Lecture Notes on Civil Law

CHANGES IN THE NEW CIVIL CODE

1. Granting of new rights
 Example: The Family Code erases the distinction between natural and spurious
children. Now they are lumped together as ‘illegitimate.’ Thus, spurious children
are given rights.
2. Different solutions to old problems
 Example: Change in river course
3. Clarification of old provisions
 Example: Under the old Civil Code, there were only void and voidable contracts.
With the addition of unenforceable and rescissible contracts, the NCC provides
clarification
4. Certain subjects omitted
 Examples: The dowry has been omitted; certain leases have also been omitted.
The NCC is far from perfect. There are structural defects. Certain things which
should be in the preliminary section are found elsewhere. An example of this is the vices
of consent. Why are they found in contracts? They are relevant in all juridical
transactions. Another example is the topic of degrees of relationship. This is found only
in succession. Degrees of relationship are relevant in other books too. Finally, why is
tradition found in the law on sales? Tradition is not only important in sales. Rather,
tradition is a mode of acquiring ownership.

PRELIMINARY TITLE

I. Effect and Application of Laws

Art. 1. This Act shall be known as the “Civil Code of the Philippines.”

Art. 2. 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.

 ‘This code shall take effect 1 year after such publication.’ The SC in the case
of Lara vs. Del Rosario that the one year should be counted from the date of actual
release and not the date of issue.
 Executive Order No. 200 supersedes Article 2 regarding the time of effectivity of laws.

EXECUTIVE ORDER NO. 200

PROVIDING FOR THE PUBLICATION OF LAWS EITHER IN THE OFFICIAL GAZETTE OR IN A

NEWSPAPER OF GENERAL CIRCULATION IN THE PHILIPPINES AS A REQUIREMENT FOR
THEIR EFFECTIVITY
 WHEREAS, Article 2 of the Civil Code partly provides that “laws shall take effect after
fifteen days following the completion of their publication in the Official Gazette, unless it is
otherwise provided . . .”;

WHEREAS, the requirement that for laws to be effective only a publication thereof in
the Official Gazette will suffice has entailed some problems, a point recognized by the
Supreme Court in Tañada, et al. vs. Tuvera, et al. (G.R. No. 63915, December 29, 1986) when it
observed that “[t]here is much to be said of the view that the publication need not be made in
the Official Gazette, considering its erratic release and limited readership”;

WHEREAS, it was likewise observed that “[u]ndoubtedly, newspapers of general

circulation could better perform the function of communicating the laws to the people as such
periodicals are more easily available, have a wider readership, and come out regularly”; and

WHEREAS, in view of the foregoing premises Article 2 of the Civil Code should
accordingly be amended so the laws to be effective must be published either in the Official
Gazette or in a newspaper of general circulation in the country;

NOW, THEREFORE, I, CORAZON C. AQUINO, President of the Philippines, by virtue of

the powers vested in me by the Constitution, do hereby order:

Sec. 1. Laws shall take effect after fifteen days following the completion of their
publication either in the Official Gazette or in a newspaper of general circulation in the
Philippines, unless it is otherwise provided.

Sec. 2. 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.

Sec. 3. This Executive Order shall take effect immediately after its publication in the
Official Gazette.

Done in the City of Manila, this 18th day of June, in the year of Our Lord, nineteen
hundred and eighty-seven.

 ‘15 days following’ - does this mean on the 15th or 16th day? The law is not clear.
 Under Article 2, publication in the Official Gazette was necessary. Now, under E.O.
No. 200, publication may either be in the Official Gazette or a newspaper of general
publication.
 ‘unless otherwise provided’ refers to when the law shall take effect. It does not
mean that publication can be dispensed with. Otherwise, that would be a violation of
due process.
 General Rule: Laws must be published in either the Official Gazette or a newspaper
of general circulation.
 Exception: The law may provide for another manner of publication. Different
manner meaning:
1. Not in Official Gazette or newspaper of general circulation; or
Example: Read over the television or the radio (provided that the alternative is
reasonable)
2. Change in the period of effectivity
 ‘publication’ means making it known; dissemination. It doesn’t have to be in
writing.
 ‘Change period of effectivity’ – the gap between publication and effectivity should
be reasonable under the circumstances.
 Before publication, cannot apply the law whether penal or civil (Pesigan vs. Angeles)
Why? How can you be bound if you don’t know the law.
 Requirement of publication applies to all laws and is mandatory.

Art. 3. Ignorance of the law excuses no one from compliance therewith.

 Ignorantia legis neminem excusat (Ignorance of the law excuses no one).

 This is a necessary rule for all civilized society. Otherwise it would be impossible to
enforce the law. It is very hard to determine whether or not a person really does not
know the law. Without this rule, there would be anarchy. The law sacrifices
occasional harshness to prevent universal anarchy.
 There are potential methods to mitigate the severity of Article 3 – Articles 526 (¶3),
2155, 1334.*
 In Kasilag vs. Rodriguez, the SC said that the possession of the antichretic credit as
possession in good faith since a difficult question of law was involved – antichresis.
In this case, the parties were not very knowledgeable of the law.
 Article 3 applies only to ignorance of Philippine law. It does not apply to foreign law.
In Private International Law, foreign law must be proven even if it is applicable.
Otherwise, the courts will presume the foreign law to be the same as Philippine law.

Art. 4. Laws shall have no retroactive effect, unless the contrary is

provided.

 Lex de futuro judex de preterito (The law provides for the future, the judge for the
past).
 Retroactive law – one which creates a new obligation and imposes a new duty or
attaches a new disability with respect to transactions or considerations already past.
 General Rule: Law must be applied prospectively.
 Exceptions:
1. If the statute provides for retroactivity.
Exception to the exception:
a. Ex post facto laws
b. Laws which impair the obligation of contracts
2. Penal laws insofar as it favors the accused who is not a habitual criminal, even
though at the time of the enactment of such law final sentence has already been
rendered.
3. Remedial laws as long as it does not affect or change vested rights.
4. When the law creates new substantive rights unless vested rights are impaired.

*
Art. 526, ¶3. Mistake upon a doubtful or difficult question of law may be the basis of good faith.
Art. 2155. Payment by reason of a mistake in the construction or application of a doubtful
or difficult question of law may come within the scope of the preceding article.
Art. 1334. Mutual error as to the legal effect of an agreement when the real purpose of the
parties is frustrated, may vitiate consent.
 5. Curative laws (the purpose is to cure defects or imperfections in judicial or
administrative proceedings)
6. Interpretative laws
7. Laws which are of emergency nature or are authorized by police power (Santos
vs. Alvarez; PNB vs. Office of the President)

Art. 5. Acts executed against the provisions of mandatory or prohibitory

laws shall be void, except when the law itself authorizes their validity.

 A mandatory law is one which prescribes some element as a requirement (i.e., wills
must be written – Article 804; form of donations – Article 749)
 A prohibitory law is one which forbids something (i.e., joint wills – Article 818)
 General Rule: Acts which are contrary to mandatory or prohibited laws are void.
 Exceptions:
1. When the law itself authorized its validity (i.e., lotto, sweepstakes)
2. When the law makes the act only voidable and not void (i.e., if consent is vitiated,
the contract is voidable and not void)
3. When the law makes the act valid but punishes the violator (i.e., if the marriage is
celebrated by someone without legal authority but the parties are in good faith,
the marriage is valid but the person who married the parties is liable)
4. When the law makes the act void but recognizes legal effects flowing therefrom
(i.e., Articles 1412 & 1413)

Art. 6. 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.


Art. 804. Every will must be in writing and executed in a language or dialect known to the
testator.

Art. 749. In order that the donation of an immovable may be valid, it must be made in a public
document, specifying therein the property donated and the value of the charges which the donee
must satisfy.
The acceptance may be made in the same deed of donation or in a separate public
document, but it shall not take effect unless it is done during the lifetime of the donor.
If the acceptance is made in a separate instrument, the donor shall be notified thereof in
an authentic form, and this step shall be noted in both instruments.

Art. 818. Two or more persons cannot make a will jointly, or in the same instrument, either for
their reciprocal benefit or for the benefit of a third person.

Art. 1412. If the act in which the unlawful or forbidden cause consists does not constitute a
criminal offense, the following rules shall be observed:
(1) When the fault is on the part of both contracting parties, neither may recover what he has
given by virtue of the contract, or demand the performance of the other's undertaking;
(2) When only one of the contracting parties is at fault, he cannot recover what he has
given by reason of the contract, or ask for the fulfillment of what has been promised him.
The other, who is not at fault, may demand the return of what he has given without any
obligation to comply his promise.
Art. 1413. Interest paid in excess of the interest allowed by the usury laws may be
recovered by the debtor, with interest thereon from the date of the payment.
 What one can waive are rights and not obligations. Example, a creditor can waive the
loan but the debtor may not.
 There is no form required for a waiver since a waiver is optional. You can waive by
mere inaction, refusing to collect a debt for example is a form of waiver.
 Requisites of a valid waiver (Herrera vs. Boromeo)
1. Existence of a right
2. Knowledge of the existence of the right
3. An intention to relinquish the right (implied in this is the capacity to dispose of the
right)
 General Rule: Rights can be waived.
 Exceptions:
1. If waiver is contrary to law, public order, public policy, morals or good customs
2. If the waiver would be prejudicial to a 3 rd party with a right recognized by law.
(e.g., If A owes B P10M, B can’t waive the loan if B owes C and B has no other
assets.)
 Examples of waivers which are prohibited:
1. Repudiation of future inheritance
2. Waiver of the protection of pactum commissorium
3. Waiver of future support
4. Waiver of employment benefits in advance
5. Waiver of minimum wage
6. Waiver of the right to revoke a will

Art. 7. 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 declared 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.

 Article 7 is obvious because time moves forward.

 Only subsequent laws can repeal prior laws either through:
1. A repealing clause
2. Incompatibility of the subsequent and prior laws
 The violation of a law is not justified even if:
1. No one follows the law (i.e., nonpayment of taxes)
2. There is a custom to the contrary
 The 2nd par. of Article 7 is judicial review in statutory form.
 Art. 8. Judicial decisions applying or interpreting the laws or the
Constitution shall form a part of the legal system of the Philippines.

 This is a new provision taken from common law. Under the civil law tradition, the
court merely applies the law. However since the Philippine legal system is a
combination of civil law and common law, courts apply statutes as well as resort to
the doctrine of precedent.

Art. 9. No judge or court shall decline to render judgment by reason of

the silence, obscurity or insufficiency of the laws.

Art. 10. In case of doubt in the interpretation or application of laws, it is

presumed that the lawmaking body intended right and justice to prevail.

 What if the law is silent? The court should render a decision based on justice as
stated in Article 10.

Art. 11. Customs which are contrary to law, public order or public policy
shall not be countenanced.

 What if customs are not contrary to law? The custom would be countenanced.
However, this does not mean that the custom would have obligatory force.

Art. 12. A custom must be proved as a fact, according to the rules of

evidence.

 The law doesn’t specify the cases when custom is relevant in litigation. But in case
custom is relevant, it should be proven.
 Commentators say that custom is important in cases involving negligence. For
example, if a kalesa in Manila is by custom supposed to have rattan baskets to
prevent people from slipping, if a person slips because there is no rattan basket, then
he can sue for negligence.

Art. 13. When the laws 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 nights from sunset to sunrise.
If months are designated by their name, they shall be computed by the
number of days which they respectively have.
In computing a period, the first day shall be excluded, and the last day
included.

 Article 13 has been superseded by Executive Order No. 292 (the Revised
Administrative Code of 1987) – Book 1, §31.

Sec. 31. 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.

 Under E.O. No. 292, a year is now equivalent to 12 calendar months and not 365
days. Under Article 13 leap years are not considered. For examples, in order to make
a will, one has to be 18 years old. But if you use Article 13, one loses 4 to 5 days if
 you don’t count the leap years. E.O. No. 292 is better than Article 13 since it is more
realistic.
 There should have been a definition of hours. That definition is relevant for labor law.
According to Professor Balane, an hour should be defined as 1/24 of a calendar day.
If you use the definition that an hour is equal to 60 minutes, then we would have to
define minutes, then seconds, and so on. It would be too scientific.

II. Conflicts of Law Provisions

Art. 14. Penal laws and those of public security and safety shall be
obligatory upon all who live or sojourn in the Philippine territory, subject to the
principles of public international law and to treaty stipulations.

 Two principles:
1. Territoriality
General Rule: Criminal laws apply only in Philippine territory.
Exception: Article 2, Revised Penal Code.
2. Generality
General Rule: Criminal laws apply to everyone in the territory (citizens and
aliens)
Exceptions: In these instances, all the Philippines can do is expel them
a. Treaty stipulations which exempt some persons within the jurisdiction of
Philippine courts (e.g., Bases Agreement)
b. Heads of State and Ambassadors
(Note: Consuls are subject to the jurisdiction of our criminal courts.)

Art. 15. 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. 2. 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.
 Theories on Personal Law:
1. Domiciliary theory - the personal laws of a person are determined by his
domicile
2. Nationality theory - the nationality or citizenship determines the personal laws
of the individual
 Under Article 15, the Philippines follows the nationality theory. Family rights and
duties, status and legal capacity of Filipinos are governed by Philippine law.
 General Rule: Under Article 26 of the Family Code, all marriages solemnized outside
the Philippines in accordance with the laws in force in the country where they were
solemnized and valid there as such, is also valid in the Philippines.
 Exception: If the marriage is void under Philippine law, then the marriage is void
even if it is valid in the country where the marriage was solemnized .
Exception to the exception:
1. Article 35, ¶2, Family Code

Art. 35. 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;

2. Article 35, ¶3, Family Code

Art. 35. The following marriages shall be void from the beginning:
(3) Those solemnized without license, except those covered the
preceding Chapter;

Even if the foreign marriage did not comply with either ¶s 2 and 3 of Article
35, Philippine law will recognize the marriage as valid as long as it is valid under
foreign law.

Art. 16, ¶1. Real property as well as personal property is subject to the
law of the country where it is stipulated.

 Lex situs or lex rei sitae governs real or personal property (property is subject to the
laws of the country in which it is located).
 In Tayag vs. Benguet consolidated, the SC said that Philippine law shall govern in
cases involving shares of stock of a Philippine corporation even if the owner is in the
US.

Art. 16, ¶2. However, intestate 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.

 This is merely an extension of the nationality theory in Article 15.

 The national law of the decedent regardless of the location of the property shall
govern. Thus, the national law of the decedent shall determine who will succeed.
 In Miciano vs. Brimo, the SC said that the will of a foreigner containing the condition
that the law of the Philippines should govern regarding the distribution of the
properties is invalid.
 In Aznar vs. Garcia, what was involved was the renvoi doctrine. In this case, the
decedent was a citizen of California who resided in the Philippine. The problem was
that under Philippine law, the national law of the decedent shall govern. On the other
hand, under California law, the law of the state where the decedent has his domicile
shall govern. The SC accepted the referral by California law and applied Philippine
law (single renvoi).
 Problem: What if the decedent is a Filipino domiciled in a foreign country which
follows the domiciliary theory?
According to Professor Balane, one way to resolve the situation is this –
Philippine law should govern with respect to properties in Philippine while the law of
the domicile should govern with respect to properties located in the state of domicile.

Art. 17. 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.
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.

 Lex loci celebrationis (formal requirements of contracts, wills, and other public
instruments are governed by the country in which they are executed)
 There is no conflict between the 1st ¶ of Article 16 and the 1st ¶ of Article 17 since
they talk of 2 different things.
 Thus, the formal requirements of a contract involving real property in the Philippines
must follow the formal requirements of the place where the contract was entered
into. However, if what is involved is not the formal requirements, then the law of the
place where the properties (whether real or personal) are located shall govern.

Art. 18. In matters which are governed by the Code of Commerce and
special laws, their deficiency shall be supplied by the provisions of this Code.

III. Human Relations

Art. 19. 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. Every person who, contrary to law, willfully or negligently causes
damage to another, shall indemnify the latter for the same.
 Art. 21. Any person who willfully 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.

Art. 22. 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.

Art. 23. Even when an act or event causing damage to another's

property was not due to the fault or negligence of the defendant, the latter shall
be liable for indemnity if through the act or event he was benefited.

Art. 24. In all contractual, property or other relations, when one of the
parties is at a disadvantage on account of his moral dependence, ignorance,
indigence, mental weakness, tender age or other handicap, the courts must be
vigilant for his protection.

Art. 25. Thoughtless extravagance in expenses for pleasure or display

during a period of acute public want or emergency may be stopped by order of
the courts at the instance of any government or private charitable institution.

Art. 26. 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:
(1) Prying into the privacy of another's residence:
(2) Meddling with or disturbing the private life or family relations of
another;
(3) Intriguing to cause another to be alienated from his friends;
(4) Vexing or humiliating another on account of his religious beliefs, lowly
station in life, place of birth, physical defect, or other personal
condition.

Art. 27. Any person suffering material or moral loss because a public
servant or employee refuses or neglects, without just cause, to perform his
official duty may file an action for damages and other relief against he latter,
without prejudice to any disciplinary administrative action that may be taken.

Art. 28. Unfair competition in agricultural, commercial or industrial

enterprises or in labor through the use of force, intimidation, deceit,
machination or any other unjust, oppressive or highhanded method shall give
rise to a right of action by the person who thereby suffers damage.

Art. 29. When the accused in a criminal prosecution is acquitted on the

ground that his guilt has not been proved beyond reasonable doubt, a civil
action for damages for the same act or omission may be instituted. Such action
requires only a preponderance of evidence. Upon motion of the defendant, the
court may require the plaintiff to file a bond to answer for damages in case the
complaint should be found to be malicious.
If in a criminal case the judgment of acquittal is based upon reasonable
doubt, the court shall so declare. In the absence of any declaration to that
effect, it may be inferred from the text of the decision whether or not the
acquittal is due to that ground.

Art. 30. When a separate civil action is brought to demand civil liability
arising from a criminal offense, and no criminal proceedings are instituted
during the pendency of the civil case, a preponderance of evidence shall
likewise be sufficient to prove the act complained of.

Art. 31. When the civil action is based on an obligation not arising from
the act or omission complained of as a felony, such civil action may proceed
independently of the criminal proceedings and regardless of the result of the
latter.

Art. 32. Any public officer or employee, or any private individual, who
directly or indirectly obstructs, defeats, violates or in any manner impedes or
impairs any of the following rights and liberties of another person shall be liable
to the latter for damages:
(1) Freedom or religion;
(2) Freedom of speech;
(3) Freedom to write for the press or to maintain a periodical publication;
(4) Freedom from arbitrary or illegal detention;
(5) Freedom of suffrage;
(6) The right against deprivation of property without due process of law;
(7) The right to a just compensation when private property is taken for
public use;
(8) The right to the equal protection of the laws;
(9) The right to be secure in one's person, house, papers, and effects
against unreasonable searches and seizures;
(10) The liberty of abode and of changing the same;
(11) The privacy of communication and correspondence;
(12) The right to become a member of associations or societies for
purposes not contrary to law;
(13) The right to take part in a peaceable assembly to petition the
Government for redress of grievances;
(14) The right to be a free from involuntary servitude in any form;
(15) The right of the accused against excessive bail;
(16) The right of the accused to be heard by himself and counsel, to be
informed of the nature and cause of the accusation against him, to
have a speedy and public trial, to meet the witnesses face to face, and
to have compulsory process to secure the attendance of witness in his
behalf;
(17) Freedom from being compelled to be a witness against one's self, or
from being forced to confess guilt, or from being induced by a promise
of immunity or reward to make such confession, except when the
person confessing becomes a State witness;
 (18) Freedom from excessive fines, or cruel and unusual punishment,
unless the same is imposed or inflicted in accordance with a statute
which has not been judicially declared unconstitutional; and
(19) Freedom of access to the courts.
In any of the cases referred to in this article, whether or not the
defendant's act or omission constitutes a criminal offense, the aggrieved party
has a right to commence an entirely separate and distinct civil action for
damages, and for other relief. Such civil action shall proceed independently of
any criminal prosecution (if the latter be instituted), and mat be proved by a
preponderance of evidence.
The indemnity shall include moral damages. Exemplary damages may
also be adjudicated.
The responsibility herein set forth is not demandable from a judge unless
his act or omission constitutes a violation of the Penal Code or other penal
statute.

Art. 33. In cases of defamation, fraud, and physical injuries a civil action
for damages, entirely separate and distinct from the criminal action, may be
brought by the injured party. Such civil action shall proceed independently of
the criminal prosecution, and shall require only a preponderance of evidence.

Art. 34. When a member of a city or municipal police force refuses or

fails to render aid or protection to any person in case of danger to life or
property, such peace officer shall be primarily liable for damages, and the city
or municipality shall be subsidiarily responsible therefor. The civil action herein
recognized shall be independent of any criminal proceedings, and a
preponderance of evidence shall suffice to support such action.

Art. 35. When a person, claiming to be injured by a criminal offense,

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

Art. 36. 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.
 PERSONS
Person
 Any physical or juridical being susceptible o frights and obligations, or of being the
subject of legal relations

Persons vs. Things

 A person is the subject of legal relations
 A things is the object of legal relations

Art. 37. Juridical capacity, which is the fitness to be the subject of legal
relations, is inherent in every natural person and is lost only through death.
Capacity to act, which is the power to do acts with legal effect, is acquired and
may be lost.

 2 component elements of capacity:

1. Juridical capacity
 There are no degrees of juridical capacity.
 Juridical capacity is the same in every person. No one has more juridical
capacity than others. It is inherent in natural persons. On the other hand, it
arises in artificial persons when such artificial persons are created.
2. Capacity to act
 This is best presented by a spectrum:

0% Infant Alien Most People 100%

 Nobody has 100% capacity to act. The law imposes restrictions on capacity to
act. As long as one has contractual capacity (a.k.a. full civil capacity) one is
near 100% capacity to act. “Full civil capacity” is not really 100% but close to
it. With contractual capacity, one is generally able to perform contracts and
dispose of property.
 Nobody has 0% capacity to act. Infants are close to 0% but still have capacity
to act. For example, even fetus has the right to succeed and also have the
right to the integrity of body. Aliens cannot own colleges or broadcast media.

Art. 38. 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. The following circumstances, among others, modify or limit

capacity to act: age, insanity, imbecility, the state of being a deaf-mute,
penalty, prodigality, family relations, alienage, absence, insolvency and
trusteeship. The consequences of these circumstances are governed in this
Code, other codes, the Rules of Court, and in special laws. Capacity to act is not
limited on account of religious belief or political opinion.
A married woman, twenty-one years of age or over, is qualified for all
acts of civil life, except in cases specified by law.
 Articles 38 and 39 are really the same thing. They are redundant.
 Insolvency – certain obligations cannot be performed (i.e., one cannot pay off debts
in favor of one creditor while excluding other creditors)
 Trusteeship - one is placed in guardianship.
 Prodigality - it is not by itself a restriction. It is a ground to be placed in
guardianship
 These restrictions don’t exempt incapacitated persons from certain obligations. Under
Article 1156, there are 5 sources of obligations:
1. Law
2. Contract
3. Delict
4. Quasi-delict
5. Quasi-contract
 Thus, Articles 38 and 39 prevent incapacitated persons from incurring contractual
obligations only. Thus, even though an insane person cannot be thrown in jail for a
criminal act, the insane person is still civilly liable (delict). An incapacitated person
must still pay income tax if income is earned.
 Although Articles 38 and 39 don’t mention it, incapacitated persons may acquire
rights. For example, they have the right to accept donations or to succeed.
 The enumeration in Articles 38 and 39 is not exclusive. There are others spread
throughout the code. (i.e., a lawyer cannot buy property in litigation – Article 1491
(5))
 Article 39, last ¶ has been amended by R.A. No. 6809. 21 years is no longer the age
of majority but 18.
 Article 39, last ¶ – What are the cases specified by law?

I. Natural Persons
Art. 40. 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.

Art. 41. 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.

Art. 1491. The following persons cannot acquire by purchase, even at a public or judicial
auction, either in person or through the mediation of another:
(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.
 Principles:
1. For personality to be acquired one must be born
2. Once birth occurs, personality for favorable purposes retroacts to the moment of
conception
 To be born means to be alive after the fetus is completely separated from the
mother’s womb by cutting off the umbilical cord.
 General Rule: To be born, it is enough that the fetus is alive when the umbilical
cord is cut
 Exception: If the intra-uterine life is less than 7 months, it must live for at least 24
hours, before it is considered born (There is no distinction as to how the child dies –
whether natural, accidental, etc.)
 According to Professor Balane, modern medicine cannot as of yet determine if the
intra-uterine life is 7 months or less in terms of number of days. Modern medicine
cannot determine the exact time when fertilization took place. Modern medicine
estimates the fetus age in weeks.
 An example of a case where upon birth occurs personality retroacts to the moment of
conception is in case of succession since it is favorable to the child. On the other
hand, if the purpose is for paying taxes, personality does not retroact since it is
unfavorable to the child.
 In Geluz vs. CA, the SC said that the father could not file the action for damages.
The fetus never acquired personality because it was never born – it was not alive at
the time it was delivered from the mother’s womb. Since the fetus did not acquire
any personality, it acquired no rights which could be transmitted to the father. Thus,
the father could not sue in a representative capacity. The father could have sued in
his personal capacity had the father suffered anguish which he did not.

Art. 42. 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.

 This article deals with the extinguishment of civil personality

 Death is not defined in the Civil Code. Not even doctors know precisely when death
occurs. There are many theories.
 The fact of death is important because it affects civil personality and legal relations.
The main effect of death is readily seen in succession. Death is also relevant to labor
law and insurance.

Art. 43. 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.
RULE 131, RULES OF COURT
Sec. 3. Disputable presumptions. — The following presumptions are satisfactory if
uncontradicted, but may be contradicted and overcome by other evidence:
(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 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 of 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.

 This is a presumption regarding simultaneous death and not a rule on survivorship.

On the other hand, the Rules provide for a presumption of survivorship based on
certain criteria.
 The Rules of Court shall apply where:
1. The issue does not involve succession but something else (i.e., insurance,
suspensive conditions); and
2. The persons perish in the same calamity
 Article 43 shall apply where:
1. The case involves succession; and
2. The persons do not perish in the same calamity.
 If the conditions in the Rules of Court or Article 43 do not concur, do not apply either.
 Problem: What if succession is involved and the persons perish in the same
calamity?
Most commentators say Article 43 will prevail. This is the only case of conflict
between the Rules of Court and Article 43.
 In Joaquin vs. Navarro, Article 43 was not applied. There was no need to apply the
presumption in Article 43 since there was evidence to show who died first.

II. Juridical Persons

Art. 44. The following are juridical persons:
(1) The State and its political subdivisions;
(2) Other corporations, institutions and entities for public interest or
purpose, created by law; their personality begins as soon as they have
been constituted according to law;
(3) Corporations, partnerships and associations for private interest or
purpose to which the law grants a juridical personality, separate and
distinct from that of each shareholder, partner or member.
 This enumerates the juridical persons.
 A juridical person is an organic unit resulting from a group of persons or mass or
property to which the state grants or recognizes personality and capacity to hold
patrimonial rights independent of those of component members
 The juridical personality of political subdivisions and public corporations (i.e., GSIS,
SSS) commences when the law creating them becomes effective.
 The juridical personality of a private corporation commences upon incorporation with
the SEC.
 The juridical personality of a partnership commences upon the meeting of the minds
of the parties.
 Although the Catholic Church is not one of those mentioned in Article 44, it is still
considered as a juridical person in Barlin vs. Ramirez because of tradition.

Art. 45. Juridical persons mentioned in Nos. 1 and 2 of the preceding

article are governed by the laws creating or recognizing them.
Private corporations are regulated by laws of general application on the
subject.
Partnerships and associations for private interest or purpose are
governed by the provisions of this Code concerning partnerships.

JURIDICAL PERSON GOVERNED BY

State Constitution (Defines its organization and limits its rights vis-
à-vis citizens)
Political subdivision Charter
Public corporation Charter
Private corporation Corporation Code, Articles of Incorporation and By-Laws
Partnerships Stipulations of the parties and suppletorily by the general
provisions on partnership

Art. 46. 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.

Art. 47. 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.

 Dissolution is found in detail in the Corporation Code.

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

 This has been superseded by the Constitution.

ARTICLE IV, PHILIPPINE CONSTITUTION

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 accordance with law.
Art. 49. Naturalization and the loss and reacquisition of citizenship of the
Philippines are governed by special laws.

Art. 50. For the exercise of civil rights and the fulfillment of civil
obligations, the domicile of natural persons is the place of their habitual
residence.

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

 Article 50 governs the domicile of natural persons. Article 51 talks about the domicile
of juridical persons.
 Requisites of Domicile (Callego vs. Vera):
1. Physical Presence
2. Intent to remain permanently
 Kinds of Domicile
1. Domicile of Origin
 Domicile of parents of a person at the time he was born.
2. Domicile of Choice
 Domicile chosen by a person, changing his domicile of origin.
  A 3rd requisite is necessary – intention not to return to one’s domicile as his
permanent place.
3. Domicile by Operation of Law (i.e., Article 69, domicile of minor)
 Residence vs. Domicile
 Residence is not permanent (There is no intent to remain)
 Domicile is permanent (There is intent to remain)
 According to the Supreme Court in Marcos vs. COMELEC, the wife does not lose her
domicile upon marriage. She does not necessarily acquire her husband’s domicile.
Until the spouses decide to get a new domicile, the wife retains her old domicile.
Under Article 698 of the Family Code, the domicile is fixed jointly.
 3 Rules:
1. A man must have a domicile somewhere.
2. A domicile once established remains until a new one is acquired.
3. A man can only have one domicile at a time.
 The following Articles in the Civil Code mention domicile:
1. Article 821

Art. 821. The following are disqualified from being witnesses to a

will:
(1) Any person not domiciled in the Philippines;
(2) Those who have been convicted of falsification of a document,
perjury or false testimony.

2. Article 829

Art. 829. A revocation done outside the Philippines, by a person

who does not have his domicile in this country, is valid when it is done
according to the law of the place where the will was made, or according
to the law of the place in which the testator had his domicile at the time;
and if the revocation takes place in this country, when it is in accordance
with the provisions of this Code.

3. Article 1251

Art. 1251. Payment shall be made in the place designated in the

obligation.
There being no express stipulation and if the undertaking is to
deliver a determinate thing, the payment shall be made wherever the
thing might be at the moment the obligation was constituted.
In any other case the place of payment shall be the domicile of the
debtor.
If the debtor changes his domicile in bad faith or after he has
incurred in delay, the additional expenses shall be borne by him.


Art. 69. The husband and wife shall fix the family domicile. In case of disagreement, the court
shall decide.
 These provisions are without prejudice to venue under the Rules of
Court.

 The concept of domicile is not as important in civil law countries unlike common law
countries which follow the nationality theory.

IV. Surnames
 Surnames are important for identification. Surnames identify the family to which a
person belongs (transmitted from parent to child).
 A name is a word or a combination by which a person is known or identified (Republic
vs. Fernandez)
 Characteristics of Surnames
1. Absolute – intended to protect from confusion
2. Obligatory
3. Fixed – can’t change at one’s leisure
4. Outside the commerce of man – can’t sell or donate
5. Imprescriptible - even if one does not use, still your name
 Rules
1. As far as the state is concerned, your real name is the one in the Civil Registry
(not the baptismal certificate since parish records are no longer official)
2. Change of name can only be done through court proceedings

Art. 376. No person can change his name or surname without

judicial authority.

3. However, a person can use other names which are authorized by C.A. No. 142 as
amended by R.A. No. 6085 (use of pseudonym)
 Guidelines regarding Change of Name
1. In a petition for change of name, courts are generally strict. You have to show
sufficient cause.
 The cases of Naldoza vs. Republic and Republic vs. Marcos illustrate what are
sufficient causes. Republic vs. Hernandez added an additional ground. The
enumeration is not an exclusive list of causes. They are merely the ones
frequently cited.
 In Republic vs. CA, the child wanted to change to the surname of the
stepfather’s. The Supreme Court said this is not allowed since it will cause
confusion as to the child’s paternity.
2. In a petition for injunction or in a criminal case for violation of C.A. No. 142,
courts are generally liberal for as long as there is no fraud or bad faith.
 In Legamia vs. IAC, the Supreme Court allowed the mistress to use her live-in
partner’s name since everyone knew that she was the mistress – no confusion.
 In Tolentino vs. CA, the Supreme Court allowed the former Mrs. Tolentino to
keep on using the surname of Tolentino since the same was not being used for
fraudulent purposes.
 3. In case of adoption where the woman adopts alone, it is the maiden name that
should be given the child (Johnston vs. Republic)

Art. 370. A married woman may use:

(1) Her maiden first name and surname and add her husband's surname, or
(2) Her maiden first name and her husband's surname or
(3) Her husband's full name, but prefixing a word indicating that she is his
wife, such as "Mrs."

 A married woman may use only her maiden name and surname. She has an option
and not a duty to use the surname of her husband as provided for in Art. 370. This is
the obiter dictum in Yasin vs. Shari’a which cites Tolentino.
 According to Yasin vs. Shari’a, when the husband dies, the woman can revert to her
old name without need for judicial authorization.

Art. 176, Family Code. 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.

 Illegitimate children shall use the surname of the mother.

Art. 377. Usurpation of a name and surname may be the subject of an

action for damages and other relief.

Art. 378. The unauthorized or unlawful use of another person's surname

gives a right of action to the latter.

 Articles 377 and 378 don’t talk of the same thing.

 Article 377 deals with the usurpation of names. There is usurpation when there is
confusion of identity (i.e. you claim to be Jaime Zobel)
 Elements of Article 377 (Usurpation):
1. There is an actual use of another’s name by the defendant
2. The use is unauthorized
3. The use of another’s name is to designate personality or identify a person.
 Article 378 is using of the name for purposes other than usurpation (i.e., slander; for
example, I will use Daliva’s surname in my product, calling it Daliva see-thru lingerie)
V. Emancipation and Age of Majority (RA 6809)
REPUBLIC ACT 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

Sec. 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."

Sec. 2. Articles 235 and 237 of the same Code are hereby repealed.

Sec. 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."

Sec. 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.

Sec. 5. This Act shall take effect upon completion of its publication in at least two (2)
newspapers of general circulation.

Approved: December 13, 1989

 Emancipation is the extinguishments of parental authority. It takes place at the age

of 18.
 The problem with R.A. No. 6809, being a piece meal amendment, it does not take
care of all references in the Civil Code with reference to the age of majority.
 One defect of R.A. No. 6809 is that it restores the distinction between perfect and
imperfect emancipation. The Family Code removed the distinction which RA 6809
restored. Thus, although 18 is the age of emancipation:
1. Persons between 18 to 21 still need parental consent for marriage.
2. Parents or guardians are liable for the quasi-delicts of persons who are already 18
years old under Article 2180 until he reaches the age of 21.


Art. 2180. The obligation imposed by article 2176 is demandable not only for one's own acts or
omissions, but also for those of persons for whom one is responsible.
The father and, in case of his death or incapacity, the mother, are responsible for the
damages caused by the minor children who live in their company.
Guardians are liable for damages caused by the minors or incapacitated persons who are
under their authority and live in their company.
 According to Professor Balane, this is crazy. The basis for vicarious liability is
parental authority. Since parents and guardians no longer exercise parental
authority, they should no longer be made liable. This is unjust because the
parents are no longer in a position to prevent their emancipated children from
acting – responsibility without power.
 ¶2 of Article 2180 has been repealed by Article 221 of the Family Code.

VI. Absence
 Absence is that special legal status of one who is not in his domicile, his whereabouts
being unknown and it being uncertain whether he is dead or alive.
Example: When Lacson went to the US, Lacson was not absent since his whereabouts
were known.
 Stages of Absence (According to Seriousness)
1. Temporary or Provisional (Articles 381 – 383)

Art. 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.

Art. 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.

Art. 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.

 Requisites for Provisional Absence

1. Absence for an appreciable period which depends upon the circumstances
2. Immediate necessity for his representation in some specific urgent matter
3. Absentee left no agent or the agency has expired.
 The declaration of provisional absence (must go to court) is limited to a
specific act.

2. Normal or Declared (Articles 384 – 389)


Art. 221. Parents and other persons exercising parental authority shall be civilly liable for the
injuries and damages caused by the acts or omissions of their unemancipated children living in
their company and under their parental authority subject to the appropriate defenses
provided by law.
 Art. 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.
Art. 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.

Art. 386. The judicial declaration of absence shall not take effect
until six months after its publication in a newspaper of general
circulation.

Art. 387. An administrator of the absentee's property shall be

appointed in accordance with article 383.

Art. 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.

Art. 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.

 Periods
1. 2 years – if he did not leave an agent
2. 5 years – if he left an agent
 Computation of Period
a. If no news, the period must be computed from the date of disappearance.
b. If there is news, the period must be computed from the last time the
absentee was referred to in the news (not receipt of last news)
For example, X in 1996 goes on a world tour. On March 1, X poses for a
picture and sends a postcard. This is received by Y on September 1. X is
not heard from again. According to Professor Balane, the disappearance
should be counted from March 1 and not September 1. Counting from
September 1 just doesn’t make sense!
  The purpose of the declaration of absence is for the court to have someone to
administer the property of the absentee – Article 384. If the absentee left no
property to administer, then one cannot resort to a declaration of absence.
 For purposes of re-marriage, a declaration of absence is not proper. In this
case, what is required is a summary proceeding for presumptive death.

3. Presumptive Death
a. Ordinary Presumptive Death (Article 390)

Art. 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.

1. If absentee is 75 or below
 7 years – for all purposes except succession
 10 years - for succession
2. If absentee is over 75 years old
 5 years for all purposes

b. Qualified Presumptive Death (Article 391)

Art. 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.
 Person on board a vessel lost during a sea voyage, missing airplane ,
person in the armed forces who has taken part in war, a person who has
been in danger of death under other circumstances and his existence is not
known.
 General Rule: 4 years for all purposes
 Exception: 2 years for purposes of remarriage (Article 41, Family Code)
Art. 41. 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.

 When can you ask for a decree of presumptive death for purposes of
remarriage?
1. 4 years after disappearance
2. 2 years if the circumstances fall under Article 391
 Under these rules on presumptive death, there is no need for a court
decree. The mere running of the period raises the presumption of death.
 However, for purposes of remarriage, a summary proceeding is required
under Article 41 of the Family Code. Otherwise, the subsequent marriage
is void.
 In the case of Eastern Shipping vs. Lucas, the Supreme Court did not apply
Article 391. The Supreme Court said that Article 391 is a rebuttable
presumption. Being a presumption, Article 391 is applied only if there is
no evidence. In this case, the Supreme Court had enough evidence to rule
that the seaman was really dead.

VII.Funerals

Art. 305. The duty and the right to make arrangements for the funeral of
a relative shall be in accordance with the order established for support, under
article 294. In case of descendants of the same degree, or of brothers and
sisters, the oldest shall be preferred. In case of ascendants, the paternal shall
have a better right.

 The order given in Article 305 as to who has the right to make funeral arrangements
follows the order for support under Article 199* of the Family Code.

Art. 306. Every funeral shall be in keeping with the social position of the
deceased.

Art. 307. The funeral shall be in accordance with the expressed wishes of
the deceased. In the absence of such expression, his religious beliefs or
affiliation shall determine the funeral rites. In case of doubt, the form of the
funeral shall be decided upon by the person obliged to make arrangements for
the same, after consulting the other members of the family.
*
Art. 199. Whenever two or more persons are obliged to give support, the liability shall devolve
upon the following persons in the order herein provided:
(1) The spouse;
(2) The descendants in the nearest degree;
(3) The ascendants in the nearest degree; and
(4) The brothers and sisters.
 Art. 308. No human remains shall be retained, interred, disposed of or
exhumed without the consent of the persons mentioned in articles 294 and 305.

Art. 309. Any person who shows disrespect to the dead, or wrongfully
interferes with a funeral shall be liable to the family of the deceased for
damages, material and moral.

Art. 310. The construction of a tombstone or mausoleum shall be

deemed a part of the funeral expenses, and shall be chargeable to the conjugal
partnership property, if the deceased is one of the spouses.

VIII. Civil Registry

 The Civil Registry is the repository of relevant facts of a person (birth, adoption,
nationalization, marriage, death, etc.)

Art. 407. Acts, events and judicial decrees concerning the civil status of
persons shall be recorded in the civil register.

 Anything which affects the civil status of persons shall be recorded in the Civil
Register. (Read also Article 7, of PD 603)

Art. 408. The following shall be entered in the civil register: (1)
Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of
marriage; (6) judgments declaring marriages void from the beginning; (7)
legitimations; (8) adoptions; (9) acknowledgments of natural children; (10)
naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction;
(14) judicial determination of filiation; (15) voluntary emancipation of a minor;
and (16) changes of name.

Art. 409. In cases of legal separation, adoption, naturalization and other

judicial orders mentioned in the preceding article, it shall be the duty of the
clerk of the court which issued the decree to ascertain whether the same has
been registered, and if this has not been done, to send a copy of said decree to
the civil registry of the city or municipality where the court is functioning.


Art. 7. Non-disclosure of Birth Records. - The records of a person's birth shall be kept strictly
confidential and no information relating thereto shall be issued except on the request of any of the
following:
(1) The person himself, or any person authorized by him;
(2) His spouse, his parent or parents, his direct descendants, or the guardian or institution
legally in-charge of him if he is a minor;
(3) The court or proper public official whenever absolutely necessary in administrative, judicial
or other official proceedings to determine the identity of the child's parents or other
circumstances surrounding his birth; and
(4) In case of the person's death, the nearest of kin.
Any person violating the prohibition shall suffer the penalty of imprisonment of at least two
months or a fine in an amount not exceeding five hundred pesos, or both, in the discretion of the
court.
 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.

 Public documents shall be presumed to be accurate.

 Under Article 7 of PD 603, public documents are not accessible to everybody.
 Correlate Article 410 with Article 15 of RA 8552 (The Domestic Adoption Act).

Art. 411. Every civil registrar shall be civilly responsible for any
unauthorized alteration made in any civil register, to any person suffering
damage thereby. However, the civil registrar may exempt himself from such
liability if he proves that he has taken every reasonable precaution to prevent
the unlawful alteration.

Art. 412. No entry in a civil register shall be changed or corrected,

without a judicial order.

 Entries in the civil register can only be corrected by a judicial proceeding. Without
the judicial proceeding, the person would be guilty of falsification of public documents
and possibly other crimes regarding the civil status of persons (i.e., simulation of
birth)
 Originally, Article 412 could only be resorted to if the error was merely clerical. In
Barreto vs. Local Civil Registrar, the Supreme Court defined a clerical error as one
which is visible to the eyes or obvious to the understanding. In this case, the alleged
error being the gender of the person, the alleged error could not be determined by a
reference to the record.
 In recent years, the Supreme Court has ruled that a petition for correction of entry
under Article 412 and Rule 108 can be availed of to correct the following errors:
1. Clerical
2. Substantial
 If the error is clerical, a summary proceeding is enough. If the error is substantial,
an adversary proceeding with notice to all parties is necessary.

Art. 413. All other matters pertaining to the registration of civil status
shall be governed by special laws.

FAMILY RELATIONS
I. Marriage


Sec. 15. Confidential Nature of Proceedings and Records. — All hearings in adoption cases shall
be confidential and shall not be open to the public. All records, books, and papers relating to the
adoption cases in the files of the court, the Department, or any other agency or institution
participating in the adoption proceedings shall be kept strictly confidential.
If the court finds that the disclosure of the information to a third person is necessary for
purposes connected with or arising out of the adoption and will be for the best interest of the
adoptee, the court may merit the necessary information to be released, restricting the purposes for
which it may be used.
 Art. 1. Marriage is a special contract of permanent union between a man
and a woman entered into in accordance with law for the establishment of
conjugal and family life. 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.

 Marriage is a contract. It is a contract and much more. It is a contract of permanent

union between a man and a woman. A contract of marriage unlike other contracts
confers status.
 The primordial purpose of marriage is the establishment of family life.
 Generally in contracts, the parties are free to enter into contractual stipulations.
However, in a marriage contract parties are generally not free to enter into
contractual stipulations. All the consequences of marriage are determined by law.
The only area in which the parties may stipulate is with regard to property relations
as long as these stipulations are not contrary to law. In fact, the parties are not
limited to the 3 major regimes in the Family Code.

Art. 2. 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. The formal requisites of marriage are:

(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases provided for in Chapter 2 of
this Title; and
(3) A marriage ceremony which takes place with the appearance of the
contracting parties before the solemnizing officer and their personal
declaration that they take each other as husband and wife in the
presence of not less than two witnesses of legal age.

Art. 4. 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.

 2 Kinds of Elements
1. Essential
a. Legal capacity (included in legal capacity is the difference in sex)
b. Consent
2. Formal
a. Authority of the solemnizing Officer
b. Valid marriage license
c. Marriage ceremony
 3 terms
1. Absence
 General Rule: The absence of either an essential or formal requisite makes
the marriage void.
 Exceptions:
a. Article 35, paragraph 2 (party believes in good faith that the
solemnizing officer has authority)

Art. 35. 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;

b. Marriages exempted from marriage license (Articles 27, 28, 31, 32,
33, 34)

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.

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.

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.

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.

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.

2. Defect
 Defect occurs in essential requisites alone.
 Fairly well-defined since there are many specific articles.
 Effect: Marriage is voidable
3. Irregularity
 Irregularity refers to formal requisites alone
 No enumeration as to irregularity unlike defect
 Effects:
a. Valid marriage
b. Party responsible for irregularity may be held liable

A. Difference in Sex (Articles 2(1), 4 ¶1, 39)

Art. 2 (1). 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;

 Difference in sex is explicitly required for the first time. It was

necessary to make this explicit since some jurisdictions allow same sex
marriages.

Art. 4. The absence of any of the essential or formal requisites

shall render the marriage void ab initio, except as stated in Article 35 (2).

 The absence of this requisite makes the marriage void.

Art. 39. The action or defense for the declaration of absolute

nullity shall not prescribe.

 The period to have the marriage declared void is imprescriptible, the element
being essential.

B. Some Form of Ceremony (Articles 3(3), 4 ¶1, 6, 8)

Art. 3. 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.

Art. 4. The absence of any of the essential or formal requisites

shall render the marriage void ab initio, except as stated in Article 35 (2).
 Art. 6. No prescribed form or religious rite for the solemnization of
the marriage is required. It shall be necessary, however, for the
contracting parties to appear personally before the solemnizing officer
and declare in the presence of not less than two witnesses of legal age
that they take each other as husband and wife. This declaration shall be
contained in the marriage certificate which shall be signed by the
contracting parties and their witnesses and attested by the solemnizing
officer.
In case of a marriage in articulo mortis, when the party at the point
of death is unable to sign the marriage certificate, it shall be sufficient for
one of the witnesses to the marriage to write the name of said party,
which fact shall be attested by the solemnizing officer.

 The following are the barest minimum required:

1. Personal appearance of parties before the solemnizing officer
2. Declaration that they take each other as husband and wife (manifestation
of intent)
 The law does not require a specific ceremony neither does it require specific
words or symbols.
 Marriages by proxy are NOT ALLOWED since the contracting parties must
personally appear before the solemnizing officer.
 The intent (their declaration that they each other as husband and wife) may
be manifested in any form (i.e., words, gestures, etc.). In the case of
Martinez vs. Tan, the intent was manifested in writing.
 Some commentaries say that the 2 witnesses must be of legal age. Others
say they need not be of legal age. To be safe, the witnesses should be of legal
age.

Art. 8. 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.

C. Legal Capacity (Article 2(1))

Art. 2. No marriage shall be valid, unless these essential requisites

are present:


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.
 (1) Legal capacity of the contracting parties who must be a male and
a female;

1. Age (Articles 5, 35(1), 39, 45(1), 37(1))

Art. 5. Any male or female of the age of eighteen years or

upwards not under any of the impediments mentioned in Articles 37
and 38, may contract marriage.

 For both male and female, the minimum age is 18.

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;

 If any contracting party is below 18, the marriage is void.

Art. 39. The action or defense for the declaration of absolute

nullity shall not prescribe.

 The period to have the marriage declared void shall not prescribe.

Art. 45. A marriage may be annulled for any of the following

causes, existing at the time of the marriage:
(1) That the party in whose behalf it is sought to have the
marriage annulled was eighteen years of age or over but
below twenty-one, and the marriage was solemnized without
the consent of the parents, guardian or person having
substitute parental authority over the party, in that order,
unless after attaining the age of twenty-one, such party freely
cohabited with the other and both lived together as husband
and wife;

Art. 47. The action for annulment of marriage must be filed by

the following 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;

 Despite R.A. No. 6809, parental consent is required for a contracting party
who has not yet reached 21.
 Article 47(1) tells us who can set aside the marriage which is voidable for
lack of the necessary parental consent. The parent who did not give he
necessary parental consent until such child reaches the age of 26.
 However in Article 45(1), ratification of the marriage is possible if the party
who needed parental consent cohabits with the other spouse. Ratification
may only occur after such party reaches 21.
  Once the marriage has been ratified, the parents cannot annul under this
ground.
 If the parents filed the annulment before their child reached 21, but upon
reaching 21, their child cohabits, the action to annul the marriage
continues. What would be determinative in such a situation is the time of
filing.
 The capacitated person or his parents may not have the marriage annulled
for lack of parental consent.

2. Relationship (Articles 37, 38 (1-8), 39)

Art. 37. 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.

 Incestuous Relationship
1. In the direct line, in any degree – no limit
2. 2nd degree collaterals (brothers & sisters) whether full or half blood,
legitimate or illegitimate

Art. 38. 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;

 Article 38 (1) refers to uncles, aunts and first cousins

 Article 38 (3) is a new provision – marriage between parents-in-law and
children-in-law
 Articles 38 (5) and 38 (6) are provided for to guard against scandal –
marriage between the surviving spouse of the adopting parent and the
adopted child; marriage between the surviving spouse of the adopted child
and adopter.
 Article 38 (8) prohibits the marriage between adopted children of the same
adopter while Art. 38 (7) prohibits the marriage between an adopted child
 and a legitimate child of the adopted. What is not prohibited are the
following:
1. Marriage between an adopted child and an illegitimate child of the
adopter.
2. Marriage between stepchildren

Art. 39. The action or defense for the declaration of absolute

nullity shall not prescribe.

 The period to have the marriage declared void shall not prescribe.

3. Prior Marriage (Articles 35 (4), 35 (6), 40, 41, 42, 43, 44, 52, 53 & 39)

 The following are marriages which are defective because of a prior

marriage:
a. Bigamous or polygamous marriages not falling under Article 41
Art. 35. The following marriages shall be void from the
beginning:
(4) Those bigamous or polygamous marriages not falling
under Article 41;
 If the marriage falls under Article 41, the marriage is valid.
Art. 41. 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.

Art. 42. 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 reappearance being judicially determined in case
such fact is disputed.
 Requisites of a marriage under Article 41:
1. Absence of a prior spouse for at least 4 consecutive years or 2
consecutive years if the circumstances fall under Art. 391.
2. Spouse presents a well-founded belief that the absent spouse
was already dead
3. Institution by the present spouse of a summary proceeding for
the declaration of presumptive death.
 Rules for marriages under Article 41
1. The marriage is valid until it is terminated under Article 42
(Note: The term “terminated” and not “annulled” is used since
the 2nd marriage is not a defective but a regular marriage)
2. General Rule: The termination of the 2nd marriage takes effect
upon the recording of the affidavit of reappearance of the absent
spouse.
3. Exception: There is no termination of the 2nd marriage if there
is a judgment of annulment or nullity with regard to the 1 st
marriage.
 Any interested party may case the recording of the affidavit of
reappearance (i.e., present spouse, absent spouse, subsequent
spouse, children)
 The affidavit of reappearance should contain the facts and
circumstances of appearance
 The affidavit of reappearance must be recorded in the civil registry
of the residence of the parties to the subsequent marriage.
 Effectiveness: The affidavit of reappearance is sufficient in itself
unless it is judicially challenged.

Art. 43. 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;
(2) The absolute community of property or the conjugal
partnership, as the case may be, shall be dissolved and
liquidated, but if either spouse contracted said
marriage in bad faith, his or her share of the net profits
of the community property or conjugal partnership
property shall be forfeited in favor of the common
children or, if there are none, the children of the guilty
spouse by a previous marriage or in default of children,
the innocent spouse;
(3) Donations by reason of marriage shall remain valid,
except that if the donee contracted the marriage in bad
faith, such donations made to said donee are revoked
by operation of law;
(4) The innocent spouse may revoke the designation of the
other spouse who acted in bad faith 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.

 Effects:
1. Essentially, 1st marriage continues.
2. According to Article 43 (5), the spouse who contracted the
subsequent marriage in bad faith shall be disqualified to inherit
from the innocent spouse – testate and intestate succession.
Therefore, the implication sis that if the parties are in good
faith, they are still heirs of each other. Professor Balane doesn’t
agree with this. According to Professor Balane, if the 2 nd
marriage is terminated, it should follow that the parties to the
second marriage lose their right to be heirs of each other.

Art. 44. If both spouses of the subsequent marriage

acted in bad faith, said marriage shall be void ab initio and all
donations by reason of marriage and testamentary dispositions
made by one in favor of the other are revoked by operation of
law.

b. Void under Article 40

Art. 40. 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.

 Even if the 1st marriage is void, there is still a need for a summary
proceeding declaring such marriage void ab initio. Thus, if a 2nd
marriage is contracted without first securing the declaration of
nullity with regard to the 1st marriage, then the 2nd marriage is also
void. Plus, bigamy has been committed.

c. Void under Article 53 (in relation to Article 52)

Art. 35. The following marriages shall be void from the

beginning:
(6) Those subsequent marriages that are void under Article
53.

Art. 52. 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.

Art. 53. 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.

 Despite declaration of annulment or nullity of the marriage, before

the former spouses may contract a subsequent marriage, the
following must be recorded in the appropriate civil registry and
registries of property:
1. Judgment of annulment or of absolute nullity
2. Partition and distribution of the properties of the spouses
3. Delivery of the children’s presumptive legitime
 If the preceding tasks are not accomplished, then any subsequent
marriage is void.

Art. 39. The action or defense for the declaration of

absolute nullity shall not prescribe.

 The period to have the marriage declared void shall not prescribe.

4. Crime (Article 38 (9))

Art. 38. The following marriages shall be void from the

beginning for reasons of public policy:
(9) Between parties where one, with the intention to marry the
other, killed that other person's spouse, or his or her own
spouse.

 2 changes from Article 80 (6) of the Civil Code

1. Intention for killing must be in order to marry the surviving spouse
2. No conviction is required.
 Article 38 (9) excludes killing thru negligence since there is no intent to
kill.
 The difficulty in Article 38 (9) is proving that the reason for killing is to
enable the killer and the surviving spouse to marry each other.
5. Physical Incapacity (Articles 45 (5), 47 (5))

Art. 45. 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

Art. 47. The action for annulment of marriage must be filed by

the following persons and within the periods indicated herein:
(5) For causes mentioned in number 5 and 6 of Article 45, by the
injured party, within five years after the marriage.

 These articles refer to impotence and not sterility.

 Men and women are capable of impotence. For men, there is impotence
when they cannot erect. For women, impotence occurs when penetration
is not possible – an anatomical disorder. For men, impotence may have
physical or psychological causes.
 Requisites of Annulment Due to Impotence
1. Impotence exists at the time of the celebration of the marriage
2. The impotence is permanent and incurable (need medical opinion)
3. The impotence is unknown to the other spouse.
4. The other spouse must also not be impotent.
 In some jurisdictions, there is a presumption that if after 3 years of
marriage and it is found that the woman is still a virgin and suffers no
anatomical defects, it is presumed that the man is impotent. There is no
Philippine case stating that this presumption also applies in the Philippines.
(This is known as the Doctrine of Triennial Cohabitation)
 What if the man is impotent only with regard to his wife? There is no case
yet.
 The action for annulment due to impotence must be filed by the injured
party within 5 years after the marriage.
 A marriage which is defective because of a party’s impotence cannot be
ratified. Ratification means cohabitation with sexual intercourse.

6. Psychological Incapacity (Article 36)

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.

 Psychological incapacity is not a substitute for divorce. The theory behind

psychological incapacity is that one or both of the spouses cannot
discharge one or more of the essential marital obligations (Article 68).
There must be an absolute incapability to do so.
 During the 1st years of the effectivity of the Family Code, many couples
resorted to Article 36 as a convenient way to end their marriage. As a
 result of these abuses, the Supreme Court became very strict in applying
Article 36.
 Psychological incapacity must exist at the time the marriage is celebrated
(like impotence). However, psychological incapacity need not be
manifested at the time of the celebration of the marriage. This is the
tricky part.
 In Santos vs. CA, the Supreme Court enumerated the following
characteristics of psychological incapacity:
1. Gravity
2. Juridical antecedence
3. Incurability
 In Republic vs. CA (Molina), the Supreme Court reiterated Santos vs. CA.
Furthermore, the Supreme Court laid down several guidelines:
1. The burden of proof to show the nullity of the marriage belongs to the
plaintiff. Any doubts should be resolved in favor of the existence and
continuation of the marriage and against the dissolution and nullity.
2. The root cause of the psychological incapacity must be:
a. Psychological and not physical (although psychological incapacity
can be manifested physically)
b. Medically or clinically identified
c. Alleged in the complaint
d. Proved sufficiently by experts (i.e. psychiatrists, psychologists)
e. 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 embraced by Articles
60 to 71 of the Family Code as regards the husband and wife, as well
as Articles 220, 221 and 225 of the same Code in regard to parents and
their children. Such non-complied marital obligations must also be
stated in the petition, proven by evidence and included in the test of
the decision.
7. Interpretations given by the National Appellate Matrimonial Tribunal of
the Catholic Church in the Philippines, while not controlling or decisive,
should be given great respect by our courts.
8. The trial court must order the prosecuting attorney or fiscal and the
Solicitor General to appear as counsel for the State. The Solicitor
General’s role is to issue a certification stating why he does or does not
agree.
 In Chi Ming Tsoi vs. CA, the convergence of all the factors stated in the
complaint amounted to psychological incapacity.
 7. Disease (Articles 45 (6), 47 (5))

Art. 45. A marriage may be annulled for any of the following

causes, existing at the time of the marriage:
(6) That either party was afflicted with a sexually-transmissible
disease found to be serious and appears to be incurable.

Art. 47. The action for annulment of marriage must be filed by

the following persons and within the periods indicated herein:
(5) For causes mentioned in number 5 and 6 of Article 45, by the
injured party, within five years after the marriage.

 Requisites for Annulment due to disease

1. Either party is afflicted with a sexually transmissible disease (STD)
2. The STD must exist at the time the marriage is celebrated
3. The STD must be serious
4. The STD must be apparently incurable.
5. The STD party not afflicted by STD must be ignorant of the other’s
affliction (Professor Balane’s opinion)
6. The injured party must be free from STD (Professor Balane’s opinion)
 According to Professor Balane, AIDS would fall under Article 45 (6). Article
45(6) does not say that the only way to transmit the disease is through
sex.
 Professor Balane is not sure if it is required that the afflicted person should
know that he has STD.
 The injured party must be ignorant of the other party’s affliction. If the
injured party knew and the marriage took place, then the injured party has
no right to complain.
 The action to annul the marriage must take place within 5 years from the
marriage.
 The Family Code does not state if such a marriage can be ratified.
Professor Balane doesn’t see why such a marriage cannot be ratified.

D. Consent

1. Insanity (Articles 45(2), 47(2))

Art. 45. A marriage may be annulled for any of the following

causes, existing at the time of the marriage:
(2) That either party was of unsound mind, unless such party
after coming to reason, freely cohabited with the other as
husband and wife;

Art. 47. The action for annulment of marriage must be filed by

the following persons and within the periods indicated herein:
(2) For causes mentioned in number 2 of Article 45, by the same
spouse, who had no knowledge of the other's insanity; or by
 any relative or guardian or person having legal charge of the
insane, at any time before the death of either party, or by the
insane spouse during a lucid interval or after regaining sanity;

 Insanity is a legal and not a medical question.

 One of the spouses must be insane at the time the marriage was
celebrated. However, Professor Balane cannot imagine anyone marrying
an insane person and not knowing it.
 The following are the prescriptive periods for filing:
1. At any time before the death of either party
 With regard to the same spouse who had no knowledge of the
other’s sanity or by any relative, guardian or person having legal
charge of the insane
2. During a lucid interval or after regaining sanity – with regard to the
insane party.
 Queries:
1. Up to what relatives (degree) can file the action for annulment?
2. How long exactly does the insane spouse have to file for annulment
during a lucid interval or recovery?
 Ratification by the insane spouse is possible (i.e., during a lucid interval,
the insane spouse cohabits)

2. Fraud (Articles 45 (3), 46)

Art. 45. A marriage may be annulled for any of the following

causes, existing at the time of the marriage:
(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;

Art. 46. Any of the following circumstances shall constitute

fraud referred to in Number 3 of the preceding Article:
(1) Non-disclosure of a previous conviction 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.
  Fraud here is not the fraud founding contracts and obligations. Fraud here
has a very technical meaning – Article 46.
 Article 46 is an EXCLUSIVE LIST.
 Articles 46 (1) and (2) are clear. In Article 46 (3), the STD need not be
serious or incurable. As long as the STD, existing at the time of marriage,
is concealed, it constitutes fraud.
 Article 46 (4), must the homosexual be a practicing homosexual or is such
sexual orientation enough under here? There is no jurisprudence yet.
 The injured party has 5 years from the time the fraud was discovered to
file for annulment.
 A marriage which is defective due to fraud may be ratifies. Ratification
occurs when the injured party freely cohabits with the other despite having
full knowledge of the facts constituting fraud.
 In Buccat vs. Buccat, the Supreme Court said that there was no
concealment by the wife of the fact that she was pregnant with another
man’s child. There was no concealment since at the time of marriage, she
was already in her 6th month.

3. Duress – force, intimidation or undue influence (Articles 45 (4), 47 (4))

Art. 45. A marriage may be annulled for any of the following

causes, existing at the time of the marriage:
(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;

Art. 47. The action for annulment of marriage must be filed by

the following persons and within the periods indicated herein:
(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;

 The injured party has 5 years from the time the force, intimidation or
undue influence disappeared or ceased to file for annulment.
 Ratification occurs when the force, intimidation or undue influence having
disappeared or ceased, the injured party cohabits.

4. Mistake as to Identity (Articles 35 (5), 39)

Art. 35. The following marriages shall be void from the

beginning:
(5) Those contracted through mistake of one contracting party as
to the identity of the other;

Art. 39. The action or defense for the declaration of absolute

nullity shall not prescribe.
  A marriage where there is mistake as to identity is a void marriage since
consent is completely negated.
 Mistake as to identity involves the substitution of the other party.

E. Authority of the Solemnizing Officer (Articles 3 (1), 4 (1), 7, 10, 31, 32, 35
(2))

Art. 3. The formal requisites of marriage are:

(1) Authority of the solemnizing officer;

Art. 4. The absence of any of the essential or formal requisites

shall render the marriage void ab initio, except as stated in Article 35 (2).

Art. 7. 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.

 Article 7, enumerating those persons who may solemnize a marriage, has

been amended by the Local Government Code. Now, municipal and city
mayors have the authority to solemnize a marriage.
 Article 7(1), justices of the Supreme Court and Court of Appeals can solemnize
marriages anywhere in the Philippines. Justices of the Regional Trial Courts
and Municipal/Metropolitan/Municipal Circuit Trial Courts can only solemnize
marriages within their territorial jurisdiction.

Art. 10. 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.

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.
 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. 35. 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;

 Article 35 (2), if one or both of the contracting parties believes in good faith
that the solemnizing officer had authority to do so even if such person was not
authorized, the marriage is not void but valid.
 Good faith in Article 35 (2) refers to a question of fact. For example, the
parties did not know that the license of the priest had expired or that the
judge had retired. If the parties thought that Ping Lacson had the authority
marry them, that is not goof faith. That is ignorance of the law. The same is
also true if the parties believe that an RTC judge of Quezon City can marry
them in Tawi-Tawi. That is an error of law.

F. Marriage License (Articles 3 (2), 4 (1), 4 (3), 35 (3), 9 – 21[refers to the

administrative requirements], 27 – 34)

Art. 3. The formal requisites of marriage are:

(2) A valid marriage license except in the cases provided for in
Chapter 2 of this Title;

Art. 4. 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.

Art. 35. The following marriages shall be void from the beginning:
(3) Those solemnized without license, except those covered the
preceding Chapter;

Art. 9. A marriage license shall be issued by the local civil registrar

of the city or municipality where either contracting party habitually
resides, except in marriages where no license is required in accordance
with Chapter 2 of this Title.

Art. 10. 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.

Art. 11. Where a marriage license is required, each of the

contracting parties shall file separately a sworn application for such
license with the proper local civil registrar which shall specify the
following:
(1) Full name of the contracting party;
(2) Place of birth;
(3) Age and date of birth;
(4) Civil status;
(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.

Art. 12. 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.
 Art. 13. 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.

Art. 14. 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. 15. 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 as 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.

Art. 16. 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.
 Art. 17. The local civil registrar shall prepare a notice which shall
contain the full names and residences of the applicants for a marriage
license and other data given in the applications. The notice shall be
posted for 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.

Art. 18. 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.

Art. 19. The local civil registrar shall require the payment of the
fees prescribed by law or regulations before the issuance of the marriage
license. No other sum shall be collected in the nature of a fee or 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.

Art. 20. The license shall be valid in any part of the Philippines for
a period of one hundred twenty days from the date of issue, and shall be
deemed automatically cancelled 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.

Art. 21. 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.

 General Rule: A marriage license is required.

 Exceptions:
1. Marriages in articulo mortis (Articles 27, 31, 32)

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.
 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.

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.

 Articles 31 and 32 are not distinct exceptional marriages but marriages

in articulo mortis.

2. Residence is located such that either party has no means of

transportation to enable such party to appear before the Civil
Registrar (Article 28)

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.

3. Marriages among Muslims or among members of ethnic cultural

communities as long as they are solemnized in accordance with
their customs (Article 33)

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.

NOTE: The Muslim Code governs if the contracting parties are both
Muslims or if the male is Muslim. If only the female is Muslim, then the
Family Code governs.

4. Couples living together as husband and wife for at least 5 years

and they must not have any legal impediment to marry each other
(Article 34)

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.

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.

II. Effect of Defective Marriages on the Status of

Children
A. If the marriage is voidable (Article 54)

Art. 54. Children conceived or born before the judgment of

annulment or absolute nullity of the marriage under Article 36 has
become final and executory shall be considered legitimate. Children
conceived or born of the subsequent marriage under Article 53 shall
likewise be legitimate.

 Legitimate – if conceived before final judgment

 Illegitimate - if conceived after final judgment

B. If the marriage is void

 General Rule: Children are illegitimate (Article 165)

Art. 165. Children conceived and born outside a valid marriage

are illegitimate, unless otherwise provided in this Code.

 Exceptions: Legitimate if the marriage falls under:

1. Article 36 – Psychological incapacity

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.

2. Article 53 – Children conceived or born of the subsequent marriage under

Article 53 even though such marriage is void for failure to comply with the
requirements of Article 52.

Art. 53. 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.

III. Marriage Certificate (Articles 22 and 23)

Art. 22. 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.

Art. 23. 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.

 A marriage certificate is proof of marriage. It is however not the only proof ( i.e.,
witnesses)

IV. Additional Requirements for Annulment or

Declaration of Nullity
Art. 48. In all cases of annulment or declaration of absolute nullity of
marriage, the Court shall order the prosecuting attorney or fiscal assigned to it
to appear on behalf of the State to take steps to prevent collusion between the
parties and to take care that evidence is not fabricated or suppressed.
In the cases referred to in the preceding paragraph, no judgment shall be
based upon a stipulation of facts or confession of judgment.

 Prosecuting attorney or fiscal should:

1. Take steps to prevent collusion between the parties
2. Take care that evidence is not fabricated or suppressed
NOTE: No judgment shall be based upon a stipulation of facts or confession of judgment.

Art. 52. 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.

 The following must be accomplished:

1. Partition and distribution of the properties of the spouses
 2. Delivery of the children’s presumptive legitimes
3. Recording of the judgment of annulment or of absolute nullity. The partition and
distribution and the delivery of the children’s presumptive legitimes in the
appropriate civil registry and registries of property. (Otherwise, the same shall not
affect 3rd persons)
 Failure to comply with Article 52 shall render the subsequent marriage null and void.

V. Foreign Marriages and Foreign Divorces

Art. 26, ¶1. All marriages 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), 3637 and 38.

 General Rule: Foreign marriages which are in accordance with the law in force in
the country where they were solemnized and valid there are valid in the Philippines.
 Exception: Void marriages under Philippine Law
 Exception to the exception:
1. Article 35, ¶2

Art. 35. 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;

2. Article 35, ¶3

Art. 35. The following marriages shall be void from the beginning:
(3) Those solemnized without license, except those covered the
preceding Chapter;

Art. 26, ¶2. 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.

 General Rule: Foreign divorces obtained by Filipino citizens will be considered void
and are not recognized.
 Exception: In case the parties to the marriage are a Filipino citizen and a foreigner.
If the foreigner obtains a valid foreign divorce, the Filipino spouse shall have capacity
to re-marry under Philippine law.
 However, if it is the Filipino citizen who secures the divorce, the divorce will not be
recognized in the Philippines.
 Requisites of Article 26, ¶2
1. The marriage must be one between a Filipino and a foreigner
2. Divorce is granted abroad
 3. Divorce must have been obtained by the alien spouse.
4. Divorce must capacitate the alien spouse to remarry.
 Article 26, ¶2 has a retroactive effect if no vested rights are affected.
 Problem: Suppose at the time of the marriage, both are Filipinos. Later on, one
spouse is naturalized. This spouse obtains a foreign divorce. Will Article 26, ¶2
apply?
2 views:
1. Justice Puno
 It won’t. Article 26, ¶2 requires that at the time the marriage is celebrated,
there must be 1 foreigner.
2. DOJ Opinion
 It applies, Article 26, ¶2 is not specific.

VI. Effects of a Defective Marriage

1. Re-appearance of absent spouse
 The marriage is not really defective. Thus, the term “terminated” is used.
Art. 52. 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.

 There must be partition and distribution of the properties of the spouses and
the delivery of the children’s presumptive legitimes. This shall be recorded in
the appropriate registries of property.

2. Annulment

Art. 52. 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.

 There must be a partition and distribution of the properties of the spouses and
the delivery of the children’s presumptive legitime, and the recording of such
and the judgment of nullity with the appropriate civil registry and registries of
property.

Art. 53. 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.

 Either of the former spouses may marry again provided Article 52 is complied
with.

3. Declaration of Nullity
  This is not a defective marriage since there was no marriage in the first place.
 Article 50 applies.

Art. 50. 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.

4. Legal Separation
 See Articles 63 and 64 for the effects.

Art. 63. 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.

Art. 64. After the finality of the decree of legal separation, the
innocent spouse may revoke the donations made by him or by her in
favor of the offending spouse, as well as the designation of the latter
as beneficiary in any insurance policy, even if such designation be
stipulated as irrevocable. The revocation of the donations shall be
recorded in the registries of property in the places where the
properties are located. Alienations, liens and encumbrances registered
in good faith before the recording of the complaint for revocation in
the registries of property shall be respected. The revocation of or
change in the designation of the insurance beneficiary shall take effect
upon written notification thereof to the insured.
 The action to revoke the donation under this Article must be
brought within five years from the time the decree of legal separation
become final.

VII.Rules on the Forfeiture of the Share of the Guilty

Spouse
1. Re-appearance of spouse (Article 43(2))

Art. 43. The termination of the subsequent marriage referred to in

the preceding Article shall produce the following effects:
(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;

 The present spouse cannot be the one in bad faith because in order to contract
a subsequent marriage, the present spouse must believe in good faith that the
absent spouse is dead.

2. Annulment (Article 50(1))

Art. 50. 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.

3. Legal Separation (Article 63(2))

Art. 63. The decree of legal separation shall have the following
effects:
(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);

VIII. Instances when there is Delivery of Presumptive

Legitimes
1. Re-appearance of former spouse (Articles 102 (5), 43(2))

Art. 102. Upon dissolution of the absolute community regime, the

following procedure shall apply:
(5) The presumptive legitimes of the common children shall be
delivered upon partition, in accordance with Article 51.
 Art. 43. The termination of the subsequent marriage referred to in
the preceding Article shall produce the following effects:
(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;

2. Annulment (Articles 50 ¶2, 51)

Art. 50, ¶2. 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.

Art. 51. In said partition, the value of the presumptive legitimes of

all common children, computed as of the date of the final judgment of the
trial court, shall be delivered in cash, property or sound securities, unless
the parties, by mutual agreement judicially approved, had already
provided for such matters.
The children or their guardian or the trustee of their property may
ask for the enforcement of the judgment.
The delivery of the presumptive legitimes herein prescribed shall in
no way prejudice the ultimate successional rights of the children accruing
upon the death of either 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.

3. Legal Separation (Articles 102 (5), 63(2))

Art. 102. Upon dissolution of the absolute community regime, the

following procedure shall apply:
(5) The presumptive legitimes of the common children shall be
delivered upon partition, in accordance with Article 51.

Art. 63. The decree of legal separation shall have the following
effects:
(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);

4. Other causes for the dissolution of conjugal property (Articles 102, 129,
135)

Art. 102. Upon dissolution of the absolute community regime, the

following procedure shall apply:
 (1) An inventory shall be prepared, listing separately all the
properties of the absolute community and the exclusive
properties of each spouse.
(2) The debts and obligations of the absolute community shall be
paid out of its assets. In case of insufficiency of said assets, the
spouses shall be solidarily liable for the unpaid balance with their
separate properties in accordance with the provisions of the
second paragraph of Article 94.
(3) Whatever remains of the exclusive properties of the spouses shall
thereafter be delivered to each of them.
(4) The net remainder of the properties of the absolute community
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.
(5) The presumptive legitimes of the common children shall be
delivered upon partition, in accordance with Article 51.
(6) Unless otherwise agreed upon by the parties, in the partition of
the properties, the conjugal dwelling and the lot on which it is
situated shall be adjudicated to the spouse with whom the
majority of the common children choose to remain. Children
below the age of seven years are deemed to have chosen the
mother, unless the court has decided otherwise. In case there in
no such majority, the court shall decide, taking into consideration
the best interests of said children.

Art. 129. 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 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 the 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.

Art. 135. Any of the following shall be considered sufficient cause

for judicial separation of property:
(1) That the spouse of the petitioner has been sentenced to a penalty
which carries with it civil interdiction;
(2) That the spouse of the petitioner has been judicially declared an
absentee;
(3) That loss of parental authority of the spouse of petitioner has
been decreed by the court;
(4) That the spouse of the petitioner has abandoned the latter or
failed to comply with his or her obligations to the family as
provided for in Article 101;
(5) That the spouse granted the power of administration in the
marriage settlements has abused that power; and
(6) That at the time of the petition, the spouses have been separated
in fact for at least one year and reconciliation is highly
improbable.
In the cases provided for in Numbers (1), (2) and (3), the
presentation of the final judgment against the guilty or absent spouse
shall be enough basis for the grant of the decree of judicial separation of
property.

5. Decree of Nullity (Article 50¶2)

Art. 50. 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.
  Professor Balane is not in favor of the delivery of presumptive legitimes.
Presumptive legitimes are tentative. Furthermore, the properties of the
spouses are frozen, yet the children do not have vested rights.

IX. Legal Separation (Bed and Board Separation)

Art. 55. 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;

 The key words are “repeated” and “grossly”.

(2) Physical violence or moral pressure to compel the petitioner to change

religious or political affiliation;

 There must be undue pressure since some pressure is expected in every marriage. It
must go beyond what is permissible (case to case basis).

(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;

 The drug addiction can occur after the marriage. Article 55 (5) does not talk of
concealment of drug addiction unlike Article 46(4).

(6) Lesbianism or homosexuality of the respondent;

 Is this talking about homosexuality in terms of practice or is such sexual orientation

enough? Again, there are no cases.

(7) Contracting by the respondent of a subsequent bigamous marriage,

whether in the Philippines or abroad;
(8) Sexual infidelity or perversion;

 Under the Family Code, both men and women need only commit one act of sexual
infidelity to fall under Article 55 (8).
 In Gandionco vs. Peñaranda, the Supreme Court said that a criminal conviction of
concubinage is not necessary, only preponderance of evidence. In fact, a civil action
for legal separation based on concubinage may proceed ahead of or simultaneously
with a criminal action.
 Sexual perversion is a relative term.


Art. 46. Any of the following circumstances shall constitute fraud referred to in Number 3 of the
preceding Article:
(4) Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing
at the time of the marriage.
 (9) Attempt by the respondent against the life of the petitioner; or

 Article 55 (9) – under this ground, there is no need for conviction.

(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.

Art. 56. 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.

 There are 2 more grounds not found in Article 56:

1. Death of either party during the pendency of the case (Lapuz-Sy vs. Eufemio)
2. Reconciliation of the spouses during the pendency of the case (Article 66 (1))
 In Lapuz-Sy vs. Eufemio, the lawyer wanted to proceed with legal separation despite
of the death of one of the parties. The Supreme Court denied it since the primary
purpose of legal separation is bed and board separation while the effect on their
property relations is merely incidental.

Art. 58. An action for legal separation shall in no case be tried before six
months shall have elapsed since the filing of the petition.

 This is the cooling-off period – can only try the petition for legal separation after 6
months from filing. The Supreme Court has interpreted Article 58 to mean that there
shall be no hearing on the main issue but the court may hear incidental issues.
 In the case of Araneta vs. Concepcion, the Supreme Court allowed the court to hear
the issue regarding the custody of the children even if the 6-month period had not yet
elapsed. Professor Balane didn’t like the ruling in this case. According to him, what
are you going to talk about if you don’t go to the main case?

Art. 59. 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.


Art. 66. 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
 For legal separation to be declared, reconciliation must be highly unlikely.

Art. 60. No decree of legal separation shall be based upon a stipulation of

facts or a confession of judgment.
In any case, the Court shall order the prosecuting attorney or fiscal
assigned to it to take steps to prevent collusion between the parties and to take
care that the evidence is not fabricated or suppressed.

 No decree of legal separation shall be based upon a stipulation of facts or a

confession judgment. In Ocampo vs. Florenciano, the Supreme Court said that legal
separation cannot be granted on the basis of the wife’s admission alone. There must
be other proof.

1. Effects of Filing A Petition for Legal Separation

a. Spouses can live separately from each other.
b. The administration of the common properties (ACP, CPG, etc) shall be given by
the court to either of the spouses or to a 3 rd person as is best for the interests
of the community.
c. In the absence of a written agreement of the spouses, the court shall provide
for the support between the spouses and the custody and support of the
common children, taking into account the welfare of the children and their
choice of the parent with whom they wish to remain.
d. When the consent of 1 spouse to any transaction of the other is required by
law, judicial authorization shall be necessary, unless such spouse voluntarily
gives such consent.

2. Effects of the Decree of Legal Separation (Nos. 1 – 4, Article 63)

Art. 63. 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.

a. Spouses shall be entitled to live separately from each other, but the marriage
bonds shall not be severed.
 b. The ACP or the CPG shall be dissolved and liquidated. The offending spouse
shall have no right to any share of the net profits earned by the ACP or CPG
following the rules of forfeiture in Article 43 (2).
c. The custody of the minor children shall be awarded to the innocent spouse
subject to Article 213.
d. The offending spouse shall be disqualified from inheriting from the innocent
spouse by intestate succession. Testamentary dispositions in favor of the
offending spouse shall be revoked by operation of law.
e. Donation propter nuptias made by the innocent spouse to the offending
spouse may be revoked at the option of the former. (Article 64)
f. The designation by the innocent spouse of the offending spouse as a
beneficiary in any insurance policy (even irrevocable ones) may be revoked by
the innocent spouse. (Article 64)
g. Cessation of the obligation of mutual support. (Article 198)
h. The wife shall continue using her name and surname employed before legal
separation.

3. Effects of Reconciliation
a. Joint custody of the children is restored.
b. The right to succeed by the guilty spouse from the offended spouse is restored
– compulsory only.
c. With regard testamentary spouse in the will of the innocent spouse.


Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall
produce the following effects:
(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;

Art. 213. 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.

Art. 64. After the finality of the decree of legal separation, the innocent spouse may revoke the
donations made by him or by her in favor of the offending spouse, as well as the designation of the
latter as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable.
The revocation of the donations shall be recorded in the registries of property in the places where
the properties are located. Alienations, liens and encumbrances registered in good faith before the
recording of the complaint for revocation in the registries of property shall be respected. The
revocation of or change in the designation of the insurance beneficiary shall take effect upon
written notification thereof to the insured.
The action to revoke the donation under this Article must be brought within five years from
the time the decree of legal separation become final.

Art. 198. During the proceedings for legal separation or for annulment of marriage, and for
declaration of nullity of marriage, the spouses and their children shall be supported from the
properties of the absolute community or the conjugal partnership. After 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.
 d. If the donation propter nuptias succession, reconciliation will not automatically
revive the institution of the guilty were revoked, the same is not automatically
restored.
 Articles 65 and 66 always allow reconciliation even after the decree.

Art. 65. 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.

Art. 66. 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.

 According to Professor Balane, it is not the reconciliation which produces the

effects in Article 66. Rather, it is the filing of the joint manifestation of
reconciliation.

X. Rights and Obligations between Husband and Wife

Art. 68. The husband and wife are obliged to live together, observe
mutual love, respect and fidelity, and render mutual help and support.

 This is really a declaration of policy

 The 3 duties of the spouses to each other are:
1. Live together
2. Observe mutual love, respect, and fidelity
3. Render mutual help and support
 Article 68 is Article 36’s reference when it refers to the spouse’s inability to comply
with the essential marital obligations.
 Although the courts cannot compel the spouses to comply with their marital
obligations, under Articles 100 and 127, the spouse who leaves the conjugal home or
refuses to live there without jus t cause shall not have the right to be supported.

Art. 69. 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.

 The power to fix the domicile is joint.

 General Rule: Separation is incompatible with family solidarity.
 Exception: Article 69, ¶2*
1. One spouse should live abroad
2. Other valid and compelling reasons

Art. 70. 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.

 Support is a joint responsibility. Both spouses are responsible for the support of the
family.
 Support comprises everything indispensable for sustenance, dwelling, clothing,
medical attendance, education and transportation, in keeping with the financial
capacity of the family (Article 194)
 Under Articles 94 (last ¶), 121 (last ¶) and 146 (¶2), if the community property is
insufficient to cover debts of the community property, then the spouses are solidarily
liable with their separate property. If the spouses have a regime of separation of
property, the spouses are solidarily liable to creditors for family expenses.

Art. 73. 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.

 There is an error here. This is NOT the full text. The text should read:
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
*
Art. 69, ¶2. 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.

Art. 94, last ¶. If the community property is insufficient to cover the foregoing liabilities, except
those falling under paragraph (9), the spouses shall be solidarily liable for the unpaid balance with
their separate properties.

Art. 121, last ¶. If the conjugal partnership is insufficient to cover the foregoing liabilities, the
spouses shall be solidarily liable for the unpaid balance with their separate properties.

Art. 146, ¶2. The liabilities of the spouses to creditors for family expenses shall, however, be
solidary.
 2. Benefit has accrued to the family prior to the objection or thereafter. If the
benefit accrued prior to the objection, the resulting obligation shall be enforced
against the community property. If the benefit accrued thereafter, such
obligation shall be enforced against the separate property of the spouse who
has not obtained consent.

XI. Property Relations

 Property relations are very important to creditors.

Art. 74. The property relationship between husband and wife shall be
governed in the following order:
(1) By marriage settlements executed before the marriage;
(2) By the provisions of this Code; and
(3) By the local custom.

 Property relations is the only instance when the husband and wife can stipulate as to
the terms an conditions.
 The marriage settlement governs the property relations of spouses provided such is
not contrary to law.
 In the absence of a marriage settlement, the Family Code comes in. If the Family
Code in a rare instance is not applicable, then custom comes in.
 Therefore, in the absence of a marriage settlement or when such marriage settlement
is void, ACP shall be their marriage settlement by operation of law.
 As an exception, when the 1 st marriage is dissolved by reason of death and the 2 nd
marriage was entered into before the conjugal partnership is liquidated, the law
mandates that a regime of complete separation of property shall govern.

Art. 75. The future spouses may, in the marriage settlements, agree
upon the regime of absolute community, conjugal partnership of gains,
complete separation of property, or any other regime. In the absence of a
marriage settlement, or when the regime agreed upon is void, the system of
absolute community of property as established in this Code shall govern.

 ACP is the regime of the spouses in the absence of a marriage settlement or when
the marriage settlement is void. This is so because ACP is more in keeping with
Filipino culture.
 General Rule: All modifications to the marriage settlement must be made before
the marriage is celebrated.
 Exceptions:
1. Legal Separation (Article 63 (2))
 In such an instance, the property regime is dissolved.


Art. 63. The decree of legal separation shall have the following effects:
(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);
 2. Revival of the former property regime upon reconciliation if the spouses agree
(Article 66 (2))
3. A spouse may petition the court for:
1. Receivership
2. Judicial separation of property, or
3. The authority to be the sole administrator of the conjugal partnership
 If the other spouse abandons the other without just cause or fails to comply
with his or her obligations to the family. (Article 128)
4. Judicial Dissolution (Articles 135 and 136)

Art. 77. The marriage settlements and any modification thereof shall be
in writing, signed by the parties and executed before the celebration of the
marriage. They shall not prejudice third persons unless they are registered in


Art. 66. The reconciliation referred to in the preceding Articles shall have the following
consequences:
(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.

Art. 128. If a spouse without just cause abandons the other or fails to comply with his or her
obligation 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 conjugal partnership
property, subject to such precautionary conditions as the court may impose.
The obligations to the family mentioned in the preceding paragraph refer to marital,
parental or property relations.
A spouse is deemed to have abandoned the other when he or she has left the conjugal
dwelling without intention of returning. The spouse who has left the conjugal dwelling for a period
of three months or has failed within the same period to give any information as to his or her
whereabouts shall be prima facie presumed to have no intention of returning to the conjugal
dwelling.

Art. 135. Any of the following shall be considered sufficient cause for judicial separation of
property:
(1) That the spouse of the petitioner has been sentenced to a penalty which carries with it civil
interdiction;
(2) That the spouse of the petitioner has been judicially declared an absentee;
(3) That loss of parental authority of the spouse of petitioner has been decreed by the court;
(4) That the spouse of the petitioner has abandoned the latter or failed to comply with his or
her obligations to the family as provided for in Article 101;
(5) That the spouse granted the power of administration in the marriage settlements has
abused that power; and
(6) That at the time of the petition, the spouses have been separated in fact for at least one
year and reconciliation is highly improbable.
In the cases provided for in Numbers (1), (2) and (3), the presentation of the final
judgment against the guilty or absent spouse shall be enough basis for the grant of the decree of
judicial separation of property.
Art. 136. The spouses may jointly file a verified petition with the court for the voluntary
dissolution of the absolute community or the conjugal partnership of gains, and for the separation
of their common properties.
All creditors of the absolute community or of the conjugal partnership of gains, as well as
the personal creditors of the spouse, shall be listed in the petition and notified of the filing thereof.
The court shall take measures to protect the creditors and other persons with pecuniary interest.
the local civil registry where the marriage contract is recorded as well as in the
proper registries of properties.

 Form: Marriage settlements and their modifications must be in writing (private or

public) for validity
 To bind 3rd persons, the marriage settlement must be registered in:
1. Local Civil Registry where the marriage contract is recorded.
2. Proper Registries of Property

Art. 78. A minor who according to law may contract marriage may also
execute his or her marriage settlements, but they shall be valid only if the
persons designated in Article 14 to give consent to the marriage are made
parties to the agreement, subject to the provisions of Title IX of this Code.

 If the party has not yet reached the age of 21, parental consent is also required with
regard to the marriage settlement.

Art. 79. For the validity of any marriage settlement executed by a person
upon whom a sentence of civil interdiction has been pronounced or who is
subject to any other disability, it shall be indispensable for the guardian
appointed by a competent court to be made a party thereto.

Art. 80. In the absence of a contrary stipulation in a marriage

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

Art. 81. Everything stipulated in the settlements or contracts referred to

in the preceding articles in consideration of a future marriage, including
donations between the prospective spouses made therein, shall be rendered
void if the marriage does not take place. However, stipulations that do not
depend upon the celebration of the marriages shall be valid.
 The marriage settlement and the donations propter nuptias are void if the marriage
does not take place.

A. Donations Propter Nuptias

 Requisites of Donations Propter nuptias

1. Made before marriage
2. Made in consideration of the marriage (the motivation behind the donation
is the marriage)
 3. In favor of one or both of the spouses
 The donee must be 1 or both of the spouses
 The donor can be anybody including 1 of the spouses
 If the wedding gift is given before the wedding that is a donation propter
nuptias.
 If the wedding gift is given after the wedding, that is treated as an ordinary
donation

Art. 83. These donations are governed by the rules on ordinary

donations established in Title III of Book III of the Civil Code, insofar as
they are not modified by the following articles.

 FORM: Must comply with the form of donations in order to be valid (See
Articles 748 and 749)

Art. 84. If the future spouses agree upon a regime other than the
absolute community of property, they cannot donate to each other in
their marriage settlements more than one-fifth of their present property.
Any excess shall be considered void.
Donations of future property shall be governed by the provisions
on testamentary succession and the formalities of wills.

 This article applies only if the regime is NOT ACP. Otherwise, everything
practically would be community property.
 If the donor is one of the future spouses and the regime is NOT ACP, the
donor cannot donate more than 1/5 of his PRESENT PROPERTY.
 The future spouse may donate future property to his fiancée for as long as it is
not inofficious (does not impair legitimes of the other compulsory heirs). This
is so because the donation of future property is really a testamentary
disposition.
 In the case of Mateo vs. Lagua, the Supreme Court said that donations
propter nuptias may be revoked for being inofficious.
 If the donor is not one of the future spouses, the donor may give more than
1/5 of his present property provided that the legitimes are not impaired.
 If the regime is ACP, there is no need to give a donation propter nuptias to
your spouse. It is useless since such donation shall become part of the
community property. In addition, donor’s tax must be paid.

Art. 748. The donation of a movable may be made orally or in writing.
An oral donation requires the simultaneous delivery of the thing or of the document
representing the right donated.
If the value of the personal property donated exceeds five thousand pesos, the donation
and the acceptance shall be made in writing, otherwise, the donation shall be void.
Art. 749. In order that the donation of an immovable may be valid, it must be made in a
public document, specifying therein the property donated and the value of the charges which the
donee must satisfy.
The acceptance may be made in the same deed of donation or in a separate public
document, but it shall not take effect unless it is done during the lifetime of the donor.
If the acceptance is made in a separate instrument, the donor shall be notified thereof in
an authentic form, and this step shall be noted in both instruments.
 Art. 86. A donation by reason of marriage may be revoked by the
donor in the following cases:
(1) If the marriage is not celebrated or judicially declared void ab
initio except donations made in the marriage settlements, which
shall be governed by Article 81;
(2) When the marriage takes place without the consent of the
parents or guardian, as required by law;
(3) When the marriage is annulled, and the donee acted in bad faith;
(4) Upon legal separation, the donee being the guilty spouse;
(5) If it is with a resolutory condition and the condition is complied
with;
(6) When the donee has committed an act of ingratitude as specified
by the provisions of the Civil Code on donations in general.

 The donations propter nuptias may be revoked on the grounds enumerated

here.
 In Article 86 (6), the act of ingratitude refers to Article 765.

Art. 87. 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.

 General Rule: During the marriage, the spouses may not donate to one
another.
 Exception: Spouses may give moderate gifts to each other on the occasion
of any family rejoicing.
NOTE: Article 87 is applicable to common-law spouses (Matabuena vs.
Cervantes)
 This is to minimize improper or undue pressure as well as to prevent the
spouses from defrauding their creditors.

B. System of Absolute Community

Art. 91. Unless otherwise provided in this Chapter or in the

marriage settlements, the community property shall consist of all the
property owned by the spouses at the time of the celebration of the
marriage or acquired thereafter.

Art. 765. The donation may also be revoked at the instance of the donor, by reason of
ingratitude in the following cases:
(1) If the donee should commit some offense against the person, the honor or the property of
the donor, or of his wife or children under his parental authority;
(2) If the donee imputes to the donor any criminal offense, or any act involving moral
turpitude, even though he should prove it, unless the crime or the act has been committed
against the donee himself, his wife or children under his authority;
(3) If he unduly refuses him support when the donee is legally or morally bound to give
support to the donor.
 Art. 92. The following shall be excluded from the community
property:
(1) Property acquired during the marriage by gratuitous title by
either spouse, and the fruits as well as the income thereof, if any,
unless it is expressly provided by the donor, testator or grantor
that they shall form part of the community property;
(2) Property for personal and exclusive use of either spouse.
However, jewelry shall form part of the community property;
(3) Property acquired before the marriage by either spouse who has
legitimate descendants by a former marriage, and the fruits as
well as the income, if any, of such property.

 General Rule: Community property shall consist of all the property owned
by the spouses at the time of the celebration of the marriage or acquired
thereafter.
 Exceptions:
1. Property acquired during the marriage by gratuitous title, including the
fruits and the income.
Exception to the exception: The donor, testator, or grantor expressly
provides otherwise.
 A’s father dies. A inherits from the father. A marries B. The property
inherited by A from his father is part of the community property.
 B’s mother dies during B’s marriage to A. The property inherited by B
from her mother does not form part of the community property.
 In ACP, the income from separate property of the spouses does not
form part of the community property.
IN CPG, the income from separate property of the spouses forms part
of the community property.
2. Property for personal and exclusive use of either spouse
Exception to the Exception: Jewelry forms part of the community
property.
3. Property acquired before the marriage by either spouse who has legitimate
descendants by a former marriage, and the fruits and income of such
property.
 This is provided for so that the children from the 1 st marriage will not
be prejudiced.

Art. 93. Property acquired during the marriage is presumed to

belong to the community, unless it is proved that it is one of those
excluded therefrom.

 Presumption: Property acquired during the marriage is presumed to belong

to the community.
 However it can be rebutted by proving such property acquired during marriage
is excluded.
 Art. 94. The absolute community of property shall be liable for:

 Article 94 enumerates the charges upon the absolute community of property.

(1) The support of the spouses, their common children, and

legitimate children of either spouse; however, the support of
illegitimate children shall be governed by the provisions of this
Code on Support;

 The ACP shall support the spouses’ common children and legitimate children of
either spouse
 A common child of the spouse may not necessarily be legitimate. For
example, A is married to B. A has an affair with C. A and C have a child, D. B
dies. A and C get married. D cannot be legitimated since at the time of D’s
conception, A and C had no capacity to get married.
 Illegitimate children are supported:
1. Primarily by their biological parent
2. Subsidiarily by the ACP (Article 94 (9)*)

(2) All debts and obligations contracted during the marriage by the
designated administrator-spouse for the benefit of the
community, or by both spouses, or by one spouse with the
consent of the other;
(3) Debts and obligations contracted by either spouse without the
consent of the other to the extent that the family may have been
benefited;

 The wordings under Articles 94 (2) and 94 (3) are different

 Article 94 (2) contemplates 3 situations:
1. Obligations contracted by the designated administrator spouse for the
purpose of benefiting the community.
 Under 94 (2) (a), purpose is enough. It is not required to show to what
extent the family benefited.
2. Obligations contracted by both spouses
3. Obligations contracted by 1 spouse with the consent of the other.
 Article 94 (3) contemplates the situation wherein 1 spouse contracts an
obligation without the consent of the other.
 The ACP is liable only to the extent that the family may have benefited.
 Problem: What is the rule now regarding obligations contracted by the
business of a particular spouse?

*
Art. 94. The absolute community of property shall be liable for:
(9) Antenuptial debts of either spouse other than those falling under paragraph (7) of this
Article, the support of illegitimate children of either spouse, and liabilities incurred by either
spouse by reason of a crime or a quasi-delict, in case of absence or insufficiency of the
exclusive property of the debtor-spouse, the payment of which shall be considered as
advances to be deducted from the share of the debtor-spouse upon liquidation of the
community;
 According to Professor Balane, there are 2 views. One view is that Article 94
(3) may be applied since both spouses are the administrators of the
community property. Therefore, one spouse should not act alone as
administrator. Therefore, obligations contracted for the business operations of
a spouse are without consent of the other.
Another view is that such debts would fall under Article 94 (2). According to
Justice Vitug, there is implied consent by the other spouse since the same did
not object. Otherwise, commercial transactions would slow down.

(4) All taxes, liens, charges and expenses, including major or minor
repairs, upon the community property;
(5) All taxes and expenses for mere preservation made during
marriage upon the separate property of either spouse used by the
family;

 Taxes and expenses for the preservation upon the exclusive property by 1 of
the spouses should be borne by the ACP. This is so because the family
benefits.

(6) Expenses to enable either spouse to commence or complete a

professional or vocational course, or other activity for self-
improvement;
(7) Antenuptial debts of either spouse insofar as they have
redounded to the benefit of the family;
(8) The value of what is donated or promised by both spouses in
favor of their common legitimate children for the exclusive
purpose of commencing or completing a professional or
vocational course or other activity for self-improvement;
(9) Antenuptial debts of either spouse other than those falling under
paragraph (7) of this Article, the support of illegitimate children
of either spouse, and liabilities incurred by either spouse by
reason of a crime or a quasi-delict, in case of absence or
insufficiency of the exclusive property of the debtor-spouse, the
payment of which shall be considered as advances to be deducted
from the share of the debtor-spouse upon liquidation of the
community; and

 Ante-nuptial debts not falling under Article 94 (7) will be borne by the ACP if
the separate property of the debtor-spouse is insufficient.

(10) Expenses of litigation between the spouses unless the suit is

found to be groundless.
If the community property is insufficient to cover the foregoing
liabilities, except those falling under paragraph (9), the spouses shall be
solidarily liable for the unpaid balance with their separate properties.

1. Administration and Enjoyment of Community Property

Art. 96, ¶1. The administration and enjoyment of the

community property shall belong to both spouses jointly. In case of
disagreement, the husband's decision shall prevail, subject to
 recourse to the court by the wife for proper remedy, which must be
availed of within five years from the date of the contract implementing
such decision.

 Administration of the community property belongs to both spouses jointly.

 Both spouses must consent to the encumbrance or disposition of the
community property.

Art. 96 (2), ¶2. In the event that one spouse is incapacitated or

otherwise unable to participate in the administration of the common
properties, the other spouse may assume sole powers of
administration. These powers do not include disposition or
encumbrance without authority of the court or the written consent of
the other spouse. In the absence of such authority or consent, the
disposition or encumbrance shall be void. However, the transaction
shall be construed as a continuing offer on the part of the consenting
spouse and the third person, and may be perfected as a binding
contract upon the acceptance by the other spouse or authorization by
the court before the offer is withdrawn by either or both offerors.

 The other spouse may assume sole powers of administration when:

1. The other spouse is incapacitated.
2. The other spouse is unable to participate (i.e., abroad)
 The power to administer does not include the power to dispose or
encumber solely by 1 spouse. Court authority or the approval of the other
spouse is required.

Art. 97. Either spouse may dispose by will of his or her

interest in the community property.

Art. 98. Neither spouse may donate any community property

without the consent of the other. However, either spouse may,
without the consent of the other, make moderate donations from the
community property for charity or on occasions of family rejoicing or
family distress.

 General Rule: In order to donate any community property, the other

spouse must consent.
 Exception: Moderate donations do not need the consent of the other
spouse if for:
1. Charity
2. Occasions of family rejoicing or distress

2. Dissolution and Liquidation of Absolute Community

Art. 99. The absolute community terminates:

(1) Upon the death of either spouse;
(2) When there is a decree of legal separation;
(3) When the marriage is annulled or declared void; or
 (4) In case of judicial separation of property during the marriage
under Article 134 to 138.

 Dissolution of the ACP is not synonymous with the dissolution of the

marriage. In Articles 99 (2) and (4), the ACP is dissolved although the
marriage is not. However, the dissolution of the marriage automatically
results in the dissolution of the ACP.
 In Article 99 (3), when a marriage is declared as a nullity, there is no ACP
to dissolve since there was no property regime to begin with. The
dissolution in such a case would be governed by the rules on co-ownership.
 Article 99 is not a complete enumeration of the instances when the ACP
terminates. Another instance is when the marriage is terminated by the
reappearance of the absent spouse (Articles 42 and 43 (2)).

Art. 102. Upon dissolution of the absolute community regime,

the following procedure shall apply:
(1) An inventory shall be prepared, listing separately all the
properties of the absolute community and the exclusive
properties of each spouse.
(2) The debts and obligations of the absolute community shall be
paid out of its assets. In case of insufficiency of said assets,
the spouses shall be solidarily liable for the unpaid balance
with their separate properties in accordance with the
provisions of the second paragraph of Article 94.
(3) Whatever remains of the exclusive properties of the spouses
shall thereafter be delivered to each of them.
(4) The net remainder of the properties of the absolute
community 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.

Art. 42. 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 reappearance being judicially determined in case such fact is disputed.
Art. 43. The termination of the subsequent marriage referred to in the preceding Article
shall produce the following effects:
(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;
 (5) The presumptive legitimes of the common children shall be
delivered upon partition, in accordance with Article 51.
(6) Unless otherwise agreed upon by the parties, in the partition
of the properties, the conjugal dwelling and the lot on which it
is situated shall be adjudicated to the spouse with whom the
majority of the common children choose to remain. Children
below the age of seven years are deemed to have chosen the
mother, unless the court has decided otherwise. In case there
in no such majority, the court shall decide, taking into
consideration the best interests of said children.

 Article 102 enumerates the steps in liquidation:

1. Inventory
 3 lists
1. Inventory of community property
2. Inventory of separate property of the wife
3. Inventory of separate property of the husband.
2. Payment of Community Debts
 First, pay out of community assets
 If not enough, husband and wife are solidarily liable with their
separate property.
3. Delivery to each spouse his or her separate property if any.
4. Division of the net community assets
NOTE: There are special rules regarding the family home.
5. Delivery of presumptive legitimes if any to the children
 The presumptive legitimes are given in the following instances:
1. Death of either spouse (Article 103)
2. Legal Separation (Articles 63 and 64)
3. Annulment (Articles 50 – 52)
4. Judicial Separation of Property (Articles 134 – 137)
5. Reappearance of the absent spouse which terminates the 2 nd marriage
(Article 43)

Art. 100. The separation in fact between husband and wife shall
not affect the regime of absolute community except that:
(1) The spouse who leaves the conjugal home or refuses to live
therein, without just cause, shall not have the right to be
supported;
(2) When the consent of one spouse to any transaction of the
other is required by law, judicial authorization shall be
obtained in a summary proceeding;
(3) In the absence of sufficient community property, the separate
property of both spouses shall be solidarily liable for the
support of the family. The spouse present shall, upon proper
 petition in a summary proceeding, be given judicial authority
to administer or encumber any specific separate property of
the other spouse and use the fruits or proceeds thereof to
satisfy the latter’s share.

 Separation de facto does not dissolve the ACP.

Art. 101. 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.

 If a spouse abandons the other spouse without just cause or fails to

comply with his or marital obligations, the aggrieved spouse may petition
the court for the following:
1. Receivership
2. Judicial separation of property
3. Authority to be the sole administrator.
 Abandonment occurs when one leaves the conjugal dwelling without
intention of returning.
 Presumption of Abandonment: When the spouse has left the conjugal
dwelling for a period of 3 months without giving information as to his
whereabouts.

Art. 104. Whenever the liquidation of the community properties

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

 Article 104 will hardly ever occur. Skip this.

 C. Conjugal Partnership of Gains

 Knowing the CPG is important. Under the Civil Code, this was the
preponderant property regime. Since a lot of marriages took place before the
effectivity of the Family Code – August 3, 1988 – many property regimes are
CPG.

Art. 105. In case the future spouses agree in the marriage

settlements that the regime of conjugal partnership gains shall govern
their property relations during marriage, the provisions in this Chapter
shall be of supplementary application.
The provisions of this Chapter shall also apply to conjugal
partnerships of gains already established between spouses before the
effectivity of this Code, without prejudice to vested rights already
acquired in accordance with the Civil Code or other laws, as provided in
Article 256.

 The regime of CPG applies:

1. In case the future spouse agree on this regime in their marriage
settlement, their property relations will be governed by their agreement
with the Family Code suppletorily applicable.
2. CPGs before the affectivity of the Family Code, without prejudice to vested
rights

Art. 106. Under the regime of conjugal partnership of gains, the

husband and wife place in a common fund the proceeds, products, fruits
and income from their separate properties and those acquired by either
or both spouses through their efforts or by chance, and, upon dissolution
of the marriage or of the partnership, the net gains or benefits obtained
by either or both spouses shall be divided equally between them, unless
otherwise agreed in the marriage settlements.

 The husband and wife place in a common fund:

1. Income of their separate properties
2. Everything acquired by them through their efforts (whether singly or
jointly)
3. Everything acquired by them through chance (the winnings from gambling,
hidden treasure, those acquired from hunting)
 The spouses are not co-owners of the conjugal properties during the marriage
and cannot alienate the supposed ½ interest of each in the said properties.
The interest of the spouses in the conjugal properties is only inchoate or a
mere expectancy and does not ripen into title until it appears after the
dissolution and liquidation of the partnership that there are net assets (De
Ansaldo vs. Sheriff of Manila).
Art. 107. The rules provided in Articles 88  and 89 shall also apply
to conjugal partnership of gains.


Art. 88. The absolute community of property between spouses shall commence at the precise
moment that the marriage is celebrated. Any stipulation, express or implied, for the
commencement of the community regime at any other time shall be void.
 Art. 108. The conjugal partnership shall be governed by the rules
on the contract of partnership in all that is not in conflict with what is
expressly determined in this Chapter or by the spouses in their marriage
settlements.

 The rules on partnership shall be applied in a suppletory manner.

Art. 109. The following shall be the exclusive property of each

spouse:
(1) That which is brought to the marriage as his or her own;
(2) That which each acquires during the marriage by gratuitous title;
(3) That which is acquired by right of redemption, by barter or by
exchange with property belonging to only one of the spouses; and
(4) That which is purchased with exclusive money of the wife or of
the husband.

 Article 109 enumerates the exclusive property of spouses:

1. Property brought to the marriage as his or her own
 Strictly speaking paraphernal property refers to the exclusive property
of the wife while capital is the exclusive property of the husband.
2. Property which each spouse acquires during the marriage by gratuitous
title
 Gratuitous title is either:
1. By succession
2. By donation
 ACP also has a similar provision.
3. Property which is acquired by right of redemption, by barter or exchange
with property belonging to only one of the spouses; and
 Article 109 (3) is illustrated as follows: The wife owns exclusively a
piece of land. The wife sells such land with the right to repurchase it.
The wife redeems the money using conjugal funds. Under Article 109
(3), the property is still paraphernal as the right of redemption belongs
to the wife. The fact that conjugal funds were used is irrelevant in that
the wife must liquidate such debt to the common fund upon the
liquidation of the property regime.
 Another illustration of Article 109 (3) is as follows: The wife owns
exclusively a lot in BF Homes in Q.C. The wife decides to sell the lot
and gets money in exchange. The money is paraphernal property.
4. Property which is purchased with exclusive money of the wife or of the
husband


Art. 89. No waiver of rights, shares and effects of the absolute community of property during
the marriage can be made except in case of judicial separation of property.
When the waiver takes place upon a judicial separation of property, or after the marriage
has been dissolved or annulled, the same shall appear in a public instrument and shall be recorded
as provided in Article 77. The creditors of the spouse who made such waiver may petition the court
to rescind the waiver to the extent of the amount sufficient to cover the amount of their credits.
  The rule is the same for ACP although there is no express provision.

Art. 110. The spouses retain the ownership, possession,

administration and enjoyment of their exclusive properties.
Either spouse may, during the marriage, transfer the
administration of his or her exclusive property to the other by means of a
public instrument, which shall be recorded in the registry of property of
the place the property is located.

Art. 111. A spouse of age may mortgage, encumber, alienate or

otherwise dispose of his or her exclusive property, without the consent of
the other spouse, and appear alone in court to litigate with regard to the
same.

Art. 112. The alienation of any exclusive property of a spouse

administered by the other automatically terminates the administration
over such property and the proceeds of the alienation shall be turned
over to the owner-spouse.

Art. 113. Property donated or left by will to the spouses, jointly

and with designation of determinate shares, shall pertain to the donee-
spouses as his or her own exclusive property, and in the absence of
designation, share and share alike, without prejudice to the right of
accretion when proper.

Art. 114. If the donations are onerous, the amount of the charges
shall be borne by the exclusive property of the donee spouse, whenever
they have been advanced by the conjugal partnership of gains.

Art. 115. Retirement benefits, pensions, annuities, gratuities,

usufructs and similar benefits shall be governed by the rules on
gratuitous or onerous acquisitions as may be proper in each case.

Art. 116. All property acquired during the marriage, whether the
acquisition appears to have been made, contracted or registered in the
name of one or both spouses, is presumed to be conjugal unless the
contrary is proved.

 Presumption: All property acquired during marriage is presumed to be

conjugal (but the contrary may be proved).

Art. 117. The following are conjugal partnership properties:

(1) Those acquired by onerous title during the marriage at the
expense of the common fund, whether the acquisition be for the
partnership, or for only one of the spouses;
(2) Those obtained from the labor, industry, work or profession of
either or both of the spouses;
(3) The fruits, natural, industrial, or civil, due or received during the
marriage from the common property, as well as the net fruits
from the exclusive property of each spouse;
 According to Professor Balane, Article 117 (3) is inaccurate. There is no
problem if the fruits come from the conjugal property. The problem arises
when the fruits arise from the spouses’ separate properties. For fruits arising
from the separate properties of the spouses to be considered conjugal, one
must look at when the fruits are due and not when the fruits are received.
 For example, A lends P 1,000,000 to B at 20% interest payable every quarter.
B is supposed to pay interest on March, June, Sept, and Dec. B did not pay
the interest due on March. A gets married to C. B finally pays the interests
for the months of March and June on June. The interest for March is exclusive
property while the interest for June is conjugal property. The interest for
March is exclusive property because the test is not when A and C receives the
fruits. It is when the fruits are due. In this case, the fruits were due on March
before the marriage between A and C. That is why the interest for June is
conjugal property.

(4) The share of either spouse in the hidden treasure which the law
awards to the finder or owner of the property where the treasure
is found;
(5) Those acquired through occupation such as fishing or hunting;
(6) Livestock existing upon the dissolution of the partnership in
excess of the number of each kind brought to the marriage by
either spouse; and
(7) Those which are acquired by chance, such as winnings from
gambling or betting. However, losses therefrom shall be borne
exclusively by the loser-spouse.

Art. 118. Property bought on installments paid partly from

exclusive funds of either or both spouses and partly from conjugal funds
belongs to the buyer or buyers if full ownership was vested before the
marriage and to the conjugal partnership if such ownership was vested
during the marriage. In either case, any amount advanced by the
partnership or by either or both spouses shall be reimbursed by the
owner or owners upon liquidation of the partnership.

 Article 118 is actually Article 117 (8).

 Test: When did the ownership vest in the buyer? The source of the funds is
irrelevant.
 For example, A who is single, buys on installment a lot in Tagaytay. A has to
pay 60 monthly installments. The contract provides that ownership would vest
upon the full payment of the installments. A had already paid 20 monthly
installments. A gets married to B. After that A pays the remaining 40
monthly installments using conjugal funds. The property is conjugal following
Art. 118. The first 20 monthly installments is a credit of A against the
property regime. The converse is also true. The relevance of the funds is only
for accounting purposes.

Art. 119. Whenever an amount or credit payable within a period of

time belongs to one of the spouses, the sums which may be collected
during the marriage in partial payments or by installments on the
principal shall be the exclusive property of the spouse. However,
interests falling due during the marriage on the principal shall belong to
the conjugal partnership.

Art. 120. The ownership of improvements, whether for utility or

adornment, made on the separate property of the spouses at the expense
of the partnership or through the acts or efforts of either or both spouses
shall pertain to the conjugal partnership, or to the original owner-spouse,
subject to the following rules:
When the cost of the improvement made by the conjugal
partnership and any resulting increase in value are more than the value
of the property at the time of the improvement, the entire property of one
of the spouses shall belong to the conjugal partnership, subject to
reimbursement of the value of the property of the owner-spouse at the
time of the improvement; otherwise, said property shall be retained in
ownership by the owner-spouse, likewise subject to reimbursement of
the cost of the improvement.
In either case, the ownership of the entire property shall be vested
upon the reimbursement, which shall be made at the time of the
liquidation of the conjugal partnership.

 This is known as reverse accession.

 In this situation, an improvement which is paid for by conjugal funds is built
on land which is exclusively owned by one of the spouses.
 In Caltex vs. Felias, the Supreme Court said that before Article 120 could be
applied, it is essential that the land must be owned by one of the spouses
before the improvement is introduced.
 The general rule is that the accessory follows the principal. Thus, normally the
improvement would follow the improvement. In Article 120, this is may not be
the case, and it may be that the land would follow the improvement. That’s
why its called reverse accession.
 Rules:
1. Reverse accession - if the cost of the improvement and the plus value are
more than the value of the principal property at the time of the
improvement. Thus, the entire property becomes conjugal.
 For example, a lot is worth P1,000,000. A structure worth P800,000
was built. Thus, the total cost of the separate property and the
improvement is P1,800,000. However due to the building of the
improvement, the value of the entire property increases by P300,000 –
the plus value. Thus, the entire property is worth P2,100,000. In this
case, the entire property becomes conjugal. The cost of the
improvement (P800,000) and the plus value (P300,000) is more than
the cost of the land (P1,000,000).
2. Accession – if the cost of the improvement and the plus value are less than
the value of the principal property at the time the improvement. Thus, the
entire property becomes exclusive property of the spouse.
3. Ownership of the entire property shall vest on the owner-spouse or the
partnership as the case upon the reimbursement of the improvement.
4. Reimbursement time is the time of the liquidation of the CPG.
 5. The value to be paid at the liquidation is the value at the time of the
improvement (This overrules Padilla vs. Padilla).
 “Plus value” refers to what the improvement contributes to the increase
in the value of the whole thing.
 Problem Areas:
1. Suppose the improvement is destroyed before reimbursement. Will Article
120 apply? Article 120 applies only on the assumption that the
improvement exists at the time of liquidation. If the property is destroyed
before the liquidation, the Article 120 won’t apply. In the case of Padilla
vs. Paterno, the SC said that land never became conjugal because the
conjugal improvements were destroyed before payment could be effected.
2. Does the vesting of ownership in reverse accession retroact to the time of
the building of the improvement? The law is not clear.

 Charges upon the Conjugal Partnership of Gains

 The charges upon the CPG are parallel to the charges on the ACP.

Art. 121. The conjugal partnership shall be liable for:

(1) The support of the spouse, their common children, and the
legitimate children of either spouse; however, the support
of illegitimate children shall be governed by the provisions
of this Code on Support;
(2) All debts and obligations contracted during the marriage by
the designated administrator-spouse for the benefit of the
conjugal partnership of gains, or by both spouses or by one
of them with the consent of the other;
(3) Debts and obligations contracted by either spouse without
the consent of the other to the extent that the family may
have benefited;
(4) All taxes, liens, charges, and expenses, including major or
minor repairs upon the conjugal partnership property;
(5) All taxes and expenses for mere preservation made during
the marriage upon the separate property of either spouse;

 There is no requirement here that it be used by the family since the CPG is
the usufructuary of the property.

(6) Expenses to enable either spouse to commence or

complete a professional, vocational, or other activity for
self-improvement;
(7) Antenuptial debts of either spouse insofar as they have
redounded to the benefit of the family;
(8) The value of what is donated or promised by both spouses
in favor of their common legitimate children for the
exclusive purpose of commencing or completing a
professional or vocational course or other activity for self-
improvement; and
 (9) Expenses of litigation between the spouses unless the suit
is found to groundless.
If the conjugal partnership is insufficient to cover the
foregoing liabilities, the spouses shall be solidarily liable for the
unpaid balance with their separate properties.

 The Articles 122 to 125 have counterpart provisions in the ACP.

CPG PROVISION COUNTERPART ACP PROVISION

Art. 122. The payment of Art. 94. The absolute
personal debts contracted by the community of property shall be liable
husband or the wife before or during for:
the marriage shall not be charged to (9) Antenuptial debts of either
the conjugal properties partnership spouse other than those
except insofar as they redounded to falling under paragraph (7) of
the benefit of the family. this Article, the support of
Neither shall the fines and illegitimate children of either
pecuniary indemnities imposed upon spouse, and liabilities incurred
them be charged to the partnership. by either spouse by reason of
a crime or a quasi-delict, in
However, the payment of case of absence or
personal debts contracted by either insufficiency of the exclusive
spouse before the marriage, that of property of the debtor-spouse,
fines and indemnities imposed upon the payment of which shall be
them, as well as the support of considered as advances to be
illegitimate children of either spouse, deducted from the share of the
may be enforced against the debtor-spouse upon
partnership assets after the liquidation of the community;
responsibilities enumerated in the
preceding Article have been covered, if
the spouse who is bound should have
no exclusive property or if it should be
insufficient; but at the time of the
liquidation of the partnership, such
spouse shall be charged for what has
been paid for the purpose above-
mentioned.

Art. 123. Whatever may be lost Art. 95. Whatever may be lost
during the marriage in any game of during the marriage in any game of
chance or in betting, sweepstakes, or chance, betting, sweepstakes, or any
any other kind of gambling whether other kind of gambling, whether
permitted or prohibited by law, shall permitted or prohibited by law, shall
be borne by the loser and shall not be be borne by the loser and shall not be
charged to the conjugal partnership charged to the community but any
but any winnings therefrom shall form winnings therefrom shall form part of
part of the conjugal partnership the community property.
property.

Art. 124. The administration Art. 96. The administration

and enjoyment of the conjugal and enjoyment of the community
partnership shall belong to both property shall belong to both spouses
spouses jointly. In case of jointly. In case of disagreement, the
disagreement, the husband's decision husband's decision shall prevail,
shall prevail, subject to recourse to the subject to recourse to the court by the
court by the wife for proper remedy, wife for proper remedy, which must be
which must be availed of within five availed of within five years from the
years from the date of the contract date of the contract implementing such
implementing such decision. decision.
In the event that one spouse is In the event that one spouse is
incapacitated or otherwise unable to incapacitated or otherwise unable to
participate in the administration of the participate in the administration of the
conjugal properties, the other spouse common properties, the other spouse
may assume sole powers of may assume sole powers of
administration. These powers do not administration. These powers do not
include disposition or encumbrance include disposition or encumbrance
without authority of the court or the without authority of the court or the
written consent of the other spouse. In written consent of the other spouse. In
the absence of such authority or the absence of such authority or
consent, the disposition or consent, the disposition or
encumbrance shall be void. However, encumbrance shall be void. However,
the transaction shall be construed as a the transaction shall be construed as a
continuing offer on the part of the continuing offer on the part of the
consenting spouse and the third consenting spouse and the third
person, and may be perfected as a person, and may be perfected as a
binding contract upon the acceptance binding contract upon the acceptance
by the other spouse or authorization by the other spouse or authorization
by the court before the offer is by the court before the offer is
withdrawn by either or both offerors. withdrawn by either or both offerors.

Art. 125. Neither spouse may Art. 98. Neither spouse may
donate any conjugal partnership donate any community property
property without the consent of the without the consent of the other.
other. However, either spouse may, However, either spouse may, without
without the consent of the other, make the consent of the other, make
moderate donations from the conjugal moderate donations from the
partnership property for charity or on community property for charity or on
occasions of family rejoicing or family occasions of family rejoicing or family
distress. distress.

 The rules on dissolution are the same.

CPG PROVISION COUNTERPART ACP PROVISION

Art. 126. The conjugal Art. 99. The absolute
partnership terminates: community terminates:
(1) Upon the death of either (1) Upon the death of either
spouse; spouse;
(2) When there is a decree of legal (2) When there is a decree of legal
separation; separation;
(3) When the marriage is annulled (3) When the marriage is annulled
or declared void; or or declared void; or
(4) In case of judicial separation (4) In case of judicial separation
of property during the of property during the
 marriage under Articles 134 to marriage under Article 134 to
138. 138.

 Like Article 99 (3), Article 126 (3) is incorrect. The marriage regime in a
void marriage never existed. There is nothing to dissolve. The special
rules of co-ownership shall govern.

Art. 127. The separation in fact Art. 100. The separation in fact
between husband and wife shall not between husband and wife shall not
affect the regime of conjugal affect the regime of absolute
partnership, except that: community except that:
(1) The spouse who leaves the (1) The spouse who leaves the
conjugal home or refuses to conjugal home or refuses to
live therein, without just live therein, without just
cause, shall not have the right cause, shall not have the right
to be supported; to be supported;
(2) When the consent of one (2) When the consent of one
spouse to any transaction of spouse to any transaction of
the other is required by law, the other is required by law,
judicial authorization shall be judicial authorization shall be
obtained in a summary obtained in a summary
proceeding; proceeding;
(3) In the absence of sufficient (3) In the absence of sufficient
conjugal partnership property, community property, the
the separate property of both separate property of both
spouses shall be solidarily spouses shall be solidarily
liable for the support of the liable for the support of the
family. The spouse present family. The spouse present
shall, upon petition in a shall, upon proper petition in a
summary proceeding, be given summary proceeding, be given
judicial authority to administer judicial authority to administer
or encumber any specific or encumber any specific
separate property of the other separate property of the other
spouse and use the fruits or spouse and use the fruits or
proceeds thereof to satisfy the proceeds thereof to satisfy the
latter’s share. latter’s share.
 Art. 128. If a spouse without Art. 101. If a spouse without
just cause abandons the other or fails just cause abandons the other or fails
to comply with his or her obligation to to comply with his or her obligations to
the family, the aggrieved spouse may the family, the aggrieved spouse may
petition the court for receivership, for petition the court for receivership, for
judicial separation of property, or for judicial separation of property or for
authority to be the sole administrator authority to be the sole administrator
of the conjugal partnership property, of the absolute community, subject to
subject to such precautionary such precautionary conditions as the
conditions as the court may impose. court may impose.
The obligations to the family The obligations to the family
mentioned in the preceding paragraph mentioned in the preceding paragraph
refer to marital, parental or property refer to marital, parental or property
relations. relations.
A spouse is deemed to have A spouse is deemed to have
abandoned the other when he or she abandoned the other when her or she
has left the conjugal dwelling without has left the conjugal dwelling without
intention of returning. The spouse who intention of returning. The spouse who
has left the conjugal dwelling for a has left the conjugal dwelling for a
period of three months or has failed period of three months or has failed
within the same period to give any within the same period to give any
information as to his or her information as to his or her
whereabouts shall be prima facie whereabouts shall be prima facie
presumed to have no intention of presumed to have no intention of
returning to the conjugal dwelling. returning to the conjugal dwelling.

Art. 129. Upon the dissolution Art. 102. Upon dissolution of

of the conjugal partnership regime, the the absolute community regime, the
following procedure shall apply: following procedure shall apply:
(1) An inventory shall be (1) An inventory shall be
prepared, listing separately all prepared, listing separately all
the properties of the conjugal the properties of the absolute
partnership and the exclusive community and the exclusive
properties of each spouse. properties of each spouse.
(2) Amounts advanced by the (2) The debts and obligations of
conjugal partnership in the absolute community shall
payment of personal debts and be paid out of its assets. In
obligations of either spouse case of insufficiency of said
shall be credited to the assets, the spouses shall be
conjugal partnership as an solidarily liable for the unpaid
asset thereof. balance with their separate
(3) Each spouse shall be properties in accordance with
reimbursed for the use of his the provisions of the second
or her exclusive funds in the paragraph of Article 94.
acquisition of property or for (3) Whatever remains of the
the value of his or her exclusive properties of the
exclusive property, the spouses shall thereafter be
ownership of which has been delivered to each of them.
vested by law in the conjugal (4) The net remainder of the
partnership. properties of the absolute
(4) The debts and obligations of community shall constitute its
the conjugal partnership shall net assets, which shall be
be paid out of the conjugal divided equally between
assets. In case of insufficiency husband and wife, unless a
of said assets, the spouses different proportion or division
shall be solidarily liable for the was agreed upon in the
unpaid balance with their marriage settlements, or
separate properties, in unless there has been a
accordance with the provisions voluntary waiver of such share
of paragraph (2) of Article provided in this Code. For
121. purpose of computing the net
(5) Whatever remains of the profits subject to forfeiture in
exclusive properties of the accordance with Articles 43,
spouses shall thereafter be No. (2) and 63, No. (2), the
delivered to each of them. said profits shall be the
increase in value between the
(6) Unless the owner had been market value of the
indemnified from whatever community property at the
source, the loss or time of the celebration of the
deterioration of movables marriage and the market
used for the benefit of the value at the time of its
family, belonging to either dissolution.
spouse, even due to fortuitous
event, shall be paid to said (5) The presumptive legitimes of
spouse from the conjugal the common children shall be
funds, if any. delivered upon partition, in
accordance with Article 51.
(7) The net remainder of the
conjugal partnership (6) Unless otherwise agreed upon
properties shall constitute the by the parties, in the partition
profits, which shall be divided of the properties, the conjugal
equally between husband and dwelling and the lot on which
wife, unless a different it is situated shall be
proportion or division was adjudicated to the spouse
agreed upon in the marriage with whom the majority of the
settlements or unless there common children choose to
has been a voluntary waiver remain. Children below the
or forfeiture of such share as age of seven years are deemed
provided in this Code. to have chosen the mother,
unless the court has decided
(8) The presumptive legitimes of otherwise. In case there in no
the common children shall be such majority, the court shall
delivered upon the partition in decide, taking into
accordance with Article 51. consideration the best
(9) In the partition of the interests of said children.
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.

 Articles 129 and 102 are counterparts although there are differences.

Art. 130. Upon the termination Art. 103. Upon the termination
of the marriage by death, the conjugal of the marriage by death, the
partnership property shall be community property shall be liquidated
liquidated in the same proceeding for in the same proceeding for the
the settlement of the estate of the settlement of the estate of the
deceased. deceased.
If no judicial settlement If no judicial settlement
proceeding is instituted, the surviving proceeding is instituted, the surviving
spouse shall liquidate the conjugal spouse shall liquidate the community
partnership property either judicially property either judicially or extra-
or extra-judicially within six months judicially within six months from the
from the death of the deceased death of the deceased spouse. If upon
spouse. If upon the lapse of the six- the lapse of the six months period, no
month period no liquidation is made, liquidation is made, any disposition or
any disposition or encumbrance encumbrance involving the community
involving the conjugal partnership property of the terminated marriage
property of the terminated marriage shall be void.
shall be void. Should the surviving spouse
Should the surviving spouse contract a subsequent marriage
contract a subsequent marriage without compliance with the foregoing
without compliance with the foregoing requirements, a mandatory regime of
requirements, a mandatory regime of complete separation of property shall
complete separation of property shall govern the property relations of the
govern the property relations of the subsequent marriage.
subsequent marriage.

Art. 131. Whenever the Art. 104. Whenever the

liquidation of the conjugal partnership liquidation of the community
properties of two or more marriages properties of two or more marriages
contracted by the same person before contracted by the same person before
the effectivity of this Code is carried the effectivity of this Code is carried
out simultaneously, the respective out simultaneously, the respective
capital, fruits and income of each capital, fruits and income of each
partnership shall be determined upon community shall be determined upon
such proof as may be considered such proof as may be considered
according to the rules of evidence. In according to the rules of evidence. In
case of doubt as to which partnership case of doubt as to which community
the existing properties belong, the the existing properties belong, the
same shall be divided between the same shall be divided between the
different partnerships in proportion to different communities in proportion to
the capital and duration of each. the capital and duration of each.
  Steps in Liquidation
1. Inventory of the CPG assets.
2. Restitution of advances made to each spouse (i.e., Article 122, ¶3)
3. Payment of debts to each spouse (i.e., Article 120)
4. Payment of obligations to 3rd parties
5. Delivery of exclusive properties
6. Payment of losses and deterioration of movables belonging to each
spouse
7. Delivery of presumptive legitimes
8. Division

D. Separation of Property of the Spouses and Administration of Common

Property by One Spouse During the Marriage

 Separation of the property of the spouses and the administration of common

property by one spouse during the marriage can take place in both ACP and
CPG.
 A petition may be filed for the dissolution of the ACP or the CPG by:
1. Both spouses: voluntary dissolution (Articles 134 and 136)

Art. 134. In the absence of an express declaration in the

marriage settlements, the separation of property between spouses
during the marriage shall not take place except by judicial order.
Such judicial separation of property may either be voluntary or for
sufficient cause.

Art. 136. The spouses may jointly file a verified petition with
the court for the voluntary dissolution of the absolute community


Art. 122, ¶3. However, the payment of personal debts contracted by either spouse before the
marriage, that of fines and indemnities imposed upon them, as well as the support of illegitimate
children of either spouse, may be enforced against the partnership assets after the responsibilities
enumerated in the preceding Article have been covered, if the spouse who is bound should have no
exclusive property or if it should be insufficient; but at the time of the liquidation of the
partnership, such spouse shall be charged for what has been paid for the purpose above-
mentioned.

Art. 120. The ownership of improvements, whether for utility or adornment, made on the
separate property of the spouses at the expense of the partnership or through the acts or efforts
of either or both spouses shall pertain to the conjugal partnership, or to the original owner-
spouse, subject to the following rules:
When the cost of the improvement made by the conjugal partnership and any resulting
increase in value are more than the value of the property at the time of the improvement, the
entire property of one of the spouses shall belong to the conjugal partnership, subject to
reimbursement of the value of the property of the owner-spouse at the time of the improvement;
otherwise, said property shall be retained in ownership by the owner-spouse, likewise subject to
reimbursement of the cost of the improvement.
In either case, the ownership of the entire property shall be vested upon the
reimbursement, which shall be made at the time of the liquidation of the conjugal partnership.
 or the conjugal partnership of gains, and for the separation of
their common properties.
All creditors of the absolute community or of the conjugal
partnership of gains, as well as the personal creditors of the
spouse, shall be listed in the petition and notified of the filing
thereof. The court shall take measures to protect the creditors and
other persons with pecuniary interest.

 There are no need for causes in a voluntary dissolution.

2. One spouse: petition for sufficient cause (Article 135)

Art. 135. Any of the following shall be considered sufficient

cause for judicial separation of property:
(1) That the spouse of the petitioner has been sentenced to a
penalty which carries with it civil interdiction;
(2) That the spouse of the petitioner has been judicially
declared an absentee;
(3) That loss of parental authority of the spouse of petitioner
has been decreed by the court;
(4) That the spouse of the petitioner has abandoned the latter
or failed to comply with his or her obligations to the family
as provided for in Article 101;
(5) That the spouse granted the power of administration in the
marriage settlements has abused that power; and
(6) That at the time of the petition, the spouses have been
separated in fact for at least one year and reconciliation is
highly improbable.
In the cases provided for in Numbers (1), (2) and (3), the
presentation of the final judgment against the guilty or absent
spouse shall be enough basis for the grant of the decree of judicial
separation of property.

 Causes are required for a petition for sufficient cause.

 Article 135 (3) must be taken in relation with Articles 229 (4)  and
Articles 231 and 232.

Art. 229. Unless subsequently revived by a final judgment, parental authority also terminates:
(4) Upon final judgment of a competent court divesting the party concerned of parental
authority;

Art. 231. The court in an action filed for the purpose in a related case may also suspend parental
authority if the parent or the person exercising the same:
(1) Treats the child with excessive harshness or cruelty;
(2) Gives the child corrupting orders, counsel or example;
(3) Compels the child to beg; or
(4) Subjects the child or allows him to be subjected to acts of lasciviousness.
The grounds enumerated above are deemed to include cases which have resulted from
culpable negligence of the parent or the person exercising parental authority.
If the degree of seriousness so warrants, or the welfare of the child so demands, the court
shall deprive the guilty party of parental authority or adopt such other measures as may be proper
  The definition of abandonment in Article 135 (4) is found in Articles 101
and 128.
 Under Article 135 (6), the spouse must wait for 1 year. After 1 year,
the spouse can file the petition for sufficient cause. Also reconciliation
must be highly improbable.
 The separation of the property of the spouses may not be done extrajudicially
even if the spouses agree. Court intervention is necessary.
 After the decree of separation, the parties can revert back to their original
regime by filing a motion in court (Article 141).

Art. 137. Once the separation of property has been decreed, the
absolute community or the conjugal partnership of gains shall be
liquidated in conformity with this Code.
During the pendency of the proceedings for separation of property,
the absolute community or the conjugal partnership shall pay for the
support of the spouses and their children.

Art. 138. After dissolution of the absolute community or of the

conjugal partnership, the provisions on complete separation of property
shall apply.

Art. 139. The petition for separation of property and the final
judgment granting the same shall be recorded in the proper local civil
registries and registries of property.

Art. 140. The separation of property shall not prejudice the rights
previously acquired by creditors.

Art. 141. The spouses may, in the same proceedings where

separation of property was decreed, file a motion in court for a decree
reviving the property regime that existed between them before the
separation of property in any of the following instances:
(1) When the civil interdiction terminates;
(2) When the absentee spouse reappears;
(3) When the court, being satisfied that the spouse granted the
power of administration in the marriage settlements will not
again abuse that power, authorizes the resumption of said
administration;

under the circumstances.

The suspension or deprivation may be revoked and the parental authority revived in a case
filed for the purpose or in the same proceeding if the court finds that the cause therefor has ceased
and will not be repeated.
Art. 232. If the person exercising parental authority has subjected the child or allowed him
to be subjected to sexual abuse, such person shall be permanently deprived by the court of such
authority.

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.
 (4) When the spouse who has left the conjugal home without a
decree of legal separation resumes common life with the other;
(5) When parental authority is judicially restored to the spouse
previously deprived thereof;
(6) When the spouses who have separated in fact for at least one
year, reconcile and resume common life; or
(7) When after voluntary dissolution of the absolute community of
property or conjugal partnership has been judicially decreed
upon the joint petition of the spouses, they agree to the revival
of the former property regime. No voluntary separation of
property may thereafter be granted.
The revival of the former property regime shall be governed by
Article 67.

 If separation was by voluntary dissolution, the parties may agree to revert

back to their original property regime. However, if they do so, no voluntary
separation of property may be granted again.

Art. 142. The administration of all classes of exclusive property of

either spouse may be transferred by the court to the other spouse:
(1) When one spouse becomes the guardian of the other;
(2) When one spouse is judicially declared an absentee;
(3) When one spouse is sentenced to a penalty which carries with it
civil interdiction; or
(4) When one spouse becomes a fugitive from justice or is in hiding
as an accused in a criminal case.
If the other spouse is not qualified by reason of incompetence,
conflict of interest, or any other just cause, the court shall appoint a
suitable person to be the administrator.

 This article enumerates the instances when the court may transfer the
administration of all classes of exclusive property of either spouse.
 The following are the instances in when there can be a sole administrator of
the conjugal property:
1. If such is stipulated in the marriage settlement (Article 74)
2. If the other spouse is unable to participate (Articles 96, ¶2 and 124, ¶2*)


Art. 74. The property relationship between husband and wife shall be governed in the following
order:
(1) By marriage settlements executed before the marriage
*
In the event that one spouse is incapacitated or otherwise unable to participate in the
administration of the common (conjugal) properties, the other spouse may assume sole powers of
administration. These powers do not include disposition or encumbrance without authority of the
court or the written consent of the other spouse. In the absence of such authority or consent, the
disposition or encumbrance shall be void. However, the transaction shall be construed as a
continuing offer on the part of the consenting spouse and the third person, and may be
perfected as a binding contract upon the acceptance by the other spouse or authorization
by the court before the offer is withdrawn by either or both offerors.
 3. The court may order such in case of abandonment (Articles 101 and 128)
4. If the spouses agree to such an arrangement during marriage. However,
in order to affect 3rd persons, such agreement must be registered.

E. Regime of Separation of Property

Art. 143. Should the future spouses agree in the marriage

settlements that their property relations during marriage shall be
governed by the regime of separation of property, the provisions of this
Chapter shall be suppletory.

Art. 144. Separation of property may refer to present or future

property or both. It may be total or partial. In the latter case, the
property not agreed upon as separate shall pertain to the absolute
community.

Art. 145. Each spouse shall own, dispose of, possess, administer
and enjoy his or her own separate estate, without need of the consent of
the other. To each spouse shall belong all earnings from his or her
profession, business or industry and all fruits, natural, industrial or civil,
due or received during the marriage from his or her separate property.

Art. 146. Both spouses shall bear the family expenses in

proportion to their income, or, in case of insufficiency or default thereof,
to the current market value of their separate properties.
The liabilities of the spouses to creditors for family expenses shall,
however, be solidary.

F. Property Regime of Unions Without Marriage

 According to Professor Balane, we should not use the term “common-law

spouses” simply because we are not a common law country.
 For Articles 147 and 148 to apply, the persons living together as husband and
wife must still be of different sexes.

Art. 147. When a man and a woman who are capacitated to marry
each other, live exclusively with each other as husband and wife without
the benefit of marriage or under a void marriage, their wages and
salaries shall be owned by them in equal shares and the property
acquired by both of them through their work or industry shall be
governed by the rules on co-ownership.
In the absence of proof to the contrary, properties acquired while
they lived together shall be presumed to have been obtained by their
joint efforts, work or industry, and shall be owned by them in equal
shares. For purposes of this Article, a party who did not participate in the
acquisition by the other party of any property shall be deemed to have
contributed jointly in the acquisition thereof if the former's efforts


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 (conjugal
partnership), subject to such precautionary conditions as the court may impose.
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 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.

 Requisites of Article 147:

1. The man and the woman must have capacity to marry each other.
2. The man and the woman cohabit.
3. The cohabitation is exclusive.
4. The man and the woman are not married to each other or are married to
each other but the marriage is void.
 Under Article 147, the property regime between the man and the woman
would be special co-ownership.
 The special co-ownership covers:
1. Wages and salaries of either the man and the woman
2. Property acquired through the work or industry of either or both
 If the partner did not acquire the property directly, that partner's
efforts must consist of the care and maintenance of the family and of
the household in order for such party to own 1/2 of the acquired
property.
 In Maxey vs. CA, the SC said that the co-ownership arises even if the
common-law wife does not work is not gainfully employed. The
common-law wife is still a co-owner since she ran the household and
held the family purse even if she did not contribute thereto.
 The difference between this special co-ownership and the ordinary co-
ownership is in Article 147, ¶3. In this special co-ownership, the following
cannot be done:
1. The co-ownership cannot be terminated until the cohabitation is also
terminated.
2. The co-owner may not dispose or encumber his share in the property.

Art. 148. 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.

 Article 148 governs live-in partners who do not fall under Article 147.
 Article 148 will apply if:
1. The live-in partners do not have the capacity to marry each other; or
 Example of this is that there is an impediment of relationship, crime or
age.
2. The cohabitation is not exclusive.
 The special co-ownership only covers property acquired by both parties
through their actual joint contribution of money, property or industry. This is
very similar to an ordinary partnership.
 If a live-in partner is legally married to someone else, the share of that live-in
partner will accrue to the property regime of his or her existing valid marriage.
 If the party who acted in bad faith is not validly married to another his or her
share shall be forfeited to their common children or descendants. In the
absence of descendants, such share shall belong to the innocent party.

XII.The Family
Art. 149. The family, being the foundation of the nation, is a basic social
institution which public policy cherishes and protects. Consequently, family
relations are governed by law and no custom, practice or agreement destructive
of the family shall be recognized or given effect.

 This is merely a declaration of policy.

Art. 150. Family relations include those:

(1) Between husband and wife;
(2) Between parents and children;
(3) Among brothers and sisters, whether of the full or half-blood.

 This is an exclusive enumeration of family members.

Art. 151. 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.
 General Rule: For a suit between members of the same family shall prosper the
following are required:
1. Earnest efforts towards a compromise have been made
2. Such efforts have failed
3. Such earnest efforts and the fact of failure must be alleged
 Without these 3, the case will be dismissed.
 Exception: Cases which cannot be compromised. (Article 2035)

Art. 2035. 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.

 In Gayon vs. Gayon, the SC said that Article 151 does not apply in the case of in-
laws.
 In the case of Magbaleta, the SC said that Article 151 does not apply if non-family
members are to be sued as well.

XIII. Family Home

Art. 152. The family home, constituted jointly by the husband and the
wife or by an unmarried head of a family, is the dwelling house where they and
their family reside, and the land on which it is situated.

Art. 153. The family home is deemed constituted on a house and lot from
the time it is occupied as a family residence. From the time of its constitution
and so long as any of its beneficiaries actually resides therein, the family home
continues to be such and is exempt from execution, forced sale or attachment
except as hereinafter provided and to the extent of the value allowed by law.

Art. 154. The beneficiaries of a family home are:

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

Art. 155. The family home shall be exempt from execution, forced sale or
attachment except:
(1) For nonpayment of taxes;
(2) For debts incurred prior to the constitution of the family home;
 (3) For debts secured by mortgages on the premises before or after such
constitution; and
(4) For debts due to laborers, mechanics, architects, builders, materialmen
and others who have rendered service or furnished material for the
construction of the building.

Art. 156. The family home must be part of the properties of the absolute
community or the conjugal partnership, or of the exclusive properties of either
spouse with the latter's consent. It may also be constituted by an unmarried
head of a family on his or her own property.
Nevertheless, property that is the subject of a conditional sale on
installments where ownership is reserved by the vendor only to guarantee
payment of the purchase price may be constituted as a family home.

 The purpose of these provisions is to remove from the reach of creditors the
residence in which the family members dwell – social justice underpinnings
 The biggest change in the Family Code with regard to the family home is that the
constitution of the family home shall be automatic once it is used as the family
dwelling.
 General Rule: The family home is exempt from levy, attachment and execution.
 Exceptions:
1. Non-payment of taxes
2. For debts incurred prior to the constitution of the family home
 If it were otherwise, then the antecedent creditors would be prejudiced.
3. For debts secured by mortgages on the premises before or after the constitution
4. For debts due to laborers, mechanics, architects, builders, materialmen and
others who have rendered service or furnished material for the construction of the
building.
 Social justice

Art. 157. The actual value of the family home shall not exceed, at the
time of its constitution, the amount of the three hundred thousand pesos in
urban areas, and two hundred thousand pesos in rural areas, or such amounts
as may hereafter be fixed by law.
In any event, if the value of the currency changes after the adoption of
this Code, the value most favorable for the constitution of a family home shall
be the basis of evaluation.
For purposes of this Article, urban areas are deemed to include chartered
cities and municipalities whose annual income at least equals that legally
required for chartered cities. All others are deemed to be rural areas.

 The value provided for Article 157 is unrealistic. According to Professor Balane, the
judge should be given discretion and adjust it accordingly.
 There is a limit in terms of value provided for by the law. Otherwise, debtors can
evade creditors by building very luxurious homes.
 Art. 158. The family home may be sold, alienated, donated, assigned or
encumbered by the owner or owners thereof with the written consent of the
person constituting the same, the latter's spouse, and a majority of the
beneficiaries of legal age. In case of conflict, the court shall decide.

 This is a very dangerous article. Under this article, the family home may not be sold,
alienated, donated, assigned or encumbered without the consent of the person
constituting the same, the latter's spouse and a majority of the beneficiaries (see
Article 154) who are of legal age. Therefore, a bank must get the consent of majority
of the beneficiaries before the family home may be mortgaged. How is the bank
supposed to know who the beneficiaries are? How is the bank supposed to know if
indeed the same is the family home? Finally, how is the bank supposed to know how
many of the beneficiaries are of legal age? The title does not give you these pieces of
information. According to Professor Balane, creditors must be afforded some
protection. This is also disadvantageous to the owner since he may not sell the
family home if the beneficiaries disagree.

Art. 159. The family home shall continue despite the death of one or both
spouses or of the unmarried head of the family for a period of ten years or for
as long as there is a minor beneficiary, and the heirs cannot partition the same
unless the court finds compelling reasons therefor. This rule shall apply
regardless of whoever owns the property or constituted the family home.

 The family home shall continue despite the death of one or both spouses or of the
unmarried head of the family:
1. As long as there is a minor beneficiary still living in the home
2. Even if there is no minor beneficiary, for a period of 10 years
 In this case, the heirs cannot partition the same unless the court finds
compelling reasons. This rule shall apply regardless of whoever owns the
property or constituted the family home.

Art. 160. When a creditor whose claims is not among those mentioned in
Article 155 obtains a judgment in his favor, and he has reasonable grounds to
believe that the family home is actually worth more than the maximum amount
fixed in Article 157, he may apply to the court which rendered the judgment for
an order directing the sale of the property under execution. The court shall so
order if it finds that the actual value of the family home exceeds the maximum
amount allowed by law as of the time of its constitution. If the increased actual
value exceeds the maximum allowed in Article 157 and results from subsequent
voluntary improvements introduced by the person or persons constituting the
family home, by the owner or owners of the property, or by any of the
beneficiaries, the same rule and procedure shall apply.
At the execution sale, no bid below the value allowed for a family home
shall be considered. The proceeds shall be applied first to the amount
mentioned in Article 157, and then to the liabilities under the judgment and the
costs. The excess, if any, shall be delivered to the judgment debtor.

Art. 161. For purposes of availing of the benefits of a family home as

provided for in this Chapter, a person may constitute, or be the beneficiary of,
only one family home.
 Art. 162. The provisions in this Chapter shall also govern existing family
residences insofar as said provisions are applicable.

XIV. Paternity and Filiation

 Paternity means the relationship or status of a person with respect to his or her child
(paternity includes maternity).
 Filiation means the status of a person with respect to his or her parents.
 Paternity and filiation implies relationship.

Art. 163. The filiation of children may be by nature or by adoption.

Natural filiation may be legitimate or illegitimate.

 2 types of filiation
1. Natural
a. Legitimate
i. Legitimate proper (Article 164)
ii. Legitimated (Articles 167-172)
b. Illegitimate (Articles 165, 175, 176)
2. Adoption (R.A. No. 8552 (“Domestic Adoption Act”) and R.A. No. 8043 (“Inter-
country Adoption Act”))
 3 Types of Legitimate Children
1. Legitimate proper
2. Legitimated
3. Adopted
 2 Types of Illegitimate Children
a. Children of parents disqualified to marry each other at conception and marriage.
b. Children of parents qualified to marry each other
 Only this kind can be legitimated by subsequent marriage.

Art. 164. 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.

 A legitimate child is one conceived OR born during the marriage of the parents.
 An innovation in the Family Code is the rule on artificial insemination.
 3 Ways of Artificial Insemination
i. Homologous artificial insemination
  The husband's sperm is used. This is resorted to when the husband is
impotent but not sterile.
ii. Heterologous artificial insemination
 The sperm of another man is used. This is resorted to when the husband has
a low sperm count.
iii. Combined artificial insemination
 A combination of the husband and another man's sperm is used. This is
resorted to for psychological reasons. The husband would not know which
sperm fertilized the egg unless a DNA test is conducted. If the husband knew
that it was not his sperm, it may affect martial relations.
 What if the ovum of another woman is used? This is known as in vitro fertilization.
This in not included in the coverage of the Family Code. A conservative judge will
therefore say that such child is illegitimate.
 Requisites of a Valid and Legal Artificial Insemination
1. Authorization or ratification of the insemination by both husband and wife
 Authorization occurs before the act. Ratification occurs after the act.
2. The authorization or ratification must be in writing
3. The instrument must be executed and signed before the child's birth by both the
husband and the wife
 What if this is done after the child's birth? The law is silent.

Art. 165. Children conceived and born outside a valid marriage are
illegitimate, unless otherwise provided in this Code.

Art. 54. Children conceived or born before the judgment of annulment or

absolute nullity of the marriage under Article 36 has become final and
executory shall be considered legitimate. Children conceived or born of the
subsequent marriage under Article 53 shall likewise be legitimate.

 General Rule: If the child is conceived AND born outside a valid marriage, the child
is illegitimate.
 Exceptions:
1. Children of voidable marriages
2. Children of a void marriage in 2 instances
a. Children conceived of a marriage void under Article 36
b. Children conceived of a marriage under Article 53

Art. 166. Legitimacy of a child may be impugned only on the following

grounds:

 The presumption of legitimacy is one of the strongest presumptions known in law. It

is a quasi-conclusive presumption since such presumption can only be rebutted by
certain instances in Article 166.
 (1) That it was physically impossible for the husband to have sexual
intercourse with his wife within the first 120 days of the 300 days which
immediately preceded the birth of the child because of:
(a) the physical incapacity of the husband to have sexual intercourse
with his wife;
(b) the fact that the husband and wife were living separately in such a
way that sexual intercourse was not possible; or
(c) serious illness of the husband, which absolutely prevented sexual
intercourse;

 There must be a physical impossibility for the husband and the wife to have sexual
intercourse for the 1st 120 days preceding the child's birth.
 If it takes 300 days for a child to be born, for a child to be illegitimate, it must be
shown the physical impossibility of the husband and wife to have sex within the 1 st
120 days.
 The physical impossibility must be for the ENTIRE 120 day period.
 These periods are not arbitrary since scientists know that in order for a child to
survive, there must be a 6 month minimum period of gestation.
 Physical impossibility may be shown in 3 ways
1. Impotence of the husband
2. Spouses living separately
 If the husband is living in Makati, and the wife is living in Q.C., this is not what
is contemplated by Article 166 (1)(b).
 If the husband is living in Toronto, and the wife is living in Manila, then it falls
under Article 166 (1)(b).
 If one of the spouses is in jail, there is still the possibility of sex since visits are
allowed.
3. Serious illness which absolutely prevented sex
 The illness must be such that sex is impossible (i.e., comatose). TB is not an
illness which causes an impossibility to have sex (Andal vs. Macaraig).
NOTE: In these 3 instances, it is presumed that there is no artificial insemination.
Also it is incumbent on the one impugning legitimacy that there could be no access.

(2) That it is proved that for biological or other scientific reasons, the child
could not have been that of the husband, except in the instance
provided in the second paragraph of Article 164; or

 Article 166 (2) assumes that there is no physical impossibility. Otherwise, it would
fall under Article 166 (1).
 DNA tests can show whether or not the husband is the biological father of the child.
In Lim vs. CA, Justice Romero in a obiter dictum said that DNA tests are not yet
accepted here.

(3) That in case of children conceived through artificial insemination, the

written authorization or ratification of either parent was obtained
through mistake, fraud, violence, intimidation, or undue influence.
 In case of artificial insemination, the written authorization or ratification was procured
by mistake, fraud, violence, intimidation, or undue influence.

Art. 167. The child shall be considered legitimate although the mother
may have declared against its legitimacy or may have been sentenced as an
adulteress.

 Despite the declaration of the mother that the child is illegitimate or that she has
been declared an adulteress, the presumption of legitimacy still stands. This is so
because in many instances, the woman wouldn't know who the father of the child is if
she had multiple partners. Also, there are instances wherein a woman whose
marriage has turned sour will declare such in order to hurt the pride of her husband.
 Presumptions:
1. Validity of the marriage
2. That the child is of the mother's (factual)
3. That the child is that of the husband
4. That the child was conceived during the marriage
 Nos. 3 and 4 are hard to prove that's why presumptions come in.

Art. 168. If the marriage is terminated and the mother contracted

another marriage within three hundred days after such termination of the
former marriage, these rules shall govern in the absence of proof to the
contrary:
(1) A child born before one hundred eighty days after the solemnization of
the subsequent marriage is considered to have been conceived during
the former marriage, provided it be born within three hundred days
after the termination of the former marriage;
(2) A child born after one hundred eighty days following the celebration of
the subsequent marriage is considered to have been conceived during
such marriage, even though it be born within the three hundred days
after the termination of the former marriage.

180 days after 300 days after

Termination of 1st Celebration of celebration of 2nd termination of 1st
marriage 2nd marriage marriage marriage

Child of the 1st Child of the 2nd

marriage marriage
 For the child to be considered the child of the 1 st husband, the following requisites
must concur:
1. The mother must have married again within 300 days from the termination of her
first marriage
2. The child was born within the same 300 days after the termination of the former
marriage of its mother
3. The child was born before 180 days after the solemnization of its mother's 2 nd
marriage
 For the child to be considered the child of the 2 nd husband, the following requisites
must concur:
1. The mother must have married again within 300 days from the termination of the
marriage
2. The child was born within the same 300 days after the termination of its mother's
first marriage
4. The child was born after 180 days following the solemnization of its mother's
second marriage
 The first marriage must be terminated either by death or annulment. Can the
marriage refer to a marriage under Article 42? No, since the terms of this Article
provide that the first marriage is terminated. Under Article 42, it is the 2 nd marriage
which is terminated.

Art. 170. The action to impugn the legitimacy of the child shall be
brought within one year from the knowledge of the birth or its recording in the
civil register, if the husband or, in a proper case, any of his heirs, should reside
in the city or municipality where the birth took place or was recorded.
If the husband or, in his default, all of his heirs do not reside at the place
of birth as defined in the first paragraph or where it was recorded, the period
shall be two years if they should reside in the Philippines; and three years if
abroad. If the birth of the child has been concealed from or was unknown to the
husband or his heirs, the period shall be counted from the discovery or
knowledge of the birth of the child or of the fact of registration of said birth,
whichever is earlier.

Art. 171. The heirs of the husband may impugn the filiation of the child
within the period prescribed in the preceding article only in the following cases:
(1) If the husband should died before the expiration of the period fixed for
bringing his action;
(2) If he should die after the filing of the complaint without having desisted
therefrom; or
(3) If the child was born after the death of the husband.

 General Rule: Only the husband can impugn the legitimacy of the child.
 Exception: The heirs of the husband in the following cases
1. If the husband should die before the expiration of the period fixed for bringing his
action
2. If he should die after the filing of the complaint without having desisted therefrom
or
3. If the child was born after the death of the husband.
 The husband or the heirs has the following years to impugn the legitimacy of the
child:
1. 1 year from knowledge of the birth or its recording in the civil register, if the
husband or in a proper case, any of his heirs, should reside in the city or
municipality where the birth took place or recorded.
2. 2 years from knowledge of the birth or its recording in the civil register, if the
husband or in a proper case, any of his heirs, DO NOT reside in the city or
municipality where the birth took place or recorded.
3. 3 years from knowledge of the birth or its recording in the civil register, if the
husband or in a proper case, any of his heirs, live abroad
NOTE: If the birth of the child has been concealed or was unknown to the husband or
his heirs, the period shall be counted from the discovery or knowledge of the birth of
the child or of the fact of the registration of the birth, whichever is earlier.

1. Proof of Filiation

Art. 172. The filiation of legitimate children is established by any

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

 Proof of filiation of a legitimate child is very liberal:

1. Record of birth
2. Final judgment
3. Admission in a public document
4. Admission in a private handwritten instrument and signed by the said
parents
5. Open and continuous possession of the status of a legitimate child
6. Any other means allowed by the Rules of Court (i.e. baptismal certificate,
family bibles, common reputation respecting pedigree, testimony of
witnesses, etc.)
 Proof of filiation is very liberal because the law favors legitimacy. It is better
to treat an illegitimate child as legitimate then to commit an error and treat a
legitimate child as an illegitimate.

Art. 173. The action to claim legitimacy may be brought by the

child during his or her lifetime and shall be transmitted to the heirs
should the child die during minority or in a state of insanity. In these
cases, the heirs shall have a period of five years within which to institute
the action.

 The right of the child to bring an action to claim legitimacy does not prescribe
as long as he lives.
 The child may bring such action even after the lifetime of his parents.
  The right to file an action to claim legitimacy may be transmitted by the child
to the heirs should the child die during minority or die in a state of insanity or
die during the pendency of the case. If the right is transmitted by the child to
the heirs, then the heirs will have 5 years to bring the action.

2. Illegitimate Children

 The rules in the Family Code were meant to liberalize the rules of the NCC on
illegitimacy. In the NCC, recognition was necessary in order to afford rights to
the illegitimate child. Under the Family Code, there is no need for recognition.
Now, proof of illegitimacy is sufficient.
 The rule now is that the manner in which children may prove their legitimacy
is also the same manner in which illegitimate children may prove their filiation
(Article 175).
 The child may prove his illegitimate filiation by bringing an action to claim
illegitimate filiation. The child has until his lifetime to file such action unless
the action is based on the open and continuous possession by the child of the
status of an illegitimate child, or on other evidence allowed by the Rules of
Court. If the action is based on the open and continuous possession by the
child of the status of an illegitimate child, or on other evidence allowed by the
Rules of Court, then the action must be brought within the lifetime of the
alleged parent.

Art. 176. Illegitimate children shall use the surname and shall be
under the parental authority of their mother, and shall be entitled to
support in conformity with this Code. The legitime of each illegitimate
child shall consist of one-half of the legitime of a legitimate child. Except
for this modification, all other provisions in the Civil Code governing
successional rights shall remain in force.

 The rights of illegitimate children are not the same as the rights of a legitimate
child.
 An illegitimate child shall use the surname of the mother. Even if a couple,
wherein the man and the woman are capacitated to marry each other but are
not married, agree that the child shall use surname of the man, this is not
allowed. All illegitimate children shall use the mother’s surname.
 Parental authority resides in the mother alone.
 The illegitimate child has the right of support. The order of preference for
legitimate and illegitimate children are not the same however.
 An illegitimate child is entitled to only ½ he share of a legitimate child.

3. Legitimation

Art. 177. Only children conceived and born outside of wedlock of

parents who, at the time of the conception of the former, were not
disqualified by any impediment to marry each other may be legitimated.

Art. 178. Legitimation shall take place by a subsequent valid

marriage between parents. The annulment of a voidable marriage shall
not affect the legitimation.
  Requisites of Legitimation:
1. The child is illegitimate (Article 177).
2. The parents at the time of the child’s conception are not disqualified from
marrying each other (Article 177).
 If the parents of the child are 16 and 15 years old at the latter’s
conception, the child may not be legitimated.
3. There is a valid marriage subsequent to the child’s birth (Article 178)
 If the marriage occurs before the child’s birth, then the child is
legitimate (Article 164).
 What if the marriage which takes place after the child’s birth is a
voidable marriage? The child would still be legitimated. A voidable
marriage is still a valid one until it is declared void.

Art. 179. Legitimated children shall enjoy the same rights as

legitimate children.

Art. 180. The effects of legitimation shall retroact to the time of

the child's birth.

Art. 181. The legitimation of children who died before the

celebration of the marriage shall benefit their descendants.

Art. 182. Legitimation may be impugned only by those who are

prejudiced in their rights, within five years from the time their cause of
action accrues.

4. Domestic Adoption Act (Republic Act No. 8552)

 The following are the important provisions:

a. §7 (which superseded Articles 183-186 of the Family Code)

SECTION 7. Who May Adopt. — The following may adopt:

(a) Any Filipino citizen of legal age, in possession of full civil capacity and
legal rights, of good moral character, has not been convicted of any
crime involving moral turpitude, emotionally and psychologically
capable of caring for children, at least sixteen (16) years older than the
adoptee, and who is in a position to support and care for his/her
children in keeping with the means of the family. The requirement of
sixteen (16) year difference between the age of the adopter and adoptee
may be waived when the adopter is the biological parent of the adoptee,
or is the spouse of the adoptee's parent;
(b) Any alien possessing the same qualifications as above stated for
Filipino nationals: Provided, That his/her country has diplomatic
relations with the Republic of the Philippines, that he/she has been
living in the Philippines for at least three (3) continuous years prior to
the filing of the application for adoption and maintains such residence
until the adoption decree is entered, that he/she has been certified by


Art. 164, ¶1. Children conceived or born during the marriage of the parents are legitimate.
 his/her diplomatic or consular office or any appropriate government
agency that he/she has the legal capacity to adopt in his/her country,
and that his/her government allows the adoptee to enter his/her country
as his/her adopted son/daughter: Provided, Further, That the
requirements on residency and certification of the alien's qualification to
adopt in his/her country may be waived for the following:
(i) a former Filipino citizen who seeks to adopt a relative within the
fourth (4th) degree of consanguinity or affinity; or
(ii) one who seeks to adopt the legitimate son/daughter of his/her
Filipino spouse; or
(iii) one who is married to a Filipino citizen and seeks to adopt jointly
with his/her spouse a relative within the fourth (4th) degree of
consanguinity or affinity of the Filipino spouse; or
(c) The guardian with respect to the ward after the termination of the
guardianship and clearance of his/her financial accountabilities.
Husband and wife shall jointly adopt, except in the following cases:
(i) if one spouse seeks to adopt the legitimate son/daughter of the other; or
(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter:
Provided, However, that the other spouse has signified his/her consent
thereto; or
(iii) if the spouses are legally separated from each other.
In case husband and wife jointly adopt, or one spouse adopts the
illegitimate son/daughter of the other, joint parental authority shall be exercised
by the spouses.

b. §8 (which superseded Article 187 of the Family Code)

SECTION 8. Who May Be Adopted. — The following may be adopted:

(a) Any person below eighteen (18) years of age who has been
administratively or judicially declared available for adoption;
(b) The legitimate son/daughter of one spouse by the other spouse;
(c) An illegitimate son/daughter by a qualified adopter to improve his/her
status to that of legitimacy;
(d) A person of legal age if, prior to the adoption, said person has been
consistently considered and treated by the adopter(s) as his/her own
child since minority;
(e) A child whose adoption has been previously rescinded; or
A child whose biological or adoptive parent(s) has died: Provided, That
no proceedings shall be initiated within six (6) months from the time of death of
said parent(s).

c. §9 (which superseded Article 188 of the Family Code)

SECTION 9. Whose Consent is Necessary to the Adoption. — After being

properly counseled and informed of his/her right to give or withhold his/her
approval of the adoption, the written consent of the following to the adoption is
hereby required:
(a) The adoptee, if ten (10) years of age or over;
 (b) The biological parent(s) of the child, if known, or the legal guardian, or
the proper government instrumentality which has legal custody of the
child;
(c) The legitimate and adopted sons/daughters, ten (10) years of age or over,
of the adopter(s) and adoptee, if any;
(d) The illegitimate sons/daughters, ten (10) years of age or over, of the
adopter if living with said adopter and the latter's spouse, if any; and
(e) The spouse, if any, of the person adopting or to be adopted.

d. §§16-18 (which superseded Art. 189 and 190 of the Family Code)

SECTION 16. Parental Authority. — Except in cases where the biological

parent is the spouse of the adopter, all legal ties between the biological
parent(s) and the adoptee shall be severed and the same shall then be vested
on the adopter(s).

SECTION 17. Legitimacy. — The adoptee shall be considered the

legitimate son/daughter of the adopter(s) for all intents and purposes and as
such is entitled to all the rights and obligations provided by law to legitimate
sons/daughters born to them without discrimination of any kind. To this end,
the adoptee is entitled to love, guidance, and support in keeping with the means
of the family.

SECTION 18. Succession. — In legal and intestate succession, the

adopter(s) and the adoptee shall have reciprocal rights of succession without
distinction from legitimate filiation. However, if the adoptee and his/her
biological parent(s) had left a will, the law on testamentary succession shall
govern.

e. §19 (which superseded Art. 191 and 192 of the Family Code)

SECTION 19. Grounds for Rescission of Adoption. — Upon petition of

the adoptee, with the assistance of the Department if a minor or if over eighteen
(18) years of age but is incapacitated, as guardian/counsel, the adoption may be
rescinded on any of the following grounds committed by the adopter(s): (a)
repeated physical and verbal maltreatment by the adopter(s) despite having
undergone counseling; (b) attempt on the life of the adoptee; (c) sexual assault
or violence; or (d) abandonment and failure to comply with parental obligations.
Adoption, being in the best interest of the child, shall not be subject to
rescission by the adopter(s). However, the adopter(s) may disinherit the
adoptee for causes provided in Article 919 of the Civil Code.

f. §20 (which superseded Art. 193 of the Family Code)

SECTION 20. Effects of Rescission. — If the petition is granted, the

parental authority of the adoptee's biological parent(s), if known, or the legal
custody of the Department shall be restored if the adoptee is still a minor or
incapacitated. The reciprocal rights and obligations of the adopter(s) and the
adoptee to each other shall be extinguished.
The court shall order the Civil Registrar to cancel the amended
certificate of birth of the adoptee and restore his/her original birth certificate.
 Succession rights shall revert to its status prior to adoption, but only as
of the date of judgment of judicial rescission. Vested rights acquired prior to
judicial rescission shall be respected.
All the foregoing effects of rescission of adoption shall be without
prejudice to the penalties imposable under the Penal Code if the criminal acts
are properly proven.

 Can an adopted child continue to be an heir of his biological parents? Under

Article 189 of the Family Code, the adopted child was still an heir of his blood
relatives. However, Article 189 of the Family Code was superseded by §§16-
18 of R.A. No. 8552. R.A. No. 8552 is silent on this point. According to
Professor Balane, one cannot use §16 as the basis for saying that the adopted
child cannot inherit from his biological parents. §16 only talks about parental
authority. There is no reference to succession.

XV. Support
Art. 194. Support compromises everything indispensable for sustenance,
dwelling, clothing, medical attendance, education and transportation, in
keeping with the financial capacity of the family.
The education of the person entitled to be supported referred to in the
preceding paragraph shall include his schooling or training for some profession,
trade or vocation, even beyond the age of majority. Transportation shall include
expenses in going to and from school, or to and from place of work.

 Support comprises everything indispensable for sustenance, dwelling, clothing,

medical attendance, education, and transportation, in keeping with the financial
capacity of the family.
 3 Kinds of Support
1. Legal – that which is required to be given by law

2. Judicial – that which is required to be given by court order whether pendente lite
or in a final judgment
3. Voluntary or Conventional – by agreement
 An example of conventional support is as follow. X donates land to Y.
However X imposes a mode – Y has to support X’s mother.
 Characteristics of Support
1. Personal
2. Intransmissible
3. Not subject to waiver or compensation with regard to future support
 Support in arrears can be waived.
4. Exempt from attachment or execution (Article 205)
5. Reciprocal on the part of those who are by law bound to support each other
(Article 195)
6. Variable (Articles 201 and 202)

Art. 195. Subject to the provisions of the succeeding articles, the

following are obliged to support each other to the whole extent set forth in the
preceding article:
(1) The spouses;
(2) Legitimate ascendants and descendants;
(3) Parents and their legitimate children and the legitimate and illegitimate
children of the latter;
(4) Parents and their illegitimate children and the legitimate and
illegitimate children of the latter; and
(5) Legitimate brothers and sisters, whether of full or half-blood

Art. 196. Brothers and sisters not legitimately related, whether of the full
or half-blood, are likewise bound to support each other to the full extent set
forth in Article 194, except only when the need for support of the brother or
sister, being of age, is due to a cause imputable to the claimant's fault or
negligence.

 Illegitimate siblings, whether of full or half blood, are bound to support each other.
However, they need not give support to an illegitimate, emancipated sibling whose
need for support is imputable to his fault or negligence.

Art. 199. Whenever two or more persons are obliged to give support, the
liability shall devolve upon the following persons in the order herein provided:
(1) The spouse;
(2) The descendants in the nearest degree;
(3) The ascendants in the nearest degree; and
(4) The brothers and sisters.

 Article 199 is important because it establishes the order of preference for the givers
of support. When a relative needs support, there are many relatives one can go

Art. 205. The right to receive support under this Title as well as any money or property obtained
as such support shall not be levied upon on attachment or execution.

Art. 201. The amount of support, in the cases referred to in Articles 195 and 196, shall be in
proportion to the resources or means of the giver and to the necessities of the recipient.
Art. 202. Support in the cases referred to in the preceding article shall be reduced or
increased proportionately, according to the reduction or increase of the necessities of the recipient
and the resources or means of the person obliged to furnish the same.
 after. That relative in need cannot choose but must follow the order established in
this Article 199.
 If a parent needs support from his children, that parent may chose any of the
children. All of the children are solidarily liable.

Art. 200. When the obligation to give support falls upon two or more
persons, the payment of the same shall be divided between them in proportion
to the resources of each.
However, in case of urgent need and by special circumstances, the judge
may order only one of them to furnish the support provisionally, without
prejudice to his right to claim from the other obligors the share due from them.
When two or more recipients at the same time claim support from one
and the same person legally obliged to give it, should the latter not have
sufficient means to satisfy all claims, the order established in the preceding
article shall be followed, unless the concurrent obligees should be the spouse
and a child subject to parental authority, in which case the child shall be
preferred.

 Article 200 establishes the order of preference for recipients. When several relatives
come to a particular relative for support, the relative who will give support must
follow Article 200.
 If the relative who will give support has enough, he must give all those enumerated
in Article 199. If the relative does not have enough, then the hierarchy enumerated
in Article 199 must be followed.
 An minor who is an illegitimate child asks support from his father. This illegitimate
child will not be preferred over the spouse of the father. Those who will be preferred
over the spouse of the father are those children who are subject to the father’s
parental authority. In this case, since the child is illegitimate, the father has no
parental authority. The illegitimate child will be behind legitimate children and the
spouse of his parent. Illegitimate children are in Article 199 (2) since there is no
distinction between legitimate and illegitimate.

Art. 201. The amount of support, in the cases referred to in Articles 195
and 196, shall be in proportion to the resources or means of the giver and to
the necessities of the recipient.

Art. 202. Support in the cases referred to in the preceding article shall be
reduced or increased proportionately, according to the reduction or increase of
the necessities of the recipient and the resources or means of the person
obliged to furnish the same.

 Support shall always be in proportion to the means of the giver and the necessities of
the recipient.
 There is no res judicata as to the amount of support to be given since support is
variable.

Art. 203. The obligation to give support shall be demandable from the
time the person who has a right to receive the same needs it for maintenance,
but it shall not be paid except from the date of judicial or extrajudicial demand.
 Support pendente lite may be claimed in accordance with the Rules of
Court.
Payment shall be made within the first five days of each corresponding
month or when the recipient dies, his heirs shall not be obliged to return what
he has received in advance.

 Support is demandable from the time the person who has the right to receive it needs
it. However, it is payable only from judicial or extrajudicial demand.
 On April 1, X needed support from his father. Since X is too proud, X doesn’t ask.
On July 1, X goes to his father and asks him for support. The father refuses. On
Sept. 1, X files an action for support. On Oct. 1, the court renders judgment in favor
of X. When is the father obliged to give support? July 1 since there was extrajudicial
demand.

Art. 204. The person obliged to give support shall have the option to
fulfill the obligation either by paying the allowance fixed, or by receiving and
maintaining in the family dwelling the person who has a right to receive
support. The latter alternative cannot be availed of in case there is a moral or
legal obstacle thereto.

 The person obliged to render support may fulfill his obligation in 2 ways at his option:
1. Paying the amount fixed or
2. Receiving and maintaining in the family dwelling the person who has a right to
receive support
 This 2nd option cannot be availed of when there is a moral or legal obstacle.
For example, a husband in supporting his wife, cannot choose the 2nd option if
he had been maltreating her (Goitia vs. Campos Rueda).

Art. 205. The right to receive support under this Title as well as any
money or property obtained as such support shall not be levied upon on
attachment or execution.

Art. 206. When, without the knowledge of the person obliged to give
support, it is given by a stranger, the latter shall have a right to claim the same
from the former, unless it appears that he gave it without intention of being
reimbursed.

Art. 207. When the person obliged to support another unjustly refuses or
fails to give support when urgently needed by the latter, any third person may
furnish support to the needy individual, with right of reimbursement from the
person obliged to give support. This Article shall particularly apply when the
father or mother of a child under the age of majority unjustly refuses to support
or fails to give support to the child when urgently needed.

Art. 208. In case of contractual support or that given by will, the excess
in amount beyond that required for legal support shall be subject to levy on
attachment or execution.
Furthermore, contractual support shall be subject to adjustment
whenever modification is necessary due to changes of circumstances manifestly
beyond the contemplation of the parties.
XVI. Parental Authority
 Parental authority comes from patria potestas which means the father’s power. The
woman was always dependent on a male figure whether it be her husband, her father
or her son.
 In Roman Law, patria potestas extended even to life and death. This power was
granted to the father in order to keep his family in check. Now, the present concept
of parental authority is no longer focused on the power aspect. Rather, the focus of
parental authority is the obligational aspect. Parental authority is given to the
parents over their children in order for the children to be reared properly. The focus
is on the child and the child’s welfare.

Art. 209. Pursuant to the natural right and duty of parents over the
person and property of their unemancipated children, parental authority and
responsibility shall include the caring for and rearing them for civic
consciousness and efficiency and the development of their moral, mental and
physical character and well-being.

 Parental authority terminates at the age of 18. This extends to both parental
authority over the person and the property of the child.

Art. 210. Parental authority and responsibility may not be renounced or

transferred except in the cases authorized by law.

Art. 211. The father and the mother shall jointly exercise parental
authority over the persons of their common children. In case of disagreement,
the father's decision shall prevail, unless there is a judicial order to the
contrary.
Children shall always observe respect and reverence towards their
parents and are obliged to obey them as long as the children are under parental
authority.

 Parental authority is joint. In case of disagreement, the husband’s decision prevails.

However, the wife can go to court.
 For illegitimate children, parental authority is not joint. It is with the mother

Art. 212. In case of absence or death of either parent, the parent present
shall continue exercising parental authority. The remarriage of the surviving
parent shall not affect the parental authority over the children, unless the court
appoints another person to be the guardian of the person or property of the
children.

Art. 213. 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.

 The 2nd paragraph of Article 213 provides that no child under 7 years of age shall be
separated from the mother, unless the court finds compelling reasons to order
otherwise.
 In earlier cases, the mother was almost always the custodian of a child who is below
7 years. There is a trend of liberalizing this. Courts will always look at the best
interest of the child as the criterion.

Art. 214. In case of death, absence or unsuitability of the parents,

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

Art. 215. No descendant shall be compelled, in a criminal case, to testify

against his parents and grandparents, except when such testimony is
indispensable in a crime against the descendant or by one parent against the
other.

 Article 215 applies only in criminal cases and NOT in a civil case.
 General Rule: A descendant cannot be compelled in a criminal case to testify against
his parents and grandparents.
 Exception: A descendant can be compelled if such testimony is indispensable in a
crime against a descendant or by one parent against the other.
NOTE: The criminal case need not be filed by the descendant or the parent. It may
be filed by a 3rd person. Also, this rule applies only to compulsory testimony. It does
not apply to voluntary testimony. Thus, the descendant can volunteer if he wants to.

Art. 216. In default of parents or a judicially appointed guardian, the

following person shall exercise substitute parental authority over the child in
the order indicated:
(1) The surviving grandparent, as provided in Art. 214;
(2) The oldest brother or sister, over twenty-one years of age, unless unfit
or disqualified; and
(3) The child's actual custodian, over twenty-one years of age, unless unfit
or disqualified.
Whenever the appointment or a judicial guardian over the property of the
child becomes necessary, the same order of preference shall be observed.

 In default of the parents or a judicial guardian, substitute parental authority over the
child shall be exercised in the order indicated:
1. The surviving grandparent
 If there are several grandparents, then the guardian shall be the one
designated by the court pursuant to Articles 213 and 214
2. The oldest brother or sister, over 21 years old, unless unfit or disqualified
3. The child’s actual custodian, over 21 years old, unless unfit or disqualified
 This custodian need not be a relative of the child, but he or she must have
actual custody.

Art. 217. In case of foundlings, abandoned neglected or abused children

and other children similarly situated, parental authority shall be entrusted in
summary judicial proceedings to heads of children's homes, orphanages and
similar institutions duly accredited by the proper government agency.
 Art. 218. The school, its administrators and teachers, or the individual,
entity or institution engaged in child are shall have special parental authority
and responsibility over the minor child while under their supervision,
instruction or custody.
Authority and responsibility shall apply to all authorized activities
whether inside or outside the premises of the school, entity or institution.

Art. 219. Those given the authority and responsibility under the
preceding Article shall be principally and solidarily liable for damages caused by
the acts or omissions of the unemancipated minor. The parents, judicial
guardians or the persons exercising substitute parental authority over said
minor shall be subsidiarily liable.
The respective liabilities of those referred to in the preceding paragraph
shall not apply if it is proved that they exercised the proper diligence required
under the particular circumstances.
All other cases not covered by this and the preceding articles shall be
governed by the provisions of the Civil Code on quasi-delicts.

 Articles 218 and 219 apply ONLY to minors since the schools merely take the place of
the parents.
 Rules:
1. Articles 218 and 219 are not limited to schools of arts and trade, but are
applicable to all schools.
2. Authority and responsibility apply to activities inside and outside provided the
activity is an authorized one (i.e., field trip)
3. The liability of the school administrators and the teacher is solidary and primary.
4. The liability of the parents or the guardian is subsidiary.
5. Negligence of the school administrators and the teacher is presumed. The burden
in on the school administrator and the teacher to prove diligence under Article
219.
6. The scope of the liability extends only to damage caused by the child in the course
of an authorized school activity.
 Rules Regarding Liability for Injuries Caused by Students
1. If the student who caused the injury is below 18, Articles 218 - 219 apply.
2. If the student who caused the injury is above 18, Articles 218 - 219 do NOT apply.
Article 2180 is applicable.
 Article 2180 is applicable to both academic and non-academic institutions.


Art. 2180. The obligation imposed by article 2176 is demandable not only for one's own acts or
omissions, but also for those of persons for whom one is responsible.
The father and, in case of his death or incapacity, the mother, are responsible for the
damages caused by the minor children who live in their company.
Guardians are liable for damages caused by the minors or incapacitated persons who are
under their authority and live in their company.
The owners and managers of an establishment or enterprise are likewise responsible for
damages caused by their employees in the service of the branches in which the latter are employed
or on the occasion of their functions.
 1. Academic institutions – the liability attaches to the teacher
2. Non-academic institutions – the liability attaches to the head of the establishment
(Amadora vs. CA)
 If a student is injured and the persons who caused the injury were not students, Arts.
218, 219 of the Family Code and Art. 2180 of the Civil Code are not applicable. The
school is liable in such a case based on the contract between the student and the
school. The school is supposed to provide the student adequate protection (PSBA vs.
CA).

1. Effect of Parental Authority Upon the Persons of the Children

Art. 220. The parents and those exercising parental authority shall
have with the respect to their unemancipated children on wards the
following rights and duties:
(1) To keep them in their company, to support, educate and instruct
them by right precept and good example, and to provide for their
upbringing in keeping with their means;
(2) To give them love and affection, advice and counsel,
companionship and understanding;
(3) To provide them with moral and spiritual guidance, inculcate in
them honesty, integrity, self-discipline, self-reliance, industry and
thrift, stimulate their interest in civic affairs, and inspire in them
compliance with the duties of citizenship;
(4) To furnish them with good and wholesome educational materials,
supervise their activities, recreation and association with others,
protect them from bad company, and prevent them from
acquiring habits detrimental to their health, studies and morals;
(5) To represent them in all matters affecting their interests;
(6) To demand from them respect and obedience;
(7) To impose discipline on them as may be required under the
circumstances; and
(8) To perform such other duties as are imposed by law upon parents
and guardians.

Art. 221. Parents and other persons exercising parental authority

shall be civilly liable for the injuries and damages caused by the acts or
omissions of their unemancipated children living in their company and
under their parental authority subject to the appropriate defenses
provided by law.

Employers shall be liable for the damages caused by their employees and household
helpers acting within the scope of their assigned tasks, even though the former are not engaged in
any business or industry.
The State is responsible in like manner when it acts through a special agent; but not when
the damage has been caused by the official to whom the task done properly pertains, in which case
what is provided in article 2176 shall be applicable.
Lastly, teachers or heads of establishments of arts and trades shall be liable for damages
caused by their pupils and students or apprentices, so long as they remain in their custody.
The responsibility treated of in this article shall cease when the persons herein mentioned
prove that they observed all the diligence of a good father of a family to prevent damage.
 Art. 222. The courts may appoint a guardian of the child's property
or a guardian ad litem when the best interests of the child so requires.

Art. 223. The parents or, in their absence or incapacity, the

individual, entity or institution exercising parental authority, may petition
the proper court of the place where the child resides, for an order
providing for disciplinary measures over the child. The child shall be
entitled to the assistance of counsel, either of his choice or appointed by
the court, and a summary hearing shall be conducted wherein the
petitioner and the child shall be heard.
However, if in the same proceeding the court finds the petitioner at
fault, irrespective of the merits of the petition, or when the circumstances
so warrant, the court may also order the deprivation or suspension of
parental authority or adopt such other measures as it may deem just and
proper.

Art. 224. The measures referred to in the preceding article may

include the commitment of the child for not more than thirty days in
entities or institutions engaged in child care or in children's homes duly
accredited by the proper government agency.
The parent exercising parental authority shall not interfere with
the care of the child whenever committed but shall provide for his
support. Upon proper petition or at its own instance, the court may
terminate the commitment of the child whenever just and proper.

2. Effect of Parental Authority Upon the Property of the Children

Art. 225. The father and the mother shall jointly exercise legal
guardianship over the property of the unemancipated common child
without the necessity of a court appointment. In case of disagreement,
the father's decision shall prevail, unless there is a judicial order to the
contrary.
Where the market value of the property or the annual income of
the child exceeds P50,000, the parent concerned shall be required to
furnish a bond in such amount as the court may determine, but not less
than ten per centum (10%) of the value of the property or annual
income, to guarantee the performance of the obligations prescribed for
general guardians.
A verified petition for approval of the bond shall be filed in the
proper court of the place where the child resides, or, if the child resides in
a foreign country, in the proper court of the place where the property or
any part thereof is situated.
The petition shall be docketed as a summary special proceeding in
which all incidents and issues regarding the performance of the
obligations referred to in the second paragraph of this Article shall be
heard and resolved.
The ordinary rules on guardianship shall be merely suppletory
except when the child is under substitute parental authority, or the
guardian is a stranger, or a parent has remarried, in which case the
ordinary rules on guardianship shall apply.
 Art. 226. The property of the unemancipated child earned or
acquired with his work or industry or by onerous or gratuitous title shall
belong to the child in ownership and shall be devoted exclusively to the
latter's support and education, unless the title or transfer provides
otherwise.
The right of the parents over the fruits and income of the child's
property shall be limited primarily to the child's support and secondarily
to the collective daily needs of the family.

Art. 227. If the parents entrust the management or administration

of any of their properties to an unemancipated child, the net proceeds of
such property shall belong to the owner. The child shall be given a
reasonable monthly allowance in an amount not less than that which the
owner would have paid if the administrator were a stranger, unless the
owner, grants the entire proceeds to the child. In any case, the proceeds
thus give in whole or in part shall not be charged to the child's legitime.

 Parents may exercise parental authority over their child’s property.

 2 Kinds of Properties of Minors
1. Adventitious (Article 226)
 Adventitious property is earned or acquired by the child through his
work or industry or by onerous or gratuitous title.
 The child owns this property.
 The child is also is the usufructuary as the child enjoys the fruits unless
the mode of transfer provides otherwise. The fruits and income of
adventitious property must be applied primarily for the child’s support
and secondarily for the family’s collective needs (Article 226, ¶2).
 The property is administered by the parents since the child has no
capacity to act.
2. Profectitious (Article 227)
 Profectitious property is owned by the parents. However, this property
is given to the child for him to administer. For example, the parents
may own a farm. Their child is 17 years old. To teach him industry, the
parents tell the child to harvest and take care of the farm.
 The parents own this type of property.
 The parents are the usufructuary. However, the child is entitled to a
monthly allowance which should be not less than what the owner of the
property would have paid an administrator. The parents may give the
entire proceeds of the property to the child.
 The property is administered by the child.

C. Suspension or Termination of Parental Authority

Art. 228. Parental authority terminates permanently:

(1) Upon the death of the parents;
(2) Upon the death of the child; or
 (3) Upon emancipation of the child.

Art. 229. Unless subsequently revived by a final judgment,

parental authority also terminates:
(1) Upon adoption of the child;
(2) Upon appointment of a general guardian;
(3) Upon judicial declaration of abandonment of the child in a case
filed for the purpose;
(4) Upon final judgment of a competent court divesting the party
concerned of parental authority; or
(5) Upon judicial declaration of absence or incapacity of the person
exercising parental authority.

Art. 230. Parental authority is suspended upon conviction of the

parent or the person exercising the same of a crime which carries with it
the penalty of civil interdiction. The authority is automatically reinstated
upon service of the penalty or upon pardon or amnesty of the offender.

Art. 231. The court in an action filed for the purpose in a related
case may also suspend parental authority if the parent or the person
exercising the same:
(1) Treats the child with excessive harshness or cruelty;
(2) Gives the child corrupting orders, counsel or example;
(3) Compels the child to beg; or
(4) Subjects the child or allows him to be subjected to acts of
lasciviousness.
The grounds enumerated above are deemed to include cases which
have resulted from culpable negligence of the parent or the person
exercising parental authority.
If the degree of seriousness so warrants, or the welfare of the child
so demands, the court shall deprive the guilty party of parental authority
or adopt such other measures as may be proper under the circumstances.
The suspension or deprivation may be revoked and the parental
authority revived in a case filed for the purpose or in the same
proceeding if the court finds that the cause therefor has ceased and will
not be repeated.

Art. 232. If the person exercising parental authority has subjected

the child or allowed him to be subjected to sexual abuse, such person
shall be permanently deprived by the court of such authority.

Art. 233. The person exercising substitute parental authority shall

have the same authority over the person of the child as the parents.
In no case shall the school administrator, teacher of individual
engaged in child care exercising special parental authority inflict corporal
punishment upon the child.

 Kinds of Termination and Suspension

 1. Irreversible Termination
a. Death of the parents (Article 228 (1))
 Parental authority is terminated as far as the dead parent is
concerned.
b. Death of the child (Article 228 (2))
c. Emancipation (Article 228 (3))
 This is the most common.
d. Court order under Article 232
 If the parent or parents exercising parental authority have
subjected the child or allowed him or her to be subjected to sexual
abuse, the parent or parents shall be deprived permanently by the
court of such parental authority.
2. Reversible Termination (the termination may or may not be permanent)
a. Upon adoption
 It is reversible because there is a possibility that the adoption may
be rescinded.
b. Upon appointment of a guardian
 Guardianship may be lifted if such is no longer necessary
c. Judicial declaration of abandonment
d. Final judgment of a competent court under Article 231
 The grounds are:
i. Treats the child with excessive harshness or cruelty;
ii. Gives the child corrupting orders, counsel or example;
iii. Compels the child to beg; or
iv. Subjects the child or allows him or her to be subjected to acts of
lasciviousness
e. Judicial declaration of absence or incapacity of the person
3. Suspension of Parental Authority
a. Parent is convicted of a crime which carries with it the accessory
penalty of civil interdiction
b. Court order under Article 231
 The grounds are:
i. Treats the child with excessive harshness or cruelty;
ii. Gives the child corrupting orders, counsel or example;
iii. Compels the child to beg; or
iv. Subjects the child or allows him or her to be subjected to acts of
lasciviousness
NOTE: Under Article 231, parental authority may be suspended or
terminated depending on the seriousness of the ground.

XVII. Miscellaneous Provisions

 Art. 356. Every child:
(1) Is entitled to parental care;
(2) Shall receive at least elementary education;
(3) Shall be given moral and civic training by the parents or guardian;
(4) Has a right to live in an atmosphere conducive to his physical, moral
and intellectual development.

Art. 357. Every child shall:

(1) Obey and honor his parents or guardian;
(2) Respect his grandparents, old relatives, and persons holding substitute
parental authority;
(3) Exert his utmost for his education and training;
(4) Cooperate with the family in all matters that make for the good of the
same.

Art. 358. Every parent and every person holding substitute parental
authority shall see to it that the rights of the child are respected and his duties
complied with, and shall particularly, by precept and example, imbue the child
with highmindedness, love of country, veneration for the national heroes,
fidelity to democracy as a way of life, and attachment to the ideal of permanent
world peace.

Art. 359. The government promotes the full growth of the faculties of
every child. For this purpose, the government will establish, whenever possible:
(1) Schools in every barrio, municipality and city where optional religious
instruction shall be taught as part of the curriculum at the option of the
parent or guardian;
(2) Puericulture and similar centers;
(3) Councils for the Protection of Children; and
(4) Juvenile courts.

Art. 360. The Council for the Protection of Children shall look after the
welfare of children in the municipality. It shall, among other functions:
(1) Foster the education of every child in the municipality;
(2) Encourage the cultivation of the duties of parents;
(3) Protect and assist abandoned or mistreated children, and orphans;
(4) Take steps to prevent juvenile delinquency;
(5) Adopt measures for the health of children;
(6) Promote the opening and maintenance of playgrounds;
(7) Coordinate the activities of organizations devoted to the welfare of
children, and secure their cooperation.

Art. 361. Juvenile courts will be established, as far as practicable, in

every chartered city or large municipality.
 Art. 362. Whenever a child is found delinquent by any court, the father,
mother, or guardian may in a proper case be judicially admonished.

Art. 363. In all questions on the care, custody, education and property of
children the latter's welfare shall be paramount. No mother shall be separated
from her child under seven years of age, unless the court finds compelling
reasons for such measure.

 Articles 356 to 363 of the Civil Code have not been repealed by the Family Code.
Most though are dead letter law.
 Article 363 is an important since this article deals with the best interest of the child.
 The second sentence of Article 363 is found in the second paragraph of Article 213  of
the Family Code.
 The first sentence of Article 363 is still good law.

XVIII. Summary Judicial Proceedings (Articles 238-252)

Art. 238. 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.

Art. 239. 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.
Art. 240. Claims for damages by either spouse, except costs of the
proceedings, may be litigated only in a separate action.

Art. 241. 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 equivalent sitting in the place
where either of the spouses resides.

Art. 242. 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.


Art. 213, ¶2. 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.
 Art. 243. 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.

Art. 244. 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.

Art. 245. 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.

Art. 246. 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.

Art. 247. The judgment of the court shall be immediately final and
executory.

Art. 248. 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.

Art. 249. Petitions filed under Articles 223, 225 and 235 of this Code
involving parental authority shall be verified.

Art. 250. Such petitions shall be verified and filed in the proper court of
the place where the child resides.

Art. 251. Upon the filing of the petition, the court shall notify the parents
or, in their absence or incapacity, the individuals, entities or institutions
exercising parental authority over the child.

Art. 252. The rules in Chapter 2 hereof shall also govern summary
proceedings under this Chapter insofar as they are applicable.

 Summary judicial proceedings provided under the Family Code:

1. Declaration of presumptive death
2. Partition of spouses property
3. Disagreement in fixing domicile
4. Disagreement in the exercise of profession
5. Disagreement in the administration of community property
6. Disagreement in the administration of conjugal property
7. Parental authority over foundlings