belongs to the plaintiff. This is to be investigated
by the OSG fro collusion
(2) The root cause of the psychological incapacity
must be: (a) medically or clinically identified, (b) alleged in
the complaint, (c) sufficiently proven by the experts, (d)
clearly explained in the decision.
(3) The incapacity must be proven to be existing at
the time of the celebration of the marriage.
(4) Such incapacity must also be shown to be
medically or clinically permanent or incurable.
(5) Such illness must be grave enough to bring about
the disability of the party to assume the essential
obligations of marriage.
(6) The essential marital obligations must be those
embrace by Art. 68-71 of the Family Code as regards the
husband and wife as well as Art. 220, 221, and 225 of the
same Code in regard to parents and their children.
(7) Interpretations given by the Natl Appellate
Matrimonial Tribunal of the Catholic Church in the
Philippines, while not controlling/decisive, should be given
great respect by our courts.
(8) The trial court must order the prosecuting attorney
or fiscal and the SolGen to appear as counsel for the state.
No decision shall be handed down unless the SolGen issues
a certification.
Short version: (PROBE-PIG)
1. Incapacity must be Permanent and incurable
2. Root cause of the psychological incapacity must be:
a. Medically or clinically identified
b. Alleged in the complaint: sufficiently proven by experts,
clearly explained in the decision
3. Marital Obligations refer to Art. 68-71, 220,221-225, FC
4. Plaintiff has Burden of proof
5. Incapacity proven to be Existing at the time of the
marriage
6. Trial court must order the Prosecuting attorney or the
fiscal and the SolGen to appear for the state
7. Interpretations of the National Apellate Matrimonial
Tribunal of the Catholic Church of the Philippines while not
controlling should be given great respect.
8. Illness is Grave enough to bring about disability to
assume essential marital obligations.
165 Hernandez vs. CA (1999)
Expert testimony should have been presented to establish
the precise cause of private respondents psychological
incapacity, if any, in order to show that it existed at the
inception of marriage.
On Totality of Evidence:
166 MARCOS v MARCOS (2000)
SC held that psychological incapacity may be established by
the totality of the evidence presented. The facts alleged in
this petition and the evidence presented, considered in
Page 53 of 84
totality, should be sufficient to convince the court of the
psychological incapacity of the party concerned.
No expert witness is required
167 Republic vs. Dadag (2001)
There was failure to comply with the guideline which
requires that the root cause of psychological incapacity must
be medically or clinically identified and sufficiently proven by
experts, since no psychiatrist or medical doctor testifies as
to the alleged psychological incapacity of the spouse.
168 Republic vs. Quintero-Hamano (2004)
There is no distinction between an alien spouse and a
Filipino spouse. Hence, the norms used for determining
psychological incapacity should apply to any person,
regardless of nationality.
169 Antonio vs. Reyes (2005)
*See after case no. 163
170 Republic vs. Tanyag-San Jose (2007)
There is no requirement that the person sought to be
declared psychologically incapacitated should be personally
examined by a physician or psychologist as a condition sine
qua non to arrive at such declaration. It can be proven by
independent means that one is psychologically
incapacitated; there is no reason why the same should not
be credited.
171 Almelor vs. RTC Las Pinas (2008)
The SC emphasized that homosexuality per se is not a
ground to nullify a marriage. It is the concealment of
homosexuality that would. In the case at bar however, it is
not proven that Manuel is a homosexual. The lower court
should not have taken the publics perception against
Manuels sexuality. Even granting that Manuel is indeed a
homosexual, there was nothing in the complaint or
anywhere in the case was it alleged and proven that Manuel
hid such sexuality from Leonida and that Leonidas consent
had been vitiated by such.
172 Te vs Te (2009)
SC stressed that it is the court, on a case to case basis,
which determines whether a party to a marriage is
psychologically incapacitated and that each case should be
related differently. In ruling that the Molina case was
inapplicable, the court declared that cases of psychological
incapacity should be decided not on the basis of a priori
assumptions, predictions or generalizations but according to
its own facts.
While it was not suggesting the abandonment of the Molina
doctrine, it ruled that said doctrine has become a strait
jacket, forcing all sizes to fit into and be bound by it, and in
conveniently applying said doctrine, has allowed diagnosed
sociopaths, nymphomaniacs, schizophrenics to continuously
debase and pervert the sanctity of marriage.
173 Azcueta vs. Republic (2009)
What matters is whether the totality of evidence presented
is adequate to sustain a finding of psychological incapacity,
especially when a narration of facts is corroborated in
material points by the testimony of a close relative of the
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spouse.
174 Halili vs. Halili (2009)
On a motion for reconsideration, the SC reversed it denial of
a petition for declaration of nullity of marriage on Art. 36;
ruled that the testimony of petitioners expert witness
revealed that petitioner was suffering from dependent
personality disorder; and found that individuals with
diagnosable personality disorders usually have long-term
concerns; thus, therapy may be long-term.
175 Najera vs. Najera (2009)
When the basis for declaration of nullity of marriage by the
National Apellate Matrimonial Tribunal is not in the 3rd
paragraph of Canon 1095 which mentions causes of a
psychological nature, but the second par. of Canon 1095
which refers to those who suffer from a grave lack of
discretion of judgment concerning essential matrimonial
rights and obligations to be mutually given and accepted,
the decision of the Tribunal is no persuasive on the Court.
176 Camacho-Reyes vs. Reyes
A recommendation for therapy does not automatically imply
curability.
177 Kalaw vs. Fernandez (2011)
Immaturity and irresponsibility in performing their marital
and familial obligations, sexual infidelity per se, and
acrimony may be grounds for legal separation, but not for
psychological incapacity that voids a marriage.
178 Kalaw vs. Fernandez (2015)
In 2015, with Justice Lucas Bersamin as ponente, the
Supreme Court reconsidered its earlier decision. The
Supreme Court, lest it be misunderstood, explicitly stated
that its not abandoning Molina. The Court, bound by the
same set of proven facts, clarified that the failure to show
the frequency of mahjong sessions does not preclude
a finding of psychological incapacity. Its not the
FREQUENCY of the mahjong sessions; its the fact that the
respondent-wife should have known that bringing her
children along her children of very tender ages to her
mahjong sessions would expose them to a culture of
gambling and other vices that would erode their moral
fiber. This, based on the totality of facts in the case,
supports the finding of psychological incapacity. This ruling
is very much consistent with the Molina Doctrine. There is
no relaxation of the rules in this respect.
179 Mendoza vs. Republic (2012)
Even if the expert opinions of psychologists are not
conditions sine qua non in the granting of petitions for
declaration of nullity of marriage, the actual medical
examination is to be dispensed with only if the totality of
evidence presented is enough to support a finding of
psychological incapacity. What is essential is the presence
of evidence that can adequately establish the partys
psychological condition.
180 Republic vs. De Gracia (2014)
SC reversed decisions as the court believes that Ns refusal
to live with R and to assume wife and mom duties do not
rise to the level of psychological incapacity.
Page 54 of 84
Dr. Zalsos failed to:
1) identify in reasonable detail how Ns condition is deeply
rooted, grave and incurable.
2) show the types of tests she did
3) show incapacity existed at the time of marriage.
4) provide scientific basis on incurability
Psychological incapacity most serious of conditions only
181 Vinas vs. Parel-Vinas (2015)
Cumulative testimonies of G, Dr. T and Cousin are not
sufficient to prove the root cause, gravity and incurability of
M.Gs condition. Departure from home of M.G. does not
constitute inability to live with husband as the two were able
to live together for 7 years.
There is inadequate basis for the Court to conclude that
M.G. is indeed psychologically incapacitated.
182 Malilin vs. Jamesolamin (2015)
R.M. failed to establish the psych incapacity of L.J.
As correctly found by the CA, sexual infidelity or perversion
and abandonment do not, by themselves, constitute
grounds for psychological incapacity.
(f) Incestuous Marriages
Art. 37, FC
Marriages between the following are incestuous and void from
the beginning, whether relationship between the parties be
legitimate or illegitmate:
(1) Between ascendants and descendants of any degree;
and
(2) Between brothers and sisters, whether the full or half-
blood.
See Art. 963-967, NCC
Relationship, Legal and Intestate Succession
(g) Marriages against Public Policy
Art. 38, FC
The following marriages shall be void from the beginning for
reasons of public policy:
(1) Between collateral blood relatives, whether legitimate or
illegitimate, up to the fourth civil degree;
(2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
(4) Between the adopting parent and the adopted child;
(5) Between the surviving spouse of the adopting parent and the
adopted child;
(6) Between the surviving spouse of the adopted child and the
adopter;
(7) Between an adopted child and a legitimate child of the
adopter;
(8) Between adopted children of the same adopter; and
(9) Between parties where one, with the intention to marry the
other, killed that other persons spouse, or his or her own
spouse.
Mnemonics: CS-PASS-AKA
Art. 38(6), FC vs. Art. 80(6), NCC vs. Art. 246 RPC vs.
Art. 80(7) and 82 vs. Arts. 963-967, NCC
The following can now marry each other:
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
1. Brother-in-law & Sister-in-law
2. Stepbrother & Stepsister
3. Guardian and ward
4. Adopted & Illegitimate child, parents and relatives by
consanguinity or affinity of the adopter
5. Parties who have been convicted of adultery or
concubinage
6. Collateral relatives by the half blood
Views on Termination of Marriage on the Affinity
Prohibition
1. Relationship by affinity terminates with the termination of
marriage whether or not there are children in the marriage
2. Relationship by affinity is dissolved if one of the spouses
dies and the spouses have no living issues or children | It
does not cease if there are living issues or children in whose
veins the blood of the parties are commingled as
relationship by affinity continues.
3. Continuing Affinity View What the PH follows
Never terminates even with death
(h) Non-Compliance under Art. 53, 52 | Sec.
21, 22 and 23, A.M. No. 02-11-10-SC, March
4, 2003
Art. 52, FC
The judgment of annulment or of absolute nullity of the marriage,
the partition and distribution of the properties of the spouses, and
the delivery of the childrens presumptive legitimes shall be
recorded in the appropriate civil registry and registries of property;
otherwise, the same shall not affect third persons. (n)
Art. 53, FC
Either of the former spouses may marry again after complying
with the requirements of the immediately preceding Article;
otherwise, the subsequent marriage shall be null and void.
Sec. 21, A.M. No. 02-11-10-SC
Upon entry of the judgment granting the petition, or, in case of
appeal, upon receipt of the entry of judgment of the appellate
court granting the petition, the Family Court, on motion of either
party, shall proceed with the liquidation, partition and distribution
of the properties of the spouses, including custody, support of
common children and delivery of their presumptive legitimes
pursuant to Articles 50 and 51 of the Family Code unless such
matters had been adjudicated in previous judicial proceedings.
Sec. 22, A.M. No. 02-11-10-SC
The court shall issue the Decree of declaration of absolute nullity
or annulment of marriage after compliance with the following
requirements:
(1) registration of the entry of judgment granting the petition for
declaration of nullity or annulment of marriage in the Civil Registry
where the marriage was celebrated and in the Civil Registry of the
place where the Family Court is located; (2) registration of the
approved partition and distribution of the properties of the
spouses, in the proper
Register of Deeds where the real properties are located; and (3)
the delivery of the childrens presumptive legitimes in cash,
property, or sound securities. The court shall quote in the Decree
the dispositive portion of the judgment entered and attach to the
Decree the approved deed of partition.
Sec. 23, A.M. No. 02-11-10-SC
(a) The prevailing party shall cause the registration of the Decree
in the Civil Registry where the marriage was registered, the Civil
Registry of the place where the Family Court is situated, and in the
National Census and Statistics Office. He shall report to the court
compliance with this requirement within thirty days from receipt of
the copy of the Decree.
(b) In case service of summons was made by publication, the
Page 55 of 84
parties shall cause the publication of the Decree once in a
newspaper of general circulation.
(c) The registered Decree shall be the best evidence to prove the
declaration of absolute nullity or annulment of marriage and shall
serve as notice to third persons concerning the properties of
petitioner and respondent as well as the properties or presumptive
legitimes delivered to their common children.
2. Who Can Invoke Nullity
Art. 36, FC
A marriage contracted by any party who, at the time of the
celebration, was psychologically incapacitated to comply with the
essential marital obligation of marriage, shall likewise be void even
if such incapacity becomes manifest only after its solemnization.
Art. 39, FC
The action or defense for the declaration of absolute nullity of a
marriage shall not prescribe.
Art. 40, FC
The absolute nullity of previous marriage may be invoked for
purposes of remarriage on the basis solely of a final judgment
declaring such previous marriage void.
Sec. 2, A.M. 02-11-10-SC
xxx A petition for Declaration of Absolute Nullity of a Void Marriage
may be filed solely by the husband or the wife.
183 Ninal vs. Bayadog (2000)
For purposes other than remarriage, such as but not limited
to determination of heirship, legitimacy or illegitimacy of a
child, settlement of estate, dissolution of property regime or
criminal case, other evidence is acceptable to show the
nullity of marriage so long as it is essential to the
determination of the case.
On Proof of Divorce
184 Amor-Catalan vs CA (2007)
Party pleading it must prove divorce as a fact and
demonstrate its conformity to the foreign law allowing it,
which must be proved as courts cannot take judicial notice
of foreign laws. If a valid divorce decree has been obtained
abroad, there is no more need to file an action to nullify the
marriage. The plaintiff has no more personality to sue since
the marriage bond has already been severed.
185 Enrico vs. Heirs od Medinacelli (Eulogio and
Trinidad)(2007)
Pursuant to A.M. No. 02-11-10-SC, a petition for declaration
of absolute nullity of void marriages may be filed solely by
the husband or the wife. Thus, compulsory or intestate heirs
can question the validity of the marriage of the spouses, not
in a proceeding for the declaration of nullity, but upon the
death of a spouse in a proceeding for the settlement of the
estate of the deceased spouse filed in the regular courts.
186 Carlos vs. Sandoval (2008)
Heir can still question the validity of the marriage of the
spouses, not in a proceeding for declaration of nullity, but
upon the death of a spouse in a proceeding for the
settlement of the estate of the deceased spouse in the
regular courts.
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
187 Ablaza vs Republic (2010)
The marriage of C and L is governed by the Civil Code,
hence A.M. 02-11-10-SC is not in force. While the Civil Code
does not grant the right to file for declaration of nullity,
Ablaza, as a brother of the deceased, have material interest
on the matter.
3. When to File Action for Declaration of
Nullity
Art. 39, FC
The action or defense for the declaration of absolute nullity
of a marriage shall not prescribe.
------in relation to:
Art. 255,FC
If any provision of this Code is held invalid, all the other
provisions not affected thereby shall remain valid.
Art. 256, FC
This Code shall have retroactive effect insofar as it does
not prejudice or impair vested or acquired rights in
accordance with the Civil Code or other laws.
Void marriages can still be questioned even after the death
of either pary.
In view, however, of A.M. No. 02-11-10-SC, it now appears
that a direct proceeding for the purposes of obtaining a
judicial declaration of nullity of a void marriage may no
longer be filed after the death of either of the part to such
void marriage.
This does not mean, however, that a void marriage may no
longer be questioned post death.
4. Procedures in Actions for Declaration
of Nullity
(a) Requisites for Valid Remarriage
The following are void subsequent marriages:
1. Without judicial declaration of nullity of previous void
marriage (Art. 40)
2. Without judicial declaration of presumptive death of
absent spouse (Art. 41)
3. Where the absent spouse was presumed dead, and both
the present spouse and would-be spouse were in bad faith
in contracting marriage (Art. 44)
4. Failure to comply with Art. 52 requiring the proper
settlement of the legitimes from the previous marriage (Art.
53, FC)
(b) Safeguard against Collusion
Role of the Public Prosecutor
188 Malcampo-Sin vs. Sin
In remanding the case to the trial court for re-trial, the
Supreme Court explained
It can be argued that since the lower court dismissed the
petition, the evil sought to be prevented (i.e ., dissolution of
the marriage) did not come about, hence, the lack of
participation of the State was cured. Not so. The task of
protecting marriage as an inviolable social institution
requires vigilant and zealous participation and not mere pro-
forma compliance. The protection of marriage as a
sacred institution requires not just the defense of a
Page 56 of 84
true and genuine union but the exposure of an
invalid one as well. Thus, in all cases for annulment,
declaration of nullity of marriage and legal
separation, the prosecuting attorney or fiscal is
ordered to appear on behalf of the State for the
purpose of preventing any collusion between the
parties and to take care that their evidence is not
fabricated or suppressed.
There is no evidence that the State participated in the
prosecution of the case not just at the trial level but on
appeal with the Court of Appeals as well. Other than the
manifestation filed with the trial court on November 16,
1994, the State did not file any pleading, motion or position
paper, at any stage of the proceedings.
With this, SC decline to rule on the factual disputes of the
case, as it is within the province of the trial court upon
proper re-trial.
No Motion to Dismiss, No Declaration of Default
189 Ancheta vs. Ancheta
SC was alarmed with the procedural happenings that
occurred in the TC as the actuations of the trial court and
the public prosecutor are in defiance of Art. 48, FC
The trial court and the public prosecutor also ignored Rules
on Civil Procedure where No defaults in actions for
annulment of marriage or for legal separation If the
defendant in an action for annulment of marriage or for
legal separation fails to answer, the court shall order the
prosecuting attorney to investigate whether or not a
collusion between the parties exists, and if there is no
collusion, to intervene for the State in order to see to it that
the evidence submitted is not fabricated.
190 Republic vs. CA
Payment cannot be a sign of collusion as her share in her
conjugal abode was a specific prayer she made despite
admission to psych incapacity.
SC dismissed petition, marriage subsists.
A grant of annulment of marriage or legal separation by
default = danger of collusion.
In all cases for annulment, declaration of nullity of marriage
and legal separation the prosecuting attorney or fiscal is
ordered to appear on behalf of the State
Purpose: prevent any collusion between the parties and to
take care that their evidence is not fabricated or
suppressed.
The prosecuting attorney or fiscal may oppose the
application for legal separation or annulment through the
presentation of his own evidence, if, in his opinion, the
proof = dubious and fabricated
Service of Summons
191 Yuk Ling Ong vs. CA
Jurisdiction over the defendant is acquired either upon a
valid service of the summons or the defendants voluntary
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
appearance in court. If the defendant does not voluntarily
appear in court, summons are the alternative way (see Sec.
6 and 7 of the Rules of Court). With these two options
missing, declaration of nullity of marriage of Ling is wrong
and set aside.
(c) No Confession of Judgment
Art. 48, FC
In all cases of annulment or declaration of absolute nullity of
marriage, the Court shall order the prosecuting attorney or fiscal
assigned to it to appear on behalf of the State to take steps to
prevent collusion between the parties and to take care that
evidence is not fabricated or suppressed.
In the cases referred to in the preceding paragraph, no judgment
shall be based upon a stipulation of facts or confession of
judgment.
(d) A.M. 02-11-10-SC, March 4, 2003
192 Jocson vs. Robles
Gloria Jocson: action for annulment of marriage to Robles
on grounds of Bigamy as Robles has a previous subsisting
marriafe
Robles: marriage to G.J was only through force, threat and
intimidation and such subsisted until he was able to get
away and live apart.
ISSUE: Are their claims enough for the Court to declare
their marriage void?
HELD: No. The court correctly denied the motion for
summary judgment in view of the first par. of Art. 88 and
191 of the Civil Code that expressly prohibit the rendition of
a decree of annulment of marriage upon a stipulation of
facts or a confession of judgment. The affidavits presented
by parties were equal to the methods that the Code seeks
to prevent.
Art. 60, FC
No decree of legal separation shall be based upon a stipulation of
facts or a confession of judgment.
Xxx
193 Tolentino vs. Villanueva
The court correctly denied the motion for summary
judgment in view of the first par. of Art. 88 and 191 of the
Civil Code that expressly prohibit the rendition of a decree
of annulment of marriage upon a stipulation of facts or a
confession of judgment. The affidavits presented by parties
were equal to the methods that the Code seeks to prevent.
(e) Participation of the OSG
194 Mendoza vs. Republic
Even if the expert opinions of psychologists are not
conditions sine qua non in the granting of petitions for
declaration of nullity of marriage, the actual medical
examination is to be dispensed with only if the totality of
evidence presented is enough to support a finding of
psychological incapacity. What is essential is the presence
of evidence that can adequately establish the partys
Page 57 of 84
psychological condition
(f) No motion to Dismiss
195 Aurelio vs. Aurelio (2011)
The CA properly dismissed petitioners petition. As a general
rule, the denial of a motion to dismiss, which is an
interlocutory order, is not reviewable by certiorari.
Petitioners remedy is to reiterate the grounds in his motion
to dismiss, as defenses in his answer to the petition for
nullity of marriage, proceed trial and, in case of an adverse
decision, appeal the decision in due time. The existence of
that adequate remedy removed the underpinnings of his
petition for certiorari in the CA.
5. Effects of pendency of action for
declaration of nullity
Art. 49, FC
During the pendency of the action and in the absence of
adequate provision in a written agreemen between the spouses,
the court shall provide for the support of the spouse and the
custody and support of their common children. The court shall
give paramount consideration the moral and material welfare of
said children and their choice of the parent with whom they wish
to remain as provided for in the Title IX. It shall also provide for
appropriate visitation rights of the other parent. (n)
Art. 198, FC
During the proceeding for legal separation or for annulment of
marriage, and for declaration of nullity of marriage, the spouses
and their children shall be supported from the properties of the
absolute community or the conjugal partnership. After the final
judgment granting the petition, the obligation of mutual support
between the spouses ceases. However, in case of legal
separation, the court may order that the guilty spouse shall give
support to the innocent one, specifying the terms of such order.
(292a)
Art. 50, FC
The effects provided for by paragraphs (2), (3), (4) and (5) of
Article 43 and by Article 44 shall also apply in the proper cases to
marriages which are declared ab initio or annulled by final
judgment under Articles 40 and 45.
The final judgment in such cases shall provide for the liquidation,
partition and distribution of the properties of the spouses, the
custody and support of the common children, and the delivery of
third presumptive legitimes, unless such matters had been
adjudicated in previous judicial proceedings.
All creditors of the spouses as well as of the absolute community
or the conjugal partnership shall be notified of the proceedings
for liquidation.
In the partition, the conjugal dwelling and the lot on which it is
situated, shall be adjudicated in accordance with the provisions
of Articles 102 and 129.
Note: The Committee rejected the idea of indicating the age
at which children could make a choice of the parent with
whom they wish to remain because some children develop
faster. (Legarda)
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6. Effect of res judicata
196 Mallion vs. Alcantara
Failure to raise the absence of a marriage license in a
petition for declaration of nullity based on Art. 36 is res
judicata and one can no longer question the validity of the
marriage.
Res judicata is defined as a matter adjudged; a thing
judicially acted upon or decided; a thing or matter settled by
judgment. It also refers to the rule that a final judgment or
decree on the merits by a court of competent jurisdiction is
conclusive of the rights of the parties or their privies in all
later suits on points and matters determined in the former
suit.
Based on res judicata, the SC validated a void marriage on
the basis of a procedural rule.
7. Effects of the Final Judgment
(a) In General
Art. 50, FC.
The effects provided for by paragraphs (2), (3), (4) and (5) of
Article 43 and by Article 44 shall also apply in the proper cases to
marriages which are declared ab initio or annulled by final
judgment under Articles 40 and 45.
The final judgment in such cases shall provide for the liquidation,
partition and distribution of the properties of the spouses, the
custody and support of the common children, and the delivery of
third presumptive legitimes, unless such matters had been
adjudicated in previous judicial proceedings.
All creditors of the spouses as well as of the absolute community
or the conjugal partnership shall be notified of the proceedings
for liquidation.
In the partition, the conjugal dwelling and the lot on which it is
situated, shall be adjudicated in accordance with the provisions
of Articles 102 and 129.
Art. 51, FC.
In said partition, the value of the presumptive legitimes of all
common children, computed as of the date of the final judgment
of the trial court, shall be delivered in cash, property or sound
securities, unless the parties, by mutual agreement judicially
approved, had already provided for such matters.
The children or their guardian or the trustee of their property
may ask for the enforcement of the judgment.
The delivery of the presumptive legitimes herein prescribed shall
in no way prejudice the ultimate successional rights of the
children accruing upon the death of either of both of the parents;
but the value of the properties already received under the decree
of annulment or absolute nullity shall be considered as advances
on their legitime. (n)
Art. 52, FC.
The judgment of annulment or of absolute nullity of the
marriage, the partition and distribution of the properties of the
spouses and the delivery of the children's presumptive legitimes
shall be recorded in the appropriate civil registry and registries of
property; otherwise, the same shall not affect third persons. (n)
Art. 53, FC
Either of the former spouses may marry again after compliance
Page 58 of 84
with the requirements of the immediately preceding Article;
otherwise, the subsequent marriage shall be null and void.
Art. 54, FC
Children conceived or born before the judgment of annulment or
absolute nullity of the marriage under Article 36 has become final
and executory shall be considered legitimate. Children conceived
or born of the subsequent marriage under Article 53 shall
likewise be legitimate.judgment of annulment or absolute nullity
of the marriage under Article 36 has become final and executory
shall be considered legitimate. Children conceived or born of the
subsequent marriage under Article 53 shall likewise be legitimate.
Art. 198, FC.
During the proceedings for legal separation or for annulment of
marriage, and for declaration of nullity of marriage, the spouses
and their children shall be supported from the properties of the
absolute community or the conjugal partnership. After the final
judgment granting the petition, the obligation of mutual support
between the spouses ceases. However, in case of legal
separation, the court may order that the guilty spouse shall give
support to the innocent one, specifying the terms of such order.
(292a)
Art. 213, FC.
In case of separation of the parents, parental authority shall be
exercised by the parent designated by the Court. The Court shall
take into account all relevant considerations, especially the
choice of the child over seven years of age, unless the parent
chosen is unfit. (n)
The Family Code provides in Art. 50-54, the same
effects of the setting aside of all defective marriage,
whether they are void ab initio, or voidable, or a
subsequent marriage terminated upon reappearance of
a spouse presumed to be dead.
1. There will be liquidation, partition, and distribution
of the properties of the spouses.
Liquidation involves the inventory of the properties and
payment of the obligations of the spouses and the
marriage. All creditors shall be ratified so that they can
assert their claims and be paid. After payment of the
creditors, the remaining properties will constitute the
assets of the spouses.
Partition is the process in which the remaining
properties will be divided into the various portions to be
allocated to all the parties. In general, these properties
are classified into capital of the spouses and the net
profits depends upon whether the spouses have an ACP
or CPG.
* NET PROFITS IN ACP and CPG
(a) Net profits in the ACP is the increase in the value of
the properties of the spouses from the celebration of
the marriage to the time of its termination; while
(b) Net profits in the CPG are all the fruits of the
separate properties of the spouses and the products of
their labor and industry.
Distribution is the delivery to the spouses and the
children, in the proper cases, of the shares or
properties allocated to them respectively in the
partition.
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
2. In determining the share of each spouse in the
properties of the marriage, the properties, or their
value, that had been donated in consideration of
marriage by the innocent spouse to the spouse in
bad faith shall be revoked by operation of law and
returned to the innoncent spouse to become part
of his distributable properties.
3. The children conceived or born before judgment
becomes final are considered legitimate. The
judgment shall provide for their custody and
support. Their presumptive legitime from each
parent shall be delivered to them in cash, property
or securities.
4. The innocent spouse may revoke the designation
of the spouse in bad faith as beneficiary in the
formers life insurance policy.
5. The spouse in bad faith shall be disqualified to
inherit from the innocent spouse even under a will
or testament.
6. The Conjugal dwelling and the lot on which it is
built will be given to the spouse with whom the
common children choose to remain, unless the
parties agree otherwise.
7. If both spouses acted in bad faith all donations by
reason of marriage from one to the other, and all
testamentary provisions made by one in favor of
the other, are revoked by operation of law.
8. The judgment, the partition and distribution of the
properties of the spouses, and the delivery of the
childrens presumptive legitimes shall be recoreded
in the appropriate civil registry.
9. After all the foregoing, the former spouses are free
to marry again; otherwise, subsequent marriage
shall be null and void.
(b) On remarriage
Art. 40, FC
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. (n)
Art. 41, FC
A marriage contracted by any person during subsistence of a
previous marriage shall be null and void, unless before the
celebration of the subsequent marriage, the prior spouse had been
absent for four consecutive years and the spouse present has a
wellfounded belief that the absent spouse was already dead. In
case of disappearance where there is danger of death under the
circumstances set forth in the provisions of Article 391 of the Civil
Code, an absence of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the
preceding paragraph the spouse present must institute a summary
proceeding as provided in this Code for the declaration of
presumptive death of the absentee, without prejudice to the effect
of reappearance of the absent spouse.
(83a)
Page 59 of 84
(c) On rights & obligations between the
former spouses
(d) On the property regime of the
marriage
Art. 147, FC
When a man and a woman who are capacitated to marry each
other, live exclusively with each other as husband and wife without
the benefit of marriage or under a void marriage, their wages and
salaries shall be owned by them in equal shares and the property
acquired by both of them through their work or industry shall be
governed by the rules on coownership.
In the absence of proof to the contrary, properties acquired while
they lived together shall be presumed to have been obtained by
their joint efforts, work or industry, and shall be owned by them in
equal shares. For purposes of this Article, a party who did not
participate in the acquisition by the other party of any property
shall be deemed to have contributed jointly in the acquisition
thereof if the former's efforts consisted in the care and
maintenance of the family and of the household.
Neither party can encumber or dispose by acts inter vivos of his or
her share in the property acquired during cohabitation and owned
in common, without the consent of the other, until after the
termination of their cohabitation.
When only one of the parties to a void marriage is in good faith, the
share of the party in bad faith in the coownership shall be forfeited
in favor of their common children. In case of default of or waiver by
any or all of the common children or their descendants, each vacant
share shall belong to the respective surviving descendants. In the
absence of descendants, such share shall belong to the innocent
party. In all cases, the forfeiture shall take place upon termination
of the cohabitation. (144a)
Art. 148, FC
In cases of cohabitation not falling under the preceding Article, only
the properties acquired by both of the parties through their actual
joint contribution of money, property, or industry shall be owned by
them in common in proportion to their respective contributions. In
the absence of proof to the contrary, their contributions and
corresponding shares are presumed to be equal. The same rule and
presumption shall apply to joint deposits of money and evidences of
credit.
If one of the parties is validly married to another, his or her share in
the co-ownership shall accrue to the absolute community or
conjugal partnership existing in such valid marriage. If the party
who acted in bad faith is not validly married to another, his or her
shall be forfeited in the manner provided in the last paragraph of
the preceding Article. The foregoing rules on forfeiture shall likewise
apply even if both parties are in bad faith. (144a)
197 Valdez vs. QC-RTC
In a void marriage, regardless of the cause thereof, the
property relations of the parties during the period of
cohabitation is governed by the provisions of Article 147 or
Article 148, such as the case may be, of the Family Code.
Article 147 is a remake of Article 144 of the Civil Code as
interpreted and so applied in previous cases.
198 Dino vs. Dino
For Article 147 of the Family Code to apply, the following
elements must be present:
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
(1) The man and the woman must be capacitated to marry
each other;
(2) They live exclusively with each other as husband and
wife; and
(3) Their union is without the benefit of marriage, or their
marriage is void
Under Article 496 of the Civil Code, [p]artition may be made
by agreement between the parties or by judicial
proceedings. x x x. It is not necessary to liquidate the
properties of the spouses in the same proceeding for
declaration of nullity of marriage.
For Article 147 of the Family Code to apply, the
following elements must be present:
(1) The man and the woman must be capacitated to marry
each
other;
(2) They live exclusively with each other as husband and
wife; and
(3) Their union is without the benefit of marriage, or their
marriage is void
In this case, petitioners marriage to respondent was
declared void under Article 3615 of the Family Code and not
under Article 40 or 45. Thus, what governs the liquidation of
properties owned in common by petitioner and respondent
are the rules on co-ownership. The rules on co-ownership
apply and the properties of the spouses should be liquidated
in accordance with the Civil Code provisions on co
ownership. Under Article 496 of the Civil Code, [p]artition
may be made by agreement between the parties or by
judicial proceedings. x x x. It is not necessary to liquidate
the properties of the spouses in the same proceeding for
declaration of nullity of marriage.
199 Yu vs. Reyes-Carpio
Art. 50, FC, in relation to Art. 43, provides that the
community or conjugal property regime shall be dissolved
and liquidated. Dissolution and liquidation follow the rules
stated in Art. 102 or 129, FC.
200 Barrido vs. Nonato
The records reveal that Nonato and Barridos marriage had
been declared void for psychological incapacity under Article
36 of the Family Code. During their marriage, however, the
conjugal partnership regime governed their property
relations. Although Article 12911 provides for the procedure
in case of dissolution of the conjugal partnership regime,
Article 147 specifically covers the effects of void marriages
on the spouses property relations.
This particular kind of co-ownership applies when a man
and a woman, suffering no illegal impediment to marry each
other, exclusively live together as husband and wife under a
void marriage or without the benefit of marriage. It is clear,
therefore, that for Article 147 to operate, the man and the
woman: (1) must be capacitated to marry each other; (2)
Live exclusively with each other as husband and wife; And
(3) their union is without the benefit of marriage or their
marriage is void. Here, all these elements are present.
Page 60 of 84
(e) On legitimes of the common
children
Art. 50, FC
The effects provided for by paragraphs (2), (3), (4) and (5) of
Article 43 and by Article 44 shall also apply in the proper cases to
marriages which are declared ab initio or annulled by final
judgment under Articles 40 and 45.
The final judgment in such cases shall provide for the liquidation,
partition and distribution of the properties of the spouses, the
custody and support of the common children, and the delivery of
third presumptive legitimes, unless such matters had been
adjudicated in previous judicial proceedings.
All creditors of the spouses as well as of the absolute community
or the conjugal partnership shall be notified of the proceedings
for liquidation.
In the partition, the conjugal dwelling and the lot on which it is
situated, shall be adjudicated in accordance with the provisions
of Articles 102 and 129.
Art. 51, FC
In said partition, the value of the presumptive legitimes of all
common children, computed as of the date of the final judgment
of the trial court, shall be delivered in cash, property or sound
securities, unless the parties, by mutual agreement judicially
approved, had already provided for such matters.
The children or their guardian or the trustee of their property
may ask for the enforcement of the judgment.
The delivery of the presumptive legitimes herein prescribed shall
in no way prejudice the ultimate successional rights of the
children accruing upon the death of either of both of the parents;
but the value of the properties already received under the decree
of annulment or absolute nullity shall be considered as advances
on their legitime. (n)
Art. 52, FC
The judgment of annulment or of absolute nullity of the
marriage, the partition and distribution of the properties of the
spouses and the delivery of the children's presumptive legitimes
shall be recorded in the appropriate civil registry and registries of
property; otherwise, the same shall not affect third persons. (n)
Art. 53, FC
Either of the former spouses may marry again after compliance
with the requirements of the immediately preceding Article;
otherwise, the subsequent marriage shall be null and void.
Art. 886, NCC
Legitime is that part of the testator's property which he cannot
dispose of because the law has reserved it for certain heirs who
are, therefore, called compulsory heirs. (806)
Art. 888, NCC
The legitime of legitimate children and descendants consists of
one-half of the hereditary estate of the father and of the mother.
The latter may freely dispose of the remaining half, subject to
the rights of illegitimate children and of the surviving spouse as
hereinafter provided. (808a)
Art. 176, FC
Illegitimate children shall use the surname and shall be under the
parental authority of their mother, and shall be entitled to
support in conformity with this Code. The legitime of each
illegitimate child shall consist of one-half of the legitime of a
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
legitimate child. Except for this modification, all other provisions
in the Civil Code governing successional rights shall remain in
force. (287a)
Art. 908, FC
To determine the legitime, the value of the property left at the
death of the testator shall be considered, deducting all debts and
charges, which shall not include those imposed in the will.
To the net value of the hereditary estate, shall be added the
value of all donations by the testator that are subject to collation,
at the time he made them. (818a)
Art. 1061, FC
Every compulsory heir, who succeeds with other compulsory
heirs, must bring into the mass of the estate any property or
right which he may have received from the decedent, during the
lifetime of the latter, by way of donation, or any other gratuitous
title, in order that it may be computed in the determination of
the legitime of each heir, and in the account of the partition.
(1035a)
Sec. 21, A.M. No. 02-11-10-SC
Liquidation, partition and distribution, custody, support of
common children and delivery of their presumptive iegltimes. -
Upon entry of the judgment granting the petition, or, in case of
appeal, upon receipt of the entry of judgment of the appellate
court granting the petition, the Family Court, on motion of either
party, shall proceed with the liquidation, partition and distribution
of the properties of the spouses, including custody, support of
common children and delivery of their presumptive legitimes
pursuant to Articles 50 and 51 of the Family Code unless such
matters had been adjudicated in previous judicial proceedings.
Art. 147, FC
When a man and a woman who are capacitated to marry each
other, live exclusively with each other as husband and wife
without the benefit of marriage or under a void marriage, their
wages and salaries shall be owned by them in equal shares and
the property acquired by both of them through their work or
industry shall be governed by the rules on coownership.
In the absence of proof to the contrary, properties acquired while
they lived together shall be presumed to have been obtained by
their joint efforts, work or industry, and shall be owned by them
in equal shares. For purposes of this Article, a party who did not
participate in the acquisition by the other party of any property
shall be deemed to have contributed jointly in the acquisition
thereof if the former's efforts consisted in the care and
maintenance of the family and of the household.
Neither party can encumber or dispose by acts inter vivos of his
or her share in the property acquired during cohabitation and
owned in common, without the consent of the other, until after
the termination of their cohabitation.
When only one of the parties to a void marriage is in good faith,
the share of the party in bad faith in the coownership shall be
forfeited in favor of their common children. In case of default of
or waiver by any or all of the common children or their
descendants, each vacant share shall belong to the respective
surviving descendants. In the absence of descendants, such
share shall belong to the innocent party. In all cases, the
forfeiture shall take place upon termination of the cohabitation.
(144a)
Page 61 of 84
(f) On the status and custody of children
Art. 54, FC
Children conceived or born before the judgment of annulment or
absolute nullity of the marriage under Article 36 has become final
and executory shall be considered legitimate. Children conceived
or born of the subsequent marriage under Article 53 shall
likewise be legitimate.
Art. 176, FC
Illegitimate children shall use the surname and shall be under the
parental authority of their mother, and shall be entitled to
support in conformity with this Code. The legitime of each
illegitimate child shall consist of one-half of the legitime of a
legitimate child. Except for this modification, all other provisions
in the Civil Code governing successional rights shall remain in
force. (287a)
(g) On use of surnames
Art. 371, FC
In case of annulment of marriage, and the wife is the guilty
party, she shall resume her maiden name and surname. If she is
the innocent spouse, she may resume her maiden name and
surname. However, she may choose to continue employing her
former husband's surname, unless:
(1) The court decrees otherwise, or
(2) She or the former husband is married again to another
person.
201 Yasin vs. Sharia Court
- While it is true that under Article 376 of the Civil Code, no
person can change his name or surname without judicial
authority, nonetheless, the only name that may be
changed is the true and official name recorded in the Civil
Register.
- When a woman marries a man, she need not apply
and/or seek judicial authority to use her husband's name
by prefixing the word "Mrs." before her husband's full
name or by adding her husband's surname to her maiden
first name. The law grants her such right (Art. 370, Civil
Code). Similarly, when the marriage ties or vinculum no
longer exists as in the case of death of the husband or
divorce as authorized by the Muslim Code, the widow or
divorcee need not seek judicial confirmation of the
change in her civil status in order to revert to her maiden
name as the use of her former husband's name is optional
and not obligatory for her.
202 BAR MATTER NO. 205 PETITION TO USE
MAIDEN NAME IN PETITION TO TAKE THE 2006 BAR
EXAMS, JOSEPHINE P. UY-TIMOSA
Following the Courts decision in Yasin v Sharia Court, "Even
under the Civil Code, the use of the husband's surname
during the marriage (Art. 370, Civil Code) ,after the
annulment of marriage(Art. 371, Civil Code)and after the
death of the husband(Art. 373, Civil Code) is permissive
and not obligatory x x x.
When petitioner married her husband, she did not change
hername but only her civil status. Neither was she required
to secure judicial authority to use the surname of her
husband after the marriage as nol aw requires it."
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
202 Remo vs. DFA
A problem arises when the Filipino lives abroad. For
example, a Filipina lives abroad and marries a foreigner. She
adopts his name and takes out a Filipino passport in the
name of her spouse. Should the marriage break down, the
foreign spouse can validly divorce her. After the divorce
becomes final, the Filipino can remarry abroad. However,
she cannot obtain a new passport in her new husbands
name without having the first divorce recognized.
(h) On hereditary rights
Art. 43, FC
If there is a doubt, as between two or more persons who are
called to succeed each other, as to which of them died first,
whoever alleges the death of one prior to the other, shall prove
the same; in the absence of proof, it is presumed that they died
at the same time and there shall be no transmission of rights
from one to the other. (33)
Art. 50, FC
For the exercise of civil rights and the fulfillment of civil
obligations, the domicile of natural persons is the place of their
habitual residence. (40a)
Art. 54, FC
Any male of the age of sixteen years or upwards, and any female
of the age of fourteen years or upwards, not under any of the
impediments mentioned in articles 80 to 84, may contract
marriage. (2)
(i) Effect of death
Art. 103, FC
An action for legal separation shall in no case be tried before six
months shall have elapsed since the filing of the petition. (5a, Act
2710)
Art. 130, FC
The future spouses may give each other in their marriage
settlements as much as one-fifth of their present property, and
with respect to their future property, only in the event of death,
to the extent laid down by the provisions of this Code referring to
testamentary succession. (1331a)
203 Heirs of Go vs. Servacio
It is clear that conjugal partnership of gains established
before and after the effectivity of the Family Code are
governed by the rules found in Chapter 4 (Conjugal
Partnership of Gains) of Title IV (Property Relations between
Husband And Wife) of the Family Code. Hence, any
disposition of the conjugal property after the dissolution of
the conjugal partnership must be made only after the
liquidation; Otherwise, the disposition is void.
Protacio, Sr., although becoming a co-owner with his
children in respect of Martas share in the conjugal
partnership, could not yet assert or claim title to any specific
portion of Martas share without an actual partition of the
property being first done either by agreement or by judicial
decree. Until then, all that he had was an ideal or abstract
quota in Martas share. Nonetheless, a coowner could sell
his undivided share; Hence, Protacio, Sr. had the right to
freely sell and dispose of his undivided interest, but not the
interest of his coowners. Consequently, the sale by Protacio,
Sr. and Rito as coowners without the consent of the other
coowners was not necessarily void, for the rights of the
Page 62 of 84
selling coowners were thereby effectively transferred,
making the buyer (Servacio) a coowner of Martas share.
H. VOIDABLE MARRIAGES
1. Void vs. Voidable Marriages
Art. 4, FC
Absence of any of the essential or formal requisites shall render
the marriage void ab initio, except as stated in Article 35(2).
A defect in any of the essential requisites shall render the
marriage voidable as provided in Article 45.
An irregularity in the formal requisites shall not affect the
validity of the marriage but the party or parties responsible for
the irregularity shall be civilly, criminally and administratively
liable. (n)
Art. 45, FC
A marriage may be annulled for any of the following causes,
existing at the time of the marriage:
(1) That the party in whose behalf it is sought to have the
marriage annulled was eighteen years of age or over but below
twenty-one, and the marriage was solemnized without the
consent of the parents, guardian or person having substitute
parental authority over the party, in that order, unless after
attaining the age of twenty-one, such party freely cohabited
with the other and both lived together as husband and wife;
(2) That either party was of unsound mind, unless such party
after coming to reason, freely cohabited with the other as
husband and wife;
(3) That the consent of either party was obtained by fraud,
unless such party afterwards, with full knowledge of the facts
constituting the fraud, freely cohabited with the other as
husband and wife;
(4) That the consent of either party was obtained by force,
intimidation or undue influence, unless the same having
disappeared or ceased, such party thereafter freely cohabited
with the other as husband and wife;
(5) That either party was physically incapable of consummating
the marriage with the other, and such incapacity continues and
appears to be incurable; or
(6) That either party was afflicted with a sexually-transmissible
disease found to be serious and appears to be incurable.
Generally, marriage is voidable if there is any defect in the
essential requisites: 1. Legal Consent 2. Legal Consent
Annulment: judicial or legal process of invalidating a
marriage
VOID VOIDABLE
Nature
Always void Valid until annuled
Susceptibility for convalidation
Incapable of being Can be convalidated by free
convalidated or ratified cohabitation or prescription
Direct/Indirect Impugnation
Can be attacked collaterally Can only be attacked
or directly in an action filed through a direct action filed
or by way of defense in court
Impugnation after death of either party
Property Relations
Co-ownership of properties Generally conjugal
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
through joint or actual partnership or absolute
contributions community
Prescription
Action for declaration of Action prescribes
nullity does not prescribe
Decree Issues
Decree of Nullity Decree of Annulment
204 Ninal vs. Bayadog (2000)
The five year period cohabitation of Pepito and Norma was
not the cohabitation contemplated by law. It should 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. Pepito had a subsisting marriage at the time when
he started cohabiting with respondent. It is immaterial that
when they lived with each other, Pepito had already been
separated in fact from his lawful spouse. The subsistence of
the marriage even where there was actual severance of the
filial companionship between the spouses cannot make any
cohabitation by either spouse with any third party as being
one as husband and wife. Hence, the marriage is void ab
initio.
2. Grounds for Annulment
(a) Absence of Parental Consent
Absence of consent to contract marriage from the parents,
guardian or person exercising substitute parental authority
(in that order) over one or both of the parties, where one or
both of the parties is over 18 but below 21.
206 Moe vs. Dinkins (1981) (1982)
The law is constitutional because the State has a legitimate
interest in protecting minors from immature decision-
making. Previous case law has recognized constitutional
liberty interest in marriage but has not addressed the
marriages of minors. The constitutional rights of children
cannot be equated with adults for three reasons 1.) peculiar
vulnerability of children; 2.) inability to make critical
decisions in an informed and mature matter; 3.) the
importance of the parental role in child-rearing.
This law should not be examined under a strict scrutiny
standard, but rather it must be determined if there is a
rational relationship between the means chosen and the
legitimate state interests advanced. The parent consent
requirement ensures that at least one mature person will
participate in the marriage decision. Because of this and
minors lack of experience, perspective and judgment, the
law is rationally related to a legitimate state interest
(b) Insanity
Par.2, Art. 45, FC
A marriage may be annulled for any of the following causes,
existing at the time of the marriage:
xxx
(2) That either party was of unsound mind, unless such party
after coming to reason, freely cohabited with the other as
husband and wife;
xxx
Par.2, Art. 47, FC
The action for annulment of marriage must be filed by the
Page 63 of 84
following persons and within the periods indicated herein:
xxx
(2) For causes mentioned in number 2 of Article 45, by the sane
spouse who had no knowledge of the others insanity; or by any
relative, guardian or person having legal charge of the insane,
at any time before the death of either party;
xxx
Art. 1149, NCC
All other actions whose periods are not fixed in this Code or in
other laws must be brought within five years from the time the
right of action accrues.
True test: Whether the party concerned could intelligently
consent, that is, he knew what contract he was entering
into.
Intoxication which results in lack of mental capacity to give
consent = unsoundness of mind
207 Katipunan vs. Tenorio
There is no ground to annul the marriage. Insanity occurs
after the celebration of the marriage does not constitute
acause for nullity. The wife was mentally sound at the time
of the marriage.
Note: Definition of Mental illness is usually a broader and
more inclusive term than Insanity. Insanity is usually
reservedfor describing severe conditions involving psychotic-
like breaks with reality, while Mental Illness can include both
severe and milder forms of mental problems (such as
anxiety disorders and mild depressions)
Art. 5, FC
Any male or female of the age of eighteen years or upward not
under any of the impediments mentioned in Articles 37 and 38,
may contract marriage. (54a)
Par.1, Art. 45, FC
A marriage may be annulled for any of the following causes,
existing at the time of the marriage:
(1) That the party in whose behalf it is sought to have the
marriage annulled was eighteen years of age or over but below
twenty-one, and the marriage was solemnized without the consent
of the parents, guardian or person having substitute parental
authority over the party, in that order, unless after attaining the
age of twenty-one, such party freely cohabited with the other and
both lived together as husband and wife;
xxx
Art. 47, FC
Art. 47. The action for annulment of marriage must be filed by
thefollowing persons and within the periods indicated herein:
(1) For causes mentioned in number 1 of Article 45, by the party
whose parent or guardian did not give his or her consent, within
five years after attaining the age of twenty-one; or by the parent
or guardian or person having legal charge of the minor, at any
time before such party has reached the age of twenty-one;
(c) Fraud
Par.3, Art. 45, FC
A marriage may be annulled for any of the following causes,
existing at the time of the marriage:
xxx
(3) That the consent of either party was obtained by fraud,
unless such party afterwards, with full knowledge of the facts
constituting the fraud, freely cohabited with the other as
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
husband and wife;
xxx
Art. 46, FC
Any of the following circumstances shall constitute fraud
referred to in Number 3 of the preceding Article:
(1) Non-disclosure of a previous conviction by final judgment of
the other party of a crime involving moral turpitude;
(2) Concealment by the wife of the fact that at the time of the
marriage, she was pregnant by a man other than her husband;
(3) Concealment of a sexually transmissible disease, regardless
of its nature, existing at the time of the marriage; or
(4) Concealment of drug addiction, habitual alcoholism or
homosexuality or lesbianism existing at the time of the
marriage.
No other misrepresentation or deceit as to character, health,
rank, fortune or chastity shall constitute such fraud as will give
grounds for action for the annulment of marriage.
Par.4, Art. 47, FC
xxx
4) That the consent of either party was obtained by force,
intimidation or undue influence, unless the same having
disappeared or ceased, such party thereafter freely cohabited
with the other as husband and wife;
Xxx
Note: Concealment of pregnancy must be done in bad
faith. If the woman did not expressly inform the man of her
pregnancy but such was very much physically evident to the
man, he cannot claim lack of knowledge thereof (Buccat vs.
Buccat)
Fraud: There is fraud when, through insidious words or
machinations of one of the contracting parties, the other is
induces to enter into a contract which, without them, he
would not have agreed to.
Enumeration Exclusive:
Misrepresentation as to character, health, rank, fortune or
chastity is not a ground for annulment. (Anaya vs. Palaraon)
Entering into a marriage for the sole purpose of evading
immigration laws does not qualify as grounds of fraud under
any listed circumstances.
208 Hernandez vs. CA (1999)
There can be no annulment of a marriage on the ground of
disease under Art. 46, par. 3, when the gonorrhea was
transmitted 5 years after the marriage was celebrated in
1981. The law would require the existence of this ground
(fraud) at the time of the celebration of marriage.
See article 1338-1344, NCC
209 Buccat vs. Buccat (1941)
Advanced stages of pregnancy (7 months) of the woman at
the time of the marriage should have been obvious to a first
year student of law.
210 Aquino vs. Delizo (1960)
When a woman was only 4 months pregnant at the time of
her marriage, her pregnancy would not be readily apparent,
especially since she was naturally plump or fat and
because she must have attempted to conceal the true state
of affairs.
Page 64 of 84
211 Anaya vs. Palaraon (1970)
The enumeration constituting fraud is exclusive and that
non-disclosure of a husbands pre-marital relationship with
another woman is not one of the enumerated circumstances
that would constitute a ground for annulment.
212 Almelor vs. RTC
It is the concealment of homosexuality, and not
homosexuality per se, that vitiates the consent of the
innocent party.
(d) Force, Intimidation and Undue
Influence
Par.3, Art. 45, FC
A marriage may be annulled for any of the following causes,
existing at the time of the marriage:
xxx
(3) That the consent of either party was obtained by fraud,
unless such party afterwards, with full knowledge of the facts
constituting the fraud, freely cohabited with the other as
husband and wife;
xxx
Art. 46, FC
Any of the following circumstances shall constitute fraud
referred to in Number 3 of the preceding Article:
(1) Non-disclosure of a previous conviction by final judgment of
the other party of a crime involving moral turpitude;
(2) Concealment by the wife of the fact that at the time of the
marriage, she was pregnant by a man other than her husband;
(3) Concealment of a sexually transmissible disease, regardless
of its nature, existing at the time of the marriage; or
(4) Concealment of drug addiction, habitual alcoholism or
homosexuality or lesbianism existing at the time of the
marriage.
No other misrepresentation or deceit as to character, health,
rank, fortune or chastity shall constitute such fraud as will give
grounds for action for the annulment of marriage.
Par.4, Art. 47, FC
xxx
4) That the consent of either party was obtained by force,
intimidation or undue influence, unless the same having
disappeared or ceased, such party thereafter freely cohabited
with the other as husband and wife;
xxx
Art. 350, RPC
Criminal liability attaches to anyone who uses violence,
intimidation and fraud in contracting a marriage.
Violence: When in order to wrest consent, serious or
irresistible force is employed (par.1, Art. 1335, CC)
Intimidation: When one of the contracting parties is
compelled by a reasonable and well-grounded fear of an
imminent and grave evil upon his person, property or upon
the person or property of his spouse, ascendants,
descendants, to give his consent (par. 2, Art. 1335, CC)
Undue Influence: It is when a person take improper
advantage of another, depriving the latter of reasonable
freedom of choice.
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
Factors to consider: confidential, family, spiritual and
other relations between the parties + mental weakness or
ignorance or distress
213 Ruiz vs. Atienza (1903)
As to the threat to obstruct Ruizs admission to the Bar by
filing charges against him for immorality, the SC said that
the authorities are unanimous that it is not such a duress as
to constitute a reason for annulling the marriage. The SC
quoted and where a man marries under the threat of, or
constraint from, a lawful prosecution for seduction or
bastardy, he cannot avoid the marriage on the ground of
duress.
214 Villanueva vs. CA
When a male spouse is a security guard, it is reasonable to
assume that he knew the rudiments of self-defense, or, at
the very least, the proper way to keep himself out of harms
way; thus, there was neither intimidation nor force exerted
into marriage.
(e) Physical Incapacity/Impotence
Par.5, Art. 45, FC
A marriage may be annulled for any of the following causes,
existing at the time of the marriage:
xxx
where, at the time of its celebration, either party was physically
incapable of consummating the marriage with the other and
such incapacity continues and appears to be incurable;
xxx
Par.5, Art. 47, FC
xxx
For causes mentioned in numbers 5 and 6 of Article 45, by the
injured party, within five years after the marriage
xxx
Incapacity to consummate = lack of power to
copulate
Impotence: being an abnormal condition should not be
presumed. Presumption is in favor of potency
Requisites of annulment due to Impotence:
1. Existing at the time of marriage
2. Unknown to other spouse
3. Permanent
4. Incurable
5. Other spouse must also not be impotent
Doctrine of Triennial Cohabitation
Presumption: husband is impotent should the wife still
remain to be a virgin after 3 years of cohabitation.
216 Jimenez vs. Canizares
Impotency being an abnormal condition should not be
presumed. The presumption is in favor of potency.
217 Sarao vs. Guevara
The defect or incapacity for copulation must be lasting to be
a ground for annulment, because the test of impotence is
not the capacity to reproduce, but the capacity to copulate.
218 Alcazar vs. Alcazar
Article 45(5) of the Family Code refers to lack of power to
copulate. Incapacity to consummate denotes the permanent
inability on the part of the spouses to perform the complete
Page 65 of 84
act of sexual intercourse. It may be caused by psychogenic
causes, where such mental block or disturbance has the
result of making the spouse physically incapable of
performing the marriage act
No evidence was presented in the case at bar to establish
that respondent was in any way physically incapable to
consummate his marriage with petitioner. No evidence was
presented in the case at bar to establish that respondent
was in any way physically incapable to consummate his
marriage with petitioner. Petitioner even admitted during
her cross-examination that she and respondent had sexual
intercourse after their wedding and before respondent left
for abroad.
(f) Affliction with STD
Par. 6, Art. 45, FC
xxx
(6) That either party was afflicted with a sexually-transmissible
disease found to be serious and appears to be incurable
xxx
Par. 3, Art. 46, FC
Any of the following circumstances shall constitute fraud
referred to in Number 3 of the preceding Article:
xxx;
(3) Concealment of a sexually transmissible disease, regardless
of its nature, existing at the time of the marriage; or
xxx
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.
Par.5, Art. 47, FC
xxx
For causes mentioned in numbers 5 and 6 of Article 45, by the
injured party, within five years after the marriage.
xxx
Elements:
1. Existing at the time of marriage
2. STD
3. Serious
4. Appears incurable
(g) Others
219 Republic vs. Albios
Based on the parameters of consent, this was not lacking
between A and F. In fact, there was real consent as it was
not vitiated nor rendered defective by any vice of consent.
Their consent was also conscious and intelligent. Such
plainly demonstrates that they willingly and deliberately
contracted the marriage.
In ruling that Albios marriage was void for lack of consent,
the CA characterized such as akin to a marriage by way of
jest, with no real intention of entering into the actual
marriage status and with a clear understanding that the
parties would not be bound. In pretend marriages, there is
no genuine consent because the parties have absolutely no
intention of being bound in any way or for any purpose.
3. Who can seek annulment
See Table Below
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016 Page 66 of 84

Additional Requirements for Annulment or interval or

Declaration of Nullity (par.1, Art. 48, FC & A.M. 02- after gaining
11-10-SC) insanity
Prosecuting Atty. or fiscal should: Anytime
Parent/legal before the
1. Appear on behalf of the state. Free
guardian parties reach
2. Take steps to prevent collusion between the parties and No Parental cohabitation
21
3. Take care that evidence is not fabricated or suppressed Consent after reaching
Within 5
Parties to the age of 21
years after
marriage
4. When to seek Annulment reaching 21
Art. 47, FC Within 5
The action for annulment of marriage must be filed by the years after No ratification
following persons and within the periods indicated herein: STD Injured Party the since defect is
celebration of permanent
(1) For causes mentioned in number 1 of Article 45 by the party marriage
whose parent or guardian did not give his or her consent, within
five years after attaining the age of twenty-one, or by the
parent or guardian or person having legal charge of the minor, 5. Procedures in action for annulment
at any time before such party has reached the age of twenty- Art. 48, FC
one; In all cases of annulment or declaration of absolute nullity of
marriage, the Court shall order the prosecuting attorney or fiscal
(2) For causes mentioned in number 2 of Article 45, by the assigned to it to appear on behalf of the State to take steps to
same spouse, who had no knowledge of the other's insanity; or prevent collusion between the parties and to take care that
by any relative or guardian or person having legal charge of the evidence is not fabricated or suppressed.
insane, at any time before the death of either party, or by the
insane spouse during a lucid interval or after regaining sanity; In the cases referred to in the preceding paragraph, no
judgment shall be based upon a stipulation of facts or confession
(3) For causes mentioned in number 3 of Articles 45, by the of judgment. (88a)
injured party, within five years after the discovery of the fraud;

(4) For causes mentioned in number 4 of Article 45, by the

injured party, within five years from the time the force,
intimidation or undue influence disappeared or ceased;
(5) For causes mentioned in number 5 and 6 of Article 45, by
the injured party, within five years after the marriage. (87a)
221 Barcelona v CA (2003)
Procedural rules apply to actions pending and unresolved at
the time of their passage. The SC also stated that the 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.

Article 1149, FC 6. Effects of pendency of action for

All other actions whose periods are not fixed in this Code or in annulment
other laws must be brought within five years from the time the
right of action accrues. (n) *In determing which parent should have custody of them,
their moral and material welfare shall be given
consideration. Thus according to the Rules on Provisional
Grounds Who may sue Prescriptive Ratification Orders (A. M. 02-11-12, Sec. 4), the court may likewise
Period consider the following factors
Force, Free (a) The agreement of the parties;
Within 5 yrs
Intimidation, cohabitation
from the time (b) The desire and ability of each parties to foster an open
Undue Injured Party after
of F, I, U and loving relationship between the child and the other
Influence disappearance
ceased parent;
(F,I,U) of F, I U
Free (c) The childs health, safety, and welfare;
cohabitation (d) Any history of child or spousal abuse by the person
Within 5 yrs
Fraud Injured Party of discovery
even with full seeking custody or who has had any filial relationship with
knowledge of the child, including anyone courting the parent;
of fraud
fraudulent (e) The nature and frequency of contact with both parents;
facts
(f) Habitual use of alcohol or regulated substances;
Within 5 yrs
(g) Marital misconduct;
Impotency Injured Party of celebration No ratification
of marriage (h) The most suitable physical, emotional, spiritual,
Anytime psychological, and educational environment; and
Sane spouse w/ (i) Preference of the child, if over seven years of age and of
before death
no knowledge of
of either Free sufficient discernment, unless the parent chose is unfit.
the insanity
party cohabitation
Insanity Anytime after insane
Relative/Guardian
before death regains sanity
having charge of
of either
the insane
party
Insane Spouse During lucid
 PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
Art. 213, FC
In case of separation of the parents, parental authority shall
be exercised by the parent designated by the court. The
court shall take into account all relevant considerations,
especially the choice of the child over seven years of age,
unless the parent chosen is unfit.
No child under seven years of age shall be separated from
the mother, unless the court finds compelling reasons to
order otherwise.
7. Effects of Annulment
(a) In general
222 Chan-Tan vs Tan
The March 30, 2004 decision and the May 17, 2004 resolution
may no longer be disturbed on account of the belated motion
to dismiss filed by petitioner.
(b) On remarriage
Art. 52, FC
The judgment of annulment or of absolute nullity of the
marriage, the partition and distribution of the properties of the
spouses, and the delivery of the childrens presumptive legitimes
shall be recorded in the appropriate civil registry and registries of
property; otherwise, the same shall not affect third persons.
Art. 53, FC
Either of the former spouses may marry again after complying
with the requirements of the immediately preceding Article;
otherwise, the subsequent marriage shall be null and void.
(c) On rights & obligations between the
former spouses
Art. 50, FC
The effects provided for in paragraphs (2), (3), (4) and (5) of
Article 43 and in Article 44 shall also apply in the proper cases to
marriages which are declared void ab initio or annulled by final
judgment under Articles 40 and 45.
The final judgment in such cases shall provide for the liquidation,
partition and distribution of the properties of the spouses, the
custody and support of the common children, and the delivery of
their presumptive legitimes, unless such matters had been
adjudicated in previous judicial proceedings.
All creditors of the spouses as well as of the absolute community
or the conjugal partnership shall be notified of the proceedings
for liquidation.
In the partition, the conjugal dwelling and the lot on which it is
situated, shall be adjudicated in accordance with the provisions
of Articles 102 and 129.
Art. 51, FC
In said partition, the value of the presumptive legitimes of all
common children, computed as of the date of the final judgment
of thetrial court, shall be delivered in cash, property or sound
securities, unless the parties, by mutual agreement judicially
approved, had already provided for such matters.
The children or their guardian, or the trustee of their property,
may ask for the enforcement of the judgment.
The delivery of the presumptive legitimes herein prescribed shall
in no way prejudice the ultimate successional rights of the
children accruing
Page 67 of 84
(d) On the property regime of the marriage
Art. 43 (2)
The termination of the subsequent marriage referred to in
the preceding Article shall produce the following effects:
xxx
(2) The absolute community of property or the conjugal
partnership, as the case may be, shall be dissolved and
liquidated, but if either spouse contracted said marriage in
bad faith, his or her share of the net profits of the
community property or conjugal partnership property shall be
forfeited in favor of the common children or, if there are
none, the children of the guilty spouse by a previous
marriage or in default of children, the innocent spouse; xxx
Art. 50, FC
The effects provided for in paragraphs (2), (3), (4) and (5) of
Article 43 and in Article 44 shall also apply in the proper
cases to marriages which are declared void ab initio or
annulled by final judgment under Articles 40 and 45.
The final judgment in such cases shall provide for the
liquidation, partition and distribution of the properties of the
spouses, the custody and support of the common children,
and the delivery of their presumptive legitimes, unless such
matters had been adjudicated in previous judicial
proceedings.
All creditors of the spouses as well as of the absolute
community or the conjugal partnership shall be notified of
the proceedings for liquidation.
In the partition, the conjugal dwelling and the lot on which it
is situated, shall be adjudicated in accordance with the
provisions of Articles 102 and 129.
Art. 102, FC
Upon dissolution of the absolute community regime, the
following procedure shall apply:
xxx
(4) The net remainder of the properties of the absolute
community shall constitute its net assets, which shall be
divided equally between husband and wife, unless a different
proportion or division was agreed upon in the marriage
settlements, or unless there has been a voluntary waiver of
such share as provided in this Code. For purposes of
computing the net profits subject to forfeiture in accordance
with Articles 43, No. (2) and 63, No. (2), the said profits shall
be the increase in value between the market value of the
community property at the time of the celebration of the
marriage and the market value at the time of its dissolution.
Xxx
Art. 129, FC
Upon the dissolution of the conjugal partnership regime,
the following procedure shall apply:
(1) An inventory shall be prepared, listing separately all the
properties of the conjugal partnership and the exclusive
properties of each spouse.
(2) Amounts advanced by the conjugal partnership in
payment of personal debts and obligations of either spouse
shall be credited to the conjugal partnership as an asset
thereof.
(3) Each spouse shall be reimbursed for the use of his or her
exclusive funds in the acquisition of property or for the value
of his or her exclusive property, the ownership of which has
been vested by law in the conjugal partnership.
(4) The debts and obligations of the conjugal partnership
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
shall be paid out of the conjugal assets. In case of
insufficiency of said assets, the spouses shall be solidarily
liable for the unpaid balance with their separate properties,
in accordance with the provisions of paragraph (2) of Article
121.
(5) Whatever remains of the exclusive properties of the
spouses shall thereafter be delivered to each of them.
(6) Unless the owner had been indemnified from whatever
source, the loss or deterioration of movables used for the
benefit of the family, belonging to either spouse, even due to
fortuitous event, shall be paid to said spouse from the
conjugal funds, if any.
(7) The net remainder of the conjugal partnership properties
shall constitute the profits, which shall be divided equally
between husband and wife, unless a different proportion or
division was agreed upon in the marriage settlements or
unless there has been a voluntary waiver or forfeiture of
such share as provided in this Code.
(8) The presumptive legitimes of the common children shall
be delivered upon partition in accordance with Article 51.
(9) In the partition of the properties, the conjugal dwelling
and the lot on which it is situated shall, unless otherwise
agreed upon by the parties, be adjudicated to the spouse
with whom the majority of the common children choose to
remain. Children below the age of seven years are deemed
to have chosen the mother, unless the court has decided
otherwise.
In case there is no such majority, the court shall decide,
taking into consideration the best interests of said children.
223 Buenaventura v CA
Art.50, FC, in relation to Art. 43, provides that the
community or conjugal property regime shall be dissolved
and liquidated. Dissolution and liquidation follow the rules
stated in Art. 102 or 129 of the Family Code.
224 Quiao v Quiao
When a couple enters into a regime of absolute community
the husband and the wife become joint owners of all the
properties of the marriage. Whatever property each spouse
brings into the marriage, and those acquired during the
marriage (except those excluded under Art. 92, FC), form
the common mass of the couples properties.
(e) On presumptive legitimes/hereditary
rights
Art. 50, FC
The effects provided for in paragraphs (2), (3), (4) and (5) of
Article 43 and in Article 44 shall also apply in the proper cases to
marriages which are declared void ab initio or annulled by final
judgment under Articles 40 and 45.
The final judgment in such cases shall provide for the liquidation,
partition and distribution of the properties of the spouses, the
custody and support of the common children, and the delivery of
their presumptive legitimes, unless such matters had been
adjudicated in previous judicial proceedings.
All creditors of the spouses as well as of the absolute community
or the conjugal partnership shall be notified of the proceedings
for liquidation.
In the partition, the conjugal dwelling and the lot on which it is
situated, shall be adjudicated in accordance with the provisions
of Articles 102 and 129.
Art. 51, FC
In said partition, the value of the presumptive legitimes of all
common children, computed as of the date of the final judgment
of thetrial court, shall be delivered in cash, property or sound
Page 68 of 84
securities, unless the parties, by mutual agreement judicially
approved, had already provided for such matters.
The children or their guardian, or the trustee of their property,
may ask for the enforcement of the judgment.
The delivery of the presumptive legitimes herein prescribed shall
in no way prejudice the ultimate successional rights of the
children accruing
Art. 52, FC
The judgment of annulment or of absolute nullity of the
marriage, the partition and distribution of the properties of the
spouses, and the delivery of the childrens presumptive legitimes
shall be recorded in the appropriate civil registry and registries of
property; otherwise, the same shall not affect third persons.
Art. 53, FC
Either of the former spouses may marry again after complying
with the requirements of the immediately preceding Article;
otherwise, the subsequent marriage shall be null and void.
*Relate Art. 51 to:
Article 886, NCC
Legitime is that part of the testator's property which he cannot
dispose of because the law has reserved it for certain heirs who
are, therefore, called compulsory heirs. (806)
Article 888, NCC
The legitime of legitimate children and descendants consists of
one-half of the hereditary estate of the father and of the mother.
The latter may freely dispose of the remaining half, subject to
the rights of illegitimate children and of the surviving spouse as
hereinafter provided. (808a)
Article 176, FC
Illegitimate children shall use the surname and shall be under the
parental authority of their mother, and shall be entitled to
support in conformity with this Code. The legitime of each
illegitimate child shall consist of one-half of the legitime of a
legitimate child. Except for this modification, all other provisions
in the Civil Code governing successional rights shall remain in
force. (287a)
Article 908, NCC
To determine the legitime, the value of the property left at the
death of the testator shall be considered, deducting all debts and
charges, which shall not include those imposed in the will.
To the net value of the hereditary estate, shall be added the
value of all donations by the testator that are subject to collation,
at the time he made them. (818a)
Article 1061, NCC
Every compulsory heir, who succeeds with other compulsory
heirs, must bring into the mass of the estate any property or
right which he may have received from the decedent, during the
lifetime of the latter, by way of donation, or any other gratuitous
title, in order that it may be computed in the determination of
the legitime of each heir, and in the account of the partition.
(1035a)
Article 102 (5), FC
Upon dissolution of the absolute community regime, the
following procedure shall apply:
XXX
(5) The presumptive legitimes of the common children shall be
delivered upon partition, in accordance with Article 51.
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
XXX
Article 43(2), FC
The termination of the subsequent marriage referred to in the
preceding Article shall produce the following effects:
xxx
(2) The absolute community of property or the conjugal
partnership, as the case may be, shall be dissolved and
liquidated, but if either spouse contracted said marriage in bad
faith, his or her share of the net profits of the community
property or conjugal partnership property shall be forfeited in
favor of the common children or, if there are none, the children
of the guilty spouse by a previous marriage or in default of
children, the innocent spouse;
xx
Art. 50 (2), FC
xxx
The final judgment in such cases shall provide for the liquidation,
partition and distribution of the properties of the spouses, the
custody and support of the common children, and the delivery of
third presumptive legitimes, unless such matters had been
adjudicated in previous judicial proceedings.
xxx
Art. 63, FC
The decree of legal separation shall have the following effects:
(1) The spouses shall be entitled to live separately from each
other, but the marriage bonds shall not be severed;
(2) The absolute community or the conjugal partnership shall be
dissolved and liquidated but the offending spouse shall have no
right to any share of the net profits earned by the absolute
community or the conjugal partnership, which shall be forfeited
in accordance with the provisions of Article 43(2);
(3) The custody of the minor children shall be awarded to the
innocent spouse, subject to the provisions of Article 213 of this
Code; and
(4) The offending spouse shall be disqualified from inheriting
from the innocent spouse by intestate succession. Moreover,
provisions in favor of the offending spouse made in the will of
the innocent spouse shall be revoked by operation of law. (106a)
*CHECK ALSO Arts. 129 & 135 of FC
225 Yu v. Reyes-Carpio (2011)
Art.50, FC, in relation to Art. 43, provides that the
community or conjugal property regime shall be dissolved
and liquidated. Dissolution and liquidation follow the rules
stated in Art. 102 or 129, FC.
(f) On the status and custody of children
Art. 213, FC
In case of separation of the parents, parental authority shall be
exercised by the parent designated by the Court. The Court shall
take into account all relevant considerations, especially the
choice of the child over seven years of age, unless the parent
chosen is unfit. (n)
No child under seven years of age shall be separated from the
mother unless the court finds compelling reasons to order
otherwise.
(g) On use of surnames
Art. 371, FC
In case of annulment of marriage, and the wife is the guilty
party, she shall resume her maiden name and surname. If she is
the innocent spouse, she may resume her maiden name and
surname. However, she may choose to continue employing her
Page 69 of 84
former husband's surname, unless:
(1) The court decrees otherwise, or
(2) She or the former husband is married again to another
person.
226 Yasin v. Shari'a
While it is true that under Article 376 of the Civil Code, no
person can change his name or surname without judicial
authority, nonetheless, the only name that may be changed
is the true and official name recorded in the Civil Register.
When a woman marries a man, she need not apply and/or
seek judicial authority to use her husband's name by
prefixing the word "Mrs." before her husband's full name or
by adding her husband's surname to her maiden first name.
The law grants her such right (Art. 370, Civil Code).
Similarly, when the marriage ties or vinculum no longer
exists as in the case of death of the husband or divorce as
authorized by the Muslim Code, the widow or divorcee need
not seek judicial confirmation of the change in her civil
status in order to revert to her maiden name as the use of
her former husband's name is optional and not obligatory
for her.
227 Bar Matter No. 1625 Josephine P. Uy-Timosa
Following the Courts decision in Yasin v Sharia Court, "Even
under the Civil Code, the use of the husband's surname
during the marriage (Art. 370, Civil Code) ,after the
annulment of marriage(Art. 371, Civil Code)and after the
death of the husband(Art. 373, Civil Code) is permissive
and not obligatory x x x.
228 Remo v. DFA (2010)
A problem arises when the Filipino lives abroad. For
example, a Filipina lives abroad and marries a foreigner. She
adopts his name and takes out a Filipino passport in the
name of her spouse. Should the marriage break down, the
foreign spouse can validly divorce her. After the divorce
becomes final, the Filipino can remarry abroad. However,
she cannot obtain a new passport in her new husbands
name without having the first divorce recognized.
I. Marriage when one spouse is
absent
Art. 41, FC
A marriage contracted by any person during subsistence of a
previous marriage shall be null and void, unless before the
celebration of the subsequent marriage, the prior spouse had
been absent for four consecutive years and the spouse present
has a well-founded belief that the absent spouse was already
dead. In case of disappearance where there is danger of death
under the circumstances set forth in the provisions of Article
391 of the Civil Code, an absence of only two years shall be
sufficient.
Art. 42, FC
The subsequent marriage referred to in the preceding article
shall be automatically terminated by the recording of the
affidavit of reappearance of the absent spouse, unless there is
a judgment annulling the previous marriage or declaring it void
ab initio.
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
A sworn statement of the fact and circumstances of
reappearance shall be recorded in the civil registry of the
residence of the parties to the subsequent marriage at the
instance of any interested person, with due notice to the
spouses of the subsequent marriage and without prejudice to
the fact of the reappearance being judicially determined in case
such fact is disputed.
Art. 43, FC
The termination of the subsequent marriage referred to in the
preceding Article shall produce the following effects:
(1) The children of the subsequent marriage conceived prior
to its termination shall be considered legitimate, and their
custody and support in case of dispute shall be decided by
the court in a proper proceeding;
(2) The absolute community of property or the conjugal
partnership, as the case may be, shall be dissolved and
liquidated, but if either spouse contracted said marriage in
bad faith, his or her share of the net profits of the
community property or conjugal partnership property shall
be forfeited in favor of the common children or, if there
are none, the children of the guilty spouse by a previous
marriage or in default of children, the innocent spouse;
(3) Donations by reason of marriage shall be remain valid,
except that if the donee contracted the marriage in bad
faith as beneficiary in any insurance policy, even if such
designation be stipulated as irrevocable; and
(4) The innocent spouse may revoke the designation of the
other spouse who acted in bad faith as beneficiary in any
insurance policy, even if such designation be stipulated as
irrevocable; and
(5) The spouse who contracted the subsequent marriage in
bad faith shall be disqualified to inherit from the innocent
spouse by testate and intestate succession.
Art. 44, FC
If both spouses of the subsequent marriage acted in bad faith,
said marriage shall be void ab initio and all donations by reason
of marriage and testamentary dispositions made by one in
favor of the other are revoked by operation of law.
*Compare with NCC Art. 83, 85(2) and 87 (2); cf RPC
349
229 SSS v. De Bailon
Since the second marriage has been contracted because of
a presumption that the former spouse is dead, such
presumption continues in spite of the spouses physical
reappearance, and by fiction of law, he or she must still be
regarded as legally an absentee until the subsequent
marriage is terminated as provided by law.
230 Valdez v. Republic
The requirement of well-founded belief of absent spouses
death provided in Art. 41 of the FC does not apply to
marriages solemnized under the Civil Code. Neither is a
judicial declaration of presumptive death necessary before
the present spouse can contract a subsequent marriage;
because the FC cannot be given retroactive effect insofar as
it will impair vested rights. In the present case, if the FC will
be applied, it will ultimately result to the invalidation of
petitioners subsequent marriage, which was valid at the
time it was celebrated. What is only required under the CC
is that (1) the former spouse had been absent for 7
consecutive years at the time of the second marriage, (2)
that the spouse present does not know his or her former
Page 70 of 84
spouse to be living, (3) that such former spouse is generally
reputed to be dead and the spouse present so believes at
the time of the celebration of the marriage.
- A judicial presumption of death, even if final and
executory, would still be a prima facie presumption only. It
is for that reason that it cannot be the subject of a judicial
pronouncement or declaration, if it is the only question or
matter involved in a case, or upon which a competent court
has to pass. Under the Civil Code, the presumption of death
is established by law and no court declaration is needed for
the presumption to arise. In the present case, death of the
former husband was presumed to have taken place on the
7th year of absence.
J. Marriages dissolved by a foreign
judgment
Art. 15, NCC
Laws relating to family rights and duties, or to the status,
condition and legal capacity of persons are binding upon citizens
of the Philippines, even though living abroad.
Art. 17, NCC
XXX
Prohibitive laws concerning persons, their acts or property, and
those which have for their object public order, public policy and
good customs shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions
agreed upon in a foreign country.
Art. 26 (2), FC
Every person shall respect the dignity, personality, privacy and
peace of mind of his neighbors and other persons. The following
and similar acts, though they may not constitute a criminal
offense, shall produce a cause of action for damages, prevention
and other relief:
XXX
(2) Meddling with or disturbing the private life or family relations
of another;
XXX
231 Arca v. Javier
The intention of a Filipino to take up residence in a state for
the sole purpose of obtaining a divorce from his wife is not
sufficient to confer jurisdiction on the court and while the
aggrieved spouse may have filed an answer, the act does
not place her under the jurisdiction of the foreign court.
232 Tenchavez v. Escao
A Filipino citizen is prohibited from obtaining a foreign
divorce decree as the Philippines does not admit absolute
divorce, quo ad vincula matrimonii.
233 Van Dorn v. Romillo
Pursuant to his national law, when a foreigner spouse is no
longer the husband of a Filipino spouse as a result of a
foreign divorce obtained by the Filipino, he would have no
standing to sue to exercise control over conjugal assets
234 Pilapil vs. Ibay-Somera
When the foreign spouse has obtained a valid divorce in his
country, the divorce and its legal effects may be recognized
in the Philippines in view of the nationality principle and
therefore, being no longer the husband of the Filipino
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
spouse, has no legal standing to commence the adultery
case.
235 Quita vs. CA
When a former Filipino has obtained a valid foreign divorce
decree, she is no longer a surviving spouse who is entitled
from her former spouse.
236 Llorente vs. CA
The divorce obtained by a former Filipino from his first wife
was valid and recognized in this jurisdiction as a matter of
comity
237 Roehr vs. Rodriguez
Divorce decrees obtained by foreigners in other countries
are recognized in our jurisdiction, but the legal effects
thereof, such as custody must still be determined by our
courts. Before our courts can give the effect of res judicata
to a foreign judgment, it must be shown that the parties
opposed to the judgment had been given ample opportunity
to do so.
238 Garcia vs. Recio
The divorce degree and the governing personal law of the
alien spouse who obtained the divorce must be proven,
since courts do not take judicial notice of foreign laws and
judgements.
239 Diego vs. Castillo
A Filipino who secures a foreign divorce and later remarries
in the Philippines, in the belief that the foreign divorce was
valid, is liable for bigamy.
240 Republic vs. Orcebido
The reckoning point is not the citizenship of the parties at
the time of the celebration of the marriage, but their
citizenship at the time a valid divorce is obtained abroad by
the alien spouse capacitating the latter to remarry.
241 San Luis vs. San Luis
There is no need to retroactively apply the provisions of the
Family Code, particularly Art. 26, par 2, considering that
there is sufficient jurisprudential basis allowing the Court to
rule in the affirmative.
242 Amor-Catalan vs. CA
A former Filipino who has obtained a foreign decree of
divorce has no personality to file a petition for the
declaration of nullity of marriage of her former spouse and
his present wife on the ground of bigamy.
244 Llave vs. Republic
The Muslim Code took effect only on Feb. 4 , 1977; thus,
this law cannot retroactively override the CC which already
bestowed certain rights on the marriage of Sen. Tamano
and Zorayda.
245 Fujiki vs. Marinay
Case Where the Court reiterated that for Philippine courts to
recognize a foreign judgment relating to the status of a
marriage where one of the parties is a citizen of a foreign
country, the petitioner only need to prove the foreign
judgment as a fact under the Rules of Court.
Page 71 of 84
Petitioner may prove the Japanese Family Court judgment
through: 1) an official publication or 2) a certification or
copy attested by the officer who has custody of the
judgment. The Court further held that A.M. No. 02-11-10-SC
does not apply to a petition for recognition of foreign
judgment as this would mean that the trial court and the
parties will litigate the case anew.
It will defeat the purpose of recognizing foreign judgment,
which is to limit repetitive litigation on claims and issues.
Once a foreign judgment is admitted and proven in a
Philippine Court, it can only be repelled on ground external
to its merits.
There is, therefore, no reason to disallow Fujiki to simply
prove as a fact the Japanese Family Court judgment
nullifying the marriage between Marinay and Maekara on
the ground of bigamy. While Ph has no divorce law, the Jap
Family Court judgment is fully consistent with Ph public
policy, as bigamous marriages are declared void from the
beginning under Art. 35(4), FC.
246 Lavadia vs. Heirs of Luna
Pursuant to the nationality rule, Philippine laws governed
this case by virtue of both Atty. Luna and Eugenio having
remained Filipinos until the death of Atty. Luna on July 12,
1997 terminated their marriage. Hence, there is a
nonrecognition of absolute divorce between Filipinos has
remained even under the Family Code, even if either or both
of the spouses are residing abroad
247 Noveras vs. Noveras
Conflict of Laws; Lex Situs; Article 16 of the
Civil Code clearly states that real property as well as
personal property is subject to the law of the country where
it is situated We agree with the appellate court that the
Philippine courts did not acquire jurisdiction over the
California properties of David and Leticia. Indeed, Article 16
of the Civil Code clearly states that real property as well as
personal property is subject to the law of the country where
it is situated. Thus, liquidation shall only be limited to the
Philippine properties. We affirm the modification made by
the Court of Appeals with respect to the share of the
spouses in the absolute community properties in the
Philippines, as well as the payment of their childrens
presumptive legitimes.
248 Ando vs. DFA
Because our courts do not take judicial notice of foreign
laws and judgment, our law on evidence requires that both
the divorce decree and the national law of the alien must be
alleged and proven and like any other fact
With respect to her prayer for the recognition of her second
marriage as valid, petitioner should have filed, instead, a
petition for the judicial recognition of her foreign divorce
from her first husband. In Garcia v. Recio, 366 SCRA 437
(2001), we ruled that a divorce obtained abroad by an alien
may be recognized in our jurisdiction, provided the decree is
valid according to the national law of the foreigner. The
presentation solely of the divorce decree is insufficient; both
the divorce decree and the governing personal law of the
alien spouse who obtained the divorce must be proven.
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
Because our courts do not take judicial notice of foreign
laws and judgment, our law on evidence requires that both
the divorce decree and the national law of the alien must be
alleged and proven and like any other fact.
K. MARRIAGES GIVING RISE TO
CRIMINAL LIABILITY
Art. 4, FC
The absence of any of the essential or formal requisites shall
render the marriage void ab initio, except as stated in Article 35
(2).
A defect in any of the essential requisites shall not affect the
validity of the marriage but the party or parties responsible for
the irregularity shall be civilly, criminally and administratively
liable. (n)
Art. 16, FC
In the cases where parental consent or parental advice is
needed, the party or parties concerned shall, in addition to the
requirements of the preceding articles, attach a certificate issued
by a priest, imam or minister authorized to solemnize marriage
under Article 7 of this Code or a marriage counsellor duly
accredited by the proper government agency to the effect that
the contracting parties have undergone marriage counselling.
Failure to attach said certificates of marriage counselling shall
suspend the issuance of the marriage license for a period of
three months from the completion of the publication of the
application. Issuance of the marriage license within the
prohibited period shall subject the issuing officer to
administrative sanctions but shall not affect the validity of the
marriage.
Should only one of the contracting parties need parental consent
or parental advice, the other party must be present at the
counselling referred to in the preceding paragraph. (n)
Art. 41, FC
A marriage contracted by any person during subsistence of a
previous marriage shall be null and void, unless before the
celebration of the subsequent marriage, the prior spouse had
been absent for four consecutive years and the spouse present
has a well-founded belief that the absent spouse was already
dead. In case of disappearance where there is danger of death
under the circumstances set forth in the provisions of Article 391
of the Civil Code, an absence of only two years shall be
sufficient.
For the purpose of contracting the subsequent marriage under
the preceding paragraph the spouse present must institute a
summary proceeding as provided in this Code for the declaration
of presumptive death of the absentee, without prejudice to the
effect of reappearance of the absent spouse. (83a)
Art. 168, FC
If the marriage is terminated and the mother contracted another
marriage within three hundred days after such termination of the
former marriage, these rules shall govern in the absence of proof
to the contrary:
(1) A child born before one hundred eighty days after the
solemnization of the subsequent marriage is considered to have
been conceived during the former marriage, provided it be born
within three hundred days after the termination of the former
marriage;
Page 72 of 84
(2) A child born after one hundred eighty days following the
celebration of the subsequent marriage is considered to have
been conceived during such marriage, even though it be born
within the three hundred days after the termination of the former
marriage. (259a)
Art. 84, NCC
If the future spouses agree upon a regime other than the
absolute community of property, they cannot donate to each
other in their marriage settlements more than one-fifth of their
present property. Any excess shall be considered void.
Donations of future property shall be governed by the provisions
on testamentary succession and the formalities of wills. (130a)
Art. 351, RPC
Premature Marriages - Any widow who shall marry within three
hundred and one day from the date of the death of her husband,
or before having delivered if she shall have been pregnant at the
time of his death, shall be punished by arresto mayor and a fine
not exceeding 500 pesos.
The same penalties shall be imposed upon any woman whose
marriage shall have been annulled or dissolved, if she shall marry
before her delivery or before the expiration of the period of three
hundred and one day after the legal separation.
Art. 352, RPC
Performance of Illiegal marriage ceremony - Any widow who shall
marry within three hundred and one day from the date of the
death of her husband, or before having delivered if she shall
have been pregnant at the time of his death, shall be punished
by arresto mayor and a fine not exceeding 500 pesos.
The same penalties shall be imposed upon any woman whose
marriage shall have been annulled or dissolved, if she shall marry
before her delivery or before the expiration of the period of three
hundred and one day after the legal separation.
249 People v De Guzman 2010
Doctrine: Article 334 applied to marriages contracted
between the offender and the offended party in the crime of
rape as well as in the crime of abuse of chastity to totally
extinguish the criminal liability of and the corresponding
penalty that may have been imposed upon those found
guilty of the felony.
R.A. No. 6955, An Act to Declare Unlawful the
Practice of Matching Filipino Women for Marriage to
Foreign Nationals
Sec. 2 Pursuant thereto, it is hereby declared unlawful:
(a) For a person, natural or juridical, association, club or any
other entity to commit, directly or indirectly, any of the
following acts:
(1) To establish or carry on a business which has for
its purpose the matching of Filipino women for
marriage to foreign nationals either on a mail-order
basis or through personal introduction;
(2) To advertise, publish, print or distribute or cause
the advertisement, publication, printing or
distribution of any brochure, flier, or any
propaganda material calculated to promote the
prohibited acts in the preceding subparagraph;
(3) To solicit, enlist or in any manner attract or induce
any Filipino woman to become a member in any
club or association whose objective is to match
women for marriage to foreign nationals either on
a mail-order basis or through personal introduction
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016 Page 73 of 84

for a fee;
(4) To use the postal service to promote the prohibited
acts in subparagraph 1 hereof.
(b) For the manager or officer-in-charge or advertising
manager of any newspaper, magazine, television or radio
station, or other media, or of an advertising agency, printing
company or other similar entities, to knowingly allow, or
consent to, the acts prohibited in the preceding paragraph.

RA No. 10364 AN ACT EXPANDING RA NO. 9208,

ENTITLED "AN ACT TO INSTITUTE POLICIES TO
ELIMINATE TRAFFICKING IN PERSONS ESPECIALLY
WOMEN AND CHILDREN, ESTABLISHING THE
NECESSARY INSTITUTIONAL MECHANISMS FOR THE
PROTECTION AND SUPPORT OF TRAFFICKED
PERSONS, PROVIDING PENALTIES FOR ITS
VIOLATIONS AND FOR OTHER PURPOSES"

Sec. 4 of RA No. 9208 is hereby amended to read as follows:

"SEC. 4. Acts of Trafficking in Persons. It shall be unlawful
for any person, natural or juridical, to commit any of the
following acts:

(b) To introduce or match for money, profit, or material,

economic or other consideration, any person or, as provided
for under Republic Act No. 6955, any Filipino woman to a
foreign national, for marriage for the purpose of acquiring,
buying, offering, selling or trading him/her to engage in
prostitution, pornography, sexual exploitation, forced labor,
slavery, involuntary servitude or debt bondage;

(c) To offer or contract marriage, real or simulated, for the

purpose of acquiring, buying, offering, selling, or trading
them to engage in prostitution, pornography, sexual
exploitation, forced labor or slavery, involuntary servitude or
debt bondage;
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
THE LAW ON
SEPARATION OF
THE SPOUSES
A. CONCEPTS OF SEPARATION &
DIVORCE
250 Benedicto vs. De la Rama (1903)
There are two forms of separation to which the name of
divorce may be given, and two reasons therefor; there are
many reasons which bring about the separation of those
who appear to be married but are not so by the reason of
some impediment between them. Of these two reasons, one
is religion and the other the sin of fornification. And the
reason why this separation is properly called divorce, in
distinction from separation which results from other
impediments, is that, althought it separates those who were
married, the marriage nevertheless subsists, and thus it is
that neither one of them can contract a second marriage at
any time excepting in the case of a separation granted by
reason of adultery, in which case the surviving spouse may
remarry after the death of the other.
1. Separation in fact
TITLE XI
SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW
Chapter 1. Prefatory Provisions
Art. 238, FC
Until modified by the Supreme Court, the procedural rules
provided for in this Title shall apply as regards separation in fact
between husband and wife, abandonment by one of the other,
and incidents involving parental authority. (n)
Chapter 2. Separation in Fact
Art. 239, FC
When a husband and wife are separated in fact, or one has
abandoned the other and one of them seeks judicial
authorization for a transaction where the consent of the other
spouse is required by law but such consent is withheld or cannot
be obtained, a verified petition may be filed in court alleging the
foregoing facts.
The petition shall attach the proposed deed, if any, embodying
the transaction, and, if none, shall describe in detail the said
transaction and state the reason why the required consent
thereto cannot be secured. In any case, the final deed duly
executed by the parties shall be submitted to and approved by
the court. (n)
Art. 240, FC
Claims for damages by either spouse, except costs of the
proceedings, may be litigated only in a separate action. (n)
Art. 241, FC
Jurisdiction over the petition shall, upon proof of notice to the
other spouse, be exercised by the proper court authorized to
hear family cases, if one exists, or in the regional trial court or its
Page 74 of 84
equivalent sitting in the place where either of the spouses
resides. (n)
Art. 242, FC
Upon the filing of the petition, the court shall notify the other
spouse, whose consent to the transaction is required, of said
petition, ordering said spouse to show cause why the petition
should not be granted, on or before the date set in said notice
for the initial conference. The notice shall be accompanied by a
copy of the petition and shall be served at the last known
address of the spouse concerned. (n)
Art. 243, FC
A preliminary conference shall be conducted by the judge
personally without the parties being assisted by counsel. After
the initial conference, if the court deems it useful, the parties
may be assisted by counsel at the succeeding conferences and
hearings. (n)
Art. 244, FC
In case of non-appearance of the spouse whose consent is
sought, the court shall inquire into the reasons for his failure to
appear, and shall require such appearance, if possible. (n)
Art. 245, FC
If, despite all efforts, the attendance of the non-consenting
spouse is not secured, the court may proceed ex parte and
render judgment as the facts and circumstances may warrant. In
any case, the judge shall endeavor to protect the interests of the
non-appearing spouse. (n)
Art. 246. FC
If the petition is not resolved at the initial conference, said
petition shall be decided in a summary hearing on the basis of
affidavits, documentary evidence or oral testimonies at the sound
discretion of the court. If testimony is needed, the court shall
specify the witnesses to be heard and the subject-matter of their
testimonies, directing the parties to present said witnesses. (n)
Art. 247, FC
The judgment of the court shall be immediately final and
executory. (n)
Art. 248, FC
The petition for judicial authority to administer or encumber
specific separate property of the abandoning spouse and to use
the fruits or proceeds thereof for the support of the family shall
also be governed by these rules. (n)
Art. 101 (3), FC
XXX
A spouse is deemed to have abandoned the other when her or
she has left the conjugal dwelling without intention of returning.
The spouse who has left the conjugal dwelling for a period of
three months or has failed within the same period to give any
information as to his or her whereabouts shall be prima facie
presumed to have no intention of returning to the conjugal
dwelling. (178a)
251 Villanueva vs. Chiong 2008
When the parties are separated in fact and without the
wifes consent, and the husband alienates or encumbers
conjugal property prior to the effectivity of the Family Code
on August 3, 1988, the same is not void, but merely
voidable.
2. Agreements to separate
Art. 1, FC
Marriage is a special contract of permanent union between a man
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
and a woman entered into in accordance with law for the
establishment of conjugal and family life. It is the foundation of
the family and an inviolable social institution whose nature,
consequences, and incidents are governed by law and not
subject to stipulation, except that marriage settlements may fix
the property relations during the marriage within the limits
provided by this Code. (52a)
Art. 221 (1), NCC
Article 221. The following shall be void and of no effect:
(1) Any contract for personal separation between husband and
wife;
252 Espinosa vs. Omana (2011)
Lawyers who prepare contracts between spouses which
permit separation of the spouses and dissolution of their
property regimes without judicial approval may be
reprimanded. These contracts are void for being contratry to
morals and public policy.
3. Absolute Divorce
(a) Divorce under the Family Code
Art. 26 (2), FC
XXX
Where a marriage between a Filipino citizen and a foreigner is
validly celebrated and a divorce is thereafter validly obtained
abroad by the alien spouse capacitating him or her to remarry,
the Filipino spouse shall have capacity to remarry under
Philippine law. (As amended by Executive Order 227)
253 Gorayeb vs. Hashim (1927)
A person who is sued in a Philippine court and who wishes
to have the benefit of a judgment rendered in an American
court may plead such judgment in his answer, thereby
making an issue upon the question of the validity of the
judgment.
Section 309 of the Code of Civil Procedure is not to be
interpreted as requiring an affirmative original action or
proceeding by one who occupies a purely defensive
position. All that is intended to be secured by the provision
referred to is that our courts shall have an opportunity to
pass judicially upon the efficacy of the foreign judgment.
254 Tenchavez vs. Escano (1965)
The chaplains alleged lack of ecclesiastical authorization
from the parish priest and the Ordinary, as required by
Canon law is irrelevant in Civil Law.
255 Van Dorn vs. Romillo (1985)
Pursuant to his national law, when a foreigner spouse is no
longer the husband of a Filipino spiuse as a result of a
foreign divorce obtained by the Filipino, he would have no
standing to sue to exercise control over conjugal assets.
256 Pilapil vs. Ibay-Somera (1989)
When the foreign spouse has obtained a valid divorce in his
country, the divorce and its legal effects may be recognized
in the Philippines in view of the nationality principle, and
therefore, being no longer the husband of the Filipino
spouse, has no legal standing to commence the adultery
case.
Page 75 of 84
257 FUJIKI v MARINAY (2013)
Where the Court reiterated that for Philippine courts to
recognize a foreign judgment relating to the status of a
marriage Where one of the parties is a citizen of a foreign
country, the petitioner only needs to prove the foreign
judgment as a fact under the Rules of Court. Petitioner may
prove the Japanese Family Court judgment through: (1) an
official publication or (2) a certification or copy attested by
the officer who has custody of the judgment.
The Court further held that A.M. No. 02-11-10-SC does not
apply to a petition for recognition of foreign judgment as
this would mean that the trial court and the parties will
litigate the case anew. It will defeat the purpose of
recognizing foreign judgments, which is to limit repetitive
litigation on claims and issues. Once a foreign judgment is
admitted and proven in a Philippines court, it can only be
repelled on grounds external to its merits, i.e., want of
jurisdiction, want of notice to the party, collusion, fraud, or
clear mistake of law or fact. There is therefor no reason to
disallow Fujiki to simply prove as a fact the Japanese Family
Court Judgment nullifying the marriage between Marinay
and Maekara on the ground of bigamy. While the Philippines
has no divorce law, the Japanese Family Court judgment is
fully consistent with Philippine public policy, as bigamous
marriages are declared void from the beginning under
Article 35(4) of the Family Code. Thus, Fujiki can prove the
existence of the Japanese Family Court judgment in
accordance with Rule 132, Sec 24 and 25, in relation to Rule
39, Sec 48(b) of the Rules of Court.
(b) Divorce under the Muslim Code
Chapter Three
DIVORCE (TALAQ)
Section 1. Nature and Form
Art. 45 Definition and forms. Divorce is the formal dissolution of
the marriage bond in accordance with this Code to be granted
only after the exhaustion of all possible means of reconciliation
between the spouses. It may be effected by:
(a) Repudiation of the wife by the husband (talaq);
(b) Vow of continence by the husband (ila);
(c) Injurious assanilation of the wife by the husband (zihar);
(d) Acts of imprecation (li'an);
(e) Redemption by the wife (khul');
(f) Exercise by the wife of the delegated right to repudiate
(tafwld); or
(g) Judicial decree (faskh).
Art. 46 Divorce by talaq.
(1) A divorce by talaq may be affected by the husband in a single
repudiation of his wife during her non-menstrual period (tuhr)
within which he has totally abstained from carnal relation with
her. Any number of repudiations made during one tuhr shall
constitute only one repudiation and shall become irrevocable
after the expiration of the prescribed 'idda.
(2) A husband who repudiates his wife, either for the first or
second time, shall have the right to take her back (ruju) within
the prescribed 'idda by resumption of cohabitation without need
of a new contract of marriage. Should he fail to do so, the
repudiation shall become irrevocable (Talaq bain sugra).
Art. 47 Divorce by Ila. Where a husband makes a vow to abstain
from any carnal relations (ila) with his wife and keeps such ila for
a period of not less than four months, she may be granted a
decree of divorce by the court after due notice and hearing.
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
Art. 48 Divorce by zihar. Where the husband has injuriously
assimilated (zihar) his wife to any of his relatives within the
prohibited degrees of marriage, they shall mutually refrain from
having carnal relation until he shall have performed the
prescribed expiation. The wife may ask the court to require her
husband to perform the expiationor to pronounce the a regular
talaq should he fail or refuse to do so, without prejudice to her
right of seeking other appropriate remedies.
Art. 49 Divorce by li'an. Where the husband accuses his wife in
court of adultery, a decree of perpetual divorce may be granted
by the court after due hearing and after the parties shall have
performed the prescribed acts of imprecation (li'an).
Art. 50 Divorce by khul'. The wife may, after having offered to
return or renounce her dower or to pay any other lawful
consideration for her release (khul') from the marriage bond,
petition the court for divorce. The court shall, in meritorious
cases and after fixing the consideration, issue the corresponding
decree.
Art. 51 Divorce by tafwid. If the husband has delegated (tafwid)
to the wife the right to effect a talaq at the time of the
celebration of the marriage or thereafter, she may repudiate the
marriage and the repudiation would have the same effect as if it
were pronounced by the husband himself.
Art. 52 Divorce by faskh. The court may, upon petition of the
wife, decree a divorce by faskh on any of the following grounds :
(a) Neglect or failure of the husband to provide support for the
family for at least six consecutive months;
(b) Conviction of the husband by final judgment sentencing him
to imprisonment for at least one year;
(c) Failure of the husband to perform for six months without
reasonable cause his marital obligation in accordance with this
code;
(d) Impotency of the husband;
(e) Insanity or affliction of the husband with an incurable disease
which would make the continuance of the marriage relationship
injurious to the family;
(f) Unusual cruelty of the husband as defined under the next
succeeding article; or
(g) Any other cause recognized under Muslim law for the
dissolution of marriage by faskh either at the instance of the wife
or the proper wali.
Art. 53 Faskh on the ground of unusual cruelty. A decree of
faskh on the ground of unusual cruelty may be granted by the
court upon petition of the wife if the husband:
(a)Habitually assaults her or makes her life miserable by cruel
conduct even if this does not result in physical injury;
(b) Associates with persons of ill-repute or leads an infamous life
or attempts to force the wife to live an immoral life;
(c) Compels her to dispose of her exclusive property or prevents
her from exercising her legal rights over it;
(d) Obstructs her in the observance of her religious practices; or
(e) Does not treat her justly and equitably as enjoined by Islamic
law.
Art. 54 Effects of irrevocable talaq or faskh. A talaq or faskh, as
soon as it becomes irrevocable, shall have the following effects:
(a) The marriage bond shall be severed and the spouses may
contract another marriage in accordance with this Code;
(b) The spouses shall lose their mutual rights of inheritance;
(c) The custody of children shall be determined in accordance
with Article 78 of this code;
(d) The wife shall be entitled to recover from the husband her
whole dower in case the talaq has been affected after the
consummation of the marriage, or one-half thereof if effected
before its consummation;
(e) The husband shall not be discharged from his obligation to
give support in accordance with Article 67; and
(f) The conjugal partnership, if stipulated in the marriage
settlements, shall be dissolved and liquidated.
Art. 55 Effects of other kinds of divorce. The provisions of the
Page 76 of 84
article immediately preceding shall apply to the dissolution, of
marriage by ila, zihar, li'an and khul', subject to the effects of
compliance with the requirements of the Islamic law relative to
such divorces.
258 Llave vs. Republic (2011)
The Supreme Court implies that no Muslim today, married to
another Muslim under the Civil Code before the passage of
the Muslim Code, will ever be able to obtain a valid divorce
under the Muslim Law. As inferred by the Supreme Court
ruling in Llave,
The Muslim Code took effect only on February 4, 1977;
thus, this law cannot retroactively override the Civil Code
which already bestowed certain rights on the marriage of
Sen. Tamano and Zorayda. The former explicitly provided
for the prospective application of its provisions unless
otherwise provided in MC Art 186(1).
259 Zamoranos vs. People (2011)
Two Muslim converts married in 1982 under both Muslim
and civil rites. The Supreme Court rules that nature,
consequences, and incidents of such marriage are governed
by P.D. No. 1083. At the very least, the RTC, Branch 6,
Iligan City, should have suspended the proceedings until
Pacasum had litigated the validity of Zamoranos and De
Guzmans marriage before the Sharia Circuit Court and had
successfully shown that it had not been dissolved despite
the divorce by talaq entered into by Zamoranos and De
Guzman.
Consequently, the RTC. Branch 6, Iligan City, is without
jurisdiction to try Zamoranos for the crime of Bigamy.
B. CONCEPT OF LEGAL SEPARATION
Relative Divorce or legal separation is separation of bed
and board. In such a case, the marriage bond is still in full
force although there is a suspension of common marital life.
A legal separation can only be obtained through a valid
judicial decree.
1. Grounds for Legal Separation
Art. 55, FC
A petition for legal separation may be filed on any of the
following grounds:
(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 a 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 six years, even if pardoned;
(5) Drug addiction or habitual alcoholism of the respondent;
(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by 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;
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
or
(10) Abandonment of petitioner by respondent without justifiable
cause for more than one year.
For purposes of this Article, the term "child" shall include a child
by nature or by adoption. (9a)
Sec. 19, RA 9262 (VAWC)
Legal Separation Cases. In cases of legal separation, where
violence as specified in this Act is alleged, Article 58 of the Family
Code shall not apply. The court shall proceed on the main case
and other incidents of the case as soon as possible. The hearing
on any application for a protection order filed by the petitioner
must be conducted within the mandatory period specified in this
Act
(a) Sexual infidelity or perversion
*Art. 55 (8), FC
Art. 36, NCC
Pre-judicial questions, which must be decided before any criminal
prosecution may be instituted or may proceed, shall be governed
by rules of court which the Supreme Court shall promulgate and
which shall not be in conflict with the provisions of this Code.
ADULTERY AND CONCUBINAGE
Art, 333, RPC
Who are guilty of adultery. - Adultery is committed by any
married woman who shall have sexual intercourse with a man
not her husband and by the man who has carnal knowledge of
her knowing her to be married, even if the marriage be
subsequently declared void.
Adultery shall be punished by prision correccional in its medium
and maximum periods.
If the person guilty of adultery committed this offense while
being abandoned without justification by the offended spouse,
the penalty next lower in degree than that provided in the next
preceding paragraph shall be imposed.
Art. 334, RPC
Concubinage. - Any husband who shall keep a mistress in the
conjugal dwelling, or shall have sexual intercourse, under
scandalous circumstances, with a woman who is not his wife, or
shall cohabit with her in any other place, shall be punished by
prision correccional in its minimum and medium periods.
The concubine shall suffer the penalty of destierro.
Art. 247, RPC
Death or physical injuries inflicted under exceptional
circumstances. - Any legally married person who having surprised
his spouse in the act of committing sexual intercourse with
another person, shall kill any of them or both of them in the act
or immediately thereafter, or shall inflict upon them any serious
physical injury, shall suffer the penalty of destierro.
If he shall inflict upon them physical injuries of any other kind, he
shall be exempt from punishment.
These rules shall be applicable, under the same circumstances, to
parents with respect to their daughters under eighteen years of
age, and their seducer, while the daughters are living with their
parents.
Any person who shall promote or facilitate the prostitution of his
wife or daughter, or shall otherwise have consented to the
infidelity of the other spouse shall not be entitled to the benefits
of this article.
Page 77 of 84
260 Goitia vs. Campos-Rueda
Where the husband makes base demands upon his wife and
indulges in the habit of assaulting her, she is entitled to live
separately from him and demand support.
261 Kalaw vs. Fernandez (2011)
Immaturity and irresponsibility in performing their marital
and familial obligations, sexual infidelity per se, and
acrimony may be grounds for legal separation, but not for
psychological incapacity that voids a marriage.
262 Republic vs. Quintos (2012)
Her sexual infidelity was not a valid ground for the nullity of
marriage under Article 36 of the Family Code, considering
that there should be a showing that such marital infidelity
was a manifestation of a disordered personality that made
her completely unable to discharge the essential obligations
of marriage.
(b) Drug Addiction, Habitual alcoholism,
lesbianism or homosexuality
*FC Art. 55 (5) and (6) compare with FC Art. 46 (4)
Art. 46 (4) is a ground for annulment based on consent
obtained by fraud, which should have been present at the
time of celebration of the marriage. As grounds for legal
separation, the conditions mentioned in Art. 55 (5) & (6)
must have arisen only during the marriage, in which case,
the prescriptive period is five years from the time of the
occurrence of the cause.
263 Almelor vs. RTC (2008)
Homosexuality per se is only a ground for legal separation.
It is its concealment that serves as a valid ground to annul a
marriage (FC Art 46(4)).
264 Campos vs. Campos (2012)
The fact that respondent got married and had children is
not proof against his claim of homosexuality. As pointed out
by the investigating judge, it is possible that respondent
was only suppressing or hiding his true sexuality.
(c) Attempt on the life of the other spouse
*Art. 55 (9)
Sec. 5, RA 9262 (VAWC)
Acts of Violence Against Women and Their Children.- The crime
of violence against women and their children is committed
through any of the following acts:
(a) Causing physical harm to the woman or her child;
(b) Threatening to cause the woman or her child physical harm;
(c) Attempting to cause the woman or her child physical harm;
(d) Placing the woman or her child in fear of imminent physical
harm;
(e) Attempting to compel or compelling the woman or her child
to engage in conduct which the woman or her child has the right
to desist from or desist from conduct which the woman or her
child has the right to engage in, or attempting to restrict or
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
restricting the woman's or her child's freedom of movement or
conduct by force or threat of force, physical or other harm or
threat of physical or other harm, or intimidation directed against
the woman or child. This shall include, but not limited to, the
following acts committed with the purpose or effect of controlling
or restricting the woman's or her child's movement or conduct:
(1) Threatening to deprive or actually depriving the woman
or her child of custody to her/his family;
(2) Depriving or threatening to deprive the woman or her
children of financial support legally due her or her family, or
deliberately providing the woman's children insufficient
financial support;
(3) Depriving or threatening to deprive the woman or her
child of a legal right;
(4) Preventing the woman in engaging in any legitimate
profession, occupation, business or activity or controlling the
victim's own mon4ey or properties, or solely controlling the
conjugal or common money, or properties;
(f) Inflicting or threatening to inflict physical harm on oneself for
the purpose of controlling her actions or decisions;
(g) Causing or attempting to cause the woman or her child to
engage in any sexual activity which does not constitute rape, by
force or threat of force, physical harm, or through intimidation
directed against the woman or her child or her/his immediate
family;
(h) Engaging in purposeful, knowing, or reckless conduct,
personally or through another, that alarms or causes substantial
emotional or psychological distress to the woman or her child.
This shall include, but not be limited to, the following acts:
(1) Stalking or following the woman or her child in public or
private places;
(2) Peering in the window or lingering outside the residence
of the woman or her child;
(3) Entering or remaining in the dwelling or on the property
of the woman or her child against her/his will;
(4) Destroying the property and personal belongings or
inflicting harm to animals or pets of the woman or her child;
and
(5) Engaging in any form of harassment or violence;
(i) Causing mental or emotional anguish, public ridicule or
humiliation to the woman or her child, including, but not limited
to, repeated verbal and emotional abuse, and denial of financial
support or custody of minor children of access to the woman's
child/children.
(d) Abandonment
*FC Art. 55 (10)
Art. 101 (3), FC
XXX
A spouse is deemed to have abandoned the other when her or
she has left the conjugal dwelling without intention of returning.
The spouse who has left the conjugal dwelling for a period of
three months or has failed within the same period to give any
information as to his or her whereabouts shall be prima facie
presumed to have no intention of returning to the conjugal
dwelling. (178a)
Page 78 of 84
265 Partosa-Jo vs. CA (1992)
Abandonment implies a departure by one spuse with the
avowed intent never to return, followed by prolonged
absence without just cause, and without in the meantime
providing in the least for ones family, although able to do
so. There must be an absolute cession of marital realations,
duties, and rights, with the intention of perpetual
separation. This idea is clearly expressed in Art 128.
266 Republic vs. Quintos (2012)
The only fact established here, which Catalina even
admitted in her Answer, was her abandonment of the
conjugal home to live with another man. Yet, abandonment
was not one of the grounds for the nullity of marriage under
the Family Code. It did not also constitute psychological
incapacity, it being instead a ground for legal separation
under Article 55(10) of the Family Code.
(e) Other Grounds
*Art. 55 (1), FC
The violence must be of serious degree, but does not
have to amount to an attempt against the life of the
defendant, which is covered by par. 9. The violence must be
repeated, to the extent that common life with defendant
becomes extremely difficult for the plaintiff. The factor
should be determinative of whether the repeated physical
violence or the grossly abusive conduct would suffice to
justify legal separation. (Tolentino)
*Art. 55 (2), FC
The physical violence or moral pressure to compel the
plaintiff to change religious or political affiliation need not be
repeated. A single incident would be enough. Religious and
political beliefs are human rights which deserve all
protection by the law. But mere arguments to persuade the
plaintiff to change should not by itself by sufficient. There
must be some element of coercion present, whether
physical or moral. (Tolentino)
*Art. 55 (3)
The guilt for the corruption or inducement to prostitution
must be on only one spouse. If both spouses agree that the
wife or a daughter engage in prostitution, neither one
should be allowed to obtain legal separation, on the
principle that a person should come to court with clean
hands. (Tolentino)
*Art. 55 (2)
This paragraph referes to a final judgment of more than
six years imprisonment, even if pardoned. The crime for
which the defendant was convictd is immaterial. (Tolentino)
267 Goitia vs. Campos-Rueda, supra
268 Kalaw vs. Fernandez, supra
2. Who can ask for legal separation
*FC Art. 55, compare with NCC Art. 99.
Art. 99, NCC
No person shall be entitled to a legal separation who has not
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
resided in the Philippines for one year prior to the filing of the
petition, unless the cause for the legal separation has taken place
within the territory of this Republic. (Sec. 2a, Act No. 2710).
The Family Code no longer requires the 1 year residency
prior to the filing of the petition. As long as the person has
any of the valid grounds enumerated in Art. 55 of the
Family Code, he or she is entitled to file a petition for legal
separation.
3. When may petition be filed
Art. 57, FC
An action for legal separation shall be filed within five years from
the time of the occurrence of the cause. (102)
Art. 102, NCC
An action for legal separation cannot be filed except within one
year from and after the date on which the plaintiff became
cognizant of the cause and within five years from and after the
date when such cause occurred. (4a, Act 2710)
Under Art. 102 of the Civil Code, the prescriptive period
for the filing of a petition for legal separation is w/in one
year from the date the plaintiff became cognizant of the
cause and within five years from the date the cause
occurred. The first period has been found too short since in
Philippine culture, the innocent spouse is expected tos eek
advice from family members and guidance from spiritual
advisers. As a result, many agreeived spouse could not
comply with the requirement of filing a case w/in one year
from cognizance of the ground. (Pangalangan)
267 People vs. Zapanta (1951)
Each sexual intercourse constitutes a crime of adultery.
There is no constitutional or legal provision which bars the
filling of as many complaints for adultery as there were
adulterous acts committed, each constituting one crime.
4. Court procedure in legal separation
Art. 58, FC
An action for legal separation shall in no case be tried before six
months shall have elapsed since the filing of the petition. (103)
Art. 59, FC
No legal separation may be decreed unless the Court has taken
steps toward the reconciliation of the spouses and is fully
satisfied, despite such efforts, that reconciliation is highly
improbable. (n)
Art. 60, FC
No decree of legal separation shall be based upon a stipulation of
facts or a confession of judgment.
Sec. 19, RA 9262 (VAWC)
Legal Separation Cases. In cases of legal separation, where
violence as specified in this Act is alleged, Article 58 of the Family
Code shall not apply. The court shall proceed on the main case
and other incidents of the case as soon as possible. The hearing
on any application for a protection order filed by the petitioner
must be conducted within the mandatory period specified in this
Act
A.M. No. 02-11-11-SC
*RE: PROPOSED RULE ON LEGAL SEPARATION (March 4, 2003)
Page 79 of 84
269 Araneta vs. Concepcion
The period of six months fixed in Article 103 Civil Code is
intended as a cooling off period to make possible a
reconciliation between the spouses. But this does not have
the effect of overriding other provisions such as the
determination of the custody of the children, alimony, and
support pendente lite, according to the circumstances.
Evidence not affecting the cause of the separation, like the
actual custody of the children, the means conducive to their
welfare and convenience during the pendency of the case,
these should be allowed that the court may determine
which is best for their custody.
270 De Ocampo vs. Florenciano
What the law prohibits is a judgment based exclusively or
mainly on defendants confession. Collusion in divorce or
legal separation means the 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 eoffense, or to suppress evidence of a valid
defense, for the purpose of enabling the other to obtain a
divorce.
271 Lapuz vs. Eufemio
An action for legal separation is purely personal and only
the innocent spouse may claim legal separation. The death
of one party to the action causes the death of the action
itself.
272 Samosa-Ramos vs. Vamenta, Jr.
The question of management of exclusive property need not
be left unresolved even during the six-month [cooling off]
period.
273 Gandionco vs. Penaranda
A civil action for legal separation, based in concubinage,
may proceed ahead of, or simultaneously with, a criminal
action for concubinage, because said civil action is not one
to enforce the civil liability arising from the offense even if
both the civil and criminal actions arise from or are related
to the same offense. Such civil action is one intended to
obtain the right to love separately, with the legal
consequences thereof, such as, the dissolution of the
conjugal partnership of gains, custody of offspring, support,
and disqualification from inheriting from the innocent
spouse, among others.
274 Paceta vs. Cariaga Jr.
A petition for certiorari is allowed when the default order is
improperly declared; and in an action for legal separation, a
default order is not legally sanctioned.
5. Effect of pendency of the petition
(a) Cooling-off period
Art. 58, FC
An action for legal separation shall in no case be tried before six
months shall have elapsed since the filing of the petition. (103)
(b) Right of consortium
Art. 61 (1), FC
After the filing of the petition for legal separation, the spouses
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
shall be entitled to live separately from each other.
xxx
(c) Administration of property
Art. 61 (2), FC
xxx
The court, in the absence of a written agreement between the
spouses, shall designate either of them or a third person to
administer the absolute community or conjugal partnership
property. The administrator appointed by the court shall have the
same powers and duties as those of a guardian under the Rules
of Court. (104a)
275 De La Vina vs. Villareal
If the wife can acquire a separate residence when her
husband consents or acquiesces, we see no reason why the
law will not allow her to do so when the husband unlawfully
ejects her from the conjugal home in order that he may
freely indulge in his illicit relations with another woman.
276 Sabalones vs. CA
Injunction is available when there is not enough evidence to
raise the apprehension that entrusting the management of
the conjugal estate to the offending spouse may result in its
improvident disposition to the detriment of his wife and
children.
(d) Support and Custody pendent lite
Art. 62, FC
During the pendency of the action for legal separation, the
provisions of Article 49 shall likewise apply to the support of the
spouses and the custody and support of the common children.
(105a)
Art. 49, FC
During the pendency of the action and in the absence of
adequate provisions in a written agreement between the
spouses, the Court shall provide for the support of the spouses
and the custody and support of their common children. The
Court shall give paramount consideration to the moral and
material welfare of said children and their choice of the parent
with whom they wish to remain as provided to in Title IX. It shall
also provide for appropriate visitation rights of the other parent.
(n)
Art. 198, FC
During the proceedings for legal separation or for annulment of
marriage, and for declaration of nullity of marriage, the spouses
and their children shall be supported from the properties of the
absolute community or the conjugal partnership. After the final
judgment granting the petition, the obligation of mutual support
between the spouses ceases. However, in case of legal
separation, the court may order that the guilty spouse shall give
support to the innocent one, specifying the terms of such order.
(292a)
277 Yangco vs. Rhode
When the action for the support or alimony is brought by a
woman who alleges that she is wife, it is necessary for her
to prove possession of the civil status of a spouse that is, a
marriage, without which one has no right to the title to
husband to wife.
Page 80 of 84
278 Araneta vs. Concepcion
The period of six months fixed in Article 103 Civil Code is
intended as a cooling off period to make possible a
reconciliation between the spouses. But this does not have
the effect of overriding other provisions such as the
determination of the custody of the children, alimony, and
support pendente lite, according to the circumstances.
Evidence not affecting the cause of the separation, like the
actual custody of the children, the means conducive to their
welfare and convenience during the pendency of the case,
these should be allowed that the court may determine
which is best for their custody.
279 Lerma vs. CA
Article 198 of the Family Code is not in itself the source of
the legal right to receive support. It merely states that the
support, not only of the spouses but also of the children,
shall be taken from the conjugal property during the
pendency of the legal separation proceeding. It does not
preclude the loss of such right in certain cases. Thus,
adultery may be a defense in an action for support.
6. Defenses in actions for legal
separation
Art. 56, FC
The petition for legal separation shall be denied on any of the
following grounds:
(1) Where the aggrieved party has condoned the offense or act
complained of;
(2) Where the aggrieved party has consented to the commission
of the offense or act complained of;
(3) Where there is connivance between the parties in the
commission of the offense or act constituting the ground for legal
separation;
(4) Where both parties have given ground for legal separation;
(5) Where there is collusion between the parties to obtain decree
of legal separation; or
(6) Where the action is barred by prescription. (100a)
(a) Consent Art. 56 (2)
Consent differs from condonation in that it is given
before the commission of a marital offense while the latter
is given after. Express consent means telling the other
spouses in no unclear terms that he or she is free to have
other liasons. Implied constent refers to acts of indifference
or giving of corrupt counsel by one spouse to the other from
which the latter may infer that commission of a marital
offense is acceptable to the other spouse. (Pangalangan)
280 People vs. Sensano
By his long absence, despite his knowledge of the adultery
of his wife, a husband is deemed to have consented to the
adulterous relations of his wife and is barred from instituting
a case for adultery, since the sole purpose is filing the
charge is to use it as a ground for legal separation.
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
281 People vs. Schnekeburger
There being condonation and/or consent in writing, no legal
separation on the ground of adultery or concubinage may
be granted
(b) Condonation Art. 56 (1)
282 Bugayong vs. Ginez
Condonation is the forgiveness of a marital offense
constituting a ground for legal separation. A single voluntary
act of marital intercourse between the parties ordinarily is
sufficient to constitute condonation.
(c) Recrimination Art. 56 (4)
Recrimination is a counter-charge in a suit for legal
separation that the complainant is also guilty of an offense
constituting a ground for legal separation. This defense is
based on the principle that a person must go to court with
clean hands. (Tolentino)
283 Brown vs. Yambao
The Fiscal should be allowed to focus on any relevant
matter that may indicate whether the proceedings for
separation or annulment are fully justified or not.
284 Ong vs. Ong
It is true that a decree of legal separation should not be
granted whenboth parties have given ground for legal
separation (Art 56 (4) FC). However, the abandonment
referred to in the Family Code is abandonment without
justifiablecause for more than one year. Also, it was
established that Lucita left William due tohis abusive
conduct which does not constitute the abandonment
contemplated inthe said provision.
(d) Collusion/Mutual Consent Art. 56 (3)
& (5)
Where consent is a unilateral act of one spouse for the
commission of a marital offense by the other, connivance
indicates agreement between the spouses for the
commission of a ground for legal separation. Connivance is
defined as willingness to secretly allow or be involved in
wrongdoing, especially an immoral or illegal act.
(Pangalangan)
Collusion is the act of married persons in procuring a
legal separation by mutual consent, whether by agreeing
ahead of time for one of the spouses to commit a marital
offense, or by feigning the commission of a ground under
Art. 55 or by failing to present evidence to defeat the suit
for legal separation. The participation of the prosecuting
attorney or fiscal in legal separation proceedings is required
to determine whether collusion exists between the parties
and to guarantee that the evidence is not suppressed or
fabricated.
Art. 60, FC
No decree of legal separation shall be based upon a stipulation of
facts or a confession of judgment.
In any case, the Court shall order the prosecuting attorney or
fiscal assigned to it to take steps to prevent collusion between
the parties and to take care that the evidence is not fabricated or
Page 81 of 84
suppressed.
285 Brown vs. Yambao
Collusion in matrimonial cases is the act of married persons
in procuring a divorce by mutual consent, whether by
preconcerted commission by one of a matrimonial offense,
or by failure, in pursuance of agreement to defend divorce
proceedings.
286 Ocampo vs. Florenciao
A confession of judgment does not exclude, as evidence,
any admission or confession made by the defendant outside
of the court. It merely prohibits a decree of separation upon
a confession of judgment. Confession of judgment usually
happens when the defendant appears in court and
confesses the right of plaintiff to judgment or files a
pleading expressly agreeing to the plaintiffs demand.
287 Republic vs. Quinto/CA
There is no manifest sign of collusion when the other
spouse is paid her share in the conjugal home in order to
convince her not to oppose his petition or to bring any
action on her part. While she did not interpose her objection
to the petition to the point of conceding her psychological
incapacity she nonetheless made it clear enough that she
was unwilling to forego her share in the conjugal house.
Whether or not petitioner-spouse gave respondent her
share in the conjugal partnership to encourage her to stick
to her previously announced stance of not opposing the
petition for nullity of the marriage should by no means be of
any consequence in determining the issue of collusion
between the spouses.
7. Effects of decree of Legal Separation
(a) On personal relations
Art. 63, FC
The decree of legal separation shall have the following effects:
(1) The spouses shall be entitled to live separately from each
other, but the marriage bonds shall not be severed;
(2) The absolute community or the conjugal partnership shall be
dissolved and liquidated but the offending spouse shall have no
right to any share of the net profits earned by the absolute
community or the conjugal partnership, which shall be forfeited
in accordance with the provisions of Article 43(2);
(3) The custody of the minor children shall be awarded to the
innocent
spouse, subject to the provisions of Article 213 of this Code; and
(4) The offending spouse shall be disqualified from inheriting
from the innocent spouse by intestate succession. Moreover,
provisions in favor of the offending spouse made in the will of
the innocent spouse shall be revoked by operation of law. (106a)
(b) On the custody of children Art. 63 (3)
PD 603, (THE CHILD AND YOUTH WELFARE CODE)
Article 17. Joint Parental Authority
XXX
In case of separation of his parents, no child under five years of
age shall be separated from his mother unless the court finds
compelling reasons to do so.
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016
288 Matute vs. Macadaeg (1956)
Moral depravity, habitual drunkenness, incapacity or pverty
render a mother unfit to take charge of her children or
make it unwise to place them under her care.
(c) On property relations Art. 63 (2)
Art. 102 (4), FC
Upon dissolution of the absolute community regime, the
following procedure shall apply:
xxx
(4) The net remainder of the properties of the absolute
community shall constitute its net assets, which shall be divided
equally between husband and wife, unless a different proportion
or division was agreed upon in the marriage settlements, or
unless there has been a voluntary waiver of such share provided
in this Code. For purpose of computing the net profits subject to
forfeiture in accordance with Articles 43, No. (2) and 63, No. (2),
the said profits shall be the increase in value between the market
value of the community property at the time of the celebration of
the marriage and the market value at the time of its dissolution.
xxx
Art. 129 (7), FC
Upon dissolution of the conjugal partnership regime, the
following procedure shall apply:
xxx
(7) The net remainder of the conjugal partnership properties
shall constitute the profits, which shall be divided equally
between husband and wife, unless a different proportion or
division was agreed upon in the marriage settlements or unless
there has been a voluntary waiver or forfeiture of such share as
provided in this Code.
xxx
289 Quiao v Quiao (2012)
When a couple enters into a regime of absolute community
the husband and the wife become joint owners of all the
properties of the marriage. Whatever property each spouse
brings into the marriage, and those acquired during the
marriage (except those excluded under Art. 92, FC), form
the common mass of the couples properties
290 Ocampo v Ocampo (2015)
The Acknowledgement of Co-ownership could not be a fact
against the interest of the declarant Fidela, since her right
over the property had already been extinguished by the
prior act of donation. Thus, at the time of the declaration,
Fidela could not have acknowledged co-ownership, as she
had no more property against which she had an interest to
declare.
(d) On support
Art. 198, FC
During the proceedings for legal separation or for annulment of
marriage, and for declaration of nullity of marriage, the spouses
and their children shall be supported from the properties of the
absolute community or the conjugal partnership. After the final
judgment granting the petition, the obligation of mutual support
between the spouses ceases. However, in case of legal
separation, the court may order that the guilty spouse shall give
support to the innocent one, specifying the terms of such order.
(292a)
Page 82 of 84
(e) On the use of surname
Art. 372, NCC
When legal separation has been granted, the wife shall continue
using her name and surname employed before the legal
separation.
291 Laperal vs. Republic
The language of the statue is mandatory that the wife even
after the legal separation has been decreed shall continue
using her name and surname employed before the legal
separation. This is so because her married status is
unaffected by the separation, there being no severance of
the vinculum. It seems to be the policy of the law that the
wife should continue to sue the name indicative of her
unchanged status the benefit of all concerned.
(f) On hereditary rights Art. 63 (4)
Art. 63, FC
The decree of legal separation shall have the following effects:
xxx
(4) The offending spouse shall be disqualified from inheriting
from the innocent spouse by intestate succession. Moreover,
provisions in favor of the offending spouse made in the will of
the innocent spouse shall be revoked by operation of law. (106a)
(g) Solo Parents Act
RA 8972 - Solo Parents' Welfare Act of 2000.
AN ACT PROVIDING FOR BENEFITS AND PRIVILEGES TO SOLO
PARENTS AND THEIR CHILDREN, APPROPRIATING FUNDS
THEREFOR AND FOR OTHER PURPOSES
8. Reconcilation
Art. 65, FC
If the spouses should reconcile, a corresponding joint
manifestation under oath duly signed by them shall be filed with
the court in the same proceeding for legal separation. (n)
Art. 66, FC
The reconciliation referred to in the preceding Articles shall have
the following consequences:
(1) The legal separation proceedings, if still pending, shall
thereby be terminated at whatever stage; and
(2) The final decree of legal separation shall be set aside, but the
separation of property and any forfeiture of the share of the
guilty spouse already effected shall subsist, unless the spouses
agree to revive their former property regime.
The court's order containing the foregoing shall be recorded in
the proper civil registries. (108a)
Art. 67, FC
The agreement to revive the former property regime referred to
in the preceding Article shall be executed under oath and shall
specify:
(1) The properties to be contributed anew to the restored
regime;
(2) Those to be retained as separated properties of each spouse;
and
(3) The names of all their known creditors, their addresses and
the amounts owing to each.
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016 Page 83 of 84

The agreement of revival and the motion for its approval shall be
filed with the court in the same proceeding for legal separation,
with copies of both furnished to the creditors named therein.
After due hearing, the court shall, in its order, take measure to
protect the interest of creditors and such order shall be recorded
in the proper registries of properties.

The recording of the ordering in the registries of property shall

not prejudice any creditor not listed or not notified, unless the
debtor-spouse has sufficient separate properties to satisfy the
creditor's claim. (195a, 108a)

9. Effect of death of one of the parties

292 Lapuz-Sy vs. Eufemio
An action for legal separation, which involves nothing more
than the bed-and-board separation of the spouses, is purely
personal. Being personal in character, it follows that the
death of one party to the action causes the death of the
action itself: action personalis moritur cum persona.
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016 Page 84 of 84

Effects of marriage on children and property:

Delivery of Presumptive
Nature of Marriage Effects on Children Effect on Property Forfeiture
Legitime?

Valid - all essential No Marriage Settlement

Yes, at dissolution, liquidation
and formal requisites Legitimate Absolute Community of NA
and distribution
present Property, Article 102

No Marriage Settlement
Yes, at dissolution, liquidation
Irregular Marriage Legitimate Absolute Community of NA
and distribution
Property, Article 102

Decree of Legal Complete separation of Yes guilty

Legitimate Yes
Separation property spouse

Legitimate when
Article 50 in relation to
Voidable Marriage conceived or born before Yes if there is Yes, at dissolution, liquidation
Article 43 (2)-(5), Article 102
Article 45 the final decree of bad faith and distribution
or 129
annulment

Legitimate when conceived

Article 36 Void No [And yet, the children are
or born before the final Article 147 (Valdes) Yes
Marriage decree of nullity (Art 54) legitimate, Art 54.]

Article 35, 37, and 38

Illegitimate Article 147 or 148 (Valdes) Yes No
Void Marriage

Legitimate when
Article 53 Void conceived or born before
Marriage the final decree of nullity
(Art 54)
Article 147 (Valdes, by No (And yet, the children are
Yes
inference) legitimate, Art 54.)

Article 40
Article 50 in relation to Yes, at dissolution, liquidation
subsequent marriage Yes if there is
Illegitimate Article 43 (2)-(5), Article 102 and distribution (And yet, the
to a prior void bad faith
or 129 (Valdes) children are legitimate)
marriage Void

Article 40 first
Illegitimate 147 or 148 Yes No
marriage

No marriage Settlement
Article 41 -1st Yes, at dissolution, liquidation
Legitimate Absolute Community of NA
marriage and distribution
Property, Article 102

Article 41 -2nd
Illegitimate 148 Yes No
bigamous marriage

Article 50 in relation to
Article 41/42 Yes if there is Yes, at dissolution, liquidation
Legitimate Article 43 (2)-(5), Article 102
Terminated Marriage bad faith and distribution
or 129

Article 50 in relation to
Terminated by Death Legitimate Article 43 (2)-(5), Article 102 NA No, as succession occurs.
or 129