1989 Bar Question No.

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By Valencia, Mary Clydeen L.

(1) Robert and Evelyn, both Filipinos, met in Los Angeles. They agreed to get married on 10 June
1989. On 7 June 1989, Robert flew to New York due to an urgent business matter but intended to
return to Los Angeles on 9 June 1989 in time for the wedding. The business emergency of Robert,
however, lasted longer than he expected, so he failed to return to Los Angeles as planned. In order
not to postpone the wedding, Robert successfully convinced his brother Val [who was also residing in
Los Angeles] to stand as his proxy during the wedding ceremony. Is the marriage of Robert and
Evelyn valid in the Philippines?

Answer
If the marriage was performed in accordance with the laws of California and is valid there, then the
marriage is likewise valid in the Philippines.
Alternative answer
Since the problem does not state the California law, the presumption in private international law is
that the California law is the same as the Philippine law. *EXPLANATION* Therefore, the marriage is
void.

(2) While X, an associate justice of the Court of Appeals, was vacationing in Cebu City, he was
requested to solemnize the marriage of Serge and Joan at the residence of Serge’s parents. X could
not refuse the request of both parents of the couple, because they were his relatives. On the day set
for the wedding, there were so many visitors at the residence of Serge’s parents, so X decided to
solemnize the marriage at the kiosk of the public plaza located neardby. Is the marriage of Serge and
Joan valid?

Answer
Yes. The place where a marriage is solemnized is neither among the essential nor the formal requisites
of a valid marriage.

1989 Bar Question No. 2

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 By Valencia, Mary Clydeen L.

(1) Paul, a 17-year old Filipino and a permanent resident in the United States, married Jean, a 16-
year old American in Las Vegas. The parents of both gave their consent to the marriage. The marriage
is valid in Las Vegas. Is it also valid in the Philippines?

Answer
The marriage is invalid in the Philippines. Based on the Family Code, an essential requisite of a valid
marriage is that the contracting parties must be at least 18 years of age.

Alternative answer:
The marriage is valid if it took place before the effectivity of the Family Code, because the minimum
age requirement was 16 for the male and 14 for the female under the provisions of the Civil Code.

(2) Cesar and Baby contracted marriage on 15 june 1983. A year later, baby bore a child, X. The
following year, the couple acquired a car and a residential lot in Metro manila. On 1 September 1988,
the marriage was declared void from the beginning by a competent court, because Cesar was below
16 years of age at the time of the marriage. Sometime in December 1998, Cesar met Rosa with whom
he fell in love. On 15 January 1989, Cesar married Rosa. On 1 September 1989, Rosa gave birth
prematurely to a child, Y.

Answer
If there was a liquidation of the properties of the first marriage and the presumptive legitime of X was
duly delivered, then the second marriage is valid. If there was no such compliance, then the second
marriage is void. Y is legitimate, because he was born a full year after the termination of the first
marriage and during the second marriage.

Alternative Answer
The Family Code requires the registration of the judgment of nullity, the partition of the properties,
and the delivery of legitimes to be made with the appropriate civil registry and registries of property.
Further, it provides that failure to comply with the said requirement shall render a subsequent
marriage of any of the parties null and void. If there was such recording, then the marriage is valid.
Nevertheless, Y is a legitimate child, because it was born during the marriage of Cesar and Rosa.

1989 Bar Question No. 3

By Valencia, Mary Clydeen L.

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(1) What properties are excluded from the regime of absolute community of property between
spouses?

Answer
The following shall be excluded from the community property:
- Property acquired during the marriage by gratuitous title by either spouse and the fruits as
well as the income thereof, if any, unless it was expressly provided by the donor, testator that the
property shall form part of the community property;
- Property for personal and exclusive use of either spouse; however, jewelry shall form part
of the community property; and
- Property acquired before the marriage by either spouse who has legitimate descendants by
a former marriage and the fruits as well as income thereof, if any, of such property.

(2) When should the property relations of the spouses be mandatorily governed by the regime of
complete separation of property?

Answer
Should the surviving spouse contract a subsequent marriage without complying with the requirement
that the community or conjugal property be liquidated judicially or extra-judicially within one year
from the death of the deceased spouse, a mandatory regime of complete separation of property shall
govern the property relations of the subsequent marriage.

1989 Bar Question No. 4

By Valencia, Mary Clydeen L.

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(1) Cadio and Corona contracted marriage on 1 June 1982. Few days after the marriage, Corona
discovered that Cadio was homosexual. As homosexuality was not a ground for legal separation under
the Civil Code, there was nothing that Corona could do but bear with her problem. The couple,
however, stated to live separately. With the enactment of the Family Code, Corona decided to be
legally separated from Cadio based on the new ground of homosexuality. Corona brought her action
for legal separation on 15 September 1988. Will the action prosper?

Answer
The action will prosper. The ground based on which the legal separation is sought arose only on 3
August 1988 – the effectivity of the Family Code, and the action has not prescribed yet.

(2) What is “Family Home”? When is it deemed constituted? Who are the beneficiaries thereof?

Answer
The “Family Home” is the dwelling house where the husband, the wife and their family [including
unmarried head of the family] reside and the land on which it is situated.

The “Family Home” is deemed constituted on a house and lot from the time it is occupied as a family
residence.

The beneficiaries of a Family Home” are:

- The husband and wife or an unmarried person who is the head of the family; and
- 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.

1989 Bar Question No. 5

By Valencia, Mary Clydeen L.

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(1) What are the grounds for impugning the legitimacy of a child?

Answer
The legitimacy of a child may be impugned only on the following grounds:
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.
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
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.

(2) Felix, a Filipino doctor of medicine, married Monique, an Italian nurse in 1985. It was later
discovered that Monique cannot bear a child so that the couple decided to adopt one. Can they jointly
adopt Marie, the 19-year old niece of Monique?

Answer
The joint adoption cannot be effected, since the child to be adopted is an Italian citizen. Had the child
been a relative consanguinity of the Filipino spouse, the adoption would have been valid under the
Philippine law.

1990 BAR QUESTIONS

By: Valencia, Emmanuelle Nicole

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Question 5: B and G (college students, both single and not disqualified to marry
each other) had romantic affair. G was seven months in the family way as of the
graduation of B. Right after graduation, B went home to Cebu City. Unknown to G,
B had a commitment to C (his childhood sweetheart) to marry her after getting
his college degree. Two weeks after B’s marriage in Cebu City, G gave birth to a
son, E, in Metro Manila.
After ten years of married life in Cebu, B became a widower by the
sudden death of C in a plane crash. Out of the union of B and C, two children, X
and Y, were born. Unknown to C, while on weekend trips to Manila during the last
5 years of their marriage, B invariably visited G and lived at her residence and as a
result of which, they renewed their relationship. A baby girl, F, was born to B and
G two years before the death of C. Bringing his family later to Manila, B finally
married G. Recently, G died.
What are the rights of B’s four children: X and Y of his first marriage;
and E and F, his children with G? Explain your answer.

Suggested Answer:
X and Y are the legitimate children of B and C.
They have the right to bear the surnames of their father and mother, the right to
receive support from their parents, ascendants, and each other, and they are entitled to
legitimes and other successional rights.

E is a legitimated child of B and G.

E was conceived when neither B nor G had any impediment to marry each other.
When they later wed, E became legitimated. E, therefore, has the same rights as X and Y.

F is an illegitimate child of B and G.

F was conceived when B was still married to C, and thus can not become legitimated.
As an illegitimate child, F has the right to use the surname of her mother under the Family
Code, or (if applicable), her father under the Revilla Law. She is also entitled to support
from her parents, and a legitime of ½ of the share of one legitimate child.

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 1990 BAR QUESTIONS
By: Valencia, Emmanuelle Nicole

Question 10: The marriage of H and W was annulled by the competent court.
Upon finality of the judgment of nullity, H began looking for a prospective second
mate. He fell in love with a sexy woman S who wanted to be married as soon as
possible, i.e. after a few months of courtship. As a young lawyer, you were
consulted by H.
(a) How soon can H be joined in lawful wedlock to his girlfriend S? Under
existing laws, are there certain requisites that must be complied with before he
can remarry? What advice would you give H?
(b) Suppose that children were born from the union of H and W, what would be
the status of said children? Explain your answer.
(c) If the subsequent marriage of H to S was contracted before compliance with
the statutory condition for its validity, what are the rights of the children of the
first marriage (i.e. of H and W) and the children of the subsequent marriage (of H
and S)?

Suggested Answer:
(a) H is permitted to remarry after complying with the provisions of Art. 52 of the Family
Code:
There must be a partition and distribution of the common properties of the spouses;
There must be delivery of the children’s presumptive legitimes (which must be recorded in
the registry of property).

(b) The children born of the first marriage are legitimate, for as long as they were
conceived or born before the decree of annulment has become final and executory.

(c) The children born of the first marriage are legitimate, for as long as they were
conceived or born before the decree of annulment has become final and executory.
The children born of the subsequent marriage are likewise legitimate, even though the
marriage of H to S is void for failure to comply with the requisites of Art. 52 of the Family
Code.
The rights of legitimate children are:
The right to bear the surnames of the father and mother, in conformity with the
provisions of the Civil Code on Surnames;
The right to receive support from their parents, ascendants, and in proper cases,
their brothers and sisters;
The right to receive a legitime and other successional rights.

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 1990 BAR QUESTIONS
By: Valencia, Emmanuelle Nicole

Question 13: B and G, age 20 and 19, respectively, and both single, eloped
and got married to each other without parental consent in the case of G, a
teenaged student of an exclusive college for girls. Three years later, her parents
wanted to seek judicial annulment on that ground. You were consulted and asked
to prepare the proper complaint. What advice would you give G’s parents?
Explain your answer.

Suggested Answer:
Since G is already 22 years of age at the present time, her parents are no longer eligible to
file the complaint on her behalf, as per Art. 45 of the Family Code. Should G wish to have
her marriage annulled, she will have to file the complaint personally.

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 1991 BAR QUESTIONS
By: Torres, Roma

Question:
(A) How does the 1987 Constitution strengthen the family as an Institution?
(B) Do the Constitutional policy on the family and the provision that marriage is
the foundation of the family and shall be protected by the State bar Congress from
enacting a law allowing divorce in the Philippines?

Suggested Answer:

(A) Sec, 2, Article II of the Constitution provides that:

The State recognizes the sanctity of family life and shall protect and strengthen the family
as a basic autonomous social institution. It shall equally protect the life of the mother and
the life of the unborn from conception. The natural and primary right and duty of parents in
the rearing of the youth for civic efficiency and the development of moral character shall
receive the support of the Government.

Section I, Article XV, further provides that: The State recognizes the Filipino family as the
foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote
its total development.

(B) No, the Constitutional policy, as well as the supporting provision, does not amount to a
prohibition to Congress to enact a law on divorce. The Constitution only meant to help the
marriage endure, to "strengthen its solidarity and actively promote its total development."

ALTERNATIVE ANSWER:
Yes. Congress is barred from enacting a law allowing divorce, since Section 2 of Article XV
provides: "Sec. 2. Marriage, as an inviolable social institution, is the foundation of the family
and shall be protected by the State." Since marriage is "Inviolable", it cannot be dissolved
by an absolute divorce.

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 1991 BAR QUESTIONS
By: Torres, Roma

Question: Jacob, a Swiss national, married Lourdes, a Filipina, in Berne,

Switzerland. Three years later, the couple decided to reside in the Philippines.
Jacob subsequently acquired several properties in the Philippines with the money
he inherited from his parents. Forty years later. Jacob died intestate, and is
survived by several legitimate children and duly recognized illegitimate daughter
Jane, all residing in the Philippines.

(A) Suppose that Swiss law does not allow illegitimate children to inherit, can
Jane, who is a recognized illegitimate child, inherit part of the properties of Jacob
under Philippine law?
(B) Assuming that Jacob executed a will leaving certain properties to Jane as her
legitime in accordance with the law of succession in the Philippines, will such
testamentary disposition be valid?

Suggested Answer:
(A) Yes. As stated in the problem. Swiss law does not allow illegitimate children to inherit.
Hence, Jane cannot inherit the property of Jacob under Philippine law.

(B) The testamentary disposition will not be valid if it would contravene Swill law;
otherwise, the disposition would be valid. Unless the Swiss law is proved, it would be
presumed to be the same as that of Philippine law under the Doctrine of Processual
Presumption.

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 1991 BAR QUESTIONS
By: Torres, Roma

Question:
(A) One of the grounds for annulment of marriage is that either party, at the time
of their marriage was afflicted with a sexually-transmissible disease found to be
serious and appears incurable. Two (2) years after their marriage, which took
place on 10 October 1988, Bethel discovered that her husband James has a
sexually-transmissible disease which he contracted even prior to their marriage
although James did not know it himself until he was examined two [2] years later
when a child was already born to them. Bethel sues James for annulment of their
marriage. James opposes the annulment on the ground that he did not even know
that he had such a disease so that there was no fraud or bad faith on his part.
Decide.

(B) Suppose that both parties at the time of their marriage were similarly afflicted
with sexually-transmissible diseases, serious and incurable, and both knew of
their respective infirmities, can Bethel or James sue for annulment of their
marriage?

Suggested Answer:
(A) The marriage can be annulled, because good faith is not a defense when the ground is
based upon sexually-transmissible disease on the part of either party.

(B) Yes, the marriage can still be annulled because the fact that both of them are afflicted
with sexually-transmissible diseases does not efface or nullity the ground.

ALTERNATIVE ANSWER:
No, the marriage can no longer be annulled, because the fact that both were afflicted and
that both knew of their respective infirmities constitutes a waiver of that ground.

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 1991 BAR QUESTIONS
By: Torres, Roma

Question: In June 1985, James married Mary. In September 1988, he also married
Ophelia with whom he begot two (2) children, A and B. In July 1989, Mary died. In
July 1990, he married Shirley and abandoned Ophelia. During their union. James
and Ophelia acquired a residential lot worth P300,000.00. Ophelia sues James for
bigamy and prays that his marriage with Shirley be declared null and void. James,
on the other hand, claims that since his marriage to Ophelia was contracted during
the existence of his marriage with Mary, the former is not binding upon him, the
same being void ab initio he further claims that his marriage to Shirley is valid and
binding as he was already legally capacitated at the time he married her.

(A) Is the contention of James correct?

(B) What property Relations govern the union of James and Ophelia?
(C) Is the estate of Mary entitled to a share in the residential lot acquired by
James and Ophelia?

Suggested Answer:

(A) Yes. His marriage to Ophelia is void ab initio because of his subsisting prior marriage to
Mary. His marriage to Shirley, after Mary's death, is valid and binding.

ALTERNATIVE ANSWER:
No. The contention of James is not correct. Art. 40, Family Code, provides that 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." It can be said,
therefore, that the marriage of James to Shirley is void since his previous marriage to
Ophelia, although itself void, had not yet been judicially declared void.

ALTERNATIVE ANSWER:
No. The contention of James is not correct. He cannot set up as a defense his own criminal
act or wrongdoing.

(B) The provisions of Art 148 of the Family Code, shall govern: 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.

(C) It should be distinguished when the property was acquired.

• If it was acquired before Mary's death, the estate of Mary is entitled to 1/2 of the share of
James.

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• If it was acquired after Mary's death, there will be no share at all for the estate of Mary.

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 1991 BAR QUESTIONS
By: Torres, Roma

Question: Bar Candidates Patricio Mahigugmaon and Rowena Amor decided to

marry each other before the last day of the 1991 Bar Examinations. They agreed to
execute a Marriage Settlement. Rowena herself prepared the document in her own
handwriting. They agreed on the following: (1) a conjugal partnership of gains;
(2) each donates to the other fifty percent (50%) of his/her present property, (3)
Rowena shall administer the conjugal partnership property; and (4) neither may
bring an action for the annulment or declaration of nullity of their marriage. Both
signed the agreement in the presence of two (2) witnesses. They did not,
however, acknowledge it before a notary public.

(A) As to form, is the Marriage Settlement valid? May it be registered in the

registry of property? If not, what steps must be taken to make it registerable?
(B) Are the stipulations valid?
(C) If the Marriage Settlement is valid as to form and the above stipulations are
likewise valid, does it now follow that said Marriage Settlement is valid and
enforceable?

Suggested Answer:
(A) Yes, it is valid as to form because it is in writing. No, it cannot be registered in the
registry of property because it is not a public document. To make it registerable, it must be
reformed and has to be notarized.

(B) Stipulations (1) and (3) are valid because they are not contrary to law. Stipulation (4)
is void because it is contrary to law. Stipulation (2) is valid up to 1/5 of their respective
present properties but void as to the excess (Art 84, Family Code).

(C) No. On September 15, 1991, the marriage settlement is not yet valid and enforceable
until the celebration of the marriage, to take place before the last day of the 1991 Bar
Examinations.

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 1991 BAR QUESTIONS
By: Torres, Roma

Question: On her third month of pregnancy, Rosemarie, married to Boy, for

reasons known only to her, and without informing Boy, went to the clinic of X, a
known abortionist, who for a fee, removed and expelled the fetus from her womb,
Boy learned of the abortion six (6) months later.
1987 Constitution which reads; The State x xx shall equally protect the life of the
mother and the life of the unborn from conception, "xxx" which he claims confers
a civil personality on the unborn from the moment of conception.
Boy filed a case for damages against the abortionist, praying therein that the
latter be ordered to pay him: (a) P30,000.00 as indemnity for the death of the
fetus, (b) P100.000.00 as moral damages for the mental anguish and anxiety he
suffered, (c) P50,000.00 as exemplary damages, (d) P20,000.00 as nominal
damages, and (e) P25,000.00 as attorney's fees.

(A) Is Boy’s interpretation of the above constitutional provision correct?

Suggested Answer:

(A) No, because under the Child and Youth Welfare Code, the personality of the child
commences from the time of conception for purposes favorable to him, subject to the
requirement that is born alive at the tie of the complete delivery from the mother’s womb.

ALTERNATIVE ANSWER:
Yes, as the legitimate ascendant, he can demand damages due to the death of the fetus
whose personality commenced from conception (Art. 5 PD No. 603; Art. 2206 NCC)

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 1992 BAR QUESTIONS
By: Samson, Maria Johanna Ilyssa

Question: In 1989, Maris, a Filipino citizen, married her boss Johnson, an

American citizen, in Tokyo in a wedding ceremony celebrated according to
Japanese laws. One year later, Johnson returned to his native Nevada, and he
validly obtained in that state an absolute divorce from his wife Maris.

After Maris received the final judgment of divorce, she married her
childhood sweetheart Pedro, also a Filipino citizen, in a religious ceremony in Cebu
City celebrated according to the formalities of Philippine law. Pedro later left for
the United States and became naturalized as an American citizen. Maris followed
Pedro to the United States, and after a serious quarrel, Maris filed a suit and
obtained a divorce decree issued by the court in the state of Maryland.

Maris then returned to the Philippines and in a civil ceremony celebrated in

Cebu City according to the formalities of Philippine law, she married her former
classmate Vincent likewise a Filipino citizen.

a.) Was the marriage of Maris and Johnson valid when celebrated? Is their
marriage still validly existing now? Reasons.

b.) Was the marriage of Maris and Pedro valid when celebrated? Is their
marriage still valid existing now? Reasons.

c.) Was the marriage of Maris and Vincent valid when celebrated? Is their
marriage still validly existing now? Reasons.

d.) At this point in time, who is the lawful husband of Maris? Reasons.

Suggested Answers:

a.) The marriage of Maris and Johnson was valid when celebrated because all
marriages solemnized outside the Philippines (Tokyo) in accordance with the laws in force in
the country where they are solemnized (Japan), and valid there as such, are also valid in
the Philippines.

Their marriage is no longer validly subsists, because it has been dissolved by the
absolute divorce validly obtained by Johnson which capacitated Maris to remarry (Art. 26,
Family Code).

b.) The marriage of Maris and Pedro was valid when celebrated because the divorce
validly obtained by Johnson in Manila capacitated Maris to marry Pedro.

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 The marriage of Maris and Pedro is still validly existing, because the marriage has
not been dissolved by the Maryland divorce (Art. 26, Family Code).
c.) The marriage of Maris and Vincent is void ab initio because it is a bigamous
marriage contracted by Maris during the subsistence of her marriage with Pedro (Art. 25
and 41, Family Code).

The marriage of Maris and Vincent does not validly exist because Article 26 does not
apply. Pedro was not a foreigner at the time of his marriage with Maris and the divorce
abroad (Maryland) was initiated and obtained not by the alien spouse, but by the Filipino
spouse. Hence, the Maryland divorce did not capacitate Maris to marry Vincent.

d.) At this point in time, Pedro is still the lawful husband of Maris because their valid
marriage has not been dissolved by any valid cause (Art. 26, Family Code).

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 1992 BAR QUESTIONS
By: Samson, Maria Johanna Ilyssa

QUESTION: In 1989, Rico, then a widower forty (40) years of age, cohabited with
Cora, a widow thirty (30) years of age. While living together, they acquired from
their combined earnings a parcel of Riceland.

After Rico and Cora separated, Rico lived together with Mabel, a maiden
sixteen (16) years of age. While living together, Rico was a salaried employee and
Mabel kept house for Rico and did full-time household chores for him. During their
cohabitation, a parcel of coconut land was acquired by Rico from his savings.

After living together for one (1) year, Rico and Mabel separated. Rico then
met and married Letty, a single woman twenty-six (26) years of age. During the
marriage of Rico and Letty, Letty bought a manago orchard out of her own
personal earnings.

a.) Who would own the riceland, and what property regime governs the
ownership? Explain.

b.) Who would own the coconut land, and what property regime governs the
ownership? Explain.

c.) Who would own the mango orchard, and what property regime governs
the ownership? Explain.

Suggested Answers:

a.) Rico and Cora are the co-owners of the Riceland. The regime is that of co-
ownership (Art. 147, Family Code, first paragraph).

Optional Addendum: However, after Rico’s marriage to Letty, the half interest of Rico
in the Riceland will then become absolute community property of Rico and Letty.

b.) Rico is the exclusive owner of the coconut land. The regime is a sole/single
proprietorship (Art. 148, Family Code, first paragraph is applicable, and not Art. 147 Family
Code).

Optional Addendum: However, after Rico’s marriage to Letty, the coconut land of
Rico will then become absolute community property of Rico and Letty).

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 c.) Rico and Letty are the co-owners. The regime is the Absolute Community of
Property (Arts. 75, 90 and 91, Family Code).

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 1993 BAR QUESTIONS
By: Rosario, Patricia Kaye

Question: A and B, both 18 years old, were sweethearts studying in Manila. On

August 3, 1988, while in first year college, they eloped. They stayed in the house
of a mutual friend in town X, where they were able to obtain a marriage license.
On August 30, 1988, their marriage was solemnized by the town of X in his office.
Thereafter, they returned to Manila and continued to live separately in their
respective boarding houses, concealing from their parents, who were living in the
province what they had done. In 1992, after graduation from college, A and B
decided to break their relation and parted ways. Both went home to their
respective towns to live and work.

1. Was the marriage of A and B solemnized on August 30, 1988 by the town
mayor of X in his office a valid marriage? Explain your answer.

Answer:

The marriage of A and B is void because the solemnizing officer had no legal authority to
solemnize the marriage. But if either or both parties believed in good faith that the
solemnizing officer had the legal authority to do so, the marriage is voidable because the
marriage between the parties, both below 21 years of age, was solemnized without the
consent of the parents. (Art. 35, par. 2 and Art. 45 par. 1, Family Code)

2. Can either or both of them contract marriage with another without

committing bigamy? Explain your answer.

Answer:

Either or both of the parties cannot contract marriage in the Philippines with another person
without committing bigamy, unless there is compliance with the requirements of Article 52
of the Family Code, namely: there must be a judgment of annulment or absolute nullity of
the marriage, partition and distribution of the properties of the spouses and the delivery of
their children’s presumptive legitimes, which shall be recorded in the appropriate Civil
Registry and Registry of Property, otherwise the same shall not affect third persons and
subsequent marriage shall be null and void. (Arts. 52 and 53, Family Code)

Alternative Answer:

Yes, they can. The subsequent marriage contracted by one of the parties will not give rise to
bigamy even in the absence of a court declaration of nullity of the first marriage, not as an
element of the crime of bigamy.

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 1993 BAR QUESTIONS
By: Rosario, Patricia Kaye

Question: Julio and Lea, both 18 years old, were sweethearts. At a party at the
house of a mutual friend, Lea met Jake, also 18 years old, who showed interest in
her. Lea seemed to entertain Jake because she danced with him many times. In a
fit of jealousy, Julio shot Jake with his father’s 38 caliber revolver which, before
going to the party he was able to get from the unlocked drawer inside his father’s
bedroom. Jake died as a result of the lone gunshot wound he sustained. His
parents sued Julio’s parents for damages arising from quasi-delict. At the time of
the incident, Julio was 18 years old living with his parents. Julio’s parents moved
to dismiss the complaint against them claiming that since Julio was already of
majority age, they were no longer liable for his acts. Should the motion to dismiss
be granted?

Answer:

No, the Motion to Dismiss should not be granted. Article 236 of the Family Code as
amended by Republic Act 6809, provides in the third paragraph that “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.”

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 1993 BAR QUESTIONS
By: Rosario, Patricia Kaye

Question: Maria and Luis, both Filipinos, were married by a Catholic priest in
Lourdes Church, Quezon City in 1976. Luis was drunk on the day of his wedding.
In fact, he slumped at the altar soon after the ceremony. After marriage, Luis
never had a steady job because he was drunk most of the time. Finally, he could
not get employed at all because of drunkenness. Hence, it was Maria who had to
earn a living to support herself and her child begotten with Luis. In 1986, Maria
filed a petition in the church matrimonial court in Quezon city to annul her
marriage with Luis on the ground of psychological incapacity to comply with his
marital obligation. Her petition was granted by the church matrimonial court.
1. Can Maria now get married legally to another man under Philippine laws
after her marriage to Luis was annulled by the church matrimonial court? Explain.

2. What must Maria do to enable her to get married to another man under
Philippine laws?

Answers:

1. No, Maria cannot validly contract a subsequent marriage without a court declaration
of nullity of the first marriage. The law does not recognize the church declaration of nullity
of a marriage.

2. To enable Maria to get married lawfully to another man, she must obtain a judicial
declaration of nullity of the prior marriage under Article 36 Family Code.

22
 1994 BAR QUESTIONS
By:Radovan, Althea

Question: In 1975, Carol begot a daughter Bing, out of wedlock. When Bing was
ten years old, Carol gave her consent for Bing's legal adoption by Norma and
Manuel, which was granted by the court in 1990. In 1991, Carol learned that
Norma and Manuel were engaged in a call-girl-ring that catered to tourists. Some
of the girls lived with Norma and Manuel. Carol got Bing back, who in the first
place wanted to return to her natural mother.

1) Who has a better right to the custody of Bing, Carol or Norma?

2) Aside from taking physical custody of Bing, what legal actions can Carol take to
protect Bing?

Suggested Answers:

1a) It depends on whether or not Bing was at least 18 years old at the time Carol asserts
the prerogative to take custody of Bing. If she was at least 18 years old, then she is no
longer under parental authority and neither Carol nor Norma can assert the prerogative to
take custody. However, if she was less than 18 years old, then Norma has a better right
since the adoption by Norma of Bing terminates the parental authority of Carol over Bing.

b) The natural mother, Carol, should have the better right in light of the principle that the
child's welfare is the paramount consideration in custody rights. Obviously, Bing's continued
stay in her adopting parents' house, where interaction with the call girls is inevitable, would
be detrimental to her moral and spiritual development. This could be the reason for Bing's
expressed desire to return to her natural mother. It should be noted, however, that Bing is
no longer a minor, being 19 years of age now. It is doubtfu1 that a court can still resolve
the question of custody over one who is sui juris and not otherwise incapacitated.

2(a) On the assumption that Bing is still a minor or

otherwiseincapacitated,Carolmaypetitionthepropercourt for resolution or rescission of the
decree of adoption on the ground that the adopting parents have exposed, or are exposing,
the child to corrupt influence, tantamount to giving her corrupting orders or examples. She
can also ask for the revesting in her of parental authority over Bing. If However, Bing is
already 19 years of age and therefore no longer a minor, it is not Carol but Bing herself who
can petition the court for judicial rescission of the adoption, provided she can show a ground
for disinheritance of an ascendant.

b) Carol may file an action to deprive Norma of parental authority under Article 231 of the
Family Code or file an action for the rescission of the adoption under Article 191 in relation
to Article 231 (2) of the Family Code.

23
 1994 BAR QUESTIONS
By:Radovan, Althea

Question: In 1991, Victor established judicially out of conjugal property, a family

home in Manila worth P200.000.00 and extrajudicially a second family home in
Tagaytay worth P50.000.00. Victor leased the family home in Manila to a
foreigner. Victor and his family transferred to another house of his in Pasig.

Can the two family homes be the subject of execution on a judgment against
Victor's wife for non-payment of the purchase in 1992 of household appliances?

Suggested Answer:

The two (2) so-called family homes can be the subject of execution. Neither of the abodes
are considered family homes because for purposes of availing the benefits under the Family
Code, there can only be one (1) family home which is defined as the "dwelling house" where
the husband and the wife and their family actually "reside" and the land on which it is
situated. (Arts. 152 and 161, Family Code)

24
 1994 BAR QUESTIONS
By:Radovan, Althea

Question: Rosa and Ariel were married in the Catholic Church of Tarlac, Tarlac on
January 5. 1988. In 1990, Ariel went to Saudi Arabia to work. There, after being
converted into Islam, Ariel married Mystica, Rosa learned of the second marriage
of Ariel on January 1, 1992 when Ariel returned to the Philippines with Mystica.
Rosa filed an action for legal separation on February 5, 1994,

1) Does Rosa have legal grounds to ask for legal separation?

2) Has the action prescribed?

Suggested Answers:

1) a)Yes,the abandonment of Rosa by Ariel for more than one (1) year is a ground for legal
separation unless upon returning to the Philippines, Rosa agrees to cohabit with Ariel which
is allowed under the Muslim Code. In this case, there is condonation.

b) Yes. The contracting of a subsequent bigamous marriage whether in the Philippines or

abroad is a ground for legal separation under Article 55(7) of the Family Code. Whether the
second marriage is valid or not, Ariel having converted into Islam, is immaterial.

2) No. Under Article 57 of the Family Code, the aggrieved spouse must file the action within
five (5) years from the occurrence of the cause. The subsequent marriage of Ariel could not
have occurred earlier than 1990, the time he went to Saudi Arabia. Hence, Rosa has until
1995 to bring the action under the Family Code.

25
 1994 BAR QUESTIONS
By:Radovan, Althea

Question:

1) The complete publication of the Family Code was made on August 4, 1987. On
September 4, 1987, Junior Cruz and Gemma Reyes were married before a
municipal mayor. Was the marriage valid?

2) Suppose the couple got married on September 1, 1994 at the Manila Hotel
before the Philippine Consul General to Hongkong, who was on vacation in Manila.
The couple executed an affidavit consenting to the celebration of the marriage at
the Manila Hotel. Is the marriage valid?

Suggested Answers:

1) a) Yes, the marriage is valid. The Family Code took effect on August 3, 1988. At the time
of the marriage on September 4, 1987, municipal mayors were empowered to solemnize
marriage under the Civil Code of 1950.

2) a) The marriage is not valid. Consuls and vice-consuls are empowered to solemnize
marriages between Philippine citizens abroad in the consular office of the foreign country to
which they were assigned and have no power to solemnize marriage on Philippine soil.

b) A Philippine consul is authorized by law to solemnize marriages abroad between Filipino

citizens. He has no authority to solemnize a marriage in the Philippines. Consequently, the
marriage in question is void, unless either or both of the contracting parties believed in
good faith that the consul general had authority to solemnize their marriage in which case
the marriage is valid.

26
 1994 BAR QUESTIONS
By:Radovan, Althea

Question: Paulita left the conjugal home because of the excessive drinking of her
husband, Alberto. Paulita, out of her own endeavor, was able to buy a parcel of
land which she was able to register under her name with the addendum "widow."
She also acquired stocks in a listed corporation registered in her name. Paulita
sold the parcel of land to Rafael, who first examined the original of the transfer
certificate of title.

1) Has Alberto the right to share in the shares of stock acquired by Paulita?
2) Can Alberto recover the land from Rafael?

Suggested Answer:

1. a) Yes. The Family Code provides that 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 absolute community property unless the contrary is
proved.

b) Yes. The shares are presumed to be absolute community property having been acquired
during the marriage despite the fact that those shares were registered only in her name.
Alberto's right to claim his share will only arise, however, at dissolution.

c) The presumption is still that the shares of stock are owned in common. Hence, they will
form part of the absolute community or the conjugal partnership depending on what the
property Relations is.

d) Since Paulita acquired the shares of stock by onerous title during the marriage, these are
part of the conjugal or absolute community property, as the case maybe (depending on
whether the marriage was celebrated prior to. or after, the effectivity of the FamilyCode).
Her physical separation from her husband did not dissolve the community of property.
Hence, the husband has a right to share in the shares of stock.

2) a) Under a community of property, whether absolute or relative, the disposition of

property belonging to such community is void if done by just one spouse without the
consent of the other or authority of the proper court. However, the land was registered in
the name of Paulita as "widow". Hence, the buyer has the right to rely upon what appears in
the record of the Register of Deeds and should, consequently, be protected. Alberto cannot
recover the land from Rafael but would have the right of recourse against his wife

b) The parcel of land is absolute community property having been acquired during the
marriage and through Paulita's industry despite the registration being only in the name of
Paulita. The land being community property, its sale to Rafael without the consent of Alberto

27
is void. However, since the land is registered in the name of Paulita as widow, there is
nothing in the title which would raise a suspicion for Rafael to make inquiry. He, therefore,
is an innocent purchaser for value from whom the land may no longer be recovered.

28
 1995 BAR QUESTIONS
By: Pangilinan, Gene Alexis

Question: Yvette was found to be positive for HIV virus, considered sexually
transmissible, serious and incurable. Her boyfriend Joseph was aware of her
condition and yet married her. After two (2) years of cohabiting with Yvette, and
in his belief that she would probably never be able to bear him a healthy child,
Joseph now wants to have his marriage with Yvette annulled. Yvette opposes the
suit contending that Joseph is estopped from seeking annulment of their marriage
since he knew even before their marriage that she was afflicted with HIV virus.
Can the action of Joseph for annulment of his marriage with Yvette prosper?
Discuss fully.

Suggested Answer:

No, Joseph knew that Yvette was HIV positive at the time of the marriage. He is, therefore,
not an injured party. The FC gives the right to annul the marriage only to an injured party.
[Art. 47 (5), FC]

ALTERNATIVE ANSWER:
The action for annulment can prosper because the prescriptive period of five (5) years has
not yet lapsed. [Art. 45 (6), FC].

29
 1995 BAR QUESTIONS
By: Pangilinan, Gene Alexis

Question: Isidro and Irma, Filipinos, both 18 years of age, were passengers of
Flight No. 317 of Oriental Airlines. The plane they boarded was of Philippine
registry. While en route from Manila to Greece some passengers hijacked the
plane, held the chief pilot hostage at the cockpit and ordered him to fly instead to
Libya. During the hijacking Isidro suffered a heart attack and was on the verge of
death. Since Irma was already eight months pregnant by Isidro, she pleaded to
the hijackers to allow the assistant pilot to solemnize her marriage with Isidro.
Soon after the marriage, Isidro expired. As the plane landed in Libya Irma gave
birth. However, the baby died a few minutes after complete delivery. Back in the
Philippines Irma immediately filed a claim for inheritance. The parents of Isidro
opposed her claim contending that the marriage between her and Isidro was void
ab initio on the following grounds: (a) they had not given their consent to the
marriage of their son; (b) there was no marriage license; (c) the solemnizing
officer had no authority to perform the marriage; and, (d) the solemnizing officer
did not file an affidavit of marriage with the proper civil registrar.

1. Resolve each of the contentions ([a] to [d]) raised by the parents of Isidro.
Discuss fully.

Suggested Answer:

1. (a) The fact that the parents of Isidro and of Irma did not give their consent to the
marriage did not make the marriage void ab initio. The marriage is merely voidable under
Art 45 of the FC.

(b) Absence of marriage license did not make the marriage void ab initio. Since the
marriage was solemnized in articulo mortis, it was exempt from the license requirement
under Art. 31 of the FC.

(c) On the assumption that the assistant pilot was acting for and in behalf of the airplane
chief who was under disability, and by reason of the extraordinary and exceptional
circumstances of the case [ie. hostage situation), the marriage was solemnized by an
authorized officer under Art. 7 (3) and Art. 31. of the FC.

(d) Failure of the solemnizing officer to file the affidavit of marriage did not affect the
validity of the marriage. It is merely an irregularity which may subject the solemnizing
officer to sanctions.

ALTERNATIVE ANSWER:

30
Considering that the solemnizing officer has no authority to perform the marriage because
under Art. 7 the law authorizes only the airplane chief, the marriage is void, hence, a, c,
and d are immaterial.

31
 1995 BAR QUESTIONS
By: Pangilinan, Gene Alexis

Question: Abraham died intestate on 7 January 1994 survived by his son Braulio.
Abraham's older son Carlos died on 14 February 1990. Danilo who claims to be an
adulterous child of Carlos intervenes in the proceedings for the settlement of the
estate of Abraham in representation of Carlos. Danilo was legally adopted on 17
March 1970 by Carlos with the consent of the " latter's wife.
1. Under the Family Code, how may an illegitimate filiation be proved? Explain.
2. As lawyer for Danilo, do you have to prove Danilo's illegitimate filiation?
Explain.
3. Can Danilo inherit from Abraham in representation of his father Carlos? Explain.

Suggested Answer:

1. Under Art. 172 in relation to Art. 173 and Art. 175 of the FC, the filiation of illegitimate
children may be established in the same way and by the same evidence as legitimate
recognition of an illegitimate child can be brought at any children. Art. 172 provides that 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.
Suggested Answer:

2. No. Since Danilo has already been adopted by Carlos, he ceased to be an illegitimate
child. An adopted child acquires all the rights of a legitimate child under Art, 189 of the FC.
Suggested Answer:

3. No, he cannot. Danilo cannot represent Carlos as the latter's adopted child in the
inheritance of Abraham because adoption did not make Danilo a legitimate grandchild of
Abraham. Adoption is personal between Carlos and Danilo. He cannot also represent Carlos
as the latter's illegitimate child because in such case he is barred by Art. 992 of the NCC
from inheriting from his illegitimate grandfather Abraham.

ALTERNATIVE ANSWER:
An adopted child's successional rights do not include the right to represent his deceased
adopter in the inheritance of the latter's legitimate parent, in view of Art. 973 which
provides that in order that representation may take place, the representative must himself
be capable of succeeding the decedent. Adoption by itself did not render Danilo an heir of
the adopter's legitimate parent. Neither does his being a grandchild of Abraham render him
an heir of the latter because as an illegitimate child of Carlos, who was a legitimate child of
Abraham, Danilo is incapable of succeeding Abraham under Art. 992 of the Code.

32
 1995 BAR QUESTIONS
By: Pangilinan, Gene Alexis

Question: Suppose Tirso and Tessie were married on 2 August 1988 without
executing any ante nuptial agreement. One year after their marriage, Tirso while
supervising the clearing of Tessie's inherited land upon the latter's request,
accidentally found the treasure not in the new river bed but on the property of
Tessie. To whom shall the treasure belong? Explain.

SUGGESTED ANSWER:

Since Tirso and Tessie were married before the effectivity of the Family Code, their property
relation is governed by conjugal partnership of gains. Under Art. 54 of the Civil Code, the
share of the hidden treasure which the law awards to the finder or the proprietor belongs to
the conjugal partnership of gains. The one-half share pertaining to Tessie as owner of the
land, and the one-half share pertaining to Tirso as finder of the treasure, belong to the
conjugal partnership of gains.

33
 1995 BAR QUESTIONS
By: Pangilinan, Gene Alexis

Question: On 10 September 1988 Kevin, a 26-year old businessman, married

Karla, a winsome lass of 18. Without the knowledge of their parents or legal
guardians, Kevin and Karla entered into an ante-nuptial contract the day before
their marriage stipulating that conjugal partnership of gains shall govern their
marriage. At the time of their marriage Kevin's estate was worth 50 Million while
Karla's was valued at 2 Million. A month after their marriage Kevin died in a freak
helicopter accident. He left no will, no debts, no obligations. Surviving Kevin, aside
from Karla, are his only relatives: his brother Luis and first cousin Lilia. What
property Relations governed the marriage of Kevin and Karla?

Suggested Answer:

Since the marriage settlement was entered into without the consent and without the
participation of the parents (they did not sign the document), the marriage settlement is
invalid applying Art. 78, F.C. which provides that a minor who according to law may
contract marriage may also enter into marriage settlements but they shall be valid only if
the person who may give consent to the marriage are made parties to the agreement.
(Karla was still a minor at the time the marriage settlement was executed in September
1988 because the law, R.A. 6809, reducing the age of majority to 18 years took effect on 18
December 1989). The marriage settlement being void, the property Relations governing the
marriage is, therefore, absolute community of property, under Art. 75 of the FC.

34
 1996 BAR QUESTIONS
By: Marasigan, Mariz Angelle R.

Question:

1) Is there any difference in their legal effect between ignorance of law and
ignorance or mistake of fact?

Answer:

Yes, there is difference. While ignorance of the law is not an excuse for not
complying with it, ignorance of fact eliminates criminal intent as long as there is no
negligence (Art, NCC). In addition, mistake on a doubtful or difficult question of law be basis
of good faith (Art. 526, NCC). Mistake of fact may, furthermore, vitiate consent in a contract
and make it voidable (Art. 1390, NCC)

Alternative Answer:

Yes, ignorance of the law differs in legal effect from ignorance or mistake of fact. The
former does not excuse a party from the legal consequences of his conduct while the latter
does constitute an excuse and is a legal defense.

2) Distinguish juridical capacity from capacity to act

Answer:

Juridical capacity is the fitness to be the subject of legal relations while capacity to
act is the power or to do acts with legal effect. The former is inherent in every natural
person and is lost only through death while the latter is merely acquired and may be lost
even before death (Art. 37, NCC).

Alternative Answer:

Juridical capacity, as distinguished from capacity to act: (a) the former is passive
while the latter is active, (b) the former is inherent in a person while the latter is merely
acquired, (c) the former is lost only through death while the latter may be lost through
death or restricted by causes other than death, and (d) the former can exist without
capacity to act while the latter cannot exist without juridical capacity.

35
 1996 BAR QUESTIONS
By: Marasigan, Mariz Angelle R.

Question: On April 15, 1983, Jose, an engineer, and Marina, a nurse, were married
to each other in a civil ceremony in Boac, Marinduque. Six months after their
marriage, Jose was employed in an oil refinery in Saudi Arabia for a period of
three years. When he returned to the Philippines, Marina was no longer living in
their house, but in Zamboanga City, working in a hospital. He asked her to come
home, but she refused to do so, unless he agreed not to work overseas anymore
because she cannot stand living alone. He could not agree as, in fact, he had
signed another three-year contract. When he returned in 1989, he could not locate
Marina anymore. In 1992, Jose filed an action served by publication in a
newspaper of general circulation, Marina did not file any answer. A possible
collusion between the parties was ruled out by the Public Prosecutor. Trial was
conducted, and Marina neither appeared nor presented evidence in her favor.

If you were the judge, will you grant the annulment. Explain.

Answer:

As judge, I will not grant the annulment. The facts do not show any taint of
personality disorder on the part of the wife Marin so as to lend substance to her husband’s
averment of psychological incapacity within the meaning of Art. 36 of the Family Code. In
Santos vs. CA (240 SCRA 20), this particular ground for nullity of marriage was held to be
limited only to the most serious cases of personality disorders clearly demonstrative of utter
sensitivity or inability to give meaning and significance to the marriage. Marina’s refusal to
come home to her husband unless he agreed not to work overseas, far from being indicative
of an insensitivity to the meaning of marriage, or of a personality disorder, actually shows a
sensitive awareness on her part of the marital duty to live together as husband and wife.
Mere refusal to rejoin her husband when he did not accept the condition imposed by her
does not furnish any basis for concluding that she was suffering from psychological
incapacity to discharge the essential marital obligations.

Mere intention to live apart does not fall under Art. 36, FC. Furthermore, there is no
proof that the alleged psychological incapacity existed at the time of the marriage.

36
 1996 BAR QUESTIONS
By: Marasigan, Mariz Angelle R.

Question: On Valentine’s Day, 1996, Elias and Fely, both single and 25 years of
age, went to the city hall where they sought out a fixer to help them obtain a
quickie marriage. For a fee, the fixer produced an ante-dated marriage license for
them, issued by the Civil Registrar of a small remote municipality. He then brought
them to a licensed minister in a restaurant behind the city hall, and the latter
solemnized their marriage right there and then.

1) Is their marriage valid, void or voidable? Explain.

Answer:

The marriage is valid. The irregularity in the issuance of a valid license does not
adversely affect the validity of the marriage. The marriage license is valid because it was in
fact issued by a Civil Registrar (Arts. 3 and 4, FC).

Alternative Answer:

It depends. If both or one of the parties was a member of the religious sect of the
solemnizing officer, the marriage is valid. If none of the parties is a member of the sect and
both of them were aware of the fact, the marriage is void. They cannot claim good faith in
believing that the solemnizing officer was authorized because the scope of the authority of
the solemnizing officer is a matter of law. If, however, one of the parties believed in good
faith that the other was a member of the sect, then the marriage is valid under Article
35(2), FC. In that case, the party in good faith is acting under a mistake of fact, not a
mistake of law.

2) Would your answer be the same if it should turn out that the marriage
license was spurious? Explain.

Answer:

No, the answer would not be the same. The marriage would be void because of the
absence of a formal requisite. In such a case, there was actually no valid marriage license.

37
 1996 BAR QUESTIONS
By: Marasigan, Mariz Angelle R.

Question:

1) Flor and Virgilio were married to each other in Roxas City in 1980. In 1984,
Flor was offered a teaching job in Canada, which she accepted. In 1989, she
applied for and was granted Canadian citizenship. The following year, she sued for
divorce from Virgilio in a Canadian court. After Virgilo was served with summons,
the Canadian court tried the case and decreed the divorce. Shortly thereafter, Flor
married a Canadian.

Can Virgilio marry again in the Philippines? Explain.

Answer:

No, Virgilio cannot validly remarry. His case is not covered by Article 26 of the Family
Code. For said Article to be applicable, the spouse who filed for divorce must be a foreigner
at the time of the marriage. Since both of them were Filipinos at the time of the marriage,
the divorce obtained by Flor did not capacitate Virgilio to remarry. The fact that Flor was
already an alien at the time she obtained the divorce does not give Virgilio the capacity to
remarry under Philippine Law.

Alternative Answers:

a) Yes, Virgilio can validly remarry. Art. 26 of the FC, merely states the alien spouse
without taking into consideration his or her nationality at the time of the marriage. While his
case is not covered by the letter of Article 26 FC, it is, however, covered by the spirit of said
Article. The injustice to the Filipino spouse sought to be cured by said Article is present in
this case. (Department of Justice Opinion No. 134 Series of 1993).

b) Although the marriage originally involved Filipino citizens, it eventually became a

marriage between an alien and a Filipino after Flor became a Canadian citizen. Thus, the
divorce decree was one obtained by an alien spouse married to a Filipino. Although nothing
is said about whether such divorce did capacitate Flor to remarry, that fact may as well
assumed since the problem states that she married a Canadian shortly after obtaining the
divorce. Hence, Virgilio can marry under Philippine law, pursuant to Art. 26, FC which
applies because Flor was already an alien at the time of the divorce.

2) Bert and Baby were married to each other on December 23, 1988. Six
months later, she discovered that he was a drug addict. Efforts to have him
rehabilitated were unsuccessful.

Can Baby ask for annulment of marriage, or legal separation? Explain.

Answer:

38
 No, Baby cannot ask for annulment of her marriage or for legal separation because
both these actions had already prescribed.

While concealment of drug addiction existing at the time of marriage constitutes

fraud under Art. 46 of the FC which makes the marriage voidable under Art. 45 of the FC,
the action must, however, be brought within 5 years from the discovery thereof under
Article 47(3), FC. Since the drug addiction of Bert was discovered by Baby in June 1989, the
action had already prescribed in June of 1994.

Although drug addiction is a ground for legal separation under Art. 55(5) and Art. 57
of the FC requires that the action must be brought within 5 years from the occurrence of the
cause. Since Bert had been a drug addict from the time of the celebration of the marriage,
the action for legal separation must have been brought not later than 23 December 1993.
Hence, Baby cannot, now, bring the action for legal separation.

39
 1996 BAR QUESTIONS
By: Marasigan, Mariz Angelle R.

Question:

1) On the occasion of Digna’s marriage to George, her father gave her a

donation propter nuptias of a car. Subsequently, the marriage was annulled
because of the psychological immaturity of George.

May Digna’s father revoke the donation and get back the car? Explain.

Answer:

No, Digna’s father may not revoke the donation because Digna was not in bad faith,
applying Art. 86(3) of the Family Code.

Alternative Answer:

a) Yes, the donation is revocable. Since the ground for the annulment of the marriage is
the psychological immaturity of George, the judgment was in the nature of a declaration of
nullity under Art. 36 of the FC and, therefore, the donation may be revoked under Art.
86(1) of the FC for the reason that the marriage has been judicially declared void ab initio.

b) No, the donation cannot be revoked.

The law provides that a donation by reason of marriage may be revoked by the donor if,
among other cases, the marriage is judicially declared void ab initio [par. (1) Art. 86, Family
Code], or when the marriage s annulled and the done acted in bad faith [par. (3), Id.].
Since the problem states that the marriage was annulled and there is no intimation of bad
faith on the part of the donee Digna, the conclusion is that the donor cannot revoke the
donation.

c) Yes, the donation can be revoked.

The ground used in dissolving the marriage was the psychological immaturity of George,
which is not a ground for annulment of marriage. If this term is equated with psychological
incapacity as used in Art. 36 of the Family Code, then it is a ground for declaration of nullity
of the marriage. Consequently, par. (1) of Art. 86, FC, is the applicable law. Since Art. 86 of
the FC makes no qualification as to who furnished the ground or who was in bad faith in
connection with the nullification of the marriage, the conclusion is that Digna’s father may
revoke the donation and get back the car

2) Tess, a former Filipina, now a naturalized American, and Gary, her American
husband, filed a petition for adoption of her three-year old nephew, one of the
eleven children of her destitute sister in Tondo. She had been supporting the child
since his birth, and being childless, she and her husband have come to love him as

40
their own son. They are both well- employed in the United States.

If you were the judge, will you grant the adoption? Explain.

Answer:

No, I will not grant the adoption. Tess and Gary must adopt jointly under Art. 185 of
the Family Code. They do not fall in any of the exceptions to this rule. In addition, both Tess
and Gary must be qualified to adopt. While Tess is qualified to adopt under Article 184(3)(a)
of the FC, Gary is not so qualified because he is an alien and he does not fall under any of
the exceptions. Hence, the adoption must be denied (Toledano v. CA, 233 SCRA 9; Republic
v. CA, 227 SCRA 401).

41
 1997 BAR QUESTIONS
By: Manuel, Maurice Victoria E.

Question:

How would you compare the Civil Law system in its governance and trend with
that of the Common Law System?

Answer:

Civil Law, is the mass of precepts that determine or regulate relations that exist between
members of the society for the protection of private interest, it is statutory and codified
while common law is the body of judge-made law based on the good sense of judges who
can discern justice on a case to case basis. Common law is collection of legal interpretations
made by judges and is now use to for civil law to adopt in a fast changing society.

42
 1997 BAR QUESTIONS
By: Manuel, Maurice Victoria E.

Question:

In the context that the term is used in Civil Law, state the (a) concept, (b)
requisites and (c) consequences of a prejudicial question.

Answer:

A prejudicial question is an issue which must be decided before any criminal prosecution
may be instituted or may proceed because the issue in the civil case is determinative of the
outcome of the criminal case.

It requires that the previously instituted civil action involves an issue similar or intimately
related to the issue raised in the subsequent criminal action, and the resolution of such
issue determines whether or not the criminal action may proceed.
In case there is a prejudicial question, the criminal case is suspended while the civil action
will proceed.

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 1997 BAR QUESTIONS
By: Manuel, Maurice Victoria E.

Question:

In 1997, Mario and Clara, both Filipino citizens, were married in the Philippines.
Three years later, they went to the United States of America and established their
residence in San Francisco, California. In 1987, the couple applied for, and were
granted, U.S citizenship. In 1989, Mario claiming to have been abandoned by
Clara, was able to secure a decree of divorce in Reno, Nevada, U.S.A.
In 1990, Mario returned to the Philippines and married Juana who know well
Mario’s past life.

(a) Is the marriage between Mario and Juana valid?

(b) Would the renvoi doctrine have any relevance to the case?

Answer:
a. Yes. According to the Civil Code, 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. In the present case, Mario was granted a U.S
Citizenship and by acquiring it, he lost his Filipino Citizenship and his country is
allowing him to re-marry therefore, his marriage with Juana is valid and binding.

b. No. Renvoi Doctrine is present when a procedure whereby a jural matter presented is
referred by the conflict-of-laws rules of the forum to a foreign state, the conflict of
laws rule of which in turn refers the matter back to the law of the forum or a third
state. In the present case, the issue is the validity of the subsequent marriage of the
foreigner to a Filipino citizen therefore, applying the Philippine law, the legal capacity
of a U.S Citizen will be determined through U.S Law while the formalities of the
marriage ceremony will be governed by the Philippine Law applying lex loci
celebrationis. Therefore Renvoi is inapplicable in this case.

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 1997 BAR QUESTIONS
By: Manuel, Maurice Victoria E.

Question:

Under what conditions, respectively, may drug addiction be a ground, if at all, (a)
for a declaration of nullity of marriage, (b) for an annulment of the marriage
contract, and (c) for legal separation between the spouses?

Answer:
Psychological incapacity or the inability to comply with the essential marital obligations of
marriage of one or both of parties makes the marriage void, therefore drug addiction if
existing at the time of marriage, it is incurable and it is grave enough to prevent the party
from assuming the essential marital obligations, can be a ground for the declaration of
nullity of marriage.

In the case of annulment of marriage, the concealment of the drug addiction which
constitute a fraud in obtaining the consent of either party. Drug addiction must exist at the
time of marriage, they parties should not freely cohabit subsequent to full knowledge of
drug addiction, and the case must be filed within five days from discovery.

In the case of legal separation, there must be no condonation or consent to the drug
addiction, the action must be filed within 5 days from the occurrence of the cause and that
drug addiction arises during the marriage and not at the time of marriage.

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 1997 BAR QUESTIONS
By: Manuel, Maurice Victoria E.

Question:

Luis and Rizza, both 26 years of age and single, live exclusively with each other as
husband and wife without the benefit of marriage, Luis is gainfully employed,
RIzza is not employed, stays at home, and takes charge of the household chores.
After living together for a little over twenty years, Luis was able to save from his
salary earnings during that period the amount of P200,000.00 presently deposited
in a bank. A house worth P500,000.00 was recently purchased for the same
amount by the couple. Of the P500,000.00 used by the common-law spouses to
purchase the property, P200,000.00 has come from the sale of palay harvested
from the hacienda owned by Luis and P300,000.00 from the rentals of a building
belonging to Rizza. In fine, the sum of P500,000.00 had been part of the fruits
received during the period of cohabitation from their separate property, a car
worth P100,000.00 being used by the common-law spouses, was donated just
months ago to Rizza by her parents.
Luis and Rizza now decide to terminate their cohabitation, and they ask you to
give them your legal advice on the following:
a. How, under the law should the bank deposit of P200,000.00 the house and lot
valued at P500,000.00 and the car worth P100,000.00 be allocated to them?
b. What would your answer be (to the above question) had Luis and Rizza been
living together all the time, ie., since twenty years ago, under a valid marriage.

Answer:

a. According to the law, when a man a woman who are capacitated to marry each other,
live exclusively with each other as husband and wife without the benefit of 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 co-
ownership. In the absence of proof to the contrary, properties acquired while 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. In the present case, the bank
deposit of P200,000.00 which consist of his salary, the house and lot was acquired
through their work and industry and the car was a donation from Rizza’s parents.
Therefore, the bank deposit should be divided among them in equal shares, the car
should be divided in proportionate to their contribution P200,000 and P300,00.00 for
Luis and Rizza respectively while the car should be an exclusive property of Rizza
having acquired by gratuitous title.

b. According to the Family Code, in the absence of a marriage settlement the property
relations of husband and wife the system of absolute community will govern, under this
rule, the community properties shall consist of all properties owned by the spouses at
the time of the marriage or acquired thereafter, except those acquired through a

46
gratuitous title, property acquired before marriage where there is a legitimate
descendant by former marriage and property for personal and exclusive property with
the exception of jewelry. In the present case, the the bank deposit and the house and
lot was acquired by the spouses during the marriage while the car was a donation from
the parents of Rizza. Therefore, the bank deposit and the house and lot amounting to
P200,000 and P500,000 respectively shall be owned by them equally while the car shall
be an exclusive property of Rizza having acquired by gratuitous title.

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