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2 EFFECTIVITY OF LAWS (Bar Q-1990) -When a law does not provide for its effectivity, it shall take effect after the expiration of the 15-day period following the completion of its publication in the Official Gazette or in a newspaper of general circulation (as amended by EO No. 200-June 18, 1987). -The phrase unless it is otherwise provided solely refers to the 15-day period and not to the requirement of publication. -If the law provides for a different period, shorter or longer than the 15-day period, then such shorter or longer period, as the case may be, shall prevail. Taada vs. Tuvera 146 SCRA 448 Must all laws be published and what must be published? -Publication is indispensable in every case, but the legislature may in its discretion provide that the usual fifteen-day period shall be shortened or extended. Non-publication means violation of the due process clause guaranteed by the Constitution. -All statutes, including those of local application and private laws or laws that name a public place in favor of a favored individual or laws that exempt an individual from certain prohibitions or requirement, shall be published as a condition for their effectivity. EO 200 allows the publication of laws in a newspaper of general circulation due to erratic releases of the Official Gazette and of its limited readership. Must decisions of the SC be published to be binding? -The SC held in the case of De Roy vs. CA (157 SCRA 757) that there is no law requiring the publication of Supreme Court decisions in the Official Gazette before they can be binding and as a condition to their becoming effective. It is the bounden duty of counsel as lawyer in active law practice to keep abreast of decisions of the Supreme Court. (As laid down in the case of Habaluyas, Inc. vs. Japzon, 138 SCRA 46, the 15-day period for appealing or for filing a motion for reconsideration cannot be extended. In the case at bar, the parties filed a motion for extension of time to file a motion for reconsideration. At the time of the filing of the motion however, the Habaluyas decision has yet to be published.) -Ordinances are governed by the Local Government Code. Art. 3 - IGNORANCE OF THE LAW (85,96) -Covers all domestic laws but only applies to mandatory or prohibitive laws not on permissive or suppletory laws. -Foreign laws are likewise excluded because we do not take judicial notice of foreign laws as well as judgments/decisions rendered by their courts. These are factual matters that must be pleaded and proved before our courts in the absence of which it is presumed that their laws are the same as our laws (principle of processual presumption). -Not applied with equal force to minors, they occupy a privilege position before our laws. Neither would this apply to laws susceptible of 2 or more interpretations. MANZANO vs. SANCHEZ 354 SCRA 1 -It is significant to note that in their respective affidavits executed on March 22, 1993 and sworn to before respondent Judge Sanchez himself, Manzano and Payao expressly stated the fact of their prior existing marriage. Also, in their marriage contract, it was indicated that both were separated. The fact that Manzano and Payao had been living apart from their respective spouses for a long time already is immaterial. Legal separation does not dissolve the marriage tie much less authorize the parties to remarry. This holds true all the more when the separation is merely de facto, as in the case at bar.

-Neither can respondent judge take refuge on their joint affidavit that they had been cohabiting as husband and wife for 7 years. Just like separation, free and voluntary cohabitation with another person for at least five years does not sever the tie of a subsisting previous marriage. Such cohabitation is merely a ground for exemption from marriage license it could not serve as a justification for respondent judge to solemnize a subsequent marriage vitiated by the impediment of a prior existing marriage. -Respondent Judge Sanchez demonstrated gross ignorance of the law when he solemnized a void and bigamous marriage. The maxim ignorance of the law excuses no one has special application to judges, who should be the embodiment of competence, integrity, and independence. And when the law transgressed is simple and elementary, the failure to know it constitutes gross ignorance of the law. Art. 4- PROSPECTIVE APPLICATION OF LAWS as a general rule. Exceptions: 1. If the laws are remedial in nature. Atienza vs Brillantes, Jr. 243 SCRA 32 Brillantes prior marriage was celebrated in 1965 without the requisite license so when he married de Castro in Los Angeles, California in 1991, he believed in good faith that he was capacitated to marry. Accordingly, Art. 40 does not apply as his prior marriage was governed by the New Civil Code which does not require any court decree of nullity if void ab initio. SC held: Article 40 of the Family Code applies to remarriages entered into after the effectivity of the Family Code regardless of the date of the first marriage. Besides Article 256 of the same Code is given retroactive effect insofar as it does not prejudice vested rights. Article 40 is a rule of procedure and Brillantes has not shown any vested right that was impaired by the application of Art. 40. Casupanan and Capitulo vs Laroya August 26, 2002- Lawyers Review/September 30, 2002 The Revised Rules on Criminal Procedure must be given retroactive effect considering the well-settled rule that x x x statutes regulating the procedure of the court will be construed as applicable to actions pending and undetermined at the time of the passage. Procedural laws are retroactive in that sense and to that extent. CANCIO vs. ISIP November 12, 2002 -The modes of enforcement of the civil liabilities are provided for in the Revised Rules of Criminal Procedure. Though the assailed order of the trial court was issued on March 20, 1998, the said Rules, which took effect on December 1, 2000, must be given retroactive effect in the instant case considering that statutes regulating the procedure of the court are construed as applicable to actions pending and undetermined at the time of their passage. Other exceptions: 2. Penal laws favorable to the accused provided he is not a habitual delinquent. 3.Curative laws. 4. Emergency laws. 5. Laws creating new rights. and 6. Tax laws. Article 6. Waiver (04) Requirements of a valid waiver: 1. the waiving party must actually have the right he is renouncing or it must be in existence at the time of the waiver; 2. he must have the full capacity to make the waiver; 3. the waiver must be clear and unequivocal; 4. the waiver must not be contrary to law, public order, public policy, morals or good customs or prejudicial to a 3rd person with a right recognized by law; and 5. when formalities are required for its validity such as an express condonation of a debt the formalities must be complied with. GUY vs. CA

502 SCRA 151 (September 15, 2006) - To be valid and effective, a waiver must be couched in clear and unequivocal terms which leave no doubt as to the intention of a party to give up a right or benefit which legally pertains to him. A waiver may not be attributed to a person when its terms do not explicitly and clearly evince intent to abandon a right. In this case, there was no waiver of hereditary rights. The Release and Waiver does not state with clarity the purpose of its execution. It merely states that Remedios received P300,000.00 and an educational plan for her minor daughters by way of financial assistance and in full settlement of any and all claims of whatsoever nature and kind x x x against the estate of the late Rufino Guy Susim. The document did not specifically mention minors hereditary share in the estate of Sima Wei, it cannot be construed as a waiver of successional rights. - Moreover, assuming that Remedios truly waived the hereditary rights of the children, such waiver will not bar the latters claim. Any inheritance left to minors or incapacitated persons may be accepted by their parents or guardians. Parents or guardians may repudiate the inheritance left to their wards only by judicial authorization. -Parents and guardians may not therefore repudiate the inheritance of their wards without judicial approval. This is because repudiation amounts to an alienation of property that must pass the courts scrutiny in order to protect the interest of the ward. Not having been judicially authorized, the Release and Waiver of Claim in the instant case is void and will not bar private respondents from asserting their rights as heirs of the deceased. - Furthermore, it must be emphasized that waiver is the intentional relinquishment of a known right. Where one lacks knowledge of a right, there is no basis upon which waiver of it can rest. Ignorance of a material fact negates waiver, and waiver cannot be established by a consent given under a mistake or misapprehension of fact. - In the present case, private respondents could not have possibly waived their successional rights because they are yet to prove their status as acknowledged illegitimate children of the deceased. Petitioner himself has consistently denied that respondents are his co-heirs. It would thus be inconsistent to rule that they waived their hereditary rights when petitioner claims that they do not have such a right. Hence, the invocation of waiver must fail. Article 9- In case of silence, obscurity, or insufficiency of laws no judge shall decline to render judgment. Applies only civil cases not to criminal proceedings because of the principle that there is no crime when there is no law punishing it (nullum crimen, nulla sine poena lege). SILVERIO vs. REPUBLIC 537 SCRA 373 (October 19, 2007) Silverio successfully underwent sex reassignment surgery and petitioned the court that his name be changed from Rommel Jacinto to Mely and that his sex shall also be changed from male to female to reflect the result of said surgery. The Republic opposed the same alleging that there is no law allowing the change of entries in the birth certificate by reason of sex alteration. Issue: May the trial court apply Article 9 of the Civil Code on the ground of equity? It is true that Article 9 of the Civil Code mandates that no judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the law. However, it is not a license for courts to engage in judicial legislation. The duty of the courts is to apply or interpret the law, not to make or amend it. In our system of government, it is for the legislature, should it choose to do so, to determine what guidelines should govern the recognition of the effects of sex reassignment. The need for legislative guidelines becomes particularly important in this case where the claims asserted are statute-based. It might be theoretically possible for this Court to write a protocol on when a person may be recognized as having successfully changed his sex. However, this Court has no authority to fashion a law on that matter, or on anything else. The Court cannot enact a

law where no law exists. It can only apply or interpret the written word of its co-equal branch of government, Congress. Art. 15 ADHERENCE TO NATIONALITY THEORY (75,78,81,83,87,95,97,98,99,02,03,04, 05) RENVOI DOCTRINE where the conflict rules of the forum (ex. Philippines) refer to a foreign law (ex.USA), and the latter refers it back to the internal law, the law of the forum (Philippine law) shall apply (Aznar vs. Garcia, 7 SCRA 95). TRANSMISSION THEORY if the foreign law refers to a 3rd country, the laws of said country should govern; this situation is a variety of the renvoi doctrine (ex. If B, a nationality of Canada who is a resident of the Philippines and has properties in Switzerland dies, his estate shall be governed by the laws of Canada based on Article 15 but if the laws of Canada states that it is the law of the place where the property is situated that will be applied then the laws of the 3rd country will govern in the distribution of his estate.) Van Dorn vs. Romillo, Jr. 39 SCRA 139 Is Article 15 applicable to aliens who are married to Filipino citizens? -Owing to the nationality principle embodied in Art. 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorces, the same being considered contrary to our concept of public policy and morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines provided they are valid according to their national law (Cf. Art. 26 (2) Family Code). Pilapil vs. Ibay-Somera 174 SCRA 653 -Reiterated the Van Dorn decision. -In the present case, the fact that private respondent obtained a valid divorce in his country, the Federal Republic of Germany, is admitted. Said divorce and its legal effects may be recognized in the Philippines insofar as private respondent is concerned in view of the nationality principle in our civil law in the matter of status of persons. Garcia a.k.a. Grace Garcia- Recio vs. Recio October 2, 2001 -A marriage between 2 Filipinos cannot be dissolved even by a divorce obtained abroad, because of Articles 15 and 17 of the Civil Code. -But a divorce obtained abroad by a couple, who are both aliens, may be recognized in the Philippines, provided it is consistent with their respective national laws. Therefore, before our courts can recognize a foreign divorce decree, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it. Presentation solely of the divorce decree is insufficient. Under Rule 132 Sections 24 and 25, a writing or document may be proven as public record of a foreign country by either (1) official publication of the writing or document or (2) a copy thereof attested by the officer having legal custody of the document. QUITA vs. CA 300 SCRA 406 Fe and Arturo were married in 1941. After the relationship turned sour Fe went to the US and in 1954 obtained a decree of absolute divorce. Fe got married thrice. In 1972, Arturo died intestate. Fe is now claiming her right over the estate of the deceased spouse. The SC remanded the case to the lower court to determine whether the second marriage of the spouse during the subsistence of the first marriage was contracted before or after her changed of citizenship. Once proved that she was no longer a Filipino citizen at the time of her 1st divorce, Van Dorn would become applicable and Fe could very well lose her right to inherit from Arturo. (re: Aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law).

ELMAR O. PEREZ vs. CA, CATINDIG January 27, 2006 Filipino spouses Tristan and Lily decided to separate from each other and upon advice of a friend obtained a divorce from the Dominican Republic through an attorney-infact who instituted a divorce action under its laws. On April 30, 1984, the spouses filed a joint petition for dissolution of the conjugal partnership. Three months later, the Dominican Republic ratified the divorce by mutual consent of Tristan and Lily. On July 14, 1984, Tristan married Elmar in the State of Virginia, USA. Elmar later on learned that the divorce decree issued by the court in the Dominican Republic dissolving the marriage of Tristan and Lily was not recognized in the Philippines and that her marriage to Tristan was void under Philippine law. When confronted, Tristan assured her that he would obtain an annulment of his marriage with Lily. He also promised that he would adopt their son so that he would be entitled to an equal share in his estate. In 2001, he filed a petition for declaration of nullity of his marriage to Lily. Elmar then filed a motion for leave to file intervention claiming that she has an interest in the matter in litigation that was granted by the lower court. Tristan however, opposed the motion by filing a petition for certiorari and prohibition before the CA. The CA nullified the decision of the lower court. Went to SC via certiorari. Issue: Does Elmar have a legal interest in the annulment case between Tristan and Lily? SC: Legal interest, which entitles a person to intervene, must be in the matter in litigation and of such direct and immediate character that the intervenor will either gain or lose by direct legal operation and effect of judgment. Such interest must be actual, direct and material, and not simply contingent and expectant. The claim of petitioner, that her status as the wife and companion of Tristan for 17 years vests her the requisite legal interest, lacks merit. Under the law, she was never the legal wife of Tristan hence her claim of legal interest has no basis. When they got married in 1984, Tristan was still lawfully married to Lily. The divorce decree obtained by Tristan and Lily from the Dominican Republic never dissolved the marriage bond between them. It is basic that 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. Hence, if a Filipino regardless of whether he/she was married here or abroad, initiates a petition abroad to obtain an absolute divorce from spouse and eventually becomes successful in getting an absolute divorce decree, the Philippines will not recognize such absolute divorce. When Tristan and Lily got married in 1968, their marriage was governed by the provisions of the Civil Code which took effect on August 30, 1950. In Tenchavez vs. Escano we held: (1) That a foreign divorce between Filipino citizens, sought and decreed after the effectivity of the present Civil Code (RA No. 386), is not entitled to recognition as valid in this jurisdiction; and neither is the marriage contracted with another party by the divorced consort, subsequently to the foreign decree of divorce, entitled to validity in the country. SAN LUIS vs. SAN LUIS February 6, 2007 Felicisimo T. San Luis contracted 3 marriages during his lifetime. His 1st marriage was terminated when his wife died leaving behind 6 children. Five years later Felicisimo married Mary Lee, an American citizen with whom he had 1 child. The marriage ended when Mary Lee divorced Felicisimo. The decree of absolute divorce was granted in December 1973. He then contracted his 3rd marriage in June 1974 with Felicidad. When he died, Felicidad sought the dissolution of their conjugal partnership assets and the settlement of Felicisimos estate and prayed that letters of administration be issued to her. Two of the children of the 1st marriage filed a motion to dismiss citing as ground, among others, that Felicidad has no legal personality to file the petition because she was only a mistress of Felicisimo since the latter, at the time of his death was still legally married to Mary Lee.

SC: In resolving the issue, there is no need to retroactively apply the provisions of the FC, particularly Article 26 (2) as there is sufficient jurisprudential basis to rule in the affirmative. The case of Van Dorn v. Romillo, Jr. involved a marriage between a foreigner and his Filipino wife, which marriage was subsequently dissolved through a divorce obtained abroad by the latter. Claiming that the divorce was not valid under Philippine law, the alien spouse alleged that his interest in the properties from the conjugal partnership should be protected. The Court, however, recognized the validity of the divorce and held that the alien spouse had no interest in the properties acquired by the Filipino spouse after the divorce. Petitioners (heirs of Felicisimo) cited Articles 15 and 17 par. 3 of the Civil Code in stating that the divorce is void under Philippine law insofar as Filipinos are concerned. However, in the light of the SCs ruling in Van Dorn, the Filipino spouse should not be discriminated in his own country if the ends of justice are to be served. The divorce decree allegedly obtained by Merry Lee which absolutely allowed Felicisimo to remarry, would have vested Felicidad with the legal personality to file the present petition as Felicisimos surviving spouse. However, the records show that there is insufficient evidence to prove the validity of the divorce obtained by Merry Lee as well as the marriage of Felicidad and Felicisimo under the laws of the USA. In Garcia vs. Recio, the Court laid down the specific guidelines for pleading and proving foreign law and divorce judgments. It held that presentation solely of the divorce decree is insufficient and that proof of its authenticity and due execution must be presented. Under Sections 24 and 25 of Rule 132, a writing or document may be proven as a public or official record of a foreign country by either (1) an official publication or (2) copy thereof attested by the officer having legal custody of the document. If the record is not kept in the Philippines, such copy must be (a) accompanied by a certificate issued by the proper diplomatic or consular official of the Philippines who is stationed in the foreign country where the document is kept and (b) authenticated by the seal of his office. With regard to Felicidads marriage to Felicisimo allegedly solemnized in California, USA, she submitted photocopies of the Marriage Certificate and the annotated text of the Family Law Act of California which purportedly show that their marriage was done in accordance with said law. As stated in Garcia, however, the Court cannot take judicial notice of foreign laws as they must be alleged and proved. FELICITAS AMOR-CATALAN vs. CA and ORLANDO CATALAN and MEROPE BRAGANZA 514 SCRA 607 (February 6, 2007) Felicitas and Orlando were married in June 1950 in Pangasinan but migrated to the United States after the marriage. Allegedly, they became naturalized citizens thereof and after 38 years of marriage or in 1988, they divorced. Two months after the divorce, Orlando married Merope in Pangasinan. Felicitas then filed a petition for declaration of nullity with damages against Orlando and Merope alleging that Merope had a prior subsisting marriage with one Eusebio Bristol. Orlando and Merope moved for the dismissal of the case on the ground of lack of cause of action as Felicitas was not a real party-ininterest. SC: A divorce obtained abroad may be recognized in our jurisdiction, provided such decree is valid according to the national law of the foreigner. However, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it before it can be recognized by our courts. It must be proved considering that our courts cannot take judicial notice of foreign laws. A petition to declare the nullity of marriage, like any other actions, must be prosecuted or defended in the name of the real party in interest and must be based on a cause of action. Thus, in Ninal vs. Badayog (328 SCRA 122), the Court held that the children have the personality to file the petition to declare the nullity of the marriage of their deceased father to their stepmother as it affects their successional rights. Significantly, Section 2 (a) of the Rule on Declaration of Absolute Nullity of Void Marriages, which took effect on March 15, 2003, specifically provides: A petition for declaration of absolute nullity of a void marriage may be filed solely by the husband or the wife.

In fine, petitioners personality to file the petition to declare the nullity of marriage cannot be ascertained because of the absence of the divorce decree and the foreign law allowing it. If it is proved that a valid divorce decree was obtained and the same did not allow Orlandos remarriage, then the trial court should declare respondents marriage as bigamous and void ab initio. On the contrary, if it is proved that a valid divorce decree was obtained which allowed Orlando to remarry, then the trial court must dismiss the petition on the ground that Felicitas lacks legal personality to file the same. Art. 16 par. (1)-law governing real and personal property is the law of the place where the property is situated exception in cases of succession it is the national law of the person whose succession is under consideration par. (2) (76,77,84,85,86,89,91,95,98,01,02,04). Art. 17 par. (1) Doctrine of Lex Loci Celebrationis (75,77,78,81,85,91,93,95,96,98,02,03) (2) - Rule respecting Prohibitive Laws Tenchavez vs. Escao 15 SCRA 355 May our courts recognize a decree of divorce validly obtained abroad by spouses who are Filipino citizens? -The SC applied par. 3 of Article 17. -For the Philippine courts to recognize and give recognition or effect to a foreign decree of absolute divorce between Filipino citizens would be a patent violation of the declared public policy of the State, specially in view of the third paragraph of Article 17 of the Civil Code. -The court also applied Article 15 of the same Code. See also GARCIA-RECIO vs. RECIO and ROEHR vs. RODRIGUEZ Article 19 Golden Rule of the Civil Code (81) Globe Mackay Cable Radio Corp. vs. CA 176 SCRA 778 -This article, known to contain what is commonly referred to as the principle of abuse of rights, sets certain standards which must be observed not only in the exercise of ones rights but also in the performance of ones duties. The imputation of guilt without basis and the pattern of harassment during the investigations of Tobias transgress the standards of human conduct set forth in Article 19 of the Civil Code. The Court has already ruled that the right of the employer to dismiss an employee should not be confused with the manner in which the right is exercised and the effects flowing therefrom. FAR EAST BANK (FEBTC), NOW BANK OF THE PHIL. ISLANDS, vs. PACILAN, JR. 465 SCRA 372 Facts: Pacilans current account was closed by FEBTC on the ground that his account was improperly mishandled. This was due to Pacilans issuance of 4 checks to different persons with an aggregate of amount of P7,410.00 but the balance of his current deposit was only P6,981.43 resulting to the dishonor of Check No. 2434886. Pacilan then complained in writing to the bank about the closure of his account and when he did not receive any reply from FEBTC he sued the bank for damages. He alleged that the closure of his account was unjustified inasmuch as he immediately deposited the following day an amount sufficient to fund the check. Moreover, the closure exposed him to criminal prosecution for violation of Batas Pambansa Blg. 22. The indecent haste that attended the closure of his account was patently malicious and intended to embarrass him. He alleged that he is a prominent and respected leader in the civic and banking communities (as cashier of Prudential Bank). The alleged malicious acts of the bank besmirched his reputation and caused him social humiliation, wounded feelings, insurmountable worries and sleepless nights. Held: The elements of abuse of rights are the following: (a) the existence of a legal right or duty; (b) which is exercised in bad faith; and (c) for the sole intent of prejudicing or

injuring another. Malice or bad faith is at the core of the said provision. The law always presumes good faith and any person who seeks to be awarded damages due to acts of another has the burden of proving that the latter acted in bad faith or with ill motive. - Bad faith does not simply connote bad judgment or simple negligence, dishonest purpose or some moral obliquity and conscious doing of a wrong, a breach of known duty due to some motives or interest or ill will that partakes the nature of fraud. Malice connotes ill will or spite and speaks not in response to duty. It implies an intention to do ulterior and unjustifiable harm. Malice is bad faith or bad motive. - In the case at bench, the facts as found by the court a quo and the appellate court, do not establish that, in the exercise of this right, FEBTC committed an abuse thereof. Specifically, the 2nd and 3rd elements for abuse of rights are not attendant in the present case. The evidence presented by the bank negates the existence of bad faith or malice on its part in closing Pacilans account on April 4, 1988 because on said date the same was already overdrawn. Further, it was shown that in 1986, the current account of Pacilan was overdrawn 156 times due to his issuance of checks against insufficient funds. In 1987, the said account was overdrawn 117 times for the same reason. Again, in 1988, 26 times. There were also several instances when Pacilan issued checks deliberately using a signature different from his specimen signature on file with bank. All these circumstances taken together justified the banks closure of Pacilans account on April 4, 1988 for improper handling. UYPITCHING et al vs. QUIAMCO (December 6, 2006) In 1982, as settlement of the civil aspect of a criminal case filed by Quiamco against Davalan, Gabutero and Generoso, the latter surrendered to the former a red Honda XL- 100 motorcycle and a photocopy of its certificate of registration. Quiamco asked for the original certificate of registration but the 3 never came back to see him again. The motorcycle was parked in an open space inside Quiamcos business establishment visible and accessible to the public. It turned out however that Gabutero bought the motorcycle on installments secured by a chattel mortgage from Ramas Uypitching Sons, Inc. that was managed by Atty. Ernesto Ramas Uypitching. The mortgage indebtedness was assumed by Davalan but stopped the payments in 1982 and told the corporations collector that the motorcycle had been taken by Quiamcos men. Nine years later, Uypitching accompanied by policemen went to Avesco (the business establishment of Quiamco) to recover the motorcycle. While the leader of the police team P/Lt. Vendiola asked for Quiamco, Uypitching paced back and forth uttering Quiamco is a thief of a motorcycle. Unable to find Quiamco, and upon Uypitchings instructions and over the objection of Quiamcos clerk, they took the motorcycle. Uypitching then filed a criminal for qualified theft and/or violation of the Anti-Fencing Law but was dismissed by the Office of the City Prosecutor. Later, Quiamco filed an action for damages against Uypitching for the following: 1. unlawful taking of the motorcycle; 2. utterance of a defamatory remark (that Quiamco was a thief) and 3. precipitate filing of a baseless and malicious complaint. According to complainant, the acts humiliated and embarrassed him and injured his reputation and integrity. ISSUE: Is Quiamco entitled to damages? SC: Petitioners claim that they should not be held liable for petitioner corporations exercise of its right as seller-mortgagee to recover the mortgaged vehicle preliminary to the enforcement of its right to foreclose on the mortgage in case of default. They are clearly mistaken. True, a mortgagee may take steps to recover the mortgaged property to enable to enforce or protect its foreclosure right thereon. There is, however, a well-defined procedure for the recovery of possession of mortgaged property: if a mortgagee is unable to obtain possession of a mortgaged property for its sale on foreclosure, he must bring a civil action either to recover such possession as a preliminary step to the sale, or to obtain judicial foreclosure. Petitioner corporation failed to bring the proper civil action necessary to acquire legal possession of the motorcycle. Instead Uypitching descended on Quiamcos establishment with his policemen and ordered the seizure of the motorcycle without a

search warrant or court order. Worse, in the course of the illegal seizure, Uypitching even mouthed a slanderous statement. No doubt, the corporation, acting thru Uypitching blatantly disregarded the lawful procedure for the enforcement of its right, to the prejudice of Quiamco. Their acts violated the law as well as public morals, and transgressed the proper norms of human relations. This basic principle of human relations is embodied in Article 19 of the Civil Code. Also known as the principle of abuse of rights, it prescribes that a person should not use his right unjustly or contrary to honesty and good faith, otherwise he opens himself to liability. It seeks to preclude the use of, or the tendency to use, a legal right (or duty) as a means to unjust ends. There is an abuse of right when it is exercised solely to prejudice or injure another. In this case, the manner by which the motorcycle was taken was not only attended by bad faith but also contrary to the procedure laid down by law. Considered in conjunction with the defamatory statement, petitioners exercise of the right to recover the mortgaged vehicle was utterly prejudicial and injurious to Quiamco. The precipitate act of filing an unfounded complaint could not in any way be considered to be in accordance with the purpose for which the right to prosecute a crime was established. Thus, the totality of petitioners actions showed a calculated design to embarrass, humiliate and publicly ridicule Quiamco. Triple costs against petitioners, considering that Ramas Uypitching is a lawyer and an officer of the court, for his improper behavior. CEBU COUNTRY CLUB, INC. (CCCI), DAPAT, et. al. vs. ELIZAGAQUE January 18, 2008 Sometime in 1987, San Miguel Corporation, a special company proprietary member of CCCI, designated Elizagaque as a special non-proprietary member. In 1996, Elizagaque filed with CCCI an application for proprietary membership. The price of a proprietary share was around P5 million, Unchuan however, offered to sell a share for only P3.5 million but Elizagaque bought the share of a certain Butalid for only P3 million. Elizagaques application for proprietary membership was deferred twice by the board and eventually, disapproved his application. Eligaque wrote the Board thrice for reconsideration but no reply was ever made by CCCI. In 1998, Elizagaque filed a complaint for damages against CCCI. SC: As shown by the records, the Board adopted a secret balloting known as the black ball system of voting wherein each member will drop a ball in the ballot box. A white ball represents conformity to the admission of an applicant, while a black ball means disapproval. A unanimous vote of the directors is required pursuant to the amendment made in Section 3 of its articles. Obviously, the board has the right to approve or disapprove an application for proprietary membership. But such right should not be exercised arbitrarily. Articles 19 and 21 of the Civil Code on the Chapter on Human Relations provide restrictions. In rejecting respondents application for membership, the petitioners violated the rules governing human relations, the basic principles to be observed for the rightful relationship between human beings and for the stability of social order. Petitioners committed fraud and evident bad faith in disapproving respondents application. The amendment to Section 3 of CCCIs amended by-laws requiring the unanimous vote of the directors present at a special or regular meeting was not printed on the application form respondent filled and submitted to CCCI. What was printed thereon was the original provision of Section 3 which was silent on the required number of votes needed for admission of an applicant as a proprietary member. The explanation that the amendment was not printed on the application form due to economic reasons, flimsy and unconvincing. Such amendment, aside from being extremely significant, was introduced way back in 1978 or almost 20 years before Elizagaque filed his application. It cannot be fathomed why such a prestigious and exclusive golf country club whose members are affluent, did not have enough money to cause the printing of an updated application form. It is thus clear that respondent was left groping in the dark wondering why his application was disapproved. He was not even informed that a unanimous vote of the Board members was required. When he sent a letter for reconsideration and an inquiry whether there was an objection to his application, petitioners apparently ignored him. At the very least, they should have informed him why his application was disapproved.

The exercise of a right, though legal by itself, must nonetheless be in accordance with the proper norm. When the right is exercised arbitrarily, unjustly or excessively and results in damage to another, a legal wrong is committed for which the wrongdoer must be held responsible. Petitioners disapproval of respondents application is characterized by bad faith as found by both the trial and appellate courts. As to petitioners reliance on damnum absque injuria or damage without injury, suffice it to state that the same is misplaced. In Amonoy vs. Gutierrez (351SCRA731), we held that this principle does not apply when there is an abuse of a persons right, as in this case. Art. 20 Acts Contrary to Law (78,03) Art. 21 Acts Contrary to Morals (75,81,82,96) 1) Bunag, Jr. vs. CA 211 SCRA 440 -In this jurisdiction, we adhere to the time honored rule that an action for breach of promise to marry has no standing in the civil law, apart from the right to recover money or property advanced by the plaintiff upon the faith of such promise. Under the circumstances obtaining in the case at bar, the acts of petitioner in forcibly abducting private respondent and having carnal knowledge with her against her will, and thereafter promising to marry her in order to escape criminal liability, only to thereafter renege on such promise after cohabiting with her for 21 days, irremissibly constitute acts contrary to morals and good customs. These are grossly insensate and reprehensible transgressions that indisputably warrant and abundantly justify the award of moral and exemplary damages, pursuant to Article 21. 2) Wassmer vs. Velez 12 SCRA 648 -Mere breach of promise to marry is not an actionable wrong. But to formally set a wedding and go through all the preparation and publicity, only to walk out of it when the matrimony is about to be solemnized is quite different. This is palpably and unjustifiably contrary to good customs for which defendant must be held answerable in damages in accordance with Article 21. 3) Tanjanco vs. CA and Santos 18 SCRA 994 -No case is made under Article 21 of the Civil Code. The plaintiff, a woman of adult age, maintained intimate sexual relations with appellant, with repeated acts of intercourse. Such conduct is incompatible with the idea of seduction. Plainly there is here voluntariness and mutual passion, for had she been deceived, had she surrendered exclusively because of the deceit, artful persuasions and wiles of the defendant, she would not have again yielded to his embraces, much less for one year, without exacting early fulfillment of the alleged promises of marriage.

BUENAVENTURA vs. CA & ISABEL LUCIA SINGH BUENAVENTURA, March 31, 2005 Is the aggrieved spouse in a marriage declared void by reason of psychological incapacity of the other spouse entitled to moral and exemplary damages under article 21 of the New Civil Code? SC: It must be noted that Article 21 states that the individual must willfully cause loss or injury to another. There is a need that the act is willful and hence done in complete freedom. It is contradictory to characterize acts as a product of psychological incapacity, and hence beyond the control of the party because of an


innate inability, while at the same time considering the same set of acts as willful. By declaring Noel as psychologically incapacitated, the possibility of awarding moral damages on the same set of facts was negated. The award of moral damages should be predicated, not on the mere act of entering into the marriage, but on specific evidence that it was done deliberately and with malice by a party who had knowledge of his/her disability and yet willfully concealed the same. If the award of moral damages has no basis in fact and in law then it follows that the grant of exemplary damages cannot stand since the Civil Code provides that exemplary damages are imposed in addition to moral, temperate, liquidated or compensatory damages. Neither can there be a ground for attorneys fees and expenses for litigation since the act of Noel in filing the complaint for declaration of nullity of marriage is grounded on his psychological incapacity which as already explained is a mental incapacity causing an utter inability to comply with the obligations of marriage. Art. 22 Unjust Enrichment REPUBLIC vs. LACAP 517 SCRA 255 (March 2, 2007) In 1992, Lacap, who was doing business under the name Carwin Construction, was awarded the contract for the concreting of Sitio 5 Bahay Pare by the District Engineer of Pampanga. On October 29, 1992, the Office of the District Engineer of San Fernando, Pampanga found the project 100% completed in accordance with the approved plans and specification and was then issued Certificates of Final Inspection and Acceptance. When Lacap sought to collect payment, the DPWH withheld the payment because COA disapproved the final release of funds on the ground that the contractors license of Lacap had expired at the time of the execution of the contract. The District Engineer then sought the opinion of the DPWH Legal Department whether the contracts of Carwin for various rehabilitation projects were valid although its contractors license had already expired when the projects were contracted. Its Legal Department opined that since RA 4566 known as the Contractors License Law does not provide that a contract entered into after the license has expired is void and there is no law which expressly prohibits or declares void such contract, the contract is enforceable and may be paid, without prejudice to administrative liabilities that may be imposed on the contractor and the government employees or officials concerned. In a subsequent letter to the Legal Department, the District Engineer requested clarification whether Carwin should be paid for works accomplished despite an expired license at the time the contracts were executed. Mejia, Director III of the Legal Department recommended payment reiterating its earlier opinion. Yet, despite such recommendation, no payment was made. Thus, in July 1995, Lacap filed a complaint for damages and specific performance against the Republic. SC: The wordings of RA 4566 are clear. It does not declare, expressly or impliedly, as void contracts entered into by a contractor whose license had already expired. Nonetheless, such contractor is liable for payment of the fine prescribed therein (Section 35 of said law states: x x x x. or use an expired or revoked certificate or license, shall be guilty of misdemeanor, and shall, upon conviction, be sentenced to pay a fine of not less than five hundred pesos but not more than five thousand pesos.). Besides, Article 22 of the Civil Code embodies the maxim Nemo ex alterius incommode debet lecupletari (no man ought to be made rich out of anothers injury). This article is part of the chapter of the Civil Code on Human Relations, the provisions of which were formulated as basic principles to be observed for the rightful relationship between human beings and for the stability of the social order, x x x designed to indicate certain norms that spring from the fountain of good conscience, x x x guides human conduct that should run as golden threads through society to the end that law may approach its supreme ideal which is the sway and dominance of justice. The rules thereon apply equally well to the Government. Since Lacap had rendered services to the full satisfaction and acceptance of petitioner, then the former should be compensated for them. To allow petitioner to acquire the finished project at no cost would undoubtedly constitute unjust enrichment for the petitioner to the prejudice of the respondent.


Art. 26 (77) Acts though not constituting a criminal offense but may produce a cause action for damages, prevention and other relief. Art. 27 Liability of Public Officers Ledesma vs. CA and Delmo 160 SCRA 449 -Ledesma, then President of the West Visayas College, was adjudged liable for damages under Article 27 of the Civil Code for failure to graduate a student with honors. Ledesmas behavior relative to Miss Delmos case smacks of contemptuous arrogance, oppression and abuse of power. It cannot be disputed that Violeta Delmo went through a painful ordeal that was brought about by Ledesmas neglect of duty and callousness. Arts. 29, 30, 31 Civil Action for Damages (Art. 31-88,03,06) -Civil actions arising from felonies are based on the principle that every person criminally liable for a felony is also civilly liable Article 100, RPC. Exceptions where no civil liability shall arise: 1. The fact from which the civil action may arise did not exist; 2. The accused did not commit the crime; or 3. No crime existed but prescription of the criminal action does not bar the filing of civil action for damages. -Only the civil aspect arising out of the offense charged is deemed instituted in the criminal case except if 1. There is a reservation; 2. There is a waiver of the civil action; or 3. The complaining party institutes the civil action prior to the criminal action. Exception to the exception reservations of civil action arising from violations of BP 22 shall not be allowed or recognized. -Actions premised on quasi delicts and other independent civil actions such as civil action not based on the act or omission complained of as a felony but on some other sources of obligation (Art. 31), violation of ones civil liberties, whether direct or indirect, committed by a public official or employee or by a private individual (Article 32), fraud, defamation, or physical injuries [intentionally committed and used in its generic signification] (Art. 33), refusal of any member of the municipal or city police force to render aid or assistance in times of danger to life or property without just cause (Art. 34), and quasi-delict (Art. 2176) may be filed separately by the complainant/plaintiff without any reservation of the right to file a separate civil action (2000 Rules on Criminal Procedure). The no reservation clause has retroactive effect, the same being a rule of procedure (Casupanan vs. Laroya, Cancio vs. Isip cases). The failure to make a reservation in the criminal action is not a waiver of the right to file a separate and independent civil action based on these articles of the Civil Code. Cases: 1) Padilla, et al. vs. CA 129 SCRA 558 -Article 29 merely emphasizes that a civil action for damages is not precluded by an acquittal for the same criminal act or omission. -There is nothing contrary to the Civil Code provision in the rendition of a judgment of acquittal and a judgment awarding damages in the same criminal action. The two can stand side by side. A judgment of acquittal operates to extinguish the criminal liability. It does not, however, extinguish the civil liability unless there is a clear showing that the act from which civil liability might arise did not exist. 2) People vs. Bayotas 236 SCRA 239 -Does death of the accused pending appeal of his conviction extinguish his civil liability? Death of the accused pending appeal of his conviction extinguishes his criminal liability as well as the civil liability based solely thereon. As opined by Justice Regalado, in this regard the death of the accused prior to the final judgment terminates his criminal liability and only the civil liability directly arising from and


based solely on the offense committed, i.e., civil liability ex delicto in senso stricture. -Corollarily, the claim for civil liability survives notwithstanding the death of the used, if the same may also be predicated on a source of obligation other than delict. CANCIO vs. ISIP November 12, 2002 Is the dismissal of an estafa case a bar to the institution of a civil action for collection of the value of the checks subject of the estafa case? An act or omission causing damage to another may give rise to 2 separate civil liabilities on the part of the offender, i.e., (1) civil liability ex delicto, under Article 100 of the RPC; and (2) independent civil liabilities, such as those (a) not arising from an act or omission complained of as a felony [e.g. culpa contractual or obligations arising from law under Article 31 of the Civil Code, intentional torts under Articles 32 and 34 and culpa aquiliana under Article 2176 of the Civil Code]; or (b) where the injured party is granted a right to file an action independent and distinct from the criminal action [Article 33, Civil Code]. Either of these 2 possible liabilities may be enforced against the offender subject, however, to the caveat under Article 2177 of the Civil Code that the offended party cannot recover damages twice for the same act or omission or under both causes. In the case at bar, a reading of the complaint shows that the cause of action is based on culpa contractual, an independent civil action. It is respondents breach of the contractual obligation that served as basis of the complaint. The nature of a cause of action is determined by the facts alleged in the complaint not by the claim of the party filing the action. -Being an independent civil action arising from contracts, it may be filed separately and prosecuted independently without any reservation in the criminal action. Under Article 31 of the Civil Code when the civil action is based on an obligation not arising from the act or omission complained of as a felony, e.g. culpa contractual such civil action may proceed independently of the criminal proceedings and regardless of the result of the latter. Thus, not being deemed instituted in the criminal action based on culpa criminal, a ruling on the culpability of the offender will have no bearing on said independent civil action based on an entirely different cause of action, i.e. culpa contractual. SANTOS vs. PIZARRO 465 SCRA 232 (July 29, 2005) Facts: In April 1994, Viron Transit driver Sibayan was charged with reckless imprudence resulting to multiple homicide and multiple physical injuries for which Sibayan was eventually convicted in December 1998. As there was a reservation to file a separate civil action, no pronouncement of civil liability was made by the MCTC. In October 2000 Santos filed a complaint for damages against Sibayan and Rondaris, the president and chairman of Viron Transit. Viron Transit moved for the dismissal of the complaint citing, among others, prescription alleging that actions based on quasi delict prescribe in 4 years from the accrual of the cause of action. Held: Petitioners expressly made a reservation of their right to file a separate civil action as a result of the crime committed by Sibayan. On account of this reservation the MCTC did not make any pronouncement as to the latters civil liability. Although there were allegations of negligence on the part of Sibayan and Viron Transit, such does not necessarily mean that petitioners were pursuing a cause of action based on quasi delict, considering that at the time of the filing of the complaint, the cause of action ex quasi delicto had already prescribed. Besides, in cases of negligence, the offended party has the choice between an action to enforce liability arising from crime under the Revised Penal Code and an action for quasi delict under the Civil Code. An act or omission causing damage to another may give rise to 2 separate civil liabilities on the part of the offender, i.e. (1) civil liability ex delicto, under Article 100 of the RPC; and (2) independent civil liabilities (a) not arising from an act or omission complained of as a felony, e.g., culpa contractual or obligations arising from law under


Article 31 of the Civil Code, intentional torts under Articles 32 and 34, and culpa aquiliana under Article 2176 of the Civil Code; or (b) where the injured party is granted a right to file an action independent and distinct from the criminal proceedings. While the cause of action ex quasi delicto had already prescribed, petitioners can still pursue the remaining avenue opened for them by their reservation, i.e., the surviving cause of action ex delicto. This is so because the prescription of the action ex quasi delicto does not operate as a bar to an action to enforce the civil liability arising from crime especially as the latter action had been expressly reserved. We held that the dismissal of the action based on culpa aquiliana is not a bar to the enforcement of the subsidiary liability of the employer. Once there is a conviction for a felony, final in character, the employer becomes subsidiarily liable if the commission of the crime was in discharge of the duties of the employees. This is so because Article 103 of the RPC operates the controlling force to obviate the possibility of the aggrieved party being deprived of indemnity even after the rendition of a final judgment convicting the employee. FRIAS vs. SAN DIEGO-SISON 520 SCRA 244 (April 3, 2007) Frias entered into an agreement with Sison whereby the latter shall buy the house and lot of the former covered by TCT No. 168173 for a sum of P6.4 million pesos with a down payment of P3 million although Frias actually received only P2 million because the check covering the P1 million was dishonored. The buyer was given 6 months to decide whether to buy the property or not and if she does, she is given another 6 months to pay the balance of P3.4 million. Frias is also given the right to offer the property to a 3 rd party within the 6-month period and if sold to said 3rd party, to return the down payment to Sison with interest based on prevailing compounded bank interest. But if there is no other buyer and Sison should also decide not to buy the property, Frias has another 6 months within which to pay the P3 million with compounded bank interest for the last 6 months only and the 3 million shall be treated as a loan with the property as security. There was no buyer and after the lapsed of the period, Sison decided not to buy the property. Frias failed to pay the amount despite demand so Sison instituted a complaint for sum money. The debtor was later investigated for perjury and false testimony when Frias made a false report of the loss of owners copy of TCT No. 168173, executing an affidavit of loss and by filing a petition for the issuance of a new owners duplicate of title. When the civil case was decided against her and was ordered to pay Sison the amount due plus damages, she claimed that such award is without basis because she was acquitted in the case for perjury and false testimony. SC: Article 31 provides that 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 regardless of the result of the latter. While petitioner was acquitted in the false testimony and perjury cases filed by respondent against her, those actions are entirely distinct from the collection of sum of money with damages filed by respondent against petitioner. Frias act of trying to deprive respondent of the security of her loan by executing an affidavit of loss of the title and instituting a petition for issuance of a new owners duplicate copy of TCT No. 169173 entitles respondent to damages. Moral damages may be awarded in culpa contractual or breach of contract cases when the defendant acted fraudulently or in bad faith. Bad faith does not simply connote bad judgment or negligence; it imports a dishonest purpose or some moral obliquity and conscious doing of wrong. It partakes the nature of fraud. Art. 32 Violation of Rights (88) MHP Garments, Inc. vs. CA 236 SCRA 227 -Despite the sufficiency of time, they did not apply for a warrant and seized the goods of private respondents. In doing so, they took the risk of a suit for damages in case the seizure would be proved to violate the right of private respondents against unreasonable search and seizures. -Petitioners argument that it was the Philippine Constabulary that conducted the raid and their participation was only to report the alleged illegal activity of private


respondents, the Court, citing Aberca vs. Ver (160 SCRA 590), in explaining the liability of persons indirectly responsible, held: The decisive factor in this case in our view, is the language of Article 32. The law speaks of an officer or employee or person directly or indirectly responsible for the violation of the constitutional rights and liberties of another. In the case at bar, petitioners were indirectly involved in transgressing the right of private respondents against unreasonable search and seizure. Article 33 Independent Civil Actions (76,81,83,88) 1) Reyes vs. Sempio-Diy and Malicsi 141 SCRA 208 -Because the accused had pleaded guilty upon arraignment and was immediately sentenced, there was no chance for the aggrieved party to present evidence in support of her claim for damages and to enter a reservation in the record to file a separate civil action. The Court then allowed the complainant to pursue the action for damages. 2) Yakult Philippines vs. CA 190 SCRA 357 -Although the separate civil action in this case was without previous reservation in the criminal case, nevertheless since it was instituted before the prosecution presented evidence in the criminal action, and the judge handling the criminal case was informed thereof, then the actual filing of the civil action is even far better than a compliance with the requirement of an express reservation that should be made by the offended party before the prosecution present its evidence. -The purpose of this rule requiring reservation is to present the offended party from recovering damages twice for the same act or omission. 3) Casupanan vs Laroya August 26, 2002 May an accused in a pending criminal case for reckless imprudence validly file, simultaneously and independently, a separate civil action for quasi-delict against the private complainant in the criminal case? - The accused can file a civil action for quasi-delict for the same act or omission he is accused of in the criminal case. This is expressly allowed in par. 6, Section 1 of the present Rule 111 that states that the counterclaim of the accused may be litigated in a separate civil action. This is only fair for two reasons. First, the accused is prohibited from setting up any counterclaim in the civil aspect that is deemed instituted in the criminal case. Second, the accused who is presumed innocent, has a right to invoke Article 2177 of the Civil Code, in the same way that the offended party can avail of this remedy which is independent of the criminal action. To disallow the accused from filing a separate civil action for quasi-delict, while refusing to recognize his counterclaim in the criminal case, is to deny him due process of law, access to the courts, and equal protection of the law. - Under Section 1 of the present Rule 111, the independent civil action in Articles 32, 33, 34, and 2176 of the Civil Code is not deemed instituted with the criminal action but may be filed separately by the offended party even without reservation. Article 36 Prejudicial Question (88,97) A prejudicial question is one based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused, and for it to suspend the criminal action, it must appear not only that said case involves facts intimately related to those upon which the criminal prosecution would be based but also in the resolution of the issue or issues raised in the civil case, the guilt or innocence of the accused would necessarily be determined. 2 elements:

1. the civil action involves an issue similar or intimately related with to the issue raised in the criminal action; and 2. the resolution of such issue determines whether or not the criminal action may proceed. If present the criminal action shall be suspended as the resolution of the issue in the civil determines the guilt or innocence of the accused in the criminal. But court has no authority to motu proprio suspend or dismiss the criminal action but only upon petition of the defendant in accordance with the Rules of Court (Yap vs. Paras, 205 SCRA 605). Petition (generally, by the accused) to suspend the criminal proceedings may be filed in the office of the prosecutor or the court conducting the preliminary investigation. If the criminal action has already been filed in court for trial, it shall be made in the same criminal action before the prosecution rests its case. Where Prejudicial Question was considered even if one action is not criminal but administrative. 1) Quiambao vs. Osorio 158 SCRA 674 -The actions involved in the case at bar being respectively civil and administrative in character, it is obvious that technically, there is no prejudicial question to speak of. Equally apparent, however, is the intimate correlation between said two (2) proceedings, stemming from the fact that the right of private respondent to eject petitioner from the disputed portion depends primarily on the pending administrative case. Where the cases are both civil in nature. 1) City of Pasig vs COMELEC 314 SCRA 179 -The City of Pasig argues that there is no prejudicial question since the same contemplates a civil and criminal action and does not come into play where both cases are civil as in the instant case. The SC held that while this may be the general rule, this Court has held in Vidad vs RTC of Negros Oriental, Br. 42, that, in the interest of good order, we can very well suspend action on one case pending the outcome of another case closely interrelated or linked to the first. Other cases: 2) Umali vs. IAC 186 SCRA 680 -No prejudicial question. -Even if the civil case were to be finally adjudged to the effect that the said deed of sale should be annulled, such declaration would be of no material importance in the determination of the guilt or innocence of the accused in the criminal case, the latter involving violation of BP 22. 3) Tuanda vs. Sandiganbayan 249 SCRA 342 -All the elements of a prejudicial question are clearly and unmistakably present in this case. There is no doubt that the facts and issues involved in the civil action and the criminal case are clearly related. The filing of the criminal case was premised on petitioners alleged partiality and evident bad faith in not paying private respondents salaries and per diems as sectoral representatives, while the civil action was instituted precisely to resolve whether or not the designation of private respondents as sectoral representatives were made in accordance with law. 4) Bobis vs. Bobis July 31, 2000 -Not every defense raised in the civil action may be used as a prejudicial question to obtain the suspension of the criminal action. -Respondent thought of seeking a judicial declaration of nullity of his first marriage only after petitioner sued him for bigamy. The obvious intent therefore, is that


respondent merely resorted to the civil action as a potential prejudicial question for the purpose of frustrating or delaying his criminal prosecution. Beltran vs. People 334 SCRA 106 - The rationale behind the principle of prejudicial question is to avoid 2 conflicting decisions. For a civil case to be considered prejudicial to a criminal action as to cause the suspension of the latter pending the final determination of the civil case, it must appear not only that the civil case involves the same facts upon which the criminal prosecution would be based, but also that in the resolution of the issue or issues raised in the civil action, the guilt or innocence of the accused would necessarily be determined. -The accuseds argument that he could be acquitted of the charge of concubinage should his marriage be declared null and void, suffice it to state that even a subsequent pronouncement that his marriage is void from the beginning is not a defense. -In the case at bar it must be held that parties to the marriage should not be permitted to judge for themselves its nullity, for the same must be submitted to the judgment of the competent courts and only when the nullity of the marriage is so declared can it be held as void, and so long as there is no such declaration the presumption is that the marriage exists for all intents and purposes. Therefore, he who cohabits with a woman not his wife before the judicial declaration of nullity of the marriage runs the risk of being prosecuted for bigamy for concubinage. 5) Philippine Agila Satellite, Inc. (PASI) vs. Lichauco 496 SCRA 588 (July 27, 2006) Then DOTC Secretary Lagdameo, Jr. confirmed, by letter, the governments assignment of Phil. orbital slots 161E and 153E to PASI for its Agila Satellites. PASI thereupon undertook preparations for the launching, ownership, operation and management of its satellites by, among other things, obtaining loans. In connection with the loan, PASI President de Guzman later informed Landbank President and CEO Lapuz about the assignment of the orbital slots and requested the banks confirmation of its participation in a club loan amounting to US$11 million, the proceeds of which would be applied to PASIs interim satellite. Lapuz sent a copy of the letter to then Undersecretary Lichauco who denied the assignment of the 2 orbital slots to PASI but that PASI is only getting 144E orbital slot. Subsequently, Lichauco issued a Notice of Offer for several orbital slots including 153E. Claiming that the offer was made without its knowledge and that another company was awarded for orbital slot 153E, PASI filed a complaint for injunction, nullity and damages against Lichauco and the unknown awardee. A month later PASI filed a complaint against Lichauco before the Office of the Ombudsman for violation of the AntiGraft and Corrupt Practices Act. Upon evaluation by the said office it found the existence of a prejudicial question and recommended its dismissal. The recommendation was approved by then Ombudsman Aniano Desierto. Issues: 1. Whether there exists a PQ and, in the affirmative, 2. whether the dismissal of the complaint on that account is proper. Held: If the award to the undisclosed bidder of orbital slot 153E is, in the civil case, declared valid for being within Lichaucos scope of authority to thus free her from liability for damages, there would be no prohibited act to speak of nor would there be basis for undue injury claimed to have been suffered by PASI. The finding by the Ombudsman of the existence of a prejudicial question is thus well taken. If the complaint has prima facie merit, however, the investigating officer shall recommend the adoptions of the action enumerated from (b) to (f). When in the course of the actions taken by those to whom the complaint is endorsed or forwarded, a prejudicial question is found to be pending, Section 6, Rule 111 of the Rules of Court should be applied in a suppletory character. As laid down in Yap vs. Paras, said rule directs that the proceedings may only be suspended, not dismissed, and that it may be made only upon petition, and not at the instance of the judge alone or as in this case, the investigating officer.


To give imprimatur to the Ombudsmans dismissal of petitioners complaint due to a prejudicial question would only not run counter to the provision of Section 6 of Rule 111 of the Rules of Court. It would sanction the extinguishments of criminal liability, if there be any, through prescription under Article 89 vis--vis Articles 90 and 91 of the Revised Penal Code. OMICTIN vs. CA and LAGOS 512 SCRA 70 (January 22, 2007) Omictin, Operations Manager Ad Interim of Saag, Phils., filed a complaint of estafa against Lagos due to the latters refusal, despite repeated demands, to return the 2 company vehicles entrusted to him while he was still the president of the firm. Lagos moved for the suspension of the criminal proceedings due to the existence of a prejudicial question in view of a pending case before the Securities and Exchange Commission (SEC) filed by the latter against Omictin, Saag Pte. (S) Ltd., Ng, Yeo and Tan. The case before the SEC stemmed from the appointments of Tan as President Ad Interim and Omictin as Operations Manager Ad Interim of Saag Phils., Incorporated. Saag (S) Pte. Ltd. is a foreign corporation organized under the laws of Singapore. Lagos was appointed Area Sales Manager in the Philippines where he was authorized to organize a local joint venture corporation known as Saag, Phils., with Saag (S) Pte. Ltd. as the majority stockholder and Lagos was appointed as one of the directors. Due to intra-corporate disputes, 2 of the directors resigned and divested their shares in Saag Corporation. Lagos resigned as president while retaining his post as director. He later requested Executive Director Yeo to call for a board meeting because in their joint venture agreement (JVA) between Saag Phils. and Saag (S) Pte. Ltd. it was agreed that should the controlling interest in the latter company be acquired by any other person or entity without his prior consent, he has the option to either require the other stockholders to purchase his shares or terminate the JVA and dissolve Saag Phils., Inc. No meeting was made, instead Tan was appointed as president ad interim and Omictin as operations manager ad interim. Thus, the SEC case. SC: Ultimately, the resolution of the issues raised in the intra-corporate dispute will determine the guilt or innocence of Lagos in the crime of estafa. One of the elements of estafa with abuse of confidence under Article 315, par. 1 (b) of the RPC is a demand made by the offended party to the offender. Logically, under the circumstances since the alleged offended party is Saag Phils., Inc., the validity of the demand for the delivery of the subject vehicles rests upon the authority of the person making such demand on the companys behalf. Lagos is challenging petitioners authority to act for Saag Phils., Inc. in the corporate case. If the supposed authority of petitioner is found to be defective, it is as if no demand was ever made, hence, the prosecution for estafa cannot prosper. MAGESTRADO vs. PEOPLE and LIBROJO 527 SCRA 125 (July 10, 2007) Librojo filed a criminal complaint for perjury against Magestrado. It was alleged that Magestrado executed an affidavit of loss before a notary public stating therein that he lost Owners Duplicate Copy of TCT No. N-173163 when in truth the said title was surrendered by Magestrado to Librojo as security for a loan. Subsequently, Magestrado filed a motion for suspension of proceedings based on a prejudicial question because he alleged that Civil Cases No. Q-98-34348 to 9, cases for cancellation of mortgage, delivery of title and damages and recovery of a sum of money, must be resolved first before the criminal case may proceed since the issues in the said civil cases are similar or intimately related to the issues raised in the criminal action. SC: A perusal of the allegations in the civil cases are principally for the determination of whether a loan was obtained by petitioner from Librojo and whether Magestrado executed a real estate mortgage involving the property covered by TCT No. N173163. On the other hand, the criminal case involves the determination of whether petitioner committed perjury in executing an affidavit of loss to support his request for issuance of a new owners duplicate copy of TCT No. 173163. It is evident that the civil cases and the criminal case can proceed independently of each other. Regardless of the outcome of the 2 civil cases, it will not establish the innocence or guilt of the petitioner in the criminal case for perjury. The purchase by Magestrado of the land or his execution of a real estate mortgage will have no bearing


whatsoever on whether petitioner knowingly and fraudulently executed a false affidavit of lass. Art. 37-(96) definition of terms re: Juridical Capacity and Capacity to Act; Art.38-(85) restrictions on capacity to act; Art. 39-(85) circumstances modifying or limiting capacity to act. Art. 40 41 Civil Personality (81,86,91,99,03) What determines personality (Art. 40) and its exception and the requisites in order that the exception may apply (Art. 41). Art. 43 If there is a doubt as to who died first involving persons who are called to succeed each other; the person alleging the death of one prior to the other has the burden of proof and 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. Applies only in cases of succession between parent and child, all other cases apply presumption of survivorship under the Rules of Court. (98,99,00) Ex. (2000 Bar) Cristy and her late husband Luis had 2 children, Rose aged 10 and Patrick, 12 years old. One summer, her mother-in-law, aged 70, took the 2 children with her on a boat trip to Cebu. Unfortunately, the vessel sank en route, and the bodies of the 3 were never found. None of the survivors ever saw them on the water. On the settlement of her mother-in-laws estate, Cristy filed a claim for a share of her estate on the ground that the same was inherited by her children from their grandmother in representation of their father, and she inherited the same from them. Will her action prosper? Ans. No, her action will not prosper. Since there was no proof as to who died first, all the 3 are deemed to have died at the same time and there shall be no transmission of rights from one to another, applying Article 43 of the NCC. The survivorship provision of Rule 131 of the Rules of Court does not apply to the problem. It applies only to those cases where the issue involved is not succession. (1998 Bar) Jaime, aged 65, and his son Willy, 25 years old and married to Wilma, died in a plane crash. There is no proof as to who died 1st. Jaime had a life insurance policy with his wife Julia, and his son, Willy, as the beneficiaries. Can Wilma successfully claim that of the proceeds should belong to Willys estate? Ans. Yes, Wilma can invoke the presumption of survivorship and claim that of the proceeds should belong to Willys estate, as the dispute does not involve succession. Under this presumption, the person between the ages of 15 and 60 years is deemed to have survived one whose age was over 60 at the time of their deaths. The estate of Willy endowed with juridical personality stands in place and stead of Willy, as beneficiary.

Executive Order No. 209 (August 3, 1988)

I. Marriage Art. 1 definition of marriage Article 2 Essential Requisites: 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. SILVERIO vs. REPUBLIC 537 SCRA 373 (October 19, 2007) -One of its essential requisites is the legal capacity of the contracting parties who must be a male and a female. To grant the changes sought by petitioner will substantially reconfigure and greatly alter the laws on marriage and family relations. It will allow the union of a man with another man who has undergone sex reassignment (a male-to-female post-operative transsexual).


Article 3 Formal Requisites of Marriage (96) 1. Authority of the solemnizing officer; 2. A valid marriage license except a. marriages in articulo mortis; b. parties residing in remote places; c. Muslim marriages and marriages of members of other ethnic cultural communities; d. ratification of marital cohabitation. 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 at least 2 witnesses of legal age. - Hence, no marriages by proxy under our jurisdiction. Cases: 1) Sy vs. CA and Sy 330 SCRA 550 -Incongruity in the dates of the marriage license and the celebration of the marriage itself would lead to the conclusion that her marriage to Fernando was void from the beginning. Date of issue of marriage license is September 17, 1974. The date of the celebration of their marriage is November 15, 1973. 2) Republic vs. CA and Castro 236 SCRA 257 Facts: Husband personally attended to the processing of the documents relating to their application for a marriage license. The marriage lasted only 4 months. It was discovered by the wife that no marriage license was issued by the LCR of Pasig City who certified to that effect. In her petition for declaration of nullity of marriage, the wife presented as evidence the certification issued by the LCR of Pasig City. The SC held that: -A certificate of due search and inability to find unaccompanied by any circumstance of suspicion issued by the local civil registrar is sufficient proof that no marriage license is issued to the contracting parties. -Secret marriage a legally non-existent phrase but ordinarily used to refer to a civil marriage celebrated without the knowledge of the relatives and/or friends of either or both of the contracting parties. 3) Sevilla vs. Cardenas 497 SCRA 428 (July 31, 2006) Whether or not the certifications from the Local Civil Registrar of San Juan stating that no Marriage License No. 2770792 as appearing in the marriage contract of the parties was issued, are sufficient to declare their marriage null and void ab initio. Facts: Jaime Sevilla filed a petition for declaration of nullity of his marriage with Carmelita Cardenas on the ground that he never applied for a marriage license from any Civil Registry, consequently, no marriage license was presented to the solemnizing officer. That although marriage license no. 2770792 allegedly issued in San Juan, Rizal on May 19, 1969 was indicated in the marriage contract, the same was fictitious for he never applied for any marriage license. As proof, he presented certifications issued by the Local Civil Registrar of San Juan, Rizal that reads: TO WHOM IT MAY CONCERN: No Marriage License Number 2770792 were (sic) ever issued by this Office. With regards (sic) to Marriage License Number 2990792, we exert all effort but we cannot find the said number. Hope and understand our loaded work cannot give you our force locating the above problem. San Juan, MetroManila March 11, 1994 (SGD) RAFAEL ALISCAD, JR. Local Civil Registrar The 2nd certification dated September 20, 1994 provides: TO WHOM IT MAY CONCERN:


This is to certify that no marriage license Number 2770792 were ever issued by this Office with regards to Marriage License Number 2880792, we exert all effort but we cannot find the said number. Hope and understand our loaded work cannot give you our full force locating the above problem. The 3rd certification dated July 25, 2000 states: TO WHOM IT MAY CONCERN: This is to certify that according to the records of this office, no Marriage License Application was filed and no Marriage License No. 2770792 allegedly dated May 19, 1969 was issued by this Office to MR. JAIME O. SEVILLA and MS. CARMELITA CARDENAS-SEVILLA. This is to further certify that the said application and license do not exist in our Local Civil Registry Index and, therefore, appear to be fictitious. X x x x x. SC: The certification to be issued by the Local Civil Registrar must categorically state that the document does not exist in his office or the particular entry could not be found in the register despite diligent search. Such certification shall be sufficient proof of lack or absence of record as stated in Section 28, Rule 1432 of the Rules of Court: SEC. 28. Proof of lack of record. A written statement signed by an officer having the custody of an official record or by his deputy that after diligent search, no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certification as above provided, is admissible as evidence that the records of his office contain no such record or entry. Note that the first 2 certifications bear the statement that hope and understand our loaded work cannot give you our full force locating the above problem. It could easily be implied from the said statement that the Office of the Civil Registrar could not exert its best efforts to locate and determine the existence of Marriage License No. 2770792 due to its loaded work. Likewise, both certifications failed to state with absolute certainty whether or not such license was issued. This implication is confirmed by the testimony of the representative from the Office of the Local Civil Registrar of San Juan, who stated that they could not locate the logbook due to the fact that the person in charge of the said logbook had already retired. Further, the testimony of the said person was not presented in evidence. It does not appear on record that the former custodian of the logbook was deceased or missing, or that his testimony could not be secured. Given the documentary and testimonial evidence to the effect that utmost efforts were not exerted to locate the logbook where Marriage License No. 2770792 may have been entered, the presumption of regularity of performance of official functions by the LCR in issuing certifications is effectively rebutted. Moreover, the absence of the logbook is not conclusive proof of non-issuance of Marriage License No. 2770792. It can also mean, as we believed true in the case at bar, that the logbook just cannot be found. In the absence of showing of diligent efforts to search for the said logbook, we cannot easily accept that the absence of the same also means nonexistence or falsity of entries therein. Finally, the rule is settled that every intendment of the law or fact leans toward the validity of the marriage, the indissolubility of the marriage bonds. Semper praesumitor pro matrimonio Always presume marriage. Art. 4 Effect of Absence, Defect, or Irregularity (96,99) Absence renders the marriage void. Defect annullable. Irregularity valid but may subject person responsible for irregularity to criminal, civil and/or administrative sanction. In Morigo vs. People (422 SCRA376) where the parties merely signed the marriage contract without the presence of the solemnizing officer and no actual marriage ceremony took place, the SC held that the 1st element of bigamy as a crime requires that the accused must have been legally married. In the case at bar, legally speaking Morigo was never married to Lucia Barrete. Thus, there is no 1st marriage to speak of. Under the


principle of retroactivity of a marriage being declared void ab initio, the 2 were never married from the beginning. The contract of marriage is null, it bears no legal effect. The mere private act of signing a marriage contract on their own bears no semblance to a valid marriage and thus, needs no judicial declaration of nullity. Such act alone, without more, cannot be deemed to constitute an ostensibly valid marriage for which Morigo might be held liable for bigamy unless he first secures a judicial declaration of nullity before he contracts a subsequent marriage. -Liability of Public Officers Cosca vs. Palaypayon, Jr. 237 SCRA 249 -The judge in the case at bar solemnized the marriage without a marriage license, did not sign the marriage contracts or certificates, no dates placed in the marriage contracts to show when they were solemnized, the contracting parties were not furnished their marriage contracts and the Local Civil Registrar was not being sent any copy of the marriage contract. -As the solemnizing officer, he is responsible for the irregularity and under Article 4(3) of the Family Code the judge shall be civilly, criminally and administratively liable. -In Aranes vs. Occiano (380 SCRA 402) the SC held citing Navarro vs. Domatoy 259 SCRA 129 where a judge solemnizes a marriage outside his courts jurisdiction, there is a resultant irregularity in the formal requisite laid down in Article 3, which while it may not affect the validity of the marriage, may subject the officiating official to administrative liability. In the case at bar, the territorial jurisdiction of respondent judge is limited to the municipality of Balatan, Camarines Sur. His act of solemnizing the marriage of petitioner and Orobia in Nabua, Camarines Sur therefore is contrary to law and subjects him to administrative liability. Art. 5 re. Age of parties to the marriage (1989, 2006); Article 7 (06)- those authorized to solemnize marriages (enumeration is exclusive) 1. Incumbent members of the judiciary within the courts jurisdiction; 2. 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; 3. Only in marriages in articulo mortis (awareness of an impending death) ship captain or airplane chief whether crew members or passengers and military commander of a unit in the absence of the chaplain during military operation whether the parties are members of the military or civilians; 4. Consul-general, vice consul or consul - only between Filipinos residing or sojourning abroad; and 5. Mayors by virtue of the Local Government Code effective January 1, 1992 (99); Article 8 place where the ceremony shall be held (89); Article 10- authority of consul-general, vice consul, or consul to solemnize marriages between Filipino citizens abroad but the contracting parties are not exempt from the license requirement as Article 10 states that the issuance and duties of the LCR as well as that of the solemnizing officer shall be performed by the said consular official (94); Art. 14-necessity of parental consent if one or both contracting parties are between the ages of 18 & 21 no parental consent voidable (99). DE LA ROSA, et. al. vs. HEIRS of MARCIANA RUSTIA vda. de DAMIAN January 27, 2006 Facts: 2 sets of heirs were claiming the estates of Guillermo Rustia and Josefa Delgado. Josefas heirs consist of her half- and full-blood siblings, nephews and nieces, grandnephews and grandnieces while the alleged heirs of Guillermo were his sisters, nephews and nieces, his illegitimate child and a de facto adopted child. The petitioners alleged that while Guillermo proposed marriage to Josefa, the 2 were never married although they eventually lived together as husband and wife. To prove their assertion they pointed out that no record of the said marriage existed in the civil registry. Moreover, a baptismal certificate naming Josefa Delgado as one of the sponsors referred to her as Senorita or unmarried woman. Respondents, on the other hand, insist that the absence of a marriage certificate did not necessarily mean that no marriage transpired. They presented the following pieces of evidence:


1. Certificate of Identity No. 9592 dated December 1, 1944 issued to Mrs. Guillermo J. Rustia by Carlos P. Romulo, then Resident Commissioner to the US of the Commonwealth of the Philippines; 2. Philippine Passport issued to Josefa D. Rustia on June 25, 1947; 3. Veterans Application for Pension or Compensation for Disability Resulting from Service wherein Guillermo Rustia himself swore to his marriage to Josefa Delgado in Manila on June 3, 1919; 4. Titles to real properties in the name of Guillermo Rustia indicated that he was married to Josefa Delgado. Was there a valid marriage between Guillermo and Josefa? In this case, several circumstances give rise to the presumption that a valid marriage existed between Guillermo Rustia and Josefa Delgado. Their cohabitation of more than 50 years cannot be doubted. Their family and friends knew them to be married. Their reputed status as husband and wife was such that even the original petition for letters of administration filed by Luisa Delgado vda. de Danao in 1975 referred to them as spouses. Although the marriage contract is considered a primary evidence of marriage, its absence is not always proof that no marriage in fact took place. The evidence need not necessarily or directly establish the marriage but must at least be enough to strengthen the presumption of marriage. Here, the certificate of identity issued to Josefa Delgado as Mrs. Guillermo Rustia, the passport issued to her as Josefa D. Rustia, the declaration under oath of no less than Guillermo Rustia that he was married to Josefa Delgado and the titles to the properties in the name of Guillermo Rustia married to Josefa Delgado more than adequately support the presumption of marriage. These are public documents that are prima facie evidence of the facts stated therein. Elisa vda. de Anson confirmed that Guillermo Rustia had proposed marriage to Josefa Delgado and that eventually, the 2 had lived together as husband and wife. This again could not but strengthen the presumption of marriage. The baptismal certificate was conclusive proof only of the baptism administered by the priest who baptized the child. It was no proof of the veracity of the declarations and statements contained therein, such as the alleged single or unmarried (senorita) civil status of Josefa Delgado who had no hand in its preparation. In this jurisdiction, every intendment of the law leans toward legitimizing matrimony. Persons dwelling together apparently in marriage are presumed to be in fact, married. This is the usual order of things in society and, if the parties are not what they hold themselves out to be, they would be living in constant violation of the common rules of law and propriety. Semper praesumitur pro matrimonio. Always presume marriage.

Art. 21 Requirement when either or both parties are foreigners Garcia a.k.a. Grace Garcia-Recio vs. Recio October 2, 2001 -Is failure to present a certificate of legal capacity to marry constitutes absence of a substantial requisite voiding the marriage? The Supreme Court held that legal capacity to contract marriage is determined by the national law of the party concerned. The certificate mentioned in Article 21 of the Family Code would have been sufficient to establish the legal capacity of the respondent, had he duly presented it in court. -SC remanded the case to the trial court to receive evidence, if any, which will conclusively show respondents legal capacity to marry petitioner. Failing in that, then the court a quo may declare a nullity of the parties marriage on the ground of bigamy.


-SC also ruled that compliance with Articles 11, 13 and 52 of the Family Code is not necessary; Philippine personal laws no longer bound respondent Recio after he acquired Australian citizenship in 1992. Art. 26- Validity of marriages celebrated abroad subject to certain exceptions (89, 92, 96, 99,05,06) GARCIA, a.k.a. GRACE GARCIA-RECIO vs. RECIO October 2, 2001 - In mixed marriages involving a Filipino and a foreigner, Article 26 of the Family Code allows the former to contract a subsequent marriage in case the divorce is validly obtained abroad by the alien spouse capacitating him or her to remarry. REPUBLIC of the PHILIPPINES vs. CRASUS IYOY 470 SCRA 508 (September 21, 2005) Crasus and Felys marriage ended when the latter left for the United States in 1984. In 1985, Fely divorced her husband and contracted a subsequent marriage with an American. In 1988, she obtained American citizenship. She now claimed that her marriage to her American husband was legal because now being an American citizen, her status shall be governed by the law of her present nationality. Is the argument tenable? SC: As it is worded, Article 26, paragraph 2, refers to a special situation wherein one of the married couple is a foreigner who divorces his or her Filipino spouse. By its plain and literal interpretation, the said provision cannot be applied to the case of Crasus and his wife Fely because at the time Fely obtained her divorce, she was still a Filipino citizen. At the time she filed for divorce she was still a Filipino citizen, and pursuant to the nationality principle embodied in Article 15 of the Civil Code, she was still bound by Philippine laws on family rights and duties, status, condition, and legal capacity, even when she was already living abroad. Philippine laws, then and even until now, do not allow and recognize divorce Filipino spouses. Thus, Fely could not have validly obtained a divorce from Crasus. REPUBLIC of the PHILIPPINES vs. CIPRIANO ORBECIDO III October 5, 2005 Issue: Given a valid marriage between 2 Filipino citizens, where one party is later naturalized as a foreign citizen and obtains a valid divorce decree capacitating him or her to remarry, can the Filipino spouse likewise remarry under Philippine law? Facts: Cipriano and Lady Myros were married in 1981. They had 2 children. In 1986 Lady Myros left for the United States, obtained American citizenship and in 2000 obtained a decree of divorce and married one Innocent Stanley. Cipriano thereafter, filed a petition for authority to remarry invoking par. 2 of Article 26 of the Family Code. The Republic thru the OSG contends that the cited provision is not applicable to the instant case because it applies only to a valid mixed marriage; that is, between a Filipino citizen and an alien. Held: On its face, Article 26 does not appear to govern the situation presented by the case at hand. It seems to apply only to cases where at the time of the celebration of the marriage, the parties are a Filipino citizen and a foreigner. The jurisprudential answer lies latent in the 1998 Quita vs. Court of Appeals. The Court therein hinted, by way of obiter dictum, that a Filipino divorced by his naturalized foreign spouse is no longer married under Philippine law and can thus remarry. Thus, taking into consideration the legislative intent and applying the rule of reason, we hold that par. 2 of Article 26 should be interpreted to include cases involving parties who, at the time of the celebration of the marriage were Filipino citizens, but later on, one of them becomes naturalized as a foreign citizen and obtains a divorce decree. The Filipino should likewise be allowed to remarry as if the other party were a foreigner at the time of the solemnization of the marriage. To rule otherwise would be to sanction absurdity and injustice. Where the interpretation of a statute according to its exact and literal import would lead to mischievous results or contravene the literal purpose of the legislature, it should be construed according to its spirit and reason, disregarding as far as necessary the spirit of the law.


In view of the foregoing, we state the twin elements for the application of par. 2 of Article 26 as follows: 1. There is a valid marriage between a Filipino citizen and a foreigner; and 2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry. The reckoning point is not the citizenship of the parties at the time of the marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry. Art. 31-Marriage in Articulo mortis (95) Art. 34 Legal Ratification of marital cohabitation (02) Nial vs. Badayog 328 SCRA 122 (March 14, 2000) -The 5-year common law cohabitation period, which is counted back from the date of the celebration of marriage, should be a period of legal union had it not been for the absence of the marriage. This 5-year period should be the years immediately before the day of the marriage and it should be a period of cohabitation characterized by exclusivitymeaning no 3rd party was involved at any time within the 5 years of continuitythat is unbroken. Otherwise, if that continuous 5-year cohabitation is computed without any distinction as to whether the parties were capacitated to marry each other during the entire 5 years, then the law would be sanctioning immorality and encouraging parties to have common law relationships and placing them on the same footing with those who lived faithfully with their spouse. -The 5-year cohabitation should be in the nature of a perfect union that is valid under the law but rendered imperfect only by the absence of the marriage contract. -Void marriages can be questioned even after the death of either party, that is why the action or defense for nullity is imprescriptible and any proper interested party may attack a void marriage. - In the case at bar, the SC applied Article 76 of the Civil Code, the subsequent marriage having been celebrated prior to the effectivity of the Family Code.

MANZANO vs. SANCHEZ 354 SCRA 1 -The Supreme Court enumerated the requisites that must concur in order that the provision on legal ratification shall apply: 1. The man and woman must have been living together as husband and wife for at least five years before the marriage; 2. The parties must have no legal impediment to marry each other; 3. The fact of absence of legal impediment between the parties must be present at the time of the marriage (underscoring supplied); 4. The parties must execute an affidavit stating that they have lived together for at least five years [and are without legal impediment to marry each other]; and 5. The solemnizing officer must execute a sworn statement that he had ascertained the qualifications of the parties and that he had found no legal impediment to their marriage. -In the case at bench, the SC held that the absence of the legal impediment is only required at the time of the celebration of the marriage no longer during the entire 5year period of cohabitation. FELISA TECSON-DAYOT vs. JOSE A. DAYOT 550 SCRA 435 (March 28, 2008)


Jose and Felisa were married in November 1986 and in lieu of a marriage license, the parties executed a sworn affidavit attesting, among others, that both of them being unmarried lived together as husband and wife for at least 5 years. It turned out that the statement is a complete falsity for they started living together barely 5 months before the celebration of their marriage. Issue: Whether the falsity of an affidavit of marital cohabitation, where the parties have in truth fallen short of the minimum 5-year requirement, effectively renders the marriage void ab initio for lack of marriage license. SC: For the exception in Article 76 of the Civil Code to apply, it is a sine qua non thereto that a man and a woman must have attained the age of majority, and that, being unmarried, they have lived together as husband and wife for at least 5 years. - The Civil Code in no ambiguous terms, places a minimum period requirement of 5 years of cohabitation. No other reading of the law can be had, since the language of Article 76 is precise. -The minimum requisite of 5 years of cohabitation is an indispensability carved in the language of the law. For a marriage celebrated under Article 76 to be valid, this material fact cannot be dispensed with. It is embodied in the law not as a directory requirement, but one that partakes of a mandatory character. - To permit a false affidavit to take the place of a marriage license is to allow circumvention of the law. - The falsity of the allegation in the sworn statement relating to the period of Jose and Felisas cohabitation, which would have qualified their marriage as an exception to the requirement for marriage license, cannot be a mere irregularity, for it refers to the quintessential fact that the law precisely required to be deposed and attested to by the parties under oath. If the essential matter in the sworn statement is a lie, then it is merely a scrap of paper, without force and effect. Hence, it is as if there was no affidavit at all. JUAN DE DIOS CARLOS vs. FELICIDAD SANDOVAL and TEOFILO CARLOS II GR No. 179922, December 16, 2008 - The failure to reflect the serial number of the marriage license on the marriage contract evidencing the marriage between Felicidad and Teofilo, although irregular, is not as fatal as Juan represents it to be. Felicidads affirmation of the existence of said marriage license, the Justice of the Peace who officiated the impugned marriage, corroborated her statement stating that the number of said marriage license was inadvertently not placed in the marriage contract for the reason that it was the Office Clerk who filled the blanks in the marriage contract who in turn may have overlooked the same. Article 36 Psychological Incapacity- (93,97,02,06[2Qs]) - based on Canon 1095 of the Canon Law. CASES: 1) Santos vs. CA January 4, 1995 -What constitutes psychological incapacity- should refer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as expressed by Art. 68 of the Family Code include their mutual obligation to live together, observe love, respect and fidelity and render help and support. -Intendment of law has been to confine the meaning of psychological incapacity to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. -Psychologic condition must exist at the time the marriage is celebrated.


-Did not meet standards required - the incapacity must be characterized by a) gravity- the party would be incapable of carrying out the duties required in marriage, b) juridical antecedence it must be rooted in the history of the party antedating the marriage, although overt manifestations may emerge only after the marriage, and c) incurability or if otherwise, the cure would be beyond the means of the party involved. 2) Ching Ming Tsoi vs. CA January 16, 1997 -One of the essential marital obligations under the Family Code is to procreate children based on the universal principle that procreation of children through sexual cooperation is the basic end of marriage. -In the case at bar, the senseless and protracted refusal of one of the parties to fulfill the above marital obligation is equivalent to psychological incapacity. -An ungiven self is an unfulfilled self. 3) Republic v. CA and Molina February 13, 1997 -No clear showing that the psychological defect spoken of is an incapacity. It appears to be more of a difficulty, if not outright refusal or neglect in the performance of some marital obligations. -SC laid down the guidelines in the interpretation and application of Article 36. -Root cause of the psychological incapacity must be (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. -Made definite and clear as to what are the essential marital obligations of marriage (Articles 68-71, 220, 221 and 225 of the Family Code). 4) Marcos vs. Marcos 343 SCRA 755 - The personal or medical or psychological examination of respondent is not a requirement for a declaration of psychological incapacity. The totality of evidence presented may serve as basis of the determination of the merits of the petition. - The guidelines in the Molina case incorporate the three basic requirements earlier mandated by the Court in Santos v CA: psychological incapacity must be characterized by (a) gravity, (b) juridical antecedence, and (c) incurability. The foregoing guidelines do not require that a physician examine the person to be declared psychologically incapacitated. In fact, the root cause may be medically or clinically identified. What is important is the presence of evidence that can adequately establish the partys psychological condition. For indeed, if the totality of evidence presented is enough to sustain a finding of psychological incapacity, then actual medical examination of the person concerned need not be resorted to. - Article 36 refers to a serious psychological illness afflicting a party even before the celebration of the marriage. It is a malady so grave and so permanent as to deprive one of awareness of the duties and responsibilities of the matrimonial bond one is about to assume. - Although this court is sufficiently convinced that respondent failed to provide material support to the family and may have resorted to physical abuse and abandonment, the totality of his acts does not lead to a conclusion of psychological incapacity on his part. There is no showing that his defects were already present at the inception of the marriage or that they are incurable. The behavior of respondent can be attributed to the fact that he had lost his job and was unemployed for 6 years. - And because Article 36 has been abused as a convenient divorce law, this Court laid down the procedural requirements for its invocation in Molina. Petitioner has not faithfully observed them. She failed to show that the alleged psychological incapacity is characterized by gravity, juridical

antecedence, and incurability; and for her failure to observe the guidelines outlined in Molina. 5) Hernandez vs. CA and Hernandez December 8, 1999 -Petitioner failed to establish the fact at the time they were married private respondent was suffering from a psychological defect which in fact deprived him of the ability to assume the essential duties of marriage and its concomitant responsibilities. -Habitual alcoholism, sexual infidelity or perversion, and abandonment do not by themselves constitute grounds for finding that he is suffering from a psychological incapacity within the contemplation of the Family Code. It must be shown that these acts are manifestations of a disordered personality which made respondent completely unable to discharge the essential obligations of the marital state, and not merely due to respondents youth and self-conscious feeling of being handsome. - Expert testimony should have been presented to establish the precise cause of spouses psychological incapacity, if only to show, that it existed at the time of the marriage. 6) REPUBLIC vs. DAGDAG 351 SCRA 425 -May a spouse be declared psychologically incapacitated based on the following grounds? 1. would disappear for months; 2. if with his family, often drunk and in such a state forced the wife to have sexual intercourse, in case of refusal beats the wife; and 3. had been unheard of since last disappearance although rumored to have escaped from jail. -In Republic vs. Molina, the Court laid down the GUIDELINES in the interpretation and application of Article 36 of the Family Code. Taking into consideration these guidelines, it is evident that Erlinda failed to comply with Guideline No. 2 which requires that the root cause of psychological incapacity must be medically or clinically identified and sufficiently proven by experts, since no psychiatrist or medical doctor testified as to the alleged psychological incapacity of her husband.

7.) PESCA vs. PESCA 356 SCRA 588 - In 1994 wife filed a petition for declaration of nullity of marriage under Article 36 because of the alleged emotional immaturity and irresponsibility of her cruel and violent husband. A habitual drinker who, when advised to stop, would beat, slap and kick her. Prior to the filing of the case, petitioner was battered black and blue that led to the imprisonment of respondent for 11 days. - Emotional immaturity and irresponsibility cannot be equated with psychological incapacity. - The phrase psychological incapacity, borrowed from Canon law, is an entirely novel provision in the statute books, and, until the relatively recent enactment of the Family Code, the concept has escaped jurisprudential attention. It is in Santos when, for the first time, the Court has given life to the term. Molina, that followed, has additionally given the procedural guidelines to assist the courts and the parties in trying cases for annulment of marriages grounded on psychological incapacity. Molina has strengthened, not overturned, Santos. At all events petitioner utterly failed, both in her allegations in the complaint and in her evidence, to make out a case of psychological incapacity on the part of her husband, let


alone at the time of the solemnization of the marriage, so as to warrant a declaration of nullity of marriage. - The Court reiterates its reminder that marriage is an inviolable social institution and the foundation of the of the family that the State cherishes and protects (Section 2, Article XV, 1987 Constitution). 8. BARCELONA vs. CA 412 SCRA 41 -Subsequent to Santos and Molina, the Court adopted the new Rules on Declaration of Absolute Nullity of Void Marriages and Annulment of Void Marriages (effective March 15, 2003). Procedural rules apply to actions pending and unresolved at the time of their passage. The obvious effect of the new Rules providing that expert opinion need not be alleged in the petition is that there is also no need to allege the root cause of the psychological incapacity. Only experts in the fields of neurological and behavioral sciences are competent to determine the root cause of psychological incapacity. Since the new Rules do not require the petition to allege expert opinion on the psychological incapacity, it follows that there is no need to allege in the petition the root cause of the psychological incapacity. What the new Rules require the petition to allege are physical manifestations indicative of psychological incapacity. (Facts: Petitioner after enumerating the reasons that led to the separation-in-fact of the spouses merely alleged that his wife was psychologically incapacitated to comply with the essential obligations of marriage which exist at the time of the celebration of the marriage and which incapacity subsisted up to and until the present time. Such incapacity was conclusively found in the psychological examination conducted on the relationship between the petitioner and the respondent. In her motion to dismiss, the wife argued that the petition falls short of the guidelines set forth in Santos and Molina. Specifically the petition is defective because it failed to allege the root cause of her alleged psychological incapacity. It is also devoid of any reference of the grave nature of her illness to bring about her disability to assume the essential obligations of marriage which were not even stated what those marital obligations that she failed to comply due to psychological incapacity.) DEDEL vs. CA 421 SCRA 461 Sharon is an immature wife and mother and had extramarital affairs with several men one of whom she ran away with and had 2 children with him. She was also confined once in a hospital for treatment by a clinical psychiatrist. During the trial, a doctor testified that Sharon was suffering from anti-social personality disorder exhibited by her blatant display of infidelity; that she committed several indiscretions and had no capacity for remorse. Such immaturity and irresponsibility in handling the marriage like her repeated acts of infidelity and abandonment of her family are indications of anti-social personality disorder amounting to psychological incapacity to perform the essential obligations of marriage. Issue: Is Sharon psychologically incapacitated based on the totality of evidence presented? Held: Sharons sexual infidelity can hardly qualify as being mentally or psychologically ill to such an extent that she could not have known the obligations she was assuming, or knowing them, could not have given a valid assumption thereof. It appears that Sharons promiscuity did not exist prior to or at the inception of the marriage. Respondents sexual infidelity or perversion and abandonment do not by themselves constitute psychological incapacity within the contemplation of the Family Code. Neither could her emotional immaturity and irresponsibility be equated with psychological incapacity. It must be shown that these acts are manifestations of a disordered personality which make respondent completely unable to discharge the essential obligations of the marital state, not merely to her youth, immaturity or sexual promiscuity. TENEBRO vs. CA 423 SCRA 272


What is the effect of a judicial declaration of nullity of a 2 nd or subsequent marriage on the individuals criminal liability for bigamy? Veronico married Leticia on April 10, 1990. Sometime 1991 Veronico informed Leticia that he was previously married to Hilda in 1986. He then left the former to live with the latter. When Veronico contracted another marriage in 1993 with one Nilda, Leticia filed a complaint for bigamy. Convicted. On appeal he argued that the declaration of nullity of the 2nd marriage on the ground of psychological incapacity retroacts to the date on which the 2nd marriage was celebrated. Held: A declaration of nullity of the 2nd marriage on the ground of psychological incapacity is absolutely no moment insofar as the States penal laws are concerned. As a second or subsequent marriage contracted during the subsistence of Veronicos valid marriage to Hilda, Veronicos marriage to Leticia would be null and void ab initio completely regardless of Leticias psychological incapacity or capacity. Since a marriage contracted during the subsistence of a valid marriage is automatically void, the nullity of this 2nd marriage is not per se an argument of the avoidance of the criminal liability for bigamy. Although the judicial declaration of a marriage on the ground of psychological incapacity retroacts to the date of the celebration of the marriage insofar as the vinculum between the spouses is concerned, it is significant to note that said marriage is not without legal effects, Article 54 states that children conceived or born before the judgment of absolute nullity of the marriage shall be considered legitimate. There is therefore a recognition written into the law itself that such a marriage, although void ab initio, may still produce legal consequences. Among these legal consequences is incurring criminal liability for bigamy. To hold otherwise would render the States penal laws on bigamy completely nugatory, and allow individuals to deliberately ensure that each marital contract be flawed in some manner, and thus escape the consequences of contracting multiple marriages, while beguiling throngs of hapless women with the promise of futurity and commitment. REPUBLIC vs. HAMANO May 20, 2004 Are the norms laid down by the SC in Santos and Molina cases applicable to marriages where one of the parties to the marriage and alleged to be psychologically incapacitated is a foreigner? SC: We find no distinction between an alien spouse and a Filipino spouse. We cannot be lenient in the application of the rules merely because the spouse alleged to be psychologically incapacitated happens to be a foreign national. The norms used for determining psychological incapacity should apply to any person regardless of nationality. -The SC in this case reiterated the complete guidelines, as stated in the Molina case, in the interpretation and application of Article 36 for the guidance of the bench and bar with emphasis on (2) thereof i.e. The root cause of the psychological incapacity must be: (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. -The guidelines incorporate the 3 basic requirements earlier mandated by the Court in Santos: psychological incapacity must be characterized by (a) gravity (b) juridical antecedence and (c) incurability. The foregoing guidelines do not require that a physician shall physically examine the alleged psychologically incapacitated spouse in order that his psychological incapacity may be medically or clinically identified. What is important is the presence of evidence that can adequately establish the partys psychological condition. For indeed, if the totality of evidence presented is enough to sustain a finding of psychological incapacity, the actual medical examination of the person concerned need not be resorted. -In the case at bar, the totality of evidence presented fell short of proving that Toshio was psychologically incapacitated to assume his marital responsibilities. Although, as a rule, there was no need for an actual medical examination, it would greatly helped respondents case had she presented evidence that medically or clinically identified his illness. This could have been done through expert witness. This Lolita did not do.


-As we held in Molina, it is not enough to prove that a spouse failed to meet his responsibility and duty as a married person; it is essential that he must be shown to be incapable of doing so due to some psychological, not physical illness. LEONILO ANTONIO vs. MARIE IVONNE F. REYES March 10, 2006 Barely 4 years after the marriage, Antonio filed a petition to have his marriage to Marie Ivonne declared null and void under Article 36. As manifestations of the wifes alleged psychological incapacity, Antonio claimed that respondent persistently lied about herself, the people around her, her occupation, income, educational attainment and other events or things. In support of his petition, he presented Drs. Abcede, a psychiatrist, and Lopez, a clinical psychologist, who stated, based on the tests they conducted, that they observed that respondents persistent and constant lying to petitioner was abnormal or pathological. It undermined the basic relationship that should be based on love, trust and respect. They further asserted that Marie Ivonnes extreme jealousy was also pathological. It reached the point of paranoia since there was no actual basis for her to suspect that Leonilo was having an affair with another woman. They concluded that respondent was psychologically incapacitated to perform her essential marital obligations. During the pendency of the case, the Metropolitan Tribunal of the Archdiocese of Manila annulled the catholic marriage of the parties that was affirmed by the National Appellate Matrimonial Tribunal with modification which decision was upheld by the Roman Rota of the Vatican. The trial court declared the marriage void finding that respondents fantastic ability to invent and fabricate stories and personalities enabled her to live in a world of makebelieve. This made her psychologically incapacitated and rendered her incapable of giving meaning and significance to her marriage. On appeal, the appellate court reversed the trial courts ruling concluding that the totality of the evidence presented was insufficient to establish respondents psychological incapacity. It declared that the requirements in the case of RP vs. CA (Molina case) governing the application and interpretation of psychological incapacity had not been established. SC: Jurisprudence since then has recognized that psychological incapacity is a malady so grave and permanent as to deprive one of awareness of the duties and responsibilities of the matrimonial bond one is about to assume. Given the avowed State interest in promoting marriage as the foundation of the family, which in turn serves as the foundation of the nation, there is a corresponding interest for the State to defend against marriages ill-equipped to promote family life. Void ab initio marriages under Article 36 do not further the initiatives of the State concerning marriage and family, as they promote wedlock among persons who, for reasons independent of their will, are not capacitated to understand or comply with the essential obligations of marriage. Molina established the guidelines presently recognized in the judicial disposition of petitions for nullity under Article 36. The Court has consistently applied Molina since its promulgation in 1997, and the guidelines therein operate as the general rules. We find the present case sufficiently satisfies the guidelines in Molina. First. Petitioner had sufficiently overcome his burden by proving the psychological incapacity of his spouse. Apart from his testimony, he presented witnesses who corroborated his allegations on his wifes behavior, and certifications from Blackgold Records and the Phil. Village Hotel Pavilion that disputed respondents claims pertinent to her alleged singing career. He also presented 2 expert witnesses from the field of psychology who testified that the aberrant behavior of respondent was tantamount to psychological incapacity. Second. The root cause of respondents psychological incapacity has been medically or clinically identified, alleged in the complaint, sufficiently proven by experts, and clearly explained in the trial courts decision. Dr. Lopez concluded that respondent is a pathological liar that she continues to lie and loves to fabricate about herself. While these witnesses did not personally examine respondent, the Court had already held in Marcos vs. Marcos that personal examination of the subject by the physician is not required for the spouse to be declared psychologically incapacitated. Third. Respondents psychological incapacity was established to have clearly existed at the time of and even before the celebration of the marriage. She fabricated friends and made up letters from fictitious characters well before she married petitioner. Fourth. The gravity of respondents psychological incapacity is


sufficient to prove her disability to assume the essential obligations of marriage. It is immediately discernible that the parties had shared only a little over a year of cohabitation before the exasperated petitioner left his wife. It should be noted that the lies attributed to respondent were not adopted as false pretenses in order to induce petitioner into marriage. More disturbingly, they indicate a failure on the part of the respondent to distinguish truth from fiction, or at least abide by the truth. Petitioners witnesses and the trial court were emphatic on respondents inveterate proclivity to telling lies and the pathologic nature of her mistruths, which according to them were revelatory of respondents inability to understand and perform the essential obligations of marriage. Indeed, a person unable to distinguish between fantasy and reality would similarly be unable to comprehend the legal nature of the marital bond, much less its psychic meaning, and the corresponding obligations attached to marriage, including parenting. One unable to adhere to reality cannot be expected to adhere as well to any legal or emotional commitments. Fifth. Respondent is evidently unable to comply with the essential marital obligations as embraced by Articles 68 to 71 of the Family Code. Article 68, in particular, enjoins the spouses to live together, observe mutual love, respect and fidelity. It is difficult to see how an inveterate pathological liar would be able to commit to the basic tenets of relationship between spouses based on love, trust and respect. Sixth. The CA clearly erred when it failed to take into consideration the fact that the marriage was annulled by the Catholic Church. Such deliberate ignorance is in contravention of Molina, which held that 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. Seventh. From the totality of the evidence, we are sufficiently convinced that the incurability of respondents psychological incapacity has been established by petitioner. Any lingering doubts are further dispelled by the fact that the Catholic Church tribunals, which indubitably consider incurability as an integral requisite of psychological incapacity, were sufficiently convinced that respondent was so incapacitated to contract marriage to the degree that annulment was warranted. REPUBLIC vs. CUISON-MELGAR 486 SCRA 177 -Reiterated the decisions rendered in Santos vs. CA that psychological incapacity must be characterized by (a) gravity, (b) juridical antecedence, and (c) incurability. -Subsequently, the Court laid down in Republic vs. Molina the guidelines in the interpretation and application of Article 36. - In Marcos vs. Marcos, the Court later clarified that that there is no requirement that the defendant/respondent spouse should be personally examined by a physician or psychologist as a condition sine qua non for the declaration of nullity of marriage based on psychological incapacity. Such psychological incapacity, however, must be established by the totality of the evidence presented during the trial. - In this case, Norma failed to establish the fact that at the time they were married, Eulogio was suffering from a psychological defect that in fact deprived him of the ability to assume the essential duties of marriage and its concomitant responsibilities. In fact, Norma admitted that her marital woes started only after the birth of their 1st born and when Eulogio lost his job. It was alleged that Eulogio is a habitual alcoholic, refuses to look for a job after he was dismissed from work, every so often goes to her office, utters unwholesome remarks against her and then drags her home because of his unbearable jealousy and had abandoned the family. - Further, no other evidence was presented to show that Eulogio was not cognizant of the basic marital obligations as outlined in Articles 68 to 72, 220, 221 and 225. - While an actual medical, psychiatric, or psychological examination is not a condition sine qua non to a finding of psychological incapacity, an expert witness would have strengthened Normas claim of Eulogios alleged psychological incapacity. Normas omission to present one is fatal to her position, there can be no psychological incapacity where there is

absolutely no showing that the defects were already present at the inception of the marriage or that they are incurable. PEREZ-FERRARIS vs. FERRARIS 495 SCRA 396 (July 17, 2006) - The term psychological incapacity to be a ground for nullity of marriage under Art. 36 of the FC, refers to a serious psychological illness afflicting a party even before the celebration of the marriage. It is a malady so grave and so permanent as to deprive one of awareness of the duties and responsibilities of the matrimonial bond one is about to assume. As all people may have certain quirks and idiosyncrasies, or isolated characteristics associated with certain personality disorders, there is hardly any doubt that the intendment of the law has been to confine the meaning of psychological incapacity to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage (Santos vs. CA). It is for this reason that the Court relies heavily on psychological experts for its understanding of the human personality. However, the root cause must be identified as a psychological illness and its incapacitating nature must be fully explained. - In the case at bar, their problems began when petitioner started doubting respondents fidelity. It was only when they started fighting about the calls from women that respondent began to withdraw into his shell and corner, and failed to perform his so-called marital obligations. - Dr. Dayan did not explain how she arrived at her diagnosis that respondent has a mixed personality disorder called schizoid, and why he is the dependent and avoidant type. The doctors statement lacks specificity; it seems to belong to the realm of theoretical speculation. Inputs about respondents problematic history were all supplied by petitioner herself, hence self-serving. Petitioner likewise failed to prove that respondents supposed psychological illness or mental malady existed even before the marriage. - Respondents alleged mixed personality disorder, the leaving-the-house attitude whenever they quarreled, the violent tendencies during epileptic attacks, the sexual infidelity, the abandonment and lack of support, and his preference to spend more time with his band mates than his family, are not rooted on some debilitating psychological condition but a mere refusal or unwillingness to assume the essential obligations of marriage. ZAMORA vs. CA 515 SCRA 19 (February 7, 2007) -reiterated its ruling in Santos, Molina and Marcos. -the case of Santos v. CA did not specifically mention that the presentation of expert opinion is a vital and mandatory requirement in filing a petition for the declaration of nullity of marriage. Even in the subsequent case of Republic v. CA (also known as the Molina case), examination of the person by a physician in order for the former to be declared psychologically incapacitated was likewise not considered a requirement. What is important, however, as stated in Marcos v. Marcos, is the presence of evidence that can adequately establish the partys psychological condition. If the totality of evidence presented is enough to sustain a finding of psychological incapacity, then actual medical examination of the person concerned need not be resorted to. REPUBLIC vs. TANYAG-SAN JOSE 517 SCRA 123 (February 28, 2007) -SC cited its ruling in Santos, Molina and Ferraris. -Doctor Tayags conclusion about Manolitos psychological incapacity was based on the information supplied by Laila which she found to be factual. Undoubtedly, the doctors conclusion is hearsay. It is unscientific and unreliable. Dr. Tayags psychological report does not even show that the alleged anti-social disorder of Manolito was already present at the inception of the marriage or that it is incurable. Neither does it explain the incapacitating nature of the alleged disorder nor identify its root cause.

Manolitos alleged psychological incapacity is thus premised on his being jobless and a drug user, as well as his inability to support his family and his refusal or unwillingness to assume the essential obligations of marriage. His state or condition or attitude has not been shown, however, to be a malady or disorder rooted on some incapacitating or debilitating psychological condition. NARCISO S. NAVARRO, JR., vs. CYNTHIA NAVARRO 521 SCRA 121 (April 13, 2007) Petitioner claims that the marriage was dysfunctional, destructive, and reconciliation was out of the question because he would go insane if he were to go back to his wife. That she was not supportive of his career, and marriage counseling did not work. He also alleged that if they quarreled, she refused to have sex with him and would tell him to look for other women. - SC reiterated decision in Santos vs. CA on characteristics of psychological incapacity, the guidelines laid in Republic vs. CA (also known as the Molina case- Zamora vs. CA) and elucidated; - Spouses frequent squabbles and respondents refusal to sleep with petitioner and be supportive to him do not constitute psychological incapacity. - Psychological incapacity must be more than just a difficulty, refusal, or neglect in the performance of some marital obligations, it is essential that they must be shown to be incapable of doing so, due to some psychological illness existing at the time of the celebration of the marriage. - Their bickerings and arguments even before their marriage and respondents scandalous outbursts in public, at most, show their immaturity and immaturity does not constitute psychological incapacity.

PARAS v. PARAS 529 SCRA 81 (August 2, 2007) May factual findings in a disbarment case be considered conclusive in a petition for declaration of nullity of marriage under Article 36 where the husband was suspended from the practice of law because of immorality and abandonment of his own family? -Jurisprudence abounds that administrative cases against lawyers belong to a class of their own. They are distinct from and may proceed independently of civil and criminal cases. The basic premise is that criminal and civil cases are altogether different from administrative matters, such that the disposition in the first two will not inevitably govern the third and vice versa. Accordingly, ones unfitness as a lawyer does not automatically mean ones unfitness as a husband or vice versa. The disposition in a disbarment case cannot be conclusive on an action for declaration of nullity of marriage. In the disbarment case, the real question for determination is whether or not the attorney is still a fit person to be allowed the privileges as such. On the other hand, in an action for declaration of nullity of marriage based on psychological incapacity, the question for determination is whether the guilty party suffers a grave, incurable, and pre-existing mental incapacity that renders him truly incognitive of the basic marital covenants. The presentation of an expert witness to prove psychological incapacity has its origin in Molina. In the 2000 case of Marcos v. Marcos, the Court clarified that the above Guideline does not require that the respondent should be examined by a physician or a psychologist as a condition sine qua non for the declaration of nullity of marriage. What is important is the presence of evidence that can adequately establish the partys psychological condition. While this Court is convinced that the charges hurled against Justo by Rosa, such as sexual infidelity, falsification of her signature, abandonment and inadequate of children are true, nonetheless, there is nothing in the records showing that they were caused by a psychological disorder on his part. In other words, the totality of the evidence

is not sufficient to show that Justo is psychologically incapacitated to comply with the essential marital obligations. There is no evidence that Justos defects were present at the inception of the marriage. His defects surfaced only in the latter years when these events took place; their 2 children died; he lost in the election; he failed in his business ventures and law practice; and he felt the disdain of his wife and family. Surely, these circumstances explain why Rosa filed the present case only after almost 30 years of their marriage. Equally important is that records fail to indicate that Justos defects are incurable or grave. RENNE ENRIQUE BIER vs. MA. LOURDES A. BIER and REPUBLIC 547 SCRA 123 (February 27, 2008) 3 years after the marriage, petitioner found out that respondent is no longer the spouse he knew and married. She became aloof towards him and began to spend more time with her friends than with him, refusing even to have sexual relations with him for no apparent reason. She became an alcoholic and a chain-smoker. She also neglected her husbands needs and upkeep of the home, and became an absentee wife. SC: If a petition for nullity based on psychological incapacity is to be given due course, its gravity, root cause, incurability and the fact that it existed prior to or at the time of celebration of the marriage must always be proved. -This must be strictly complied with as the granting of a petition for nullity of marriage based on psychological incapacity must be confined only to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. - Even if Molina was never meant to be a check list of the requirements in deciding cases involving Article 36 of the Family Code, a showing of the gravity, juridical antecedence and incurability of the partys psychological incapacity and its existence at the inception of the marriage cannot be dispensed with. - Even if Marcos relaxed the rules such that the personal examination of the party alleged to be psychologically incapacitated by a psychiatrist or a psychologist is no longer mandatory for the declaration of nullity of the marriage under Article 36 of the Family Code, the totality of evidence must still prove the gravity, juridical antecedence and incurability of the alleged psychological incapacity. Failure in this regard will spell failure of the petition. HALILI vs. SANTOS-HALILI 551 SCRA 576 (April 16, 2008) Petitioner alleged that he is psychologically incapacitated to fulfill his essential marital obligations to respondent. That after the wedding they never lived together as they continued to live with their respective parents although they maintained their relationship. The marriage was never consummated and that they are constantly fighting. SC: Although petitioner was able to establish his immaturity the same hardly constitutes sufficient cause for declaring the marriage void on the ground of psychological incapacity. It must be characterized by gravity, juridical antecedence and incurability. Their not having lived together in one roof does not necessarily give rise to the conclusion that one of them was psychologically incapacitated to comply with the essential marital obligations. The evidence adduced by petitioner merely showed that he and respondent had difficulty getting along with each other as they constantly fought over petty things. However, there was no showing of the gravity and incurability of the psychological disorder supposedly inherent in petitioner, except for the mere statement or conclusion to that effect in the psychological report which report dismally failed to prove petitioners alleged was grave enough and incurable to bring about his disability to assume the essential obligations of marriage. SC reiterated its ruling in the Santos and Molina cases.


NILDA NAVALES vs. REYNALDO NAVALES 556 SCRA 272 (June 27, 2008) -The totality of evidence presented by Reynaldo is insufficient to sustain a finding that Nilda is psychologically incapacitated. -The psychological report which concluded that Nilda is a nymphomaniac, an emotionally immature individual, has a borderline personality, has strong sexual urges which are incurable, has complete denial of her actual role as a wife, etc., etc. is insufficient to establish Nildas psychological incapacity. It lacked specificity, it failed to show the root cause of Nildas psychological incapacity; and failed to demonstrate that there was a natal or supervening disabling factor or an adverse integral element in Nildas character that effectively incapacitated her from accepting, and thereby complying with, the essential marital obligations, and that her psychological or mental malady existed even before the marriage. - The standards used by the Court in assessing sufficiency of psychological reports may be deemed very strict, but that is only proper in view of the principle that any doubt should be resolved in favor of the validity of the marriage and the indissolubility of the marital vinculum. REPUBLIC vs. LYNETTE CABANTUG-BAGUIO 556 SCRA 711 (June 30, 2008) Lynette is married to Martini, a seaman, whom she alleged to be suffering from psychological incapacity being a mamas boy that will endanger the integrity of the marriage because instead of establishing a permanent relationship with the wife the husband-defendant would remain dependent on his family. The clinical psychologist concluded that Martini shows immature personality disorder, dependency patterns, and self-centered motives -The mere showing of irreconcilable differences and conflicting personalities does not constitute psychological incapacity. Nor does the failure of the parties to meet their responsibilities and duties as married persons. -It is essential that the parties to a marriage must be shown to be insensitive to or incapable of meeting their duties and responsibilities due to some psychological (not physical) illness, which insensitivity or incapacity should have been existing at the time of the celebration of the marriage even if it becomes manifest only after its solemnization. -How the doctor arrived at the conclusion, after interviewing Lynnette and considering her deposition, that such personality disorders of Martini have been existing since Martinis adolescent years has not been explained. -While the examination by a physician of a person in order to declare him/her psychologically incapacitated is not required, the root cause thereof must be medically or clinically identified. There must thus be evidence to adequately establish the same. There is none such in the case at bar, however. EDWARD KENNETH NGO TE vs. ROWENA TE G.R. No. 161793, February 13, 2009 Art. 37 Incestuous marriages void from the very beginning. Art. 38 Marriages that are void by reason of public policy (99) Art. 39- Non-prescription of action or defense of absolute nullity of marriage (89) Article 40 Need for Judicial Declaration of a Void Marriage (91, 93) 1) Terre vs. Terre 211 SCRA 11 -For purposes of determining whether a person is legally free to contract a second marriage, a judicial declaration that the first marriage was null and void ab initio is essential. 2) Domingo vs. CA

226 SCRA 572 -Husband alleged that the marriage being void ab initio, there is no need for declaring its nullity and hence, the petition is superfluous and unnecessary and Article is only for purposes of remarriage. Is the husband correct? -A declaration of the absolute nullity of a marriage is now explicitly required as a cause of action or a ground for defense. -For purposes of contracting a second marriage, the sole basis acceptable in law for said projected marriage to be free from legal infirmity is a final judgment declaring the previous marriage void. -Where a party desires to enter into another marriage, he is required by law to prove that the previous one was an absolute nullity. But this he may do on the basis solely of a final judgment declaring such previous marriage void. -A party may invoke the absolute nullity of a previous marriage for purposes other than remarriage such as an action for liquidation, partition, distribution and separation of property as well as custody and support of their common children. -The court before which the issue of nullity of a first marriage is brought is likewise clothed with jurisdiction to decide the incidental questions regarding the couples properties. 3) Atienza vs. Brillantes, Jr. 243 SCRA 32 -Article 40 is applicable to remarriages entered into after the effectivity of the Family Code on August 3, 1988 regardless of the date of the first marriage. -Article 256 on retroactivity applies as Article 40 is a rule of procedure. 4) Beltran vs. People 334 SCRA 106 -Reiterated Domingo ruling. -SC also held that parties to the marriage should not be permitted to judge for themselves its nullity for the same must be submitted to the judgment of the competent courts and only when the nullity of the marriage is so declared can it be held as void, and so long as there is no such declaration the presumption is that the marriage exists for all intents and purposes. 5) Carino vs. Carino February 2, 2001 - For purposes of remarriage, there must be a prior judicial declaration of the nullity of a previous marriage though void, before a party can enter into a second marriage, otherwise the second would also be void. RULES ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARRIAGES (A.M. No. 02-11-02-SC): 1. Prescription action or defense for the declaration of absolute nullity of marriage does not prescribe (Article 39, FC). 2. Only the husband or wife may file the petition before the Family Court. 3. A petition under Article 36 of the FC must specifically allege the complete facts including physical manifestations, if any, showing that either or both parties were psychologically incapacitated from complying with the essential marital obligations of marriage even if such incapacity becomes manifest only after its celebration. The complete facts should allege the physical manifestations, if any, as are indicative of psychological incapacity at the time of the celebration of the marriage but expert opinion need not be alleged. RULES ON ANNULMENT OF MARRIAGES: 1. Persons given the right to file action Article 45, FC. 2. Prescriptive period Article 47, FC. PROVISIONS COMMON TO BOTH ACTIONS:

1. The petition shall be filed in the Family Court in the province or city where the petitioner or respondent had been residing for at least 6 months prior to the date of filing, or if respondent is a non-resident, where he may be found in the Philippines at the election of the petitioner. 2. The petition must be verified accompanied by a certification against forum shopping and personally by the petitioner, not solely by counsel or through an attorney-in-fact. 3. No motion to dismiss is allowed except if ground is lack of jurisdiction over the subject matter or over the parties and, if respondent fails to file an answer within the required period, the latter shall not be declared in default. 4. A pre-trial is mandatory and the respondent who failed to file an answer is likewise entitled to notice of said pre-trial. 5. Dismissal of the action if petitioner fails to personally appear or through his counsel or his authorized representative. If it were the answering respondent who failed to appear, the pre-trial shall proceed but the public prosecutor is required to investigate whether collusion exists between the parties. 6. The presiding judge must personally conduct the trial, no delegation of reception of evidence is allowed except to matters involving property relations. The grounds must be proved, no judgment on the pleadings, summary judgment or confession of judgment is allowed. 7. Persons having no direct interest in the case may be excluded from the courtroom on any of the following grounds, namely: 1) if the court determines on the record that requiring a party to testify in open court would not enhance the ascertainment of truth; 2) would cause to the party psychological harm or inability to effectively communicate due to embarrassment, fear or timidity; 3) would violate the right of a party to privacy or would be offensive to decency or public morals. Furthermore, records of the proceedings are strictly confidential and no copy of the records may be taken or examined, or perused except by a party or counsel of a party unless upon order of the court. 8. If the court grants the petition, the decree of either annulment or nullity shall only be issued if the parties comply with the requirements set forth in Articles 50 (liquidation, partition, and distribution of the spouses, the custody and support of the common children, and the delivery of their presumptive legitimes) and 51 (value of the presumptive legitimes and the form that shall constitute it cash, property or sound securities) of the Family Code as provided for in Article 52 thereof. 9. The prevailing party has the duty to register the decree both in the civil registry of the place where the marriage was recorded and the civil registry of the place where the Family Court granting the petition for annulment or nullity is located. The decree shall be the best evidence to prove the declaration of absolute nullity or annulment of marriage that will also serve as notice to 3rd persons concerning the properties of the parties as well as the presumptive legitimes delivered to the common children. 10. Effect of death- before entry of judgment the case shall be closed and terminated without prejudice to the settlement of the estate in proper proceedings. If after entry- judgment shall be binding upon the parties and their successors-in-interest. JUAN DE DIOS CARLOS vs. FELICIDAD SANDOVAL, and TEOFILO CARLOS II GR No. 179922, December 16, 2008 -The grounds for declaration of absolute nullity of marriage must be proved. Neither judgment on the pleadings nor summary judgment is allowed. Both rules have no place in cases of declaration of absolute nullity of marriage and even in annulment of marriage. So is confession of judgment disallowed. -Only the aggrieved or injured spouse may file a petition for annulment of voidable marriages or declaration of absolute nullity of void marriages. It cannot be filed by the compulsory or intestate heirs of the spouses or by the State. Compulsory or intestate heirs have only inchoate rights prior to the death of their predecessor, and, hence, can only


question the validity of the marriage of the spouses upon the death of a spouse in a proceeding for the settlement of the estate of the deceased spouse filed in the regular courts. On the other hand, the concern of the State is to preserve marriage and not to seek its dissolution. -The Rule does not apply to cases already commenced before March 15, 2003 although the marriage is within the coverage of the Family Code. The new Rule which became effective on March 15, 2003 is prospective in its application. Article 41 Subsequent Marriage contracted based on absence of spouse- (92) -Need for declaration of presumptive death of absentee. 1.) Republic vs. Nolasco 220 SCRA 20 -Four requisites that must be met for the declaration of presumptive death under Article 41. These are 1. the absentee spouse must have been absent for 4 consecutive years or 2 years if the disappearance is accompanied by any of the circumstances mentioned in Article 391 of the Civil Code; 2.the spouse present has a well-founded belief that the absentee spouse is already dead; 3. there is a judicial decree of presumptive death; and 4. for the purpose of remarriage. -Spouses should not be allowed, by the simple expedient of agreeing that one of them leaves the conjugal abode and never to return again, to circumvent the policy of the laws on marriage.

2.) Calisterio vs.Calisterio April 16, 2000 -Subsequent marriage was solemnized on May 8, 1958 the law in force at that time was the Civil Code. -A judicial declaration of absence of the absentee spouse is not necessary as long as the prescribed period of absence (7 consecutive years or if less, generally considered to be dead and believed to be so) is met. In contrast, under the 1988 Family Code, in order that a subsequent marriage may exceptionally be considered the following conditions must concur: (1) the prior spouse of the contracting party must have been absent for 4 consecutive years or 2 years where there is danger of death under Article 391 of the NCC, (2) the spouse present has a well-founded belief that the absent spouse is already dead, (3) there is a judicial declaration of presumptive death and (4) for the purpose of remarriage. -1st husband had been absent or had disappeared for more than 11 years before she entered into a second marriage in 1958. The 2nd marriage having been contracted during the regime of the Civil Code should thus be deemed valid notwithstanding the absence of a judicial declaration of presumptive death (Article 83, NCC). 3.) EDUARDO P. MANUEL vs. PEOPLE November 29, 2005 Is the spouse who contracts a subsequent marriage during the subsistence of a previous marriage still liable for bigamy despite the absentee spouse having been missing for 21 years? Facts: Eduardo married Rubylus in 1975. She went missing also in the same year and was unheard of since then. In 1996, he married Tina. When he left Tina in 2001, the latter became curious and made inquiries with the NSO in Manila and learned that Eduardo had been previously married. Sued for bigamy, Eduardo avers that when he married Tina in 1996, Rubylus had been absent for 21 years since 1975. He points out that, under the 1st paragraph of Article 390 of the Civil Code she was presumed dead as a matter of law because if one has been absent for 7 years, whether or not he/she is still alive, shall be presumed dead for all purposes except for succession. Thus, the presumptive death of the absentee spouse arises by operation of law upon the satisfaction of 2 requirements: the specified period and the present spouses reasonable belief that the absentee is dead.


Nowhere under Article 390 of the Civil Code does it require that there must be a judicial declaration of death before the rule on presumptive death would apply. Held: It was the burden of petitioner to prove his defense that when he married Tina in 1996, he was of the well-grounded belief that his first wife was already dead, as he had not heard from her for more than 20 years since 1975. He should have adduced in evidence a decision of a competent court declaring the presumptive death of his first wife as required by Article 349 of the RPC (Bigamy- The penalty x x x x or before the absent spouse has been declared presumptively dead by means of a judgment rendered in a proper proceedings.), in relation to Article 41 of the Family Code. Such judicial declaration constitutes proof that petitioner acted in good faith, and would negate criminal intent on his part when he married Tina and, as a consequence, he could not be held guilty of bigamy. The requirement of judicial declaration is also for the benefit of the State. Under Article II, Section 12 of the Constitution, the State shall protect and strengthen the family as a basic autonomous social institution. Marriage is a social institution of the highest importance. REPUBLIC vs. CA and ALEGRO December 9, 2005 Alan filed a petition for the declaration of presumptive death of his wife, Rosalia (Lea). Barely a month after the marriage, Lea left their conjugal abode. It all started when he allegedly berated Lea for being always out of the house. Lea allegedly left their conjugal home the following day. He then looked for her in his in-laws house, in her friends house where the brother-in-law of Leas friend told him that his wife left for Manila. He also inquired from his friends of Leas whereabouts but to no avail. He also sought the help of Barangay Captain Magat who promised to help him locate his wife. In 1995, he left for Manila and went to the house of Leas friend but despite repeated talks with her, he failed to find her. He also looked for Lea in the malls but to no avail. In 1997, he decided to return to Catbalogan and again looked for his wife but failed. In 2001, he reported Leas disappearance to the local police and also to NBI. His statements were corroborated by Magat during the trial. SC: The spouse present is, thus, burdened to prove that his spouse has been absent and that he has a well-founded belief that the absent spouse is already dead before the present spouse may contract a subsequent marriage. The belief of the present spouse must be the result of proper and honest to goodness inquiries and efforts to ascertain the whereabouts of the absent spouse and whether the absent spouse is already dead, in Republic vs. Nolasco, the Court warned against collusion between the parties when they find it impossible to dissolve the marital bonds through existing legal means. It is also a maxim that men readily believe what they wish to be true. In this case, Alegro failed to present a witness other than Magat. He failed to present Janeth or Nelson or any other person from whom he allegedly made inquiries about Lea to corroborate his testimony. What is worrisome is that, Alegro failed to make inquiries from his parents-in-law considering that Leas father was the owner of DYMS. He did report and seek the help of the local police and the NBI to locate Lea, but it was only an afterthought. He did so only after the OSG filed its notice to dismiss his petition. SOCIAL SECURITY SYSTEM (SSS) and the SOCIAL SECURITY COMMISSION (SSC) vs. TERESITA JARQUE vda. DE BAILON March 24, 2006 Close to 13 years after his wife Alice was declared presumptively dead, Bailon contracted a subsequent marriage with Teresita in Casiguran, Sorsogon. When Bailon died Teresita claimed the death benefits from the SSS. It now appears that Alice is very much alive and that it was Bailon who abandoned or deserted the spouse. Alice alleged that she lived with her parents at Barcelona, Sorsogon because she found out that Bailon was having an extra marital affair but Bailon used to visit her there after their separation. That she only recently knew of the petition filed by Bailon to declare her presumptively dead. The SSS denied Teresitas claim contending that her subsequent marriage with Bailon is void as it was contracted while Bailons marriage with Alice was still subsisting and that there is no need to require Alice to execute an affidavit of reappearance as there is no disappearance of Alice. In fact, the CFI order declaring Alice presumptively dead did not become final, her (ALICE) presence being contrary proof


against the validity of the order. Teresita, however, maintains that her marriage with Bailon was not declared before any court of justice as bigamous or unlawful, hence, it remained valid and subsisting for all legal intents and purposes as in fact Bailon designated her as his beneficiary. Went to the Social Security Commission but the SSC upheld the denial of the SSS respecting Teresitas claim for death benefits. SC: The 2 marriages having been solemnized prior to the effectivity of the Family Code, the applicable law to determine their validity is the Civil Code specifically Art. 83 which was the law in effect at the time of their celebration. Under the said provision, a subsequent marriage contracted during the lifetime of the first spouse is illegal and void ab initio unless the prior marriage is first annulled or dissolved or contracted under any of the 3 exceptional circumstances (7 continuous years absence or if less than 7 years, generally considered to be dead and believed to be so by the spouse present, or disappeared under any of the circumstances mentioned in Articles 390 or 391) falling under said Article. It bears noting that the marriage under any of these exceptional cases is deemed valid until declared null and void by a competent court. It follows that the onus probandi in these cases rests on the party assailing the second marriage. In the case at bar, as found by the CFI, Alice had been absent for 15 consecutive years when Bailon sought the declaration of presumptive death, which judicial declaration was not even a requirement then for purposes of remarriage. Under the Civil Code, a subsequent marriage being voidable, it is terminated by final judgment annulling the previous marriage or declaring it void ab initio. Under the Family Code, no judicial proceeding to annul a subsequent marriage is necessary. Article 42 provides: 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, x x x x. The termination of the subsequent marriage by affidavit does not preclude the filing of an action in court to prove the reappearance of the absentee and obtain a declaration of dissolution or termination of the subsequent marriage. If the absentee reappears, but no step is taken to terminate the subsequent marriage, either by affidavit or by court action, such absentees mere appearance, even if made known to the spouses in the subsequent marriage, will not terminate such marriage. Since the 2nd marriage has been contracted because of a presumption that the former spouse is dead, such presumption continues in spite of the spouses physical reappearance, and by fiction of law, he or she must still be regarded as legally an absentee until the subsequent marriage is terminated as provided by law. If the subsequent marriage is not terminated by registration of an affidavit of reappearance or by judicial declaration but by death of either spouse as in the case at bar, Tolentino submits: x x x. Generally if a subsequent marriage is dissolved by the death of either spouse, the effects of dissolution of a valid marriage shall arise. The good faith or bad faith of either spouse can no longer be raised, because as in annullable or voidable marriages, the marriage cannot be questioned in a direct action for annulment. Such marriages can be assailed only during the lifetime of the parties and not after the death of either, in which case the offspring will be left as if the marriage had been perfectly valid. The marriage cannot be impeached, and is made good ab initio. Art. 43 effects of termination of subsequent marriage upon reappearance of absentee spouse (90) Art. 44- Void- status of subsequent marriage falling under Article 41 if both parties acted in bad faith- (90) Art. 45 -Voidable marriages; Art.46-what constitutes fraud under Art. 45 (3), & Art. 47period within which to institute action for annulment-(90, 91, 93, 95, 96, 97, 02) VILLANUEVA vs. CA 505 SCRA 565 (October 27, 2006) Orlando and Lilia got married on April 13, 1988 in Puerto Princesa, Palawan. On November 17, 1992, Orlando filed a petition for the annulment of his marriage alleging that threats of violence and duress forced him into marrying Lilia, who was already pregnant;


that he did not get her pregnant prior to the marriage; that he never cohabited with her after the marriage; and that he later learned that Lilias child died during delivery on August 29, 1988. Lilia moved for the dismissal of the complaint, arguing that Orlando freely and voluntarily married her. SC: The letters admitted to be written by Orlando contained expressions of love and concern for his wife, and hardly the rantings of a man under duress. Lack of cohabitation is, per se, not a ground to annul a marriage. Otherwise, the validity of the marriage will depend upon the will of the spouses who can terminate the marital union by refusing to cohabitate. The failure to cohabit becomes relevant only if it arises as a result of the perpetration of any of the grounds for annulling the marriage, such as lack of parental consent, insanity, fraud, intimidation, or undue influence x x x. Since the appellant failed to justify his failure to cohabit with Lilia on any of those grounds, the validity of the marriage must be upheld. Article 48 Court orders the prosecuting attorney to appear on behalf of the State to take steps to prevent collusion between the parties and that evidence is not fabricated or suppressed. Par. (2)- no judgment shall be based on stipulation of facts or confession of judgment. ANCHETA vs. ANCHETA 424 SCRA 725 Spouses Rodolfo and Marietta separated-in-fact but had their conjugal partnership property dissolved judicially. One of the properties adjudicated in her favor was a resort named Munting Paraiso that is now used as residence of Marietta and the children. Rodolfo intending to remarry filed a petition for declaration of nullity of marriage on the ground of psychological incapacity of the wife docketed as Sp. Proc. NC-662. Although Rodolfo knew that Marietta is residing at Munting Paraiso he had the summons served at another address. For failure to file an Answer Rodolfo had the respondent wife declared in default and was allowed to adduce evidence ex parte. After the grant of the petition, Rodolfo contracted another marriage with Teresita on February 14, 1998. Marietta then filed a petition for the annulment of the order of the RTC of Cavite. Held: The public prosecutor condoned the acts of the trial court when he interposed no objection to the motion of the respondent. The trial court forthwith rendered judgment against Marietta without a whimper of protest from the public prosecutor. The actuations of the trial court and the public prosecutor are in defiance of Article 48 of the Family Code which states that 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. They also ignored Rule 18, Section 6, 1985 Rules of Court now Rule 9, Section 3 (e) of the 1997 Rules of Court that there is no default in actions for annulment of marriage or legal separation. Art. 50, 51, 52 delivery of presumptive legitimes of common children in cases of termination of marriage & in Art. 52-necessity of recording in the appropriate civil registry and in the registry of property the decree of annulment or nullity, dissolution, liquidation and partition of either the conjugal partnership or absolute community property and the delivery of the childrens legitimes- (89,91,92,93,99) Art. 53- Effect re: non-compliance of the requirements under Art. 52-(89,90,93) Subsequent marriage is void. Art. 54- children born of annullable marriage but prior to annulment, and 2. void marriages under Arts. 36 and 53 are legitimate. Art. 55- Legal Separation (94,97,02,06) -In cases of legal separation, where violence (physical or sexual or psychological) is alleged by the petitioner the mandatory 6-month cooling-off period under Article 58 shall not apply [Section 19, RA 9262 or VAWC Law]. ONG vs. ONG 505 SCRA 76 (Oct. 23, 2006)


SC: The argument that since Lucita abandoned the family, a decree of legal separation should not be granted, following Article 56 (4) of the FC which provides that legal separation shall be denied when both parties have given ground for legal separation. The abandonment referred to by the FC is abandonment without justifiable cause for more than 1 year. As it was established that Lucita left William due to his abusive conduct, such does not constitute abandonment contemplated by the said provision. Art. 56 grounds when petition for legal separation will be denied. Art. 57- prescriptive period in instituting petition for legal separation (94) - 5 years from the occurrence of the cause. Arts. 61 64 effects of legal separation. Arts. 65 66 reconciliation of spouses. Art. 67 revival of the property regime. Art. 68 Rights and Obligations between husband and wife. Ilusorio vs. Bildner 332 SCRA 169 -May a wife secure a writ of habeas corpus to compel her husband to live with her in conjugal bliss? - Facts: Erlinda and Potenciano were married for 30 years. In 1972, the spouse separated from bed and board. When Potenciano arrived from the States in 1991 he stayed with Erlinda. The children alleged that Erlinda gave Potenciano an overdose of antidepressant drug. On May 31, 1998, after attending a corporate meeting in Baguio City, Potenciano did not return to Antipolo City with Erlinda, but instead stayed with a daughter at Cleveland Condominium, Makati. The wife then filed a petition for habeas corpus. Proper? -No court is empowered as a judicial authority to compel a husband to live with his wife. Coverture cannot be enforced by compulsion of a writ of habeas corpus carried out by sheriff or by any other mesne process. That is a matter beyond judicial authority and is best left to the man and womans free choice. Article 73 exercise by either spouse even without the consent of the other of any legitimate profession, occupation, business or activity. Objection shall be based only on valid, serious, and moral grounds otherwise the act of the husband in preventing the wife from engaging in such activity shall constitute a violation of RA 9262 (VAWC Law). -In case of disagreement the court shall decide whether objection is proper or not and if proper, when did the benefit accrue if prior to the objection, the resulting obligation shall be enforced against the community or conjugal partnership property. If benefit accrued after, the obligation shall be charged to the separate property of the spouse who did not obtain consent. Art. 74, 75, 76, & 77-property regime of future spouses, requisites (92,95,05) -Property relations between husband and wife is governed in the following order: 1. Marriage settlements which might either be the a. absolute community property or b. conjugal partnership of gains or c. complete separation of property; 2. By the provisions of this Code; and 3. By local customs. -Absence of marriage settlement or if regime agreed upon is void system of absolute community of property. -The marriage settlement as well as any modification thereof must be in writing, signed by the parties, and executed before the celebration of the marriage. Art. 82- Donations by reason of marriage

Requisites: 1. made before the celebration of the marriage; 2. in consideration of the same; and 3. in favor of one or both of the future spouses. Art. 83 Formalities to be observed involving donations propter nuptias are the formalities on the ordinary rules of donation unlike that of the Civil Code where donations propter nuptias are governed by the Statue of Frauds (Article 1403 (2), -an agreement made in consideration of marriage other than a mutual promise to marry as enunciated by the SC in Locquiao vs. Valencia). Art. 84- Limitation in cases of donation of present property (91) -if the spouses agree upon a regime other than the absolute community property, they cannot donate to each other in their marriage settlement more than 1/5 of their present property. The excess is void. The law on testamentary succession and the formalities of wills will govern donations involving future property. Art. 86- grounds for revocation of donations propter nuptias (96)

Art. 87 Donation between husband and wife ARCABA vs. TABANCURA, et al. November 22, 2001 Facts: Francisco and his late wife were owners of a parcel of land. As he was alone, he invited his niece, a cousin of the niece, and Arcaba to stay with him at his house. Later on, the niece and the cousin of the niece left Franciscos home leaving only Francisco and Arcaba. Before his death Francisco donated a 150-sq. meter lot to Arcaba. The heirs of Francisco are now questioning the legality of the donation. Arcaba contended that the property donated is payment for her past services rendered to the deceased. She further contends that sexual intercourse is no longer possible considering that Francisco is already old. SC: -Cohabitation means more than sexual intercourse, especially when one of the parties is already old and may no longer be interested in sex. At the very least, cohabitation is the public assumption by a man and a woman of the marital relation, and dwelling together as man and wife, thereby holding themselves out to the public as such. -Their public conduct indicated that theirs was not just a relationship of caregiver and patient but that of exclusive partners akin to husband and wife. Thus, the donation made by Francisco in favor of Cirila is void under Article 87 of the Family Code. Art. 92 what are excluded from the community property (89) Art. 116 Conjugal partnership property Article 121 (2) Charges upon and obligation of the conjugal partnership (00,06) 1. Ayala Investments vs. CA 286 SCRA 272 -The benefits must be one directly resulting from the loan. It cannot merely be a by-product or a spin-off of the loan itself. -Benefits such as prospects of longer employment and probably increase in the value of stocks might have been already apparent or could be anticipated at the time the accommodation agreement was entered into are not only incidental but also speculative and too small to qualify the transaction as one for the benefit of the suretys family.


-While the husband derives salaries, dividend benefits from PBM (the debtor corporation), only because said husband is an employee of said PBM. These salaries and benefits are not the benefits contemplated by Articles 121 and 122 of the Family Code. The benefits contemplated by the exception in Art. 122 (Family Code) are those benefits derived directly from the use of the loan. In the case at bar, the loan is a corporate loan extended to PBM and used by PBM itself, not by petitioner-appellee-husband or his family. 2. CARLOS vs. ABELARDO 380 SCRA 361 -May the husband notwithstanding his alleged lack of consent in obtaining a loan be held solidarily liable for such together with the wife? - While respondent did not and refused to sign the acknowledgment executed and signed by the wife, undoubtedly, the loan redounded to the benefit of the family because it was used to purchase the house and lot that became the conjugal home of respondent and his family. Hence, notwithstanding the alleged lack of consent of respondent, under Article 121 of the Family Code, shall be solidarily liable for such loan together with his wife. 3. CHING vs. COURT OF APPEALS 423 SCRA 357 Facts: On September 28, 1978, Philippine Blooming Mills Company, Inc. (PBMCI) obtained a 9-million peso loan from Allied Banking Corporation (ABC). As added security for the loan, Alfredo Ching together with 2 other persons executed a continuing guaranty with ABC binding themselves to jointly and severally guarantee the payment of all the PBMCI obligations owing the ABC to the extent of 38 million pesos. PBMCI defaulted in the payment of its loans which, exclusive of interests, penalties and other bank charges amounted to P12,612,972.88. After the issuance of a writ of preliminary attachment the sheriff then levied the 100,000 common shares of CityCorp. stocks registered solely in the name of Alfredo Ching. The wife of Mr. Ching then moved to set aside the levy on attachment claiming that the 100,000 shares of stocks were acquired by her and her husband during the marriage out of conjugal funds after the CityCorp Investment Philippines was established in 1974. Furthermore, the indebtedness did not redound to the benefit of the conjugal partnership. Is the argument of Mrs. Ching tenable? Ruling: The barefaced fact that the shares of stocks were registered in the corporate books of CityCorp Investment solely in the name of Alfredo does not constitute proof that the husband, not the conjugal partnership, owned the same. It was, thus, the burden of ABC to prove that the source of the money utilized in the acquisition of the shares of stocks was that of the husband alone. ABC failed to adduce evidence to prove this assertion. In AIDC vs. CA, this Court ruled that the signing as a surety is certainly not an exercise of an industry or profession. It is not embarking in a business. No matter how often an executive acted on or was persuaded to act as surety for his own employer, this should not be taken to mean that he thereby embarked in the business of guaranty or suretyship. For the conjugal partnership to be liable for a liability that should appertain to the husband alone, there must be a showing that some advantages accrued to the spouses. No presumption can be inferred that when a husband entered into an accommodation agreement or a contract of surety, the conjugal partnership would thereby be benefited. It could be argued that Alfredo was a member of the Board of Directors of PBMCI and was one of the top 20 stockholders, and that his shares of stocks and his family would appreciate if the PBMCI could be rehabilitated through the loans obtained; that Alfredos career would be enhanced should PBMCI survive because of the infusion of fresh capital. However, these are not the benefits contemplated by Article 161 of the Civil Code (Article 121 FC). The benefits must be those directly resulting from the loan. They cannot merely a by-product or a spin-off of the loan itself (citing AIDC vs. CA). Article 124 Administration of the conjugal partnership property (00) HOMEOWNERS SAVINGS & LOAN BANK vs. MIGUELA C. DAILO

453 SCRA 283 Spouses Dailo purchased a house and lot situated at San Pablo City, the deed of sale however, was only in the name of the husband to the exclusion of the wife. In 1993, the husband Marcelino executed a special power of attorney authorizing one Gesmundo to obtain a loan of P300,000.00 from Homeowners Savings using the San Pablo City house and lot as security for the loan. These transactions took place without the knowledge and consent of the wife Miguela. With the loan unpaid, the bank instituted foreclosure proceedings over the property used as security and was also the highest bidder during the auction. For failure to redeem, the bank consolidated ownership over the property. In 1995, Marcelino died. Claiming no knowledge of the mortgage constituted on the subject property she instituted an action for nullity of real estate mortgage, certificate of sale, etc. The bank moved for the dismissal of the action contending that the property in question was the exclusive property of the late Marcelino because the title to the property was solely in Marcelinos name. It contends that assuming that the property is conjugal, Article 124 of the Family Code should be construed in relation to Article 493 of the Civil Code, which states: Each co-owner shall have full ownership of his part and of the fruits and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when personal rights are involved. But the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the coownership. That although Article 124 of the Family Code requires the consent of the other spouse to the mortgage of the property, the framers of the law could not have intended to curtail the right of a spouse from exercising full ownership over the portion of the conjugal property pertaining to him under the concept of coownership. Moreover, the loan obtained redounded to the benefit of the family. Held: In Guiang vs. CA, it was held that the sale of a conjugal property requires the consent of both the husband and wife. In applying Article 124 of the Family Code, this Court declared that the absence of the consent of one renders the entire sale null and void, including the portion of the conjugal property pertaining to the husband who contracted the sale. The same principle squarely applies to the instant case. In the absence of a marriage settlement, the system of conjugal partnership of gains governed the property relations between the spouses. The rules on co-ownership do not even apply to the property relations of Marcelino and Miguela even in a suppletory manner. The conjugal partnership of gains is a special type of partnership, where 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 their efforts or by chance. Unlike the absolute community of property wherein the rules on co-ownership apply in a suppletory manner, the conjugal partnership shall be governed by the rules on partnership in all that is not in conflict with what is expressly determined in the chapter or by the spouses in their marriage settlements. The basic and established fact is that during his lifetime, without the knowledge and consent of his wife, Marcelino constituted a real estate mortgage on the subject property, which formed part of their conjugal partnership. By express provision of Article 124 of the Family Code, in the absence of court authority or written consent of the other spouse, any disposition or encumbrance of the conjugal property is void. The aforequoted provision does not qualify with respect to the share of the spouse who makes the disposition or encumbrance. Where the law does not distinguish, courts should not distinguish. The burden of proof that the debt was contracted for the benefit of the conjugal partnership lies with the creditor claiming as such. Petitioners sweeping conclusion that the loan obtained by Marcelino to finance the construction of housing units without a doubt redounded to the benefit of his family is without adequate proof. Other than petitioners bare allegation, there is nothing from the


records to compel a finding that, indeed, the loan redounded to the benefit of the family. GUIANG vs. CA 291 SCRA 372 -Court applied Art. 124 of the Family Code. -Any alienation or encumbrance made after August 3, 1988 when the Family Code took effect by the husband of the conjugal partnership property without the consent of the wife is null and void. Such contract is void as one of the essential elements of a contract is absent. - Neither can the amicable settlement be considered a continuing offer that was accepted and perfected by the parties, following the last sentence of Article 124. The order of events is clear: after the sale, Guiang filed a complaint for trespassing against Corpuz, after which the barangay authorities secured an amicable settlement. The settlement however, does not mention a continuing offer to sell the property or an acceptance of such a continuing offer. Its tenor was to the effect that Corpuz would vacate the property. By no stretch of the imagination, can the Court interpret this document as the acceptance mentioned in Article 124. HEIRS of AYUSTE vs. CA and MALABONGA 313 SCRA 493 -As the alienation was made prior to the effectivity of the Family Code, the Court applied Art. 173 of the Civil Code. -Contract is voidable but spouse must bring the action for annulment within 10 years from execution of the contract and during the subsistence of the marriage. MANALO vs. CAMAISA 374 SCRA 361 -Whether or not the husband may validly dispose a conjugal property without the wifes written consent? Facts: Manalo was interested to buy the Taytay and Makati properties of spouses Camaisa. During the negotiations for the sale of the parcels of land both spouses were present and that Manalo and Mr. Camaisa came to an agreement as to the price and the terms of the payment, and a down payment was made but the wife of the vendor refused to sign the contracts to sell. Having been aware of the transactions Manalo argues that Norma Camaisa had consented to the transaction. And if she unjustly refused to affix her signature to the contracts to sell, court authorization under Article 124 of the Family Code is warranted. Held: The law requires that the disposition of a conjugal property by the husband as administrator in appropriate cases require the written consent of the wife; otherwise, the disposition is void. The properties, subject of the contracts were conjugal; hence, for the contracts to sell to be effective, the consent of both husband and wife must concur. Norma may have been aware of the negotiations for the sale of their conjugal properties but being merely aware of a transaction is not consent. While Manalo is correct insofar as she alleges that if the written consent of the other spouse cannot be obtained or is being withheld, the matter may be brought to court which will give the same if warranted by the circumstances. However, it should be stressed that court authorization under Art. 124 is only resorted to in cases where the spouse who does not give consent is incapacitated. In this case Manalo failed to allege and prove that Norma was incapacitated to give her consent to the contracts. In the absence of such showing of the wifes incapacity, court authorization cannot be sought. HEIRS OF REYES vs. MIJARES 410 SCRA 97 If the sale of the conjugal real property is annullable, should it be annulled in its entirety or only with respect to the share of the spouse who did not give consent? -The SC citing Paulino vs. Bucoy (131 Phil 790) held that the plain meaning attached to the plain language of the law is that the contract, in its entirety, executed by the


husband without the wifes consent, may be annulled by the wife. Had Congress intended to limit such annulment in so far as the contract shall prejudice the wife, such limitation should have been spelled out in the statute. To be underscored here is that upon the provisions of Articles 161, 162 and 163 of the Civil Code, the conjugal partnership is liable for many obligations while the conjugal partnership exists. Not only that. The conjugal partnership is even subject to the payment of debts contracted by either spouse before the marriage, as those for the payment of fines and indemnities imposed upon them after the responsibilities in Article 161 have been covered, if it turns out that the spouse who is bound thereby, should have no exclusive property or if it be insufficient. These are the considerations that go beyond the mere equitable share of the wife in the property. These are reasons enough for the husband to be stopped from disposing of the conjugal property without the consent of the wife. Even more fundamental is the fact that the nullity is decreed by the Code not on the basis of prejudice but lack of consent of an indispensable party to the contract under Article 166. A sale or encumbrance of conjugal or (community) property concluded after the effectivity of the Family Code on August 3, 1988, is governed by Article 124 of the same Code that now treats such a disposition as void if done without the conjoint consent of the spouses or, in case of a spouses inability, the authority of the court (footnote). PELAYO vs. PEREZ 459 SCRA 475 In January 1988, Pelayo, by a deed of absolute sale, conveyed to Perez 2 parcels of land situated in Panabo. Lorenza, Pelayos wife, signed only on the 3rd page in the space provided for witnesses on account of which Perez application for registration of the deed with the office of the Register of Deeds in Tagum was denied. Perez thereupon asked Lorenza to sign the 1st and 2nd pages of the deed but she refused, hence, he instituted an action for specific performance. SC: We agree with the CA ruling that Lorenza by affixing her signature to the Deed of Sale on the space provided for witnesses, is deemed to have given her implied consent to the contract of sale. Sale is a consensual contract that is perfected by mere consent, which may either be express or implied. A wifes consent to the husbands disposition of conjugal property does not always have to be explicit or set forth in any particular document, so long as it is given. In the present case, although it appears on the face of the deed of sale that Lorenza signed only as an instrumental witness, circumstances leading to the execution of said document point to the fact that Lorenza was fully aware of the sale of their conjugal property and consented to the sale. Moreover, under Article 173, in relation to Article 166, both of the New Civil Code, which was still in effect on January 11, 1988 when the deed in question was executed, the lack of marital consent to the disposition of conjugal property does not make the contract void ab initio but merely voidable. Hence, it has been held that the contract is valid until the court annuls the same and only upon an action brought by the wife whose consent was not obtained. DOLORES ANNO vs. ALBERT ANNO and SUANDING January 27, 2006 Wife Dolores instituted an action for cancellation of waiver of rights, deed of sale against her husband Albert and Suanding, Alberts cousin. It appears that Albert executed an affidavit of waiver of rights over a portion of a parcel of land in favor of Suanding and later sold the remaining portion through a deed of sale to Suanding. In both documents, Albert claimed that he is the possessor and owner of said land. According to Dolores, the unregistered, virgin, agricultural land is a conjugal partnership property having been acquired by them during the marriage as evidenced by a 1974 tax declaration. They even hired the services of a caretaker to oversee the land. Thus, Albert could not have validly conveyed the property to Suanding without her consent.


SC: Indeed, all property of the marriage is presumed to be conjugal in nature. However, for this presumption to apply, the party invoking it must first prove that the property was acquired during the marriage. Proof of acquisition during the coverture is a condition sine qua non to the operation of the presumption in favor of the conjugal partnership. In the case at bar, Dolores failed to substantiate by preponderance of evidence her claim that the subject land was conjugal in nature. She did not identify when she and her husband 1st occupied and possessed the land. Neither did she present any witness to prove that they 1st occupied the property during the marriage and that they worked on the land. While she claimed that they also hired the services of a caretaker, records show that the caretaker was appointed only in 1989. The initial tax declaration she presented although dated 1974 cannot automatically be deduced that the occupation of the subject property was likewise done in 1974. To so conclude will amount to speculation and conjecture on the part of the court. Declaration of a land for tax purposes cannot be equated with its acquisition for, in the ordinary course of things, occupation of a piece of land comes before declaring it for tax purposes. The 1974 tax declaration cannot be made a basis to prove its conjugal nature as the land was declared for tax purposes solely in the name of Albert, who sold it as his exclusive property. In a long line of cases, this Court held that tax declarations, especially untitled lands, are credible proof of claim of ownership and are good indicia of possession of an owner. Thus, the presumption of conjugal nature of the property allegedly acquired during the subsistence of the marriage cannot be applied. SECURITY BANK vs. MAR TIERRA CORPORATION, ET. AL. 508 SCRA 419 (November 29, 2006) Mar Tierra, through its president applied for a P12 million credit accommodation with Security Bank that was secured by an indemnity agreement executed by Martinez, Lacson and Lopa who bound themselves jointly and severally with Mar Tierra. The credit line was increased to P14 million with Matinez, et. al. executing a new indemnity agreement in favor of the bank to secure the increased credit line. The corporation availed of and received the sum of P9,952,000. It was able to pay about more than P4 million for the principal and about more than P2 million for the interest but failed to pay the remaining balance. Unable to collect, petitioner filed a complaint for sum of money. Lacson and Lopas case were dismissed at the instance of petitioner leaving only Martinez as respondent. A writ of attachment was issued where the house and lot of the spouses Martinez in Caloocan City was levied on. May the conjugal partnership be held liable for an indemnity agreement entered by the husband to accommodate a 3rd party? SC: Citing Ayala Investments vs. CA, the SC ruled that in this case, the principal contract, the credit line agreement between petitioner and respondent corporation, was solely for the benefit of the latter. The accessory contract (the indemnity agreement) under which individual respondent Martinez assumed the obligation of a surety for respondent corporation was similarly for the latters benefit. Petitioner has the burden of proving that the conjugal partnership of the spouses Martinez benefited from the transaction. It failed to discharge the burden. VILLEGAS vs. LINGAN 526 SCRA 63 (June 29, 2007 Villegas is the owner of a parcel of land located in Tuguegarao, Cagayan. To secure his obligation with Development Bank of the Philippines (DBP), he mortgaged the said property with DBP. Subsequently, DBP transferred the loan with mortgage to Home Mutual Development Fund (HMDF). With his failure to pay the loan HMDF foreclosed the mortgage and was sold at public auction with HMDF as the highest bidder. A certificate of sale was issued and, thereafter, registered with the Register of Deeds. Marilou Villegas, petitioners wife, then executed a power of attorney authorizing Catral, Marilous mother, to redeem the property from HMDF. Catral then sold the property to Lingan. In a complaint, among others, for annulment of title, Villegas claimed that Catral was only to administer the property and not to sell it because from the wordings of the power of attorney, she had no authority to sell any specific property.


SC: There is no proof that Marilou redeemed the property in behalf of petitioner she did not as agent of the petitioner. Rather she exercised the right of redemption in her own right as successor-in-interest of the petitioner. And where redemption is made under a property regime governed by the conjugal partnership of gains, Article 109 of the Family Code provides that property acquired by right of redemption is the exclusive property of the spouse redeeming the property. Clearly, the owner had the right to sell the property to another. Under the circumstances, should there be any right violated, the aggrieved party should be Marilou, petitioners wife. The property in question was the exclusive property of Marilou by virtue of her redemption. Thus, petitioner has no valid cause of action against respondent. Consequently, the question whether Catral had validly sold the property to respondent by virtue of the general power of attorney executed by Marilou, is not within the realm of the Courts jurisdiction to resolve in this case as said issue is not properly raised by the right person Marilou. REIMBURSEMENT RE: CONJUGAL FUNDS: JOSEFA FERRER vs. SPS. MANUEL & VIRGINIA FERRER and SPS. ISMAEL & FLORA FERRER 508 SCRA 570 (November 29, 2006) Before his marriage to Josefa, Alfredo acquired a parcel of land. Improvements introduced by Alfredo on the property consisting of a residential house and a 2-door apartment building were made during the marriage using their conjugal funds to pay off the loan obtained by Alfredo for the construction of said improvements. Subsequently, a warehouse was also constructed on the lot using the spouses conjugal funds. Sometime in 1989, when Alfredo was already bedridden, spouses Ismael and Flora Ferrer made the former sign a document purported to be his last will and testament. It turned out however, that it was a sale covering Alfredos lot and the improvements thereon to the herein respondents. Alfredo then instituted an action for the annulment of the sale but the trial court held that the sale is valid and should be complied with by the parties in good faith. The appellate court upheld the decision of the lower court. Alfredo died in 1999 and relying on the decision rendered in the previous case where the court held that inasmuch as the lot is of greater value than the improvements and since Article 120 of the Family Code provides the rule that the ownership of accessory follows the ownership of the principal, then the subject lot with all its improvements became an exclusive and capital property of Alfredo with an obligation to reimburse the conjugal partnership of the cost of improvements at the time of the liquidation of the conjugal partnership, Josefa is now demanding reimbursement for the cost of the improvements from respondents. SC: What is incontrovertible is that the respondents, despite allegations contained in the complaint that they are the buyers of the subject premises, are not petitioners spouse nor can they ever be deemed as the owner-spouse upon whom the obligation to reimburse petitioner for her costs rested. It is the owner-spouse who has the obligation to reimburse the conjugal partnership or the spouse who expended the acts or efforts, as the case may be. Otherwise stated, respondents do not have the obligation to respect petitioners right to be reimbursed. JUDICIAL SEPARATION OF PROPERTY Article 134- In the absence of express declaration in the marriage settlements, no separation of property shall take place during the marriage except upon judicial order. The separation of property may either be for sufficient cause (Article 135) or voluntary (Article 136). Article 135 For causes falling under numbers (1), (2), and (3) i.e.1. sentenced to a penalty that carries with it civil interdiction, 2. judicially declared an absentee, and 3. loss parental authority decreed by the court, the presentation of final judgment is enough basis for the grant of the decree of judicial separation of property.


Article 136 Voluntary dissolution must be verified and jointly filed by the spouses. Articles 137, 138, and 139 liquidation of either the absolute community or conjugal partnership upon grant of petition, effect the property relations of the spouses is now governed by the regime of complete separation of property and the requirement of registering the petition for separation of property and the final judgment granting the same with the appropriate registries. Article 141- revival of the former property regime that existed prior to its separation upon proper motion. Thereafter no voluntary separation of property shall again be granted by the court. ELENA MULLER vs. HELMUT MULLER August 29, 2006 Elena and Helmut, a German national, were married in 1989 in Hamburg, Germany. They initially lived in Hamburg but in 1992, the spouses decided to move and permanently reside in the Philippines. Helmut sold the house he inherited from his parents in Germany. With the money, he bought a P528,000.00 lot in Antipolo and constructed a P2.3 million peso house thereon. The Antipolo property was registered in Elenas name. The marriage however, did not last due to Helmuts alleged womanizing, drinking and maltreatment and eventually the spouses separated. In 1994, Helmut filed a petition for separation of properties. He claims that he is not praying for the transfer of ownership of the Antipolo property as he is aware of the constitutional prohibition of aliens acquiring lands of the public domain but merely reimbursement. That the property is titled in the name of Elena because of said prohibition. That the funds paid by him for the said property were in consideration of his marriage to Elena; that funds were given to her in trust and equity demands that he should be reimbursed of his personal funds. Issue: Is respondent entitled to reimbursement of the funds used for the acquisition of the Antipolo property? SC: Aliens are also disqualified from acquiring private lands. The primary purpose of the constitutional provision is the conservation of the national patrimony. Respondent cannot seek reimbursement on the ground of equity where it is clear that he willingly and knowingly bought the property despite the constitutional prohibition. It has been held that equity as a rule will follow the law and will not permit that to be done indirectly which, because of public policy, cannot be done directly. He who seeks equity must do equity, and he who comes into equity must come with clean hands. Further, the distinctions between transfer of ownership as opposed to recovery of funds is a futile exercise on respondents part. To allow reimbursement would in effect permit respondent to enjoy the fruits of a property that he is not allowed to own. Thus, it is, likewise proscribed by law. The CA erred in holding that an implied trust was created and resulted by operation of law in view of Helmuts marriage to Elena. Save for the exception provided in cases of hereditary succession, Helmuts disqualification from owning lands in the Philippines is absolute. Not even an ownership in trust is allowed. Besides, where the purchase is made in violation of an existing statute and in evasion of its express provision, no trust can result in favor of the party who is guilty of fraud. To hold otherwise would be to allow circumvention of the constitutional prohibition. The Court decreed the separation of property between the spouses and ordering partition of the personal properties located in the Philippines only. VIRGILIO MAQUILAN vs. DITA MAQUILAN 524 SCRA 166 (June 8, 2007) Virgilio and Ditas marriage that was blessed with one son turned sour when the former discovered that the latter was having illicit sexual affair with her paramour, which resulted to the conviction of Dita and her paramour of the crime of adultery. Thereafter, Virgilio filed a petition for declaration of nullity of marriage, dissolution and liquidation of the conjugal partnership of gains. During the pre-trial of said case, they entered into a Compromise Agreement as partial settlement of their conjugal partnership property. This


was given judicial imprimatur by the judge hearing the case. In an omnibus motion however, Virgilio prays for the repudiation of the compromise agreement on the ground that it is against law and public policy; that the proceedings where it was approved is null and void, there being no appearance and participation of the Solicitor General or the Provincial Prosecutor; that it was timely repudiated; and that respondent, having been convicted of adultery, is therefore disqualified from sharing in the conjugal property. SC: Article 143 of the Family Code, separation of property may be effected voluntarily or for sufficient cause, subject to judicial approval. The questioned compromise agreement that was judicially approved is exactly such a separation of property allowed under the law. This conclusion holds true even of the proceedings for the declaration of nullity of marriage was still pending. While the appearances of the Solicitor General and/or Public Prosecutor are mandatory, the failure of the RTC to require their appearance does not per se nullify the compromise agreement. There is no exigency for the presence of the Solicitor General and/or the State Prosecutor because nothing in the subject compromise touched into the very merit of the case of declaration of nullity of marriage for the court to be wary of any possible collusion between the parties. The agreement pertains merely to an agreement between petitioner and respondent Dita to separate their conjugal properties partially without prejudice to the outcome of the pending case. The conviction of adultery does not carry with it the penalty of civil interdiction that deprives the person of the rights to manage to manage her property and to dispose of such property inter vivos. Art. 147 Property of Unions without Marriage (92,97) Valdes vs. RTC B. 102, Q.C., Gomez-Valdes July 31, 1996 -Marriage was declared void under Art. 36. -Property acquired during the union is governed by Art. 147. It applies when a man and a woman so exclusively live together as husband and wife under a void marriage or without the benefit of marriage. -The term capacitated (1st par. of Art. 147) refers to the legal capacity of a party to contract marriage, i.e. any male or female of the age of 18 years or upwards not under any of the impediment mentioned in Art. 37 and 38 of the Code. -If the common-law spouses suffer from a legal impediment to marry or when they do not live exclusively with each other (as husband and wife), only the property acquired by both of them through their actual joint contribution of money, property or industry shall be owned in common and in proportion to their respective contributions. -Art. 50 (Family Code) applying pars. (2), (3), (4) and 5 of Art. 43, relates only, by its explicit terms to voidable marriages and, exceptionally, to void marriages under Art. 40 of the Code i.e. the declaration of nullity of a subsequent marriage contracted by a spouse of a prior void marriage before the latter is judicially declared void. BUENAVENTURA vs. CA March 31, 2005 Noel and Isabel got married in 1979. The marriage later on was declared void by reason of Noels psychological incapacity. The court, among others, ordered for the liquidation of the assets of the conjugal partnership where the wife was given of Noels retirement benefits with 12% int. from date of decision, and of his outstanding shares of stocks with Manila Memorial Park and the Provident Group of Companies. Noel opposed the sharing claiming that the retirement benefits he received from Far East Bank are gratuitous in nature and therefore, his exclusive property. He likewise acquired the shares of stocks with the mentioned companies before his marriage and are, again his exclusive properties. SC: Since the present case does not involve the annulment of a bigamous marriage, the provisions of Article 50 in relation to Articles 41, 42, and 43 of the Family Code,


providing dissolution of the absolute community or conjugal partnership, as the case may be, do not apply. Rather, the general rules applies, which is that in case a marriage is declared void ab initio, the property regime applicable and to be liquidated, partitioned and distributed is that of co-ownership. The trial court did not commit a reversible ruling that petitioner and respondent own the family home and all their common property in equal shares, as well as in concluding that, in the liquidation and partition of the property owned in common by them, the provisions on co-ownership under the Civil Code, not Articles 50, 51 and 52, in relation to Articles 102 and 129, of the Family Code, should aptly prevail. The rules set up to govern the liquidation of either the absolute community or the conjugal partnership of gains, the property regimes recognized for valid and voidable marriages (in the latter case until the contract is annulled), are irrelevant to the liquidation of the coownership that exists between common law spouses. In now requiring for purposes of remarriage, the declaration of nullity by final judgment of the previously contracted void marriage, the present law aims to do away with any continuing uncertainty on the status of the 2nd marriage. Unlike the conjugal partnership of gains, the fruits of the couples separate property are not included in the co-ownership. Since the properties to be distributed by the court a quo were found, both by the trial and appellate courts, to have been acquired during the union of the parties, the same would be covered by the co-ownership. No fruits of a separate property of one of the parties appear to have been included or involved in the distribution. The liquidation, partition and distribution of the properties owned by the parties herein ordered by the court a quo should, therefore, be sustained, but on the basis of co-ownership and not the regime of conjugal partnership of gains. GONZALES vs. GONZALES December 16, 2005 Erminda and Francisco were married in 1979. In 1992, Erminda filed a petition for declaration of nullity of their marriage under Article 36 of the Family Code on the ground that Francisco is suffering from personality disorder called satyriasis. The court granted the petition and ordered the parties to liquidate their conjugal properties where the wife received P47,750,000. worth of real properties and P1,050,000 personal properties while the husband received real properties valued at P47, 500,000 and personal properties worth P1,150,000. The husband claimed that he exclusively owned the properties existing during the marriage. The sole issue to be resolved is whether the appellate court erred in equally dividing the properties between the parties. SC: Their property relation shall be governed by Article 147 of the Family Code. Under this property regime of co-ownership, properties acquired by both parties during their union, in the absence of proof to the contrary are presumed to have been obtained through the joint efforts of the parties and will be owned by them in equal shares. Article 147 creates a presumption that properties acquired during the cohabitation of the parties have been acquired through their joint efforts, work or industry and shall be owned by them in equal shares. It further provides that a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the formers efforts consisted in the care and maintenance of the family and of the household. While it is true that all the properties were bought from the proceeds of the pizza business, the husband himself testified that Erminda was not a plain housewife and that she helped him in managing the business. JOHN ABING vs. JULIET WAEYAN July 31, 2006 In 1986, Juliet and John decided to live together as husband and wife without the benefit of marriage. During the cohabitation, they purchased a 2-storey house where the tax declaration was transferred in the name of Juliet. The house was renovated as annexed to it is a new structure that housed a sari-sari store. In 1991, Juliet went to Korea and while there she would send money to John who would deposit it in their joint bank account. When she returned from Korea, they continued to live together, with John working as an employee of Lepanto Mines and Juliet managing the store. In 1995, they partitioned their properties and executed a Memorandum of Agreement that was unsigned by the parties but


signed by their witnesses where it was agreed that John shall leave the house with Juliet paying him the amount of P428,870.00 representing Johns share in the properties. Juliet made a down payment of P232,397.66 with the balance to be paid in 12 monthly installments. She failed however, to make good the balance so John demanded that she vacate the annex. When she refused John filed an ejectment suit against Juliet claiming that he alone spent for the construction of the annex using his own funds with the tax declaration for the structure under his name and thru money he borrowed from his relatives as proofs. The proof of indebtedness is a 1990 affidavit of one Macaraeg who stated that John borrowed P30,000.00 from him. The MTC found for John which decision was affirmed by the RTC. The CA however, reversed the ruling of lower courts holding that their property relations cannot be governed by the provisions of the Civil Code but by the rules on co-ownership. John went to the SC. Issue: Whether or not the property subject of the suit pertains to the exclusive ownership of John. SC: Other than Johns bare allegation that he alone, thru his own funds and money he borrowed form his relatives, spent for the construction of the annex, evidence is wanting to support such naked claim. For sure, John failed to reveal how much he spent therefore. Neither did he divulge the names of the alleged relatives from whom he made his borrowings, let alone the amount of money he borrowed from them. All he could offer by way of reinforcing his claim is the affidavit of Macaraeg but the affidavit stated that it was in 1990 when John borrowed P30,000.00 from him. The annex structure was constructed in 1992 or 2 years after he borrowed the P30,000 from Macaraeg. There is a paucity of evidence, testimonial or documentary, to support Johns self-serving allegation that the annex structure was put up thru his own funds and/or money borrowed by him. Tax declarations do not prove ownership but at best an indicia of claims of ownership. In this connection Article 147 of the Family Code is instructive. (Cite Article 147 in toto). The law is clear. In the absence, as here, of proofs to the contrary, any property acquired by common-law spouses during the period of cohabitation is presumed to have been obtained thru their joint efforts, work or industry and is owned by them in equal shares. Their property relationship is governed by the rules in co-ownership. And under this regime, they owned their properties in common in equal shares. Being herself a coowner of the structure in question, Juliet, as correctly stated by the CA, may not be ejected therefrom. True, under Article 487 of the Civil Code, a co-owner may bring an action for ejectment against a co-owner who takes exclusive possession and asserts exclusive ownership of a common property. In this case, evidence is totally wanting to establish Johns or Juliets exclusive ownership of the property in question. As borne by the record, Juliet was in possession of the subject structure by virtue of being a co-owner thereof. As such, she is as much entitled to enjoy its possession and ownership as John. Juliets failure however, to pay the balance of Johns share in their common properties could at best give rise to an action for a sum of money against Juliet, or for rescission of the said agreement and not for ejectment. Art. 148- other kinds of cohabitation (91,92,98,00) Agapay vs. Palang July 28, 1997 -Petitioner failed to prove that she contributed money to the price of the riceland. -The lawyer who prepared the deed of conveyance of the house and lot testified that the money for the purchase price was provided for by Miguel and he also directed that Erlindas name alone be placed as the vendee. -SC also cited Article 87 of the Family Code. Tumlos vs. Fernandez 330 SCRA 718 -Applicable law is Art. 148 of the Family Code. -Art. 144 of the Civil Code applies only to a relationship between a man and a woman who are not incapacitated to marry each other, or to one in which the


marriage of the parties is void from the beginning. It does not apply to a cohabitation that amounts to adultery or concubinage. -Article 148 of the Family Code has filled the hiatus in Art. 144 of the Civil Code by expressly regulating the property relations of couples living in a state of adultery or concubinage. -Nothing in Art. 148 of the Family Code provides that the administration of the property amounts to a contribution in its acquisition. Mallilin, Jr. vs. Castillo 333 SCRA 628 Both parties were already married when they cohabited together. During the relationship they established a business enterprise and by reason thereof acquired several properties. The properties however, were all registered in the name of Castillo. When they decided to end the relationship, Mallilin demanded for his share in the properties they acquired during the cohabitation. Castillo countered that Article 144 of the Civil Code cannot be applied as the same covers only properties acquired by a man and a woman living together as husband and wife but not married or under a void marriage. In their case, their union suffered the legal impediment of a prior subsisting marriage. SC: Art. 148 of the Family Code now provides for a limited co-ownership in cases where the parties in union are incapacitated to marry each other. - It applies as all but one property were acquired after the Family Code took effect on August 3, 1988. With respect to the property acquired under the regime of the New Civil Code, then it should be excluded. The legal relation of the parties is already specifically covered by Article 148 of the Family Code under which all properties acquired out of their actual joint contribution of money, property or industry shall constitute a coownership. -Co-ownership is a form of trust and every co-owner is a trustee for the other. -A trust relation already inheres in a co-ownership. Carino vs. Carino February 2, 2001 - The nullity of the marriage between Nicdao (the first wife) and the deceased does not validate the second marriage of Yee and the deceased Santiago without the prior judicial declaration of nullity of the previous marriage. - Considering that the marriage between Yee and the deceased is a bigamous marriage, having been solemnized during the subsistence of previous marriage then presumed to be valid, the application of Article 148 is therefore in order. - As to the property regime of Nicdao and the deceased, Article 147 of the Family Code governs. This Article applies to unions of parties who are legally capacitated and not barred by any impediment to contract marriage, but whose marriage is nonetheless is void for other reasons, like the absence of marriage license. Conformably, even if the deceased alone as a government employee earned the disputed death benefits, Article 147 creates a co-ownership in respect thereto entitling Nicdao to share one-half thereof as there is no allegation of bad faith. 6. JACINTO SAGUID vs. CA June 10, 2003 -Under the property regime governed by Art. 148 x x x x 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 x x x x. Proof of actual contribution is required. - In the case at bar, nowhere in Ginas testimony did she specify the extent of her contribution. What appears in the record are receipts in her name for the purchase of construction materials on 11/17/95 and 12/23/95 in the amount of P11,413.00. With respect to the disputed personal properties both claimed that the money used in the purchase thereof came partly from their joint account. There is however, no sufficient proof of the exact amount of their respective shares in the said account.

And pursuant to Article 148 of the Family Code, in the absence of proof of extent of the parties respective contribution, their share shall be presumed to be equal. Here, the disputed properties were valued at P111,375.00, the existence and value of which were not questioned by Jacinto, hence, their share therein is equivalent to , P55,687.50 each. And on the basis of the evidence established, the extent of Ginas co-ownership over the disputed house is only up to the amount of P11,413.00 her proven contribution in the construction thereof. -In Adriano vs. CA, the SC ruled that the fact that the controverted property was titled in the name of the parties to an adulterous relationship is not sufficient proof of co-ownership absent evidence of actual contribution in the acquisition of the property. RIVERA vs. HEIRS OF ROMUALDO VILLANUEVA 496 SCRA 135 (July 21, 2006) - Because the cohabitation of Villanueva and Gonzales from 1927 to 1963 was adulterous, their property relations during those 36 years were not governed by Article 144 of the Civil Code which applies only if the couple living together is not in any way incapacitated from getting married. According to the doctrine laid down in Juaniza vs. Jose (89 SCRA 306), no co-ownership exists between parties to an adulterous relationship. In Agapay vs. Palang, we expounded on this doctrine by declaring that in such a relationship, it is necessary for each of the partners to prove his or her actual contribution to the acquisition of property in order to be able to lay claim to any portion of it. The presumption of co-ownership and equal contribution do not apply. - Here the records show only 4 properties were acquired by Villanueva and Gonzales between 1927 and 1963 which they registered in both their names. Following Agapay, these can only be apportioned according to the actual contributions of each. Unfortunately, the records are devoid of any evidence that Gonzales contributed anything to the acquisition thereof. Petitioners merely asserted that she acquired these properties through her own industry without a shred of evidence to support the allegation. In accordance with Agapay, none of these 4 parcels of land should accrue to petitioners. Only 1 parcel of land is registered solely in Gonzales name, which was acquired between 1927 and 1963. This fact of registration created a conclusiveness of title in favor of the person in whose name it was registered. The only property acquired after Musngis death in 1963 and registered in the names of both Villanueva and Gonzales was Lot 3-A covered by TCT No. NT-51899. This was governed by Article 144 of the Civil Code. Half of it should pertain to Gonzales heirs and the other half, to Villanueva. - The rest of the properties registered solely in Gonzales name were also acquired after the death of Musngi in 1963. These properties were governed by co-ownership under Article 144 of the Civil Code. Again, half should accrue to Gonzales heirs and the half, to Villanueva. LUPO ATIENZA vs. YOLANDA DE CASTRO 508 SCRA 593 (November 29, 2006) Lupo, married and the president and general manager of 2 corporations, hired the services of Yolanda as accountant thereof. The 2 became intimate and eventually lived together and had 2 children. The relationship turned sour and they parted ways. Lupo then filed a petition for judicial partition involving a parcel of land with improvements located in Bel-Air Subdivision, Makati City. He alleged that the property was acquired during their union and hence, the property is co-owned by them. He claimed that the funds used in the acquisition of the said property were his exclusive funds and that the title was transferred to Yolandas name alone was done without his knowledge and consent. And since the property was acquired in 1987, therefore Article 144 of the Civil Code should be applied. That he is not burdened to prove that he contributed to the acquisition thereof because with or without contribution by either partner, he is deemed a co-owner of the subject property. He added that Article 484 of the Civil Code states that as long as the property was acquired by either or both of them during their extramarital union, such property would be legally owned by them in common and governed by the rules on co-ownership, which shall apply in default of contracts or special provisions. That Yolanda has no financial capacity to


acquire the property she merely manipulated the dollar accounts of his 2 corporations to raise the amount needed to purchase the property. SC: Here although the adulterous relationship commenced in 1983, Article 148 of the Family Code applies because this provision is intended to fill up the hiatus/gap in Article 144 of the Civil Code. Before Article 148 of the FC was enacted, there was no provision governing property property relations of couples living in a state of adultery or concubinage. Hence, even if the cohabitation or the acquisition of the property occurred before the FC took effect, Article 148 of the FC governs. Rather than presenting proof of his actual contribution to the purchase used as consideration for the property, Lupo diverted the burden upon him to Yolanda as a shrewd and scheming woman without capacity to purchase any property. Petitioners claim of ownership is without basis because not only did he fail to substantiate his allege contribution but likewise the very trail of documents pertaining to its purchase as evidentiary proof redounds to the benefit of respondent. In contrast, aside from his mere say so and voluminous bank records, which sadly finds no relevance in this case, the petitioner failed to overcome his burden of proof. Respondent had sufficiently established that she derived funds used to purchase the property from her earnings, not only as an accountant but also as a businesswoman engaged in foreign currency trading, money lending and jewelry retail. She presented clientele and promissory notes evincing substantial dealings with her clients, her bank account statements and bank transactions. Art. 150 who are members of the same family for purposes of Art. 151 Art. 151 Suit between members of the same family 1) OLaco vs. Co Cho Chit and CA 220 SCRA 656 -It is well settled that the attempt to compromise as well as the inability to succeed is a condition precedent to the filing of a suit between members of the same family. Hence, the defect in the complaint is assailable at any stage of the proceedings, even on appeal, for lack of cause of action. 2) Guerrero vs. RTC Br. XVI, Bello, Jr. and Hernando January 10, 1994 -Requirement is mandatory, so that if it is shown that no such efforts were in fact made, it must be dismissed. -Rule is introduced because it is difficult to imagine a sadder and more tragic spectacle than litigation between members of the same family. Exclusion to the requirement on earnest efforts: 1. Common law relationships; 2. Sisters-in-law (hence, also brothers-in-law); 3. Between collateral relatives who are not brothers and sisters (Mendez vs. Eugenio); 4. Suit between a woman against her sister and the latters husband, the inclusion of the husband is not within the family relations provided for by law (Hontiveros vs. RTC); 5. If included in the suit is a stranger not of the same family as the interest of such stranger may differ from the interest of the member of the same family ex. A coowner; and 6. Special proceedings- the term suit clearly implies only civil actions (Manalo vs. CA) HIYAS SAVINGS and LOAN BANK, INC. vs. ACUNA and ALBERTO MORENO 500 SCRA 514 (August 31, 2006) Moreno filed a case against Hiyas, his wife, spouses Owe and Register of Deeds of Caloocan City for cancellation of mortgage contending that he did not obtain any loan from Hiyas nor did he sign or execute any contract of mortgage, that his wife, spouses Owe were the ones who benefited from the loan. He could not have executed and signed the contract because he was then working abroad.


Hiyas moved to dismiss the complaint alleging non-compliance with Article 151 of the Family Code on exerting earnest efforts toward a compromise between members of the same family which members include a husband and wife. SC: Once a stranger becomes a party to a suit involving members of the same family, the law no longer makes it a condition precedent that earnest efforts be made towards a compromise before the action can prosper. Article 151 is applicable only in cases which are exclusively between or among members of the same family, it necessarily follows that the same may be invoked by a party who is a member of that same family. FAMILY HOME Articles 152 & 153 definition of a family home (89,94) In Buenaventura vs. CA the SC held that the provisions of the Family Code on the family home, i.e. the provisions found in Title V, Chapter 2, of the Family Code, remain in force and in effect regardless of the property regime of the spouses. Article 154- beneficiaries of a family home (89) Article 155 Modequillo vs. Breva (94) 185 SCRA 766 -Family home is deemed constituted on a house and lot from the time it is occupied as a family residence. No need to constitute the same judicially or extrajudicially. -Article 162 simply means that all existing family residences at the time of the effectivity of the Family Code are considered family homes and are prospectively entitled to the benefits accorded to a family home under the Family Code. It does not state that the provisions of Chapter 2, Title V have a retroactive effect. -The debt or liability which was the basis of the judgment arose or was incurred at the time of the vehicular accident on March 16, 1976 and the money judgment arising therefrom was rendered by the appellate court on January 29, 1988. Both preceded the effectivity of the Family Code on August 3, 1988. 3) Manacop vs. CA and E & L Mercantile, Inc. 215 SCRA 773 -The residential house and lot of petitioner became a family home by operation of law only under Art. 153 of the Family Code. It is deemed constituted as a family home upon the effectivity of the Family Code on August 3, 1988. -SC also reiterated ruling in Modequillo case re: applicability of Art. 162 of the Family Code. -The law explicitly provides that occupancy of the family home either by the owner thereof or by any of its beneficiaries must be actual. Actual occupancy, however, need not be by the owner of the house specifically. Rather, it may be occupied by the beneficiaries enumerated by Article 154 of the Family Code. -The enumeration may include in-laws where the family home is constituted jointly by the husband and wife. The law definitely excludes maids and overseers. 4) Taneo, Jr. vs. CA 304 SCRA 308 -Reiterated ruling in Modequillo and Manacop cases -In the case at bar, Taneo constituted the house in question as the famly home on March 7, 1964 but the instrument constituting the family home was registered only on January 24, 1966. The money judgment against Taneo was rendered on January 24, 1964. Thus at the time when the debt was incurred, the family home was not yet constituted or even registered. -The house should be constructed on a land not belonging to another as by the very definition of the law that the family home is the dwelling house where a person and his family resides and the land on which it is situated. -The constitution of a family home by Taneo was merely an afterthought in order to escape execution of their property. PERLA PATRICIO vs. MARCELINO DARIO III 507 SCRA 438 (November 20, 2006) 1)


Marcelino died intestate and survived by his wife Perla and 2 sons, Marcelino Marc and Marcelino III. Among the properties he left was a parcel of land with a residential house and a pre-school building constructed thereon located at Oxford St., Cubao, Quezon City. After the heirs extra-judicially settled the estate, Perla and Marcelino Marc advised Marcelino III that they intend to partition the property and terminate the co-ownership but the latter refused on the ground that a minor beneficiary who is Marcelino IIIs 12-year old son and a grandson of the decedent still resides in said home. He contended that as long as the minor is living in the family home, the same continues as such until the beneficiary comes of age. That despite the expiration of 10 years from the date of death of Marcelino in 1987 i.e. even after July 1997, the subject property continues to be considered as the family home considering that his minor son, who is a beneficiary of said family home, still resides in the premises. SC: The law explicitly provides that occupancy of the family home either by the owner thereof or by any of its beneficiaries must be actual. Actual occupancy, however, need not be by the owner of the house specifically. Rather, the property may be occupied by the beneficiaries enumerated in Article 154 of the Family Code, which include the in-laws where the family home is constituted jointly by the husband and the wife. But the law definitely excludes maids and overseers. They are not the beneficiaries contemplated by the Code. To be a beneficiary of the family home, 3 requisites must concur: (1) they must be among the relationships enumerated in Art. 154 of the Family Code; (2) they live in the family home; and (3) they are dependent for legal support upon the head of the family. Moreover, Art. 159 of the FC provides that 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 10 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. Thus, may Marcelino Lorenzo IV, minor son of respondent be considered as a beneficiary under Article 154 of the FC? As to the 1st requisite, the term descendants contemplates all descendants of the person or persons who constituted the family home without distinction; hence, it must necessarily include the grandchildren and the great grandchildren of the spouses who a family home. Thus, Marcelino IIIs minor son, who is a grandchild of Marcelino satisfies the 1st requisite. 2nd requisite: minor beneficiaries must be actually living in the family home to avail of the benefits derived from Article 159. Marcelino Lorenzo IV has been living in the family since 1994, or within 10 years from the death of the decedent, hence, he satisfies the second requisite. However, as to the 3rd requisite, Marcelino Lorenzo IV cannot demand support from his paternal grandmother if he has parents who are capable of supporting him. The liability for legal support falls primarily on Marcelino Lorenzo IVs parents, especially his father, herein private respondent who is the head of his immediate family. And only in default of his parents is the obligation imposed on the grandparents. Marcelino Lorenzo IV is dependent on legal support not from his grandmother, but from his father. Thus despite, residing in the family home and his a descendant of Marcelino Dario, Marcelino Lorenzo IV cannot be considered as beneficiary contemplated under Article 154 because he did not fulfill the 3rd requisite of being dependent on his grandmother for legal support. PATERNITY AND FILIATION Articles 164 (06) - (1)-status of children conceived or born during the marriage


(2)- status of children conceived through artificial insemination - requisites in order that a child conceived through artificial insemination shall be considered legitimate. 166 (exclusive) grounds to impugn legitimacy (89) 170 prescriptive period within which to institute an action impugning legitimacy of child 171- when may the heirs of the husband impugn legitimacy When legitimacy may be impugned 1) Badua vs. CA 229 SCRA 468 Articles 164, 166, 170 and 171 are not applicable in the instant case. These articles govern a situation where a husband (or his heirs) denies as his own a child of his wife but not where a child is alleged not to be the child of nature or biological child of a certain couple. 2) Babiera vs. Catotal 333 SCRA 487 Alleged mother was already 54 years old at the time of her birth. The certificate of live birth was not signed by the civil registrar or by the supposed mother. -Article 171 is not applicable to the present case. It applies to instances in which the father impugns the legitimacy of his wifes child. The provision, however, presupposes that the child was the undisputed offspring of the mother. The present case alleges and shows that Hermogena did not give birth to petitioner. The prayer is not to declare the petitioner an illegitimate child of Hermogena, but to establish that the former is not the latters child at all. -Ruling in Badua case applied. 3) DE JESUS vs. ESTATE of DECEDENT JUAN GAMBOA DIZON 366 SCRA 499 In a notarized document Juan G. Dizon acknowledged Jacqueline and Jinkie de Jesus as his own illegitimate children with Carolina Aves de Jesus who were both born during the subsistence of the marriage between Carolina and Danilo de Jesus. May the children be given due recognition as the illegitimate children of Dizon? There is perhaps no presumption of the law more firmly established and founded on a sounder morality and convincing reason than the presumption that children born in wedlock are legitimate. This presumption indeed becomes conclusive in the absence of proof that there is physical impossibility of access between the spouses during the 1st 120 days of the 300 days which immediately preceded the birth of the child (Articles 164 and 166, Family Code). Succinctly, in an attempt to establish their illegitimate filiation to the late Dizon, petitioners, in effect, would impugn their legitimate status as being children of Danilo and Carolina. This step cannot be done because the law itself establishes the legitimacy of children conceived or born during the marriage of the parents. The presumption of legitimacy fixes a civil status for the child born in wedlock, and only the father, or in exceptional instances the latters heirs, can contest in an appropriate action the legitimacy of the child born to his wife. Thus, it is only when the legitimacy of a child has been successfully impugned that the paternity of the husband can be rejected. Indeed, a child born in such wedlock shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentence as an adulteress (Article 167, Family Code). 4.) LIYAO, JR. vs. TANHOTI-LIYAO 378 SCRA 563 Husband and wife were separated-in-fact. The wife then lived with William Liyao and had a child with him. During the birth of the child it was William who attended to the


needs of Corazon, visited and stayed with the mother and child at the hospital. He also shouldered the hospitalization expenses of Corazon and William, Jr. The children of Corazon with her husband also acknowledged that William, Jr. is the illegitimate child of William Liyao, Sr. Whose child is William? It bears emphasis that only the father may impugn the legitimacy of the child or in proper cases, his heirs under the conditions set forth in Article 262 of the Civil Code. Impugning the legitimacy of the child is a strictly personal right of the husband, or in exceptional cases, the heirs for the simple reason that he is the one directly confronted with the scandal and ridicule which the infidelity of his wife produced and he should be the one to decide whether to conceal that infidelity or expose it in view of the moral and economic interest involved. Article 168 rule, in the absence of proof to the contrary, if wife contracted a subsequent marriage within 300 days after termination of prior marriage and gives birth thereafter. (99) GERARDO CONCEPCION vs. CA and MA. THERESA ALMONTE August 31, 2005 Gerardo and Theresa were married on December 29, 1989 and after the marriage lived with Theresas parents at Fairview, QC. Almost a year later or on December 8, 1990 Theresa gave birth to Jose Gerardo. The marriage turned to be short-lived because on December 19,1991 Gerardo filed a petition for annulment of his marriage with Theresa on the ground of bigamy. It was found out that Theresa married one Mario Gopiao on December 10, 1980, which marriage was never annulled and that Mario is still alive and is residing in Loyola Heights, QC. The annulment was granted and declared Jose Gerardo as an illegitimate child. Custody was granted to Theresa but Gerardo was granted visitation rights. Feeling betrayed and humiliated when Gerardo had their marriage annulled and held him responsible for the bastardization of the child, she moved for a partial reconsideration of the trial courts ruling contending that there is nothing in the law granting visitation rights in favor of a putative father of an illegitimate child. She further maintained that the surname of the child should be changed from Concepcion to Almonte following the rule that the illegitimate shall use the surname of the mother. The court denied Theresas motion applying the best interest of the child principle. Theresa went to the CA that also denied her appeal. She then moved for reconsideration. The appellate court in resolving the reconsideration ruled that when Jose Gerardo was born on December 8, 1990, Theresa was legitimately married to Mario therefore Jose Gerardo under the law- is the legitimate child of Mario and Theresa. Shocked and stunned Gerardo filed this appeal. SC: The status and filiation of the child cannot be compromised, Article 164 of the Family Code is clear. A child who is conceived or born during the marriage of his parents is legitimate. As a guaranty in favor of the child and to protect his status of legitimacy, Article 167 of the Family Code provides: The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. Gerardo cannot invoke Article 166 (1) as he has no standing to dispute the status of the child. Only Mario, Theresas husband, or, in a proper case, his heirs who can contest the legitimacy of the child Jose Gerardo born to his wife. Impugning the legitimacy of the child is a strictly personal right of the husband or, in exceptional cases, his heirs. Since the marriage of Gerardo and Theresa was void from the very beginning, he never became her husband and thus never acquired any right to impugn the legitimacy of her child. To rebut the presumption of legitimacy it must be shown beyond reasonable doubt that there was no access that could have enabled the husband to father the child. Here, during the period that Gerardo and Theresa were living together in Fairview, Mario was living in Loyola Heights which is also in QC. Fairview and Loyola Heights are only a scant 4 kilometers apart. ESTATE OF ROGELIO ONG vs. MINOR JOANNE RODJIN DIAZ rep. by her mother and guardian JINKY C. DIAZ


540 SCRA 480 (December 17, 2207) Jinky, who was already married to a Japanese national Hasegawa Katsuo, had an affair with Rogelio Ong. They lived together for about 4 years (January 1994 to September 1998) and had a child Joanne Rodjin. In September 1998, Rogelio abandoned the Jinky and Joanne and stopped supporting the minor alleging that he is not the father of the child. Subsequently Jinky filed a complaint against Rogelio because of his continued failure and refusal to give support to the child and to acknowledge the child as his. The heirs, who substituted Rogelio when he died, insisted that the decision of the appellate court remanding the case to the trial court for DNA testing analysis is set aside and to declare Joanne as the legitimate child of Jinky and Hasegawa. It was established however, that Hasegawa was living outside of the country and comes home only once a year. No evidence was shown that he ever arrived in the country in the year 1997 preceding the birth of Joanne Rodjin. -The burden of proving paternity is on the person who alleges that the putative father is the biological father of the child. -A child born to a husband and a wife during a valid marriage is presumed legitimate. This presumption of legitimacy of the child, however, is not conclusive and consequently, may be overthrown by evidence to the contrary. -With the advancement in the field of genetics, and availability of new technology, it can be determined with reasonable certainty whether Rogelio is the biological father of the minor, through DNA testing. DNA analysis is a procedure in which DNA extracted from a biological sample obtained from an individual is examined. The DNA is processed to generate a pattern, or a DNA profile, for the individual from whom the sample is taken. This DNA profile is unique for each person, except for identical twins. -The death of Rogelio does not ipso facto negate the application of DNA testing for as long as there exist appropriate biological samples of his DNA. Biological samples include blood, saliva, and other body fluids, tissues, hairs and bones. Article 172 Proof of Filiation 1) Mendoza vs. CA 201 SCRA 675 -Although Teopista has failed to show that she was in open and continuous possession of the status of an illegitimate child, she has nevertheless established that status by another methodthrough common reputation respecting his pedigree (falling under the phrase any other means allowed by the Rules of Court and Special Laws, Art. 172, par. (2), (2), Famil Code) 2) Fernandez vs. CA 230 SCRA 130 -Photographs showing the presence of the alleged father in the baptism of the child are far from proofs that he is the father of the child. -Pictures showing putative father showering affection to the child fall short of the evidence required to prove paternity. -Baptismal certificate naming respondent as father of the child has scant evidentiary value. No showing that he participated in its preparation. -Certificate of live birth identifying the alleged father as father of the child is not also competent evidence on the issue of paternity if records do not show that the alleged father had a hand in the preparation of said certificate. 3) Trinidad vs. CA 289 SCRA 188 -Although a baptismal certificate is indeed not a conclusive proof of filiation, it is one of the other means allowed under the Rules of Court and special laws to show pedigree. 4) FERNANDEZ vs. FERNANDEZ 363 SCRA 811 -May filiation be collaterally attack in an action for declaration of nullity of sale of real property?


HELD: While ones legitimacy can be questioned only in a direct action seasonably filed by the proper party, this doctrine finds no application in the instant case as respondents claim was that Rodolfo was not born to the deceased spouses Fernandez, not a situation wherein the respondents deny that Rodolfo was a child of their uncles wife. -May an application for Recognition of Back Pay under RA 897 be considered as proof of ones filiation? It may be conceded that the Application for Recognition of Back Pay is a public document nevertheless it was not executed to admit filiation of Jose with Rodolfo. The public document contemplated under Art. 172 refers to a written admission of filiation and not as obtaining in this case wherein the public document was executed as an application for the recognition of rights to back pay, the contents being, only a prima facie evidence of the facts stated therein. -The claim that he enjoyed and possessed the status of a legitimate child, the Court in Quismundo vs. WCC, held that possession of the status of a child does not in itself constitute an acknowledgment; it is only a ground for a child to compel recognition by his assumed parent. 7. LABAGALA vs. SANTIAGO December 4, 2001 -Is an income tax return that listed her as filers daughter sufficient to prove filiation? -The entries made in an income tax return only shows that income tax has been paid and the amount thereof. -Use of a family name certainly does not establish pedigree. 7. LOCSIN vs. JUAN LOCSIN, JR. December 10, 2001 As between the original certificate of live birth issued in the place where the alleged birth took place and a certified true copy issued by the civil registrar general but has entries different from the one issued by the local civil registrar, which copy must prevail? HELD: Since the records of birth cover several decades and come from all parts of the country, to merely access them in the civil registry general requires expertise. To locate one single record from the mass, a regular employee, if not more has to be engaged. It is highly unlikely that any of these employees in Metro Manila would have reason to falsify a particular 1957 birth record originating from the local civil registry of Iloilo City. -Respondents photograph with his mother near the coffin of the late Juan C. Locsin cannot and will not constitute proof of filiation, lest we recklessly set a very dangerous precedent that would encourage and sanction fraudulent claims. Anybody can have a picture taken while standing before a coffin with others and thereafter utilize it in claiming the estate of the deceased. 8. BERNABE vs. ALEJO (2005 Bar Exam) January 21, 2002 The child was born in 1981. The alleged father died in 1993. May the child be allowed to prove his filiation despite the clear provision of Art. 175 of the Family Code which requires that if the action to establish illegitimate filiation is based on the 2nd paragraph of Art. 172 the action may be brought during the lifetime of the alleged parent? HELD: The child should be allowed to prove his filiation as he was born in 1981, and therefore, his rights are governed by Art. 285 of the Civil Code, which allows an action for recognition to be filed within 4 years after the child has attained the age of majority. The enactment of the Family Code did not take away that right. -Art. 285 is a substantive law, as it gives the child the right to file his petition for recognition within 4 years after attaining the age of majority. The Family Code cannot impair or take Adrians right to file an action for recognition because the right had already vested prior to its enactment. The rules on


compulsory recognition of natural children are applicable to spurious children. Our overriding consideration is to protect the vested rights of minors who could have filed suit, on their own, during the lifetime of their putative parents. The State as parens patriae should protect a minors right. ECETA vs. ECETA May 20, 2004 Vicente predeceased his mother Rosalina. During his lifetime, however, he sired an illegitimate daughter, Maria Theresa. In 1991, Maria Theresa filed a case for partition, accounting with damages against Rosalina alleging that by virtue of her fathers death, she became Rosalinas co-heir and co-owner of a certain property located at Stanford, Cubao, Quezon City. During the pre-trial both parties admitted their relationship to one another, that Rosalina is Maria Theresas grandmother and vise versa. When Rosalina was ordered by the court to give 1/8 of the Cubao property to Maria Theresa, the former questioned the latters filiation, raising the following issues: 1. whether the certified Xerox copy of the certificate of live birth is competent evidence to prove the alleged filiation of Maria Theresa as an illegitimate daughter of her alleged father Vicente Eceta? 2. whether the admission made by Rosalina that Maria Theresa is her granddaughter is enough to prove respondents filiation with Vicente Eceta, her only son, and 3.whether the action for recognition has already prescribed. SC Maria Theresa had successfully established her filiation with Vicente by presenting a duly authenticated birth certificate which Vicente himself signed thereby acknowledging that she is his daughter. By this act alone, Vicente is deemed to have acknowledged his paternity over Maria Theresa. - the due recognition of an illegitimate child in a record of birth, a will, a statement before a court of record, or in any authentic writing is, itself, a consummated act of acknowledgment of the child, and no further court action is required. In fact, any authentic writing is treated not just a ground for compulsory recognition; it is in itself a voluntary recognition that does not require a separate action for judicial approval. DE LA ROSA, et. al. vs. HEIRS OF VDA. DE DAMIAN January 27, 2006 Facts: One of those claiming the estate of the late spouses Rustia is Guillerma Rustia who claimed to be the illegitimate child of Guillermo Rustia where she sought recognition on 2 grounds: first, compulsory recognition through the open and continuous possession of the status of an illegitimate child and second, voluntary recognition through authentic writing. As proof of the latter, she presented the report card that identified Guillermo Rustia as her parent/guardian. Also in Josefa Delgados obituary that was prepared by Guillermo Rustia, named Guillerma as one of their children. SC: There was apparently no doubt that she possessed the status of an illegitimate child from her birth until the death of her putative father Guillermo Rustia. However, this did not constitute acknowledgment but a mere ground by which she could have compelled acknowledgment through the courts. Furthermore, any (judicial) action for compulsory acknowledgment has a dual limitation: the lifetime of the child and the lifetime of the putative parent. On the death of either, the action for compulsory recognition can no longer be filed. In this case, Guillermas right to claim compulsory acknowledgment prescribed upon the death of Guillermo Rustia on February 28, 1974. The claim of voluntary recognition must likewise fail. An authentic writing, for purposes of voluntary recognition, is understood as a genuine or indubitable writing of the parent. This includes a public instrument or a private writing admitted by the father to be his. Did Guillermas report card from the University of Santo Tomas and Josefa Delgados obituary prepared by Guillermo qualify as authentic writings under the Civil Code? Unfortunately not. The report card did not bear the signature of Guillermo Rustia. The fact that his name appears there, as her parent/guardian holds no weight since he had no participation in its preparation. Similarly, while witnesses testified that it was Guillermo himself who drafted the notice of death of Josefa which was published in the SUNDAY TIMES on September 2, 1972, that published obituary was not the authentic writing


contemplated by the law. What could have been admitted as an authentic writing was the original manuscript of the notice, in the handwriting of Guillermo himself and signed by him, not the newspaper clipping of the obituary. The failure to present the original signed manuscript was fatal to Guillermas claim. CRUZ vs. CRISTOBAL 498 SCRA 37 (August 7, 2006) Petitioners alleged that they were the legitimate children of Buenaventura with Ignacia while respondents were the legitimate children of Buenaventura with Donata. In 1930, Buenaventura died. Six decades later, petitioners learned that private respondents executed an extrajudicial settlement involving a 535-square meter lot located at San Juan, MetroManila. Unable to reach a settlement in their barangay, petitioners filed a complaint for annulment of title and damages. Jose, a child of the 2 nd marriage testified that the only time he became aware that petitioners are his brothers and sisters was when he lived with their aunt Martina, a sister of his father, and the reason why they were giving a portion of the lot in question to Elisa, one of the children of the 1st marriage, was that they want her to have a piece of property of her own and is not an admission that she is their sister. Petitioners, to prove their filiation with the deceased Buenaventura, presented the baptismal certificates of Elisa, Anselmo, and the late Socorro. In the case of Mercedes who was born on January 31, 1909, she produced a certification issued by the LCR of San Juan, MetroManila attesting to the fact that records of birth for the years 1901, 1909, 1932 to 1939, 1943 and 1948 were all destroyed due to ordinary wear and tear. They presented a neighbor, Ester Santos who testified that the children of the 1st and 2nd marriages of Buenaventura had a harmonious relationship until 1994, when respondents started calling the petitioners and Elisas grandchildren squatters. She also said she cannot recall the name of the 1st wife and that she knew them to be married although she is not aware of the date when they were married. Issue: What needs to be established is the filiation of petitioners with the deceased Buenaventura Cristobal. SC: Any other means allowed by the Rules of Court and Special Laws, may consist of the childs baptismal certificate, a judicial admission, a family bible in which the childs name has been entered, common reputation respecting the childs pedigree, admission by silence, the testimony of witnesses, and other kinds of proof of admission under Rule 130 of the Rules of Court. In the present case, the baptismal certificates of Elisa, Anselmo, and the late Socorro were presented. Baptismal certificate is one of the acceptable documentary evidence to prove filiation in accordance with the Rules of Court and jurisprudence. In the case of Mercedes, who was born on January 31, 1909, she produced a certification issued by the LCR of San Juan, MetroManila attesting to the destruction of the records for the birth years 1901, 1909 etc. Likewise, the petitioners presented Santos who testified that the petitioners enjoyed that common reputation in the community where they reside as being the children of Buenaventura with his 1st wife. Testimonies were presented to prove filiation by continuous status as a legitimate child. In contrast, private respondents were unable to present any proof to refute the petitioners claim and evidences of filiation to Buenaventura. The foregoing evidence thus suffice that, indeed, petitioners are the children of Buenaventura during the 1st marriage. RIVERA vs. HEIRS OF VILLANUEVA 496 SCRA 135 (July 21, 2006) Pacita Gonzales and Romualdo Villanueva lived together as husband and wife without the benefit of marriage as the latter was validly married to Amanda Musngi who died on April 20, 1963. During the cohabitation, Pacita and Romualdo acquired several properties. Pacita died on July 3, 1980 without a will. Romualdo and Angelina, the alleged illegitimate daughter of Pacita extrajudicially settled Gonzales estate. The former then conveyed his interest in the estate to Angelina for P30,000.00. Petitioners (Gonzales half bothers) filed an action for annulment of titles and damages. They contend that Angelina was neither the adopted or illegitimate daughter of Gonzales with Villanueva. Both the trial court and the CA however, ruled that Angelina was the illegitimate daughter of the


decedent, based solely on her birth certificate. The CA found this as adequate proof that Angelina was Gonzales illegitimate child. SC: A closer examination of the birth certificate reveals that Angelina was listed as adopted by both Villanueva and Gonzales. The mere registration of a child in his or her birth certificate as the child of the supposed parents is not a valid adoption, does not confer upon the child the status of an adopted child and the legal rights of such child, and even amounts to simulation of the childs birth or falsification of his or her birth certificate, which is a public document (Benitez-Badua vs. CA). Furthermore, it is well-settled that a record of birth is merely prima facie evidence of the facts contained therein. It is not conclusive evidence of the truthfulness of the statements made there by the interested parties. Following the logic of Benitez-Badua, Angelina should have adduced evidence of her adoption, in view of the contents of her birth certificate. The records however, are bereft of any such evidence. Gonzales had been living with Villanueva for 20 years and was already 44 years old, and on the verge of menopause at the time of the alleged birth. Under the circumstances, it was not sufficiently established that Angelina was Gonzales biological daughter, nor even her adopted daughter. RODRIGUEZ vs. LIM 509 SCRA 113 (November 30, 2006) Pablo Goyma Lim, Jr. presented as proofs of his filiation, to wit; 1. Certificate of Birth indicating that his mother was Dominga Goyma; 2. Statement of Assets, Income and Liabilities of Dominga indicating Pablo Goyma Lim, Jr. as her son and 3. Income Tax Returns for 1953-1955 of Dominga, where she invariably claimed personal exemption as head of the family. SC enunciated that the due recognition of an illegitimate child in a record of birth, a will, a statement before a court of record, or in, any authentic writing is, in itself, a consummated act of acknowledgment of the child, and no further action is required. In fact, any authentic writing is treated not just a ground for compulsory recognition; it is in itself a voluntary recognition that does not require a separate civil action for judicial approval. These pieces of documentary evidence, whose authenticity were not refuted by petitioners, were properly considered by the court a quo and the appellate court to establish that Pablo Goyma Lim, Jr. was acknowledged by Dominga Goyma to be her illegitimate son. TEOFISTO VERCELES vs. POSADA 522 SCRA 518 (April 27, 2007) Posada, a young lass from a barrio in Catanduanes, was impregnated by Verceles, the mayor of Pandan, Catanduanes. Verceles denied fathering the child. He argued that he never signed the birth certificate of Verna Aiza Posada and that it was Clarissa Posada who placed his name on the birth certificate as father without his consent. Clarissa, on the other hand, presented as evidence the letters sent to her by Verceles starting from the very time that she missed her menstruation and 3 other handwritten letters, 2 of which were in his letterhead as mayor of Pandan. There were also pictures Verceles gave her of his youth and as a public servant, all bearing his handwritten notations at the back. That she was given P2,000 pocket money and another P2,000 for her delivery. Clarissas testimony was corroborated by her mother. SC: The letters of petitioner are declarations that lead nowhere but to the conclusion that he sired Verna Aiza. Although petitioner used an alias (Ninoy) in these letters, the similarity of the penmanship in these letters vis the annotation at the back of petitioners fading photograph as a youth is unmistakable. Even an inexperienced eye will come to the conclusion that they were all written by one and the same person, petitioner, as found by the courts a quo. In his memorandum, Verceles admitted his affair with Clarissa, the exchange of love letters between them, and his giving her money during her pregnancy. The letters are private handwritten instruments of petitioner which establish Verna Aizas filiation under Article 172(2) of the FC. In addition, the array of evidence presented by respondents, the dates, letters, pictures and testimonies, to us, are convincing, and irrefutable evidence that Verna Aiza is, indeed, petitioners illegitimate child.


Art. 173 Action to claim legitimacy Marquino vs. IAC 233 SCRA 348 -Effect of death of the natural child during the pendency of action for recognition. Under Art. 285 of the Civil Code, the action is extinguished. The right of action for the acknowledgment of natural children can never be transmitted. Article 173 of the Family Code however, superseded the intransmissibility of an action for recognition. -But Article 173 of the Family Code cannot be given retroactive effect so as to apply to the case at bench because vested rights will be prejudiced. -Effect of death of the putative parent during the pendency of cases. In the case at bar, the SC said that in an action for recognition, the party in the best position to oppose the same is the putative parent himself. The need to hear the side of the putative parent is an overwhelming consideration because of the unsettling effects of such an action on the peace and harmonious relationship in the family of the putative parent. -Article 175 (2) of the Family Code requires that if the action is based on the 2nd paragraph of Art. 172 the action maybe brought during the lifetime of the alleged parent. Art. 174 rights of a legitimate child (90) Art. 175 filiation of an illegitimate child (95) May be established in the same way and on the same evidence as legitimate children except when the action is based on the second paragraph of Article 172, the action may be brought during the lifetime of the alleged parent. Art. 176 rights of an illegitimate child (90) Art. 177 Legitimated children Justice Vitug is of the opinion that children of parents who were below 18 years of age at the time of conception cannot be legitimated. The child of parents, one of whom was below 18 at the time of conception and birth of the child is not legitimated by the subsequent valid marriage of the parents. The requirement of 18 years of age in marriage is not merely a declaration of capacity but one of disqualification if not met and clearly then an impediment within the meaning of Article 177 of the Family Code. De Santos vs. Angeles 251 SCRA 206 -Natural children by legal fiction cannot be legitimated because of the impediment present at the time of conception of the child. Articles 183 to 193- ADOPTION (83,94,95,96,00,01,03,05,06) The Family Code provisions on adoption had been repealed by Republic Act 8552 or the Domestic Adoption Act of 1998 but determining factor whether the new law is applicable or not is when was the petition for adoption filed because the right has become vested at the time of filing of the petition for adoption and shall be governed by the law then in force and cannot be impaired by the enactment of a new law on adoption (Republic vs. Miller, April 21, 1999). Effect of Adoption under RA 8552: Section 13-x x x x, and that the adoption would redound to the best interest of the adoptee, a decree of adoption shall be entered which shall be effective as of the date the original petition was filed. This provision shall also apply in case the petitioner dies before the issuance of the decree of adoption to protect the interest of the adoptee. In Tamargo vs. CA, 209 SCRA 518, the SC said that we do not consider that retroactive effect may be given to the decree of adoption so as to impose liability upon the adopting parents accruing at a time when the adopting parents had no actual or physical custody over the adopted child. Retroactive effect may perhaps be given to the granting of


the petition for adoption where such is essential to permit the accrual of some benefit or advantage in favor of the adopted child. Put a little differently, no presumption of parental dereliction on the part of the adopting parents could have arisen since the adopted child was not in fact subject to their control at the time the tort was committed. In Lahom vs. Sibulo (July 14, 2003) the SC held that RA 8552 had abrogated and repealed the right of the adopter under the Civil Code and the Family Code to rescind a decree of adoption. The adopter while barred from severing the legal ties of adoption, can always for valid reasons caused the forfeiture of certain benefits. For instance, upon the grounds recognized by law, an adopter may deny to an adopted child his legitime and, by a will and testament, may freely exclude him from having a share in the disposable portion of his estate. DELA ROSA, et. al. vs. VDA. DE DAMIAN (January 27, 2006) A year after the death of his wife Josefa, Guillermo filed a petition for the adoption of their ampun-ampunan Guillermina Rustia Rustia. His petition however, was overtaken by his death on February 28, 1974. SC: Although a petition for her adoption was filed by Guillermo, it never came to fruition and was dismissed upon the latters death. Adoption is a juridical act, a proceeding in rem, which created between 2 persons a relationship similar to that which results from legitimate paternity and filiation. Only an adoption made through the court, or in pursuance with the procedure laid down under Rule 99 of the Rules of Court is valid under this jurisdiction. It is not of natural law at law, but is wholly and entirely artificial. To establish the relation, the statutory requirements must be strictly carried out, otherwise, the adoption is an absolute nullity. The fact of adoption is never presumed, but must be affirmatively proven by the person claiming its existence. Section 18 of RA 8552 does not give the adopter the right of representation because this does not involve a reciprocal right between a parent and child. LANDINGIN vs. REPUBLIC June 27, 2006 Minors Elaine, Elma, and Eugene were the children of Amelia and the late Manuel Ramos. After Manuels death, the children were left under the custody of their paternal grandmother because Amelia left for Italy. When the paternal grandmother died, the children were taken cared of by a paternal uncle. Landingin, the 57-year old aunt and sister of the late Manuel and an American citizen residing in Guam, now desires to adopt the 3 children. In her petition, she alleged that the mother of the children had abandoned them and had not communicated with her children neither with her in-laws. In fact Amelia has already remarried and has 2 children with her 2nd husband. That petitioner and her other siblings were the ones financially supporting the children. That she is already a widow and living alone because all her children are already married and are gainfully employed. They have given their consent in writing to the adoption, who also promised to help her in supporting the children financially. Likewise, the paternal uncle where the children are currently staying also signified his willingness and commitment to support the minors while in petitioners custody. The DSWD was then directed by the court to conduct a case study and thereafter, Social Welfare Officer Pagbilao submitted a Child Study Report. It stated that the surviving parent consented to the adoption as evidenced by affidavit of Consent executed by the childrens mother Amelia as the mother came home on May 2, 2002 and stayed for 3 weeks. The minors likewise, consented to the proposed adoption. Pagbilao then recommended that the children be adopted by petitioner. During the trial however, Landingin failed to present Pagbilao as witness and also failed to adduce documentary evidence that, indeed, Amelia assented to the adoption. But despite that, the lower court granted the petition. On appeal by the Republic, the CA reversed the lower courts ruling stating that petitioner failed to adduce in evidence the voluntary consent of Amelia. The Affidavit of Consent of petitioners children is also inadmissible as evidence since it was not authenticated by a Philippine Consular Official having been executed in Guam and while petitioner has a job, she was not stable enough to support the children. Landingin then went to the SC via certiorari.


Issues: 1. Whether petitioner is entitled to adopt the minors without the written consent of the biological mother? 2.Whether or not the affidavit of consent purportedly executed by petitioners children sufficiently complies with the law? and 3.Whether or not petitioner is financially capable of supporting the adoptees? SC: Section 9 of RA 8552 (Domestic Adoption Act of 1998) provides: Whose consent is necessary to the adoption: X x x x. (b) The biological parents of the child, if known x x x . The general requirement of consent and notice to the natural parents is intended to protect the natural parental relationship from unwarranted interference by interlopers, and to insure the opportunity to safeguard the best interest of the child. Clearly, the written consent of the natural parents is indispensable for the validity of a decree of adoption. In this case, petitioner failed to submit the written consent of Amelia to the adoption. Petitioners argument that her consent is no longer necessary because she left for Italy and never came back, hence, Amelia had abandoned the children and it was just by twist of fate that after 12 years Amelia was on vacation and was able to meet Pagbilao, must be rejected. If, as claimed, that the biological mother had abandoned them, she should have adduced the written consent of the childrens legal guardian. Merely permitting the child to remain for a time undisturbed in the care of others does not constitute abandonment. To dispense with the requirement of consent, the abandonment must be shown to have existed at the time of adoption. Here, petitioner relied solely on her testimony and that of Elaine, the eldest of the 3, to prove that Amelia abandoned them. The Home Study Report tends to show otherwise. Elaine during the interview said that in serious problems she already consult her mother and petitioner-aunt. And while petitioner and other paternal relatives are continuously providing for most of their needs and education, Amelia would also send financial support ranging from P10,000.00 to P15,000.00 a month through her parents and share P3,000.00 to P5,000.00 thereof with the children. Thus, Amelia left for Italy without intention of abandoning her children, or to permanently sever their mother-child relationship. She was merely impelled to leave the country by financial constraints. Yet, even while abroad, she did not surrender or relinquish entirely her motherly obligations of rearing her children to her now deceased mother-inlaw. Petitioner failed to offer in evidence Pagbilaos report and the joint affidavit of consent purportedly executed by her children; the authenticity of which she, likewise, failed to prove. As to her financial capacity, the Report stated that petitioner is 57 years old, employed on a part-time basis as a waitress, earning $5.15 an hour and tips of around $1,000.00 per month. That she owns her house at Quitugua Subd., Yigo, Guam but the same is still being amortized. Given these limited facts, it is doubtful whether petitioner will be able to sufficiently handle the financial aspect of rearing the 3 children in the US. While she claims that she has the financial support and backing of her children, the OSG is correct in stating that the ability to support the adoptees is personal to the adopter, as adoption only creates a legal relation between the former and the latter. Moreover, no proof was adduced to prove her allegation that her children and siblings are willing to support the minors herein. SUPPORT DE ASIS vs. CA 303 SCRA 176 The mother filed an action for recognition and support. The putative father denied paternity and instead filed a counterclaim. The parties agreed to dismiss the case provided the alleged father would no longer pursue his counterclaim. Subsequently, the mother filed another case against the alleged father again, for support and recognition. The putative father moved for the dismissal of the case on the ground of res judicata.


SC: Such manifestation does not bar the mother from filing a subsequent case for support on behalf of the same child against the same defendant because such manifestation and the agreement to dismiss the case on condition that the defendant will not pursue the counterclaim constitute a form of renunciation as they severed the vinculum that gives the child the right to claim support from the putative parent. -The right to receive support can neither be renounced nor transmitted to a third person. -To allow renunciation or transmission or compensation of the family right of a person to support is virtually to allow either suicide or the conversion of the recipient to a public burden. -An agreement for the dismissal of a complaint for maintenance and support conditioned upon the dismissal of the counterclaim is in the nature of a compromise that cannot be countenanced. 8. If paternity is at issue in a case, its existence or absence must be judicially established and cannot be left to the will or agreement of the parties. GAN vs. REYES May 28, 2002 Apprehensive that she would be unable to send her 3-year old daughter to school, she wrote Gan demanding support for their love child. Gan denied paternity of the child. He argued that since the childs birth certificate indicated her father as UNKNOWN, then there is no legal basis for the claim for support. Gan was declared in default and was ordered to recognize the child Francheska Joy as his illegitimate child and to support her. A writ of execution was issued citing as reason the childs immediate need for schooling. Meanwhile, Gan appealed the judgment of the CA. He then filed a petition for certiorari insisting that the judgment sought to be enforced did not yet attain finality. He also seeks the setting aside of the default order and the judgment rendered thereafter for the reason that he should be allowed to prove his defense of adultery. SC: There is no evidence to justify the setting aside of the writ on the ground that it was issued beyond the legitimate bounds of judicial discretion. The Rules of Court clearly states that, unless ordered by the trial court, judgments in actions for support are immediately executory and cannot be stayed by an appeal. This is an exception to the general rule, which provides that the taking of an appeal stays the execution of the judgment. The aforesaid provision peremptorily calls for immediate execution of all judgments for and makes no distinction between those that are the subject of an appeal and those that are not. To consider then petitioners argument that there should be good reasons for the advance execution of judgment would be to violate the clear and explicit language of the rule mandating immediate execution. In all cases involving a child, his interest and welfare are always the paramount concerns. There may be instances where, in view of the poverty of the child, it would be a travesty of justice to refuse him support until the decision of the trial court attains finality while time continues to slip away. Parenthetically, how could he be allowed to prove the defense of adultery when it was not even hinted that he was married to the mother of the child. MANGONON vs. CA 494 SCRA 1 (June 30, 2006) Ma. Belen Mangonon and Federico Delgado were civilly married. The marriage however, was subsequently annulled due to absence of the required parental consent under Article 85 of the Civil Code. 7 months after the annulment, Mangonon gave birth to twins Rica and Rina. Federico totally abandoned them and Mangonon had to rely upon her 2nd husband for assistance. Demands made upon Federico and the latters father, Francisco, the latter being generally well known to be financially well-off, were unheeded. Petitioner then filed, for and in behalf of the twins a petition for declaration of legitimacy and support with application for support pendente lite before the RTC of Makati. As Federico failed to sign the twins birth certificate, it was imperative that their status as legitimate children of


Federico and as granddaughters of Francisco be judicially declared pursuant to Article 173 of the Family Code. As legitimate children and grandchildren, the twins are entitled to general and educational support under Articles 174 and 195 (b) in relation to Articles 194 (1) and (2) and 199 (c) of the Family Code. Mangonon argued that in case of default on the parents part, the obligation to provide support falls upon the grandparents of the children; thus, Federico, or in his default, Francisco should be ordered to provide general and educational support in the amount of US$50,000.00, more or less, per year. Francisco stated in his answer that as the birth certificates of Rica and Rina do not bear the signature of Federico, it is essential to 1st establish their legitimacy as there is no basis to claim support until a final and executory judicial declaration has been made as to the civil status of the children. Whatever good deeds he may have done to the twins were founded on pure acts of Christian charity. And assuming that he could be held for support, he has the option to fulfill the obligation either by paying the support or receiving and maintaining in the dwelling here in the Philippines the person claiming support. He further posits that because petitioner and the twins are now US citizens, they cannot invoke the Family Code provisions on support because 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. (Article 15, NCC). Federico, on the other hand, alleged that he left for abroad and stayed there for a long time within the 1st 120 days of the 300 days immediately preceding March 25, 1976 (birth of the twins) and that he only came to know about the birth of the twins when the latter introduced themselves to him 17 years later. He did not tell them that he could not be their father in order not to antagonize them. The trial court granted the prayer for support pendente lite which decision was affirmed by the appellate court. The trial court said that the status of the twins as children of Federico cannot be denied. They had maintained constant communication with their grandfather Francisco. Francisco admitted having written several letters to Rica and Rina. In said letters, particularly at the bottom thereof, Francisco wrote the names of Rica and Rina Delgado. He therefore was very well aware that the twins bear the surname Delgado. Likewise, he referred to himself in his letters as Lolo Paco or Daddy Paco. In his October 13, 1989 letter he said, as the grandfather, am extending a financial help of US$1,000.00. ISSUE: Who should be made liable for the award? SC: The pertinent provision is Article 199 of the FC; Whenever 2 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. Tolentino explains that the obligation to give support rests principally on those more closely related to the recipient. However, the more remote relatives may be held to shoulder the responsibility should the claimant prove that those who are called upon to provide support do not have the means to do so. There being prima facie showing that Mangonon and Federico are the parents of Rica and Rina, they are primarily charged to support their childrens college education. In view however of their incapacities, the obligation to furnish said support shall be borne by Francisco. Under Article 199 of the FC, as the next immediate relative of the twins, is tasked to give support to his granddaughters in default of their parents. It having been established that he has the financial means to support the twins education, he, in lieu of Federico should be liable for support pendente lite. While respondents have the option under Article 204 to fulfill the obligation either by paying the allowance fixed, or by receiving and maintaining in the family dwelling the person who has the right to receive support. The latter alternative cannot be availed of in case there is a moral or legal obstacle thereto. In


this case, Francisco cannot avail himself of the 2nd option. Prior to the commencement of this action, the relationship between Francisco and the petitioner and daughters was quite pleasant. The correspondences exchanged among them expressed profound feelings of thoughtfulness and concern for anothers well being. The photographs presented a seemingly typical family celebrating kinship. All these, however, are things of the past. With the filing of this case, and the allegations hurled at one another, the relationships had been affected. Particularly difficult for Rica and Rina must be the fact that those who they considered and claimed as family denied having any familial relationship with them. Given all these, we could not see the twins moving back here in the Philippines in the company of those who disowned them. LACSON vs. LACSON 499 SCRA 677 (August 28, 2006) Sisters Maowee and Maonaa Daban Lacson are the daughters of spouses Edward and Lea Lacson. Not long after the birth of Maonaa, Edward left the conjugal home in Molo, Iloilo City. Lea was virtually forced to seek, apparently for financial reasons, shelter elsewhere. From 1976 to 1994 or for a period of 18 years they shuttled from one dwelling place to another not their own. Lea did not badger Edward for support relying on his commitment memorialized in a note dated December 10, 1975 to give support to his daughters. Edward reneged on his promise of support. In January 1995, Maowee and Maonaa, thru their mother filed a complaint against Edward for support. They averred that Edward despite being gainfully employed and owning several pieces of valuable lands has not provided them support since 1976. That owing to years of Edwards failure and neglect, their mother had to borrow money from her brother Noel Daban which amounted to as much as P400,000.00 to P600,000.00. In his answer, Edward alleged that his lack of regular income and the unproductivity of the land he inherited accounted for his failure at times to give regular support. He further submits invoking Article 203 of the FC that he should not be made to pay support in arrears, form 1976 to 1994, as Maowee and Maonaa through their mother made no previous extrajudicial, let alone judicial demand. His obligation to pay starts only from the filing of the case since only from that moment can it be said that an effective demand for support was made upon him. SC: Edward Lacsons posture has little to commend itself. For one, it conveniently glossed over the fact that he veritably abandoned the respondent sisters even before the elder of the two could celebrate her 2nd birthday. Petitioner could not plausibly expect any of the sisters during their tender years to go through the motion of demanding support from him, what with the fact that even their mother found it difficult during the period material to get in touch with him. The requisite demand for support appears to have been made sometime in 1975. it may be that Lea made no extrajudicial demand in the sense of a formal written demand in terms and in the imperious tenor commonly used by legal advocates in a demand letter. Nonetheless, what would pass as a demand was, however, definitely made. Asking one to comply with his obligation to support owing to the urgency of the situation is no less a demand because it came by way of a request or plea. Pursuant to Article 207 of the FC which provides that when a person obliged to support another unjustly refuses or fails to give support when urgently needed by the latter, any 3rd person may furnish support to the needy individual, with right of reimbursement from the person obliged to give support, Noel Daban can rightfully exact reimbursement from Edward. The resulting juridical relationship between Edward and Noel is a quasi-contract, an equitable principle enjoining one from unjustly enriching himself at the expense of another. Petitioner Edward Lacson, unlike any good father of a family, has been remiss in his duty to provide his daughters with support practically all throughout their growing years. At bottom, the sisters had been deprived by a neglectful father of the basic necessities in life as if is their fault to have been born. This disposition is thus nothing more than a belated measure to right a wrong done to respondents.


PARENTAL AUTHORITY Espiritu vs. CA 242 SCRA 362 -The task of choosing the parent to whom custody shall be awarded is not a ministerial function to be determined by a simple determination of the age of a minor child. Whether a child is under or over seven years of age, the paramount criterion must always be the childs interests. -In ascertaining the welfare and best interests of the child, courts are mandated by the Family Code to take into account all relevant considerations. If a child is under 7 years of age, the law presumes that the mother is the best custodian. The presumption is strong but it is not conclusive. It can be overcome by compelling reasons. -Either parent, whether father or mother, is bound to suffer agony and pain if deprived of custody but it is not so much the suffering, pride, and other feelings of either parent but the welfare of the child which is the paramount consideration. 2) Santos, Sr. vs. CA 242 SCRA 407 -The law vests on the father and mother joint parental authority over the persons of their common children. In case of absence or death of either parent, the parent present shall continue exercising parental authority. Only in case of parents death, absence, or unsuitability may substitute parental authority be exercised by the surviving grandparent. -The legitimate father is still preferred over the grandparents despite the latters demonstrated love and affection. Wealth, too, is not a deciding factor. -The fathers previous inattention is inexcusable and merits only the severest criticism. It cannot, however, be construed as abandonement. 3) Eslao vs. CA 266 SCRA 317 -When a parent entrusts the custody of a minor to another, such as a friend or godfather, even in a document, what is given is merely temporary custody and it does not constitute a renunciation of parental authority. Even if a definite renunciation is manifest, the law still disallows the same. LAXAMANA vs. LAXAMANA September 3, 2002 The results of the psychiatric evaluation submitted to the trial court states that Reymond Laxamana is not yet considered completely cured (of his drug dependency) even though his drug urine test for shabu was negative. Likewise the children aged 14 and 15 when asked whether they like to be with their father but they said that they entertain fears in their hearts and want to be sure that their father is no longer a drug dependent. The trial court then awarded custody of the children to their mother. Is the court correct? While petitioner may have a history of drug dependence, the records are inadequate as to his moral, financial and social well-being. The psychiatric evaluation that he is not yet completely cured may render him unfit to take custody of the children but there is no evidence to show that he is unfit to provide the children with adequate support, education, as well as moral and intellectual training and development. While the children were asked as to whether they like to be with their father but there was no showing that the court ascertained the categorical choice of the children. In controversies involving the care, custody, and control of their minor children, the contending parties stand on equal footing before the court who shall make a selection according to the best interest of the child. The child if over 7 years of age may be permitted to choose which parent he/she prefers to live with, but the court is not bound by such choice if the parent chosen is unfit. In all cases, the sole and foremost consideration is the physical, educational, social and moral welfare of the child concerned taking into account the respective resources as well as the social and moral situations of the opposing parents. 1)


JOYCELYN GUALBERTO vs. CRISANTO RAFAELITO GUALBERTO V 461 SCRA 451 (June 28, 2005) [2006 Bar] Is a mother allegedly a lesbian unfit to have custody over a child below seven years of age? SC: The convention on the Rights of the Child provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration. The principle of best interest of the child pervades Philippine cases involving adoption, guardianship, support, personal status, minors in conflict with the law, and child custody. In these cases, it has long been recognized that in choosing the parent to whom custody is given, the welfare of the minors should always be the paramount consideration. Courts are mandated to take into account all relevant circumstances that would have a bearing on the childrens well-being and development. Aside from the material resources and the moral and social situations of each parent, other factors may be considered to ascertain which one has the capability to attend to the physical, educational, social and moral welfare of the children. As a general rule a mother is to be preferred in awarding custody of children under the age of 7. The caveat in Article 213 of the Family Code cannot be ignored, except when the court finds cause to order otherwise. The so-called tender-age presumption under Article 213 may be overcome only by compelling evidence of the mothers unfitness. The mother has been declared unsuitable to have custody of her children in one or more of the following instances: neglect, abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity or affliction with a communicable disease. Here, Crisanto cites immorality due to alleged lesbian relationship as the compelling reason to deprive Joycelyn of custody. It has indeed been held that under certain circumstances, the mothers immoral conduct may constitute a compelling reason to deprive her of custody. But sexual preference or moral laxity alone does not prove parental neglect or incompetence. Not even the fact that a mother is a prostitute or has been unfaithful to her husband would render her unfit to have custody of her minor child. To deprive the wife of custody, the husband must clearly establish that her moral lapses have had an adverse effect on the welfare of the child or have distracted the offending spouse from exercising parental care. SALIENTES vs. ABANILLA August 29, 2006 Loran and Marie Antonette are the parents of Lorenzo Emmanuel. They lived with Maries parents. Due to in-law problems, Loran suggested that they transfer to their own house but Marie refused so he, alone, left the house and was, later on, prevented from seeing his son. He then instituted a petition for habeas corpus and custody. Ordered to show cause why Lorenzo Emmanuel should not be discharged from restraint Marie moved for the reconsideration of the order which the court denied. She went to the CA which the affirmed the denial of the lower court. On certiorari, she contended that there was no evidence at all that the 3-year Lorenzo was under restraint and no evidence of maternal unfitness to deprive the mother Marie of her son of tender years. That the writ is unwarranted considering that there is no unlawful restraint by the mother and considering further that the law presumes the fitness of the mother, thereby negating any notion of such mother illegally restraining her own son. She maintains that Loran had the burden of showing a compelling reason but failed to present even a prima facie proof thereof. Accordingly, the proper remedy is an action for custody and not habeas corpus as the latter is unavailable against the mother who, under the law, has the right of custody of the minor. Loran, on the other hand, argued that under the law, he and Marie have shared custody and parental authority over their son. That at times that Marie is out of the country as required of her job as an international flight stewardess, he, the father, should have custody of their son and not the maternal grandparents.


SC: Habeas corpus may be resorted to in cases where rightful custody is withheld from a person entitled thereto. Under Article 211 of the FC, Loran and Marie Antonette have joint parental authority over their minor son and consequently, joint custody. Further, although the couple is separated de facto, the issue of custody has yet to be adjudicated by the court. In the absence of a judicial grant of custody to one parent, both parents are entitled to the custody of their child. In this case, Lorans cause of action is the deprivation of his right to see his son, hence, the remedy of habeas corpus is available to him. In a petition for habeas corpus, the childs welfare is the supreme consideration. The Child and Youth Welfare Code unequivocally provides that in all questions regarding the care and custody of the child, his welfare shall be the paramount consideration. Article 213 of the FC deals with the judicial adjudication of custody and serves as a guideline for the proper award of custody by the court. Petitioners can raise it as a counterargument for Lorans petition for custody. But it is not a basis for preventing the father to see his own child. Nothing in the said provision disallows a father from seeing or visiting his child under 7 years of age. VIESCA vs. GILINSKY 526 SCRA 533 (July 4, 2007) Shiela while working in a Makati hotel met David, a Canadian, and had a son with him named Louis Maxwell. The relationship however, turned sour and they parted ways. David then filed a petition praying that he be entitled to the company of Louis during weekends and on such occasions the child will be allowed to spend the night with the father and a yearly 3-week vacation in any destination with the child. During the pendency of the petition, they arrive at a compromise agreement that was approved by the court and became the compromise judgment. It was agreed, among others, that Louis shall be with his father every Saturday and/or Sunday afternoon and in Clause II (b) thereof it states that Louis shall be allowed to spend the night with David once a week. This became the center of the controversy between the parties as well as the last clause regarding the appointment of the childs accompanying guardian. As nothing was said about the specific time that Louis shall be brought to the father, the trial court modified the compromise agreement by stating that David shall enjoy the childs company every Friday each week from 6 pm to 9 am of the following day with the Deputy Sheriff of the court as the accompanying guardian during the childs sleepovers. Was it proper for the trial court to modify the compromise agreement? SC: Once it is stamped with judicial imprimatur, it becomes more than a mere contract binding upon the parties. It attains the effect and authority of res judicata. Unfortunately, the compromise agreement entered into between the parties fell way short of its objective of finally putting an end to their dispute. Perhaps, in its desire to finally put to rest the bothersome issue concerning Clause II (b) and to prevent future disagreements between the parties, the trial court saw the wisdom in providing specifics in the said indefinite portion of the Compromise Judgment. A remand of this case is necessary to allow the parties themselves to resolve the matter regarding the implementation of Clause II (b). In this regard, the rule on immutability for purposes of execution does not to judgment that is materially equivocal or which suffers from either patent or latent ambiguity. GAMBOA-HIRSCH vs. CA 527 SCRA 380 (July 11, 2007) Spouses Franklin and Agnes have a 4-year old daughter named Simone. Their problem started when Agnes wanted to stay in Makati while Franklin would like to stay in their conjugal home in Diniwid, Boracay Island, Malay, Aklan. One day, Agnes went to Boracay, asked for money and for Franklins permission for her to bring their daughter to Makati City for a brief vacation. He later however, discovered that neither Agnes nor their daughter would be coming back to Boracay. He then filed a petition for habeas corpus for Agnes to produce Simone. The CA granted joint custody of the minor child to both parents. SC: The CA committed grave abuse of jurisdiction when it granted joint custody of the minor child to both parents. The Convention of the Rights of the Child provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.


The so-called tender age presumption under Article 213 of the FC may be overcome only by compelling evidence of the mothers unfitness. The mother is declared unsuitable to have custody of her children in one or more of the following instances: neglect, abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity or affliction with a communicable diseases. Here, the mother was not shown to be unsuitable or grossly incapable of caring for her minor child. All told, no compelling reason has been adduced to wrench the child from the mothers custody. MADRINAN vs. MADRINAN 527 SCRA 487 (July 12, 2007) Spouses Felipe and Francisca have 4 children. On May 12, 2002, after a bitter quarrel, Felipe left the conjugal home taking with him their 3 sons and went to Ligao, Albay. Patching up things proved futile so Francisca filed a petition for habeas corpus before the CA. Felipe questioned the jurisdiction of the CA claiming that the family courts have exclusive original jurisdiction to hear and decide a petition for habeas corpus as provided for in Section 5 (b) of RA 8369 otherwise known as the Family Courts of 1997. The CA asserted its authority to take cognizance of the petition and ruling that, under Article 213 of the FC, Francisca is entitled to the custody of Philip and Francis Angelo who were at the time aged 6 and 4, respectively, subject to the visitation rightd of Felipe. SC: Citing Thorton vs. Thorton (436 SCRA 550), the SC resolved the issue of the CAs jurisdiction to hear writs of habeas corpus in cases involving custody of minors in the light of the provision of RA 8369 giving family courts exclusive original jurisdiction over such petitions. The Court of Appeals should take cognizance of the case since there is nothing in RA 8369 that revoked its jurisdiction to issue writs of habeas corpus involving the custody of minors. The family courts have concurrent jurisdiction with the CA and the SC in petitions for habeas corpus where the custody of minors is at issue. Articles 218 and 219- (03) ST.MARYS ACADEMY vs. CARPITANOS 376 SCRA 474 -Under Art. 218 of the Family Code, the following shall have special parental authority over a minor child while under their supervision, instruction or custody: 1) the school, its administrators and teachers; or 2) the individual, entity or institution engaged in child care. Such authority and responsibility applies to field trips, excursions and other affairs of the pupils and students outside the school premises whenever authorized by the school or its teachers. Under Art. 219 those exercising special parental authority are principally and solidarily liable for damages caused by the acts or omissions of the unemancipated minor under their supervision, instruction, or custody. -For a school to be liable, there must be a finding that the act or omission considered as negligent was the proximate cause of the injury caused because the negligence must have a causal connection to the accident. Article 231 grounds for suspension of parental authority (94) Article 236 as amended by RA 6809 effects of termination of parental authority and its exception (93) TITLE XI The SC in Republic vs. CA (May 6, 2005) said that a petition for declaration of presumptive death is a summary proceeding under the Family Code and not a special proceeding under the Revised Rules of Court. In Republic vs. Lorino (January 19, 2005) the SC held that in Summary Judicial Proceedings under the Family Code, there is no reglementary period within which to perfect an appeal, precisely because judgments rendered thereunder, by express provision of Article 247 thereof, are immediately final and executory. An appellate court acquires


no jurisdiction to review a judgment, which by express provision of law, is immediately final and executory. The right to appeal is not a natural right nor is part of due process, for it is merely a statutory privilege (Veloria vs. COMELEC).
Others Constitutional provisions strengthening marriage as an institution (91).

SURNAMES Art. 364 of the New Civil Code Legitimate and Legitimated Children shall use the surname of the father Republic vs. CA and Vicencio 300 SCRA 138 -A legitimate child generally bears the surname of the father. It must be stressed that a change of name is a privilege not a matter of right, addressed to the sound discretion of the court. -More confusion with grave legal consequences could arise if a legitimate child is allowed to use the surname of the stepfather, who did not legally adopt her. -While previous decisions have allowed children to bear the surname of their respective stepfather even without the benefit of adoption such as in the cases of Calderon and Llaneta, wherein the Court allowed the concerned child to adopt the surname of the stepfather, in those cases the children were not of legitimate parentage. Art. 368 Surname of illegitimate children Mossesgeld vs. CA 300 SCRA 464 -Illegitimate children shall use the surname of their mother this is the rule regardless of whether or not the father admits paternity. -The Family Code has effectively repealed Article 366 of the New Civil Code. The SC adopted the above ruling in the subsequent case of LEONARDO vs. CA, decided on September 10, 2003. NOTA BENE: RA 9255 HAS RETROACTIVE EFFECT In Re: Petition of Julian Lin Carulasan Wang 454 SCRA 2155, March 30, 2005 May a person be allowed to drop his middle name? Facts: Julian is the legitimated son of spouses Anna Maria Carulasan and Song-Pei Wang. Since the couple decided to settle in Singapore where Julian will study together with his sister, Anna Maria filed a petition seeking to drop his middle name and have his registered name in the Civil Registry changed from Julian Lin Carulasan Wang to Julian Lin Wang as he might be discriminated against when he studies in Singapore because of his middle name since in Singapore middle names or the maiden name surname of the mother is not carried in a persons name. Held: Middle names serve to identify the maternal lineage or affiliation of a person and further distinguish him from others who may have the same given name and surname as he has. When an illegitimate child is legitimated by subsequent marriage of his parents or acknowledged by the father in a public instrument or a private handwritten instrument, he then bears both his mothers surname as his middle name and his fathers surname as his surname, reflecting his status as a legitimated child or an acknowledged natural child. The registered name of a legitimate, legitimated and recognized illegitimate child thus contains a given name, a middle name and a surname. Before the registered name of a person may be changed he must show proper or reasonable cause, or any compelling reason that may justify such change. Among the grounds are: (a) when the name is ridiculous, dishonorable or extremely difficult to write or pronounce; (b) when the change results as a legal consequence as in legitimation; (c) when the change will avoid confusion; (d) when one has continuously used and been known since childhood by a Filipino name and is unaware of alien parentage; (e) a sincere desire to adopt a Filipino name to erase signs of former alien parentage, all in good faith and


without prejudicing anybody; and (f) when the surname causes embarrassment and there is no showing that the desired change of name is for a fraudulent purpose or that the change of name would prejudice public interest. In the case at bar, the only reason advanced by Julian for dropping his middle name is convenience. How such change of name would make his integration into Singaporean society easier and convenient is not clearly established. That the continued use of his middle name would cause confusion and difficulty does not constitute proper and reasonable cause to drop it from his registered complete name. In addition, Julian is still a minor. Considering the nebulous foundation on which his petition is based, it is best that the matter be left to his judgment when he reaches the age of majority. As he is of tender age, he may not yet understand and appreciate the value of the change of name and granting of the same at this point may just prejudice him in his rights under our laws. IN THE MATTER OF THE ADOPTION OF STEPHANIE NATHY ASTORGA GARCIA March 31, 2005 [2006 Bar] May an illegitimate child be allowed to use her natural mothers surname as his/her middle name when the child has been subsequently adopted by his/her natural father? Facts: Catindig decided to adopt his illegitimate child Stephanie Nathy Astorga Garcia with Gemma Astorga Garcia. The petition for adoption was granted and ordered that Stephanies surname be changed from Garcia to Catindig but nothing was mentioned with respect to Stephanies middle name. In his motion for clarification/reconsideration petitioner Catindig prayed that Stephanie should be allowed to use the surname of her natural mother (GARCIA) as her middle name. He contends that 1. there is no law prohibiting an adopted child from having a middle name in case there is only one adopting parent; 2. it is customary for a every Filipino to have as middle name the surname of the mother; 3. the middle name or initial is part of the name of a person; 4. adoption is for the benefit of the and best interest of the adopted child, hence, her right to bear a proper name should not be violated; 5. permitting Stephanie to use the middle name Garcia (her mothers surname) avoids the stigma of her illegitimacy; and; 6. her continued use of Garcia as her middle name is not opposed by either the Catindig or Garcia families. SC: As correctly submitted by the parties, there is no law regulating the use of a middle name. Even Article 176 of the family Code, as amended by RA 9255, is silent as to what middle name a child may use. The middle name or the mothers surname is only considered in Article 375 (1) of the Civil Code, in case there is identity of names and surnames between ascendants and descendants, in which case, the middle name or the mothers name shall be added. Notably, the law is likewise silent as to what middle name an adoptee may use. Adoption is defined as the process of making a child, whether related or not to the adopter, possess in general, the rights accorded to a legitimate child. Being a legitimate child by virtue of her adoption, it follows that Stephanie is entitled to all the rights provided by law to a legitimate child without discrimination of any kind, including the right to bear the surname of her mother and father. Stephanies continued use of her mothers surname as her middle name will maintain her maternal lineage. It is to be noted that Article 189 (3) of the Family Code and Section 18, Article V of RA 8552 provide that the adoptee remains an intestate heir of his/her biological parent. To allow Stephanie to use her mothers surname as her middle name will not only sustain her continued loving relationship with her mother but will also eliminate the stigma of her illegitimacy. It is a settled rule that adoption statutes, being humane and salutary, should be liberally construed to carry out the beneficent purposes of adoption. The interests and welfare of the adopted child are of primary and paramount consideration, hence, every reasonable intendment should be sustained to promote and fulfill the noble and compassionate objectives of the law. REPUBLIC vs. CAPOTE


514 SCRA 76 (February 2, 2007) [more on procedure Rule 103 of the Rules of Court] Capote is the guardian of minor Giovanni Gallamaso who is the illegitimate of natural child of Corazon Nadores and Diosdado Gallamaso. Giovanni was born in 1982 and his mother used the surname of the father when she registered the child despite absence of marriage between them. The alleged father failed to take up his responsibilities on matters of financial, physical, emotional and spiritual concerns. The childs pleas for attention along that line fell of deaf ears. Moreover, his mother might eventually petition the child to join him in the US and his continued use of the surname Gallamaso, the surname of the natural father, may complicate Giovannis status as natural child. The Republic contends that the purported parents and all other persons who may be adversely affected by the childs change of name should have been made respondents to make the proceeding adversarial. SC: The subject of rights must have a fixed symbol for individualization which serves to distinguish him from all others; this symbol is his name. When Giovanni was born in 1982, the provision that will apply is Article 366 of the Civil Code: A natural child acknowledged by both parents shall principally use the surname of the father. If recognized by only one of the parents, a natural child shall employ the surname of the recognizing parent. Based on this provision, Giovanni should have carried his mothers surname from birth. The records do not reveal any act or intention on the part of Giovannis putative father to actually recognize him. Meanwhile Art. 176 of the Family Code which repealed, among others, Art. 366 of the Civil Code provides: 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. X x x x x. Applying these laws, an illegitimate child whose filiation is not recognized by the father bears only a given name and his mothers surname, and does not have a middle name. The name of the unrecognized illegitimate child therefore identifies him as such. It is only when the illegitimate child is legitimated by the subsequent marriage of his parents or acknowledged by the father in a public document or private handwritten instrument that he bears both his mothers surname as his middle name and his fathers surname as his surname, reflecting his status as a legitimated or an acknowledged child. REPUBLIC vs. KHO 526 SCRA 177 (June 29, 2007) Application of Rules 103 and 108 of the Rules of Court RA 9048- AN ACT AUTHORIZING THE CITY OR MUNICIPAL CIVIL REGISTRAR OR THE CONSUL GENERAL TO CORRECT A CLERICAL OR TYPOGRAPHICAL ERROR IN AN ENTRY AND/OR CHANGE OF FIRST NAME OR NICKNAME IN THE CIVIL REGISTER WITHOUT NEED OF A JUDICIAL ORDER AMENDING FOR THIS PURPOSE ARTICLES 376 AND 412 OF THE CIVIL CODE OF THE PHILIPPINES Approved: March 22, 2001 - No entry in a civil register shall be changed or corrected without a judicial order except: 1. clerical or typographical errors and change of first name or nickname which is defined as a mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as misspelled place of birth or the like, which is visible to the naked eye or obvious to the understanding, and can be changed only by reference to other existing record/s; and in Section 4 thereof - 2. the first name or nickname is ridiculous, tainted with dishonor or extremely difficult to write or pronounce; 3. the new first name or nickname has been habitually and continuously use and he has been known by that first name or nickname in the community; or 4. the change will avoid confusion. - First name refers to a name or a nickname given to a person which may consist of one or more names in addition to the middle and last names.


- No correction must involve the change of a. nationality; b. age; c. status; or; d. sex. - The remedy may only be availed of once (2006 Bar).. - Petition must be verified. - If the petitioner has migrated to another place in the country and it would be very expensive and impractical to appear before the local civil registrar keeping the documents to be corrected or changed then it can be filed, in person, with the local civil registrar of the place where he is residing or domiciled. - Filipinos presently residing or domiciled in foreign countries with the nearest Philippine Consulates. - The civil registrar general shall exercise his power within 10 working days from receipt of the decision granting a petition, to impugn such a decision on any of the following grounds: 1. the correction is substantial or controversial as it affects the civil status of a person; 2. the correction is not clerical or typographical; or; 3. the basis in changing the first name or nickname of a person does not under Section 4. SILVERIO vs. REPUBLIC 537 SCRA 373 (October 19, 2007) Petitioner invoked his sex reassignment as the ground for his petition for change of name and sex. SC: The State has an interest in the names borne by individuals and entities for purposes of identification. A change of name is a privilege, not a right. Petitions for change of name are controlled by statutes. RA 9048 now governs the change of first name. It vests the power and authority to entertain petitions for change of first name to the city or municipal civil registrar or consul general concerned. Under the law, therefore, jurisdiction over applications for change of first name is now primarily lodged with the aforementioned administrative officers. The intent of the law is to exclude the change of first name from the coverage of Rules 103 (Change of Name) and 108 (Cancellation or Correction of Entries in the Civil Registry) of the Rules of Court, until and unless an administrative petition for change of name is first filed and subsequently denied. It likewise lays down the corresponding venue,, form and procedure. In sum, the remedy and the proceedings regulating the change of first name are primarily administrative in nature, not judicial. Petitioners basis in praying for the change of his first name was his sex reassignment. He intended to make his first name compatible with the sex he thought he transformed himself into through surgery. However, a change name does not alter ones legal capacity or civil status. RA 9048 does not sanction a change of first name on the ground of sex reassignment. Rather than avoiding confusion, changing petitioners first name for his declared purpose may only create grave complications in the civil registry and the public interest. Assuming it could be legally done, it was an improper remedy because the proper remedy was administrative, that is, that provided under RA 9048. It was also filed in the wrong venue as the proper venue was in the Office of the Civil Registrar of Manila where his birth certificate is kept. More importantly, it had no merit since the use of his true and official name does not prejudice him at all. RA 9255 AN ACT ALLOWING ILLEGITIMATE CHILDREN TO USE THE SURNAME OF THEIR FATHER -Approved on February 24, 2004. -There must be an express recognition by the father either a. record of birth appearing in the civil register; or b. admission in a public or private handwritten instrument (Article 172 in relation to Article 175 of the Family Code.) -Applies to 1. unregistered births; or 2. registered births where the illegitimate children use the surname of the mother. -Who may file: 1. father; 2. mother; 3. child, if of age; or 3. guardian where an Affidavit to Use the Surname of the Father (AUSF) is executed.


-What to file 1. Certificate of live birth with accomplished Affidavit of Acknowledgment/Admission of Paternity at the back; 2. Public Documentaffidavits of Recognition executed by the father such as the Affidavit of Admission of Paternity or the Affidavit of Acknowledgment; and 3. AUSF including all supporting documents. -When to register the public document not made on the record of birth, or the AUSF shall be registered within 20 days from the date of the execution at the place where the birth was registered. Article 412 Civil Register (87,06) cf. RA No. 9048 An Act Authorizing the City or Municipal Civil Registrar or the Consul General to Correct a Clerical or Typographical Error in an Entry and/or Change of First Name or Nickname in the Civil Register without need of a Judicial Order. Amending Articles 376 and 412 of the NCC. SILVERIO vs. REPUBLIC 537 SCRA 373 (October 19, 2007) -No law allows the change of entry in the birth certificate as to sex on the ground of sex reassignment. -The change of sex is not a mere clerical or typographical error. It is substantial change for which the applicable procedure is Rule 108 of the Rules of Court. -The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of Court are those provided for in Articles 407 and 408 of the Civil Code. -The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those that occur after birth. However, no reasonable interpretation of the provision can justify the conclusion that it covers the correction on the ground of sex reassignment. -To correct simply means to make or set aright; to remove the faults or error from while to change means to replace something with something else of the same kind or with something that serves as a substitute. The birth certificate of the petitioner contained no error. All entries therein including those corresponding to his first name and sex, were all correct. No correction is necessary. -Sex reassignment is not among those acts or events mentioned in Article 407. Neither is it recognized nor even mentioned by any law, expressly or impliedly. -The status of a person in law includes all his personal qualities and relations, more or less permanent in nature, not ordinarily terminable at his own will, such as his being legitimate or illegitimate, or his being married or not. X x x. (Salonga, Private International Law, 1995 Edition). -A persons sex is an essential factor in marriage and family relations. It is a part of a persons legal capacity and civil status. -The sex of a person is determined at birth, visually done by the birth attendant by examining the genitals of the infant. Considering that there is no law legally recognizing sex reassignment, the determination of a persons sex made at the time of his or her birth, if not attended by error, is immutable. -While petitioner may have succeeded in altering his body and appearance through the intervention of modern surgery, no law authorizes the change of entry as to sex in the civil registry for that reason.