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CODES AND NOTES BY PORFERIO JR. AND MELFA D. SALIDAGA

CIVIL CODE OF THE PHILIPPINES (R.A. 386)


Volume One: Persons and Family Relations

INTRODUCTORY CHAPTER

 Law is considered as “instructions from the maker.”

The human mind consists principally of two faculties


1. the intellect – the proper object of which is the truth; and
2. the will – the proper object of which is the good.

Classification of Law According to the Manner of its Promulgation


1. Natural Law – promulgated impliedly in our conscience and body
Natural Moral Law – applies to our higher faculties. e.g. do good and
avoid evil
Law of Nature – applies to both our higher and lower faculties. e.g. the
law of gravity
2. Positive Law – promulgated expressly or directly
Divine Positive Law – e.g. the 10 Commandments
Divine-Human Positive Law – e.g. the commandments if the Roman
Catholic Church
Human Positive Law – e.g. congressional statutes, executive orders

Human Positive Law – it is a reasonable rule of action, expressly or directly


promulgated by competent human authority for the common good.
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Essential Elements of Human Positive Law


1. Reasonable rule of action
2. Due promulgation – otherwise obedience can hardly be expected
3. Promulgation by competent authority
4. Generally, a sanction imposed for disobedience

Human Positive Law Distinguished from Morality


While Human Positive Law covers only external conduct, morality covers both external
acts and internal thoughts. Moreover, the former is enforced by the State; this is not so
in the case of morality.

Concepts of Law as:


1. Derecho – the abstract science of law
2. Ley – is a specific law
note: a student of law (derecho) studies specific laws (leyes)

Classification of Human Positive Law


1. According to whether a right is given, or merely the procedure for enforcement is
laid down:
1.1. Substantive Law – that which establishes rights and duties
1.2. Remedial (or procedural or adjective) Law – that which prescribes the
manner of enforcing legal rights and claims
2. According to the Scope or content of the law:
2.1. Private Law – that which regulates the relations of the members of a
community with one another
2.2. Public Law – that which governs the relations of the individual with the
State or ruler or community as a whole
3. According to force or effect:
3.1. Mandatory and/or Prohibitive Laws – those which have to be complied
with. Disobedience is punished either by direct penalties or by considering
an act or contract void.
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3.2. Permissive (or suppletory) Laws – those which may be deviated from, if
the individual so desires. e.g. In the case of “hidden treasure,” the finder
gets 50%.

Civil Law – that branch of the law that generally treats of the personal and family
relations of an individual, his property and successional rights, and the effects of his
obligations and contracts.

Civil Law Distinguished from Political Law


While civil law governs the relations of the members of a community with one another,
political law deals with the relations of the people and the government.
Our civil law was premised principally on the old Civil Code (the Civil Code of Spain of
1889).
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CHAPTER I
EFFECT AND APPLICATION OF LAWS

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

Sources of the Philippine Civil Law


1. The 1935 and the 1937 Philippine Constitutions, respectively
2. Statutes, laws, presidential; decrees, or executive orders which are applicable
3. Administrative or general orders
4. Customs of the place
5. Judicial decisions
6. Decisions of foreign courts
7. Principles covering analogous cases
8. Principles of legal hermeneutics
9. Equity and the general principles of law

Books of the Civil Code


1. Book I – Persons
2. Book II – Property, Ownership, and its Modifications
3. Book III – Different Modes of Acquiring Ownership
4. Book IV – Obligations and Contracts

The Code Commission


Composed of five (5) members, it was created by then Pres. Manuel A. Roxas through
E.O. 48 dated March 20, 1947

The Chairman was Dean George Bacobo

Congress approved the draft on June 18, 1949 as R.A. 386


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Art. 2. Laws shall take effect after 15 days following the completion of
their publication in the Official Gazette, unless it is otherwise provided.
This Code shall take effect 1 year after publication.

General Rule: 15 days after completion of publication in Official Gazette or newspaper of


general circulation

Exception: “unless otherwise provided.” The law can provide its own date of effectivity,
i.e., it can provide for a period less than or greater than 15 days after publication
before the law takes effect.

Publication is MANDATORY even if the law provides its own date of effectivity.

Internal regulations of administrative agencies which bind only the agency need not be published.

Publication in the Official Gazette is not necessary so long as it is not punitive in character.

On Aug. 30, 1950 the Civil Code took effect.

EO 200 (Aquino) laws to be effective must be published either in the Official Gazette or
in a newspaper of general circulation in the country. Publication not to be in Official
Gazette because of its erratic release and limited readership.

Publication is intended to enable people to become familiar with the statute.

Must be in full or it is no publication at all.

Circulars which prescribe a penalty for their violation should be published before
becoming effective.

Publication is an indispensable requirement, absence of which will render the law


ineffective.

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

Ignorantia legis non excusat


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The Article applies to all kinds of domestic laws, civil or penal

Applies only to mandatory and prohibitory laws

Ignorance of foreign law is not ignorance of the law, but ignorance of fact because
foreign laws must be alleged and proved as matters of fact, there being no judicial notice
of said foreign laws

If the foreign law is not properly alleged and proved, the presumption is that it is the
same as our law

When we say ignorance of the law, we refer not only to the literal words of the law itself,
but also to the meaning or interpretation given to said law by our courts of justice

While ignorance of the law is no excuse, ignorance of the fact eliminates criminal intent
as long as there is no negligence. Thus, a man who marries a second wife upon
reasonable belief after due search that his wife, missing for 10 years, is dead, does not
incur criminal responsibility. Even if it turns out that the first wife is alive.

The Civil Code specifically provides that a mistake on a doubtful or difficult question of
law may be the basis of good faith (Art. 526). He is liable, but his liability shall be
mitigated.

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


provided

General Rule: Rules are not retroactive

Law looks to the future. If the rule was that laws were retroactive, grave injustice would
occur, for these laws would punish individuals for violations of laws not yet enacted.

Exceptions:

1. When the law itself expressly provides for retroactivity (insofar as it does not
prejudice or impair vested or acquired rights in accordance with the Civil Code or other
laws)
Exception to the exception: ex post facto law when retroactivity impairs the
obligation of contract
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2. If laws are remedial in nature. e.g. new rules of court applied to pending actions.

3. If the statute is penal in nature favorable to the accused who is not a habitual
delinquent

4. If the laws are of an emergency in nature and are authorized by the police power of
the government

5. If the law is curative (cure errors or irregularities)

6. Substantive right be declared for the first time, unless vested rights are impaired

Art. 5. Acts executed against the provisions of mandatory and


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

Mandatory Laws – omission of which renders the proceeding or acts to which it relates
generally illegal or void.

Example: prescriptive periods

Prohibitory Laws – contain positive prohibitions and are couched in the negative terms
importing that the act required shall not be done otherwise than designated.

Example: “NO”…

One has to obey mandatory statutes, otherwise his acts would generally be void.

Violation of directory laws does not result in invalid acts.

Exceptions

If the law expressly provides for the validity of acts committed in violation of a
mandatory or prohibitory provision of a statute, such act shall be considered valid or
enforceable.

1. When the law makes the act not void but merely voidable
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2. When the law makes the act valid, but subjects the wrongdoer to criminal
responsibility

3. When the law makes the act itself void, but recognizes some legal effects flowing
therefrom

4. When the law itself makes certain acts valid although generally they would have
been void

Art. 6. Rights may be waived, unless the waiver is contrary to law,


public policy, morals or good customs, or prejudicial to a third person
with a right recognized by law.

Rules for the Waiver of Rights

General rule: rights may be waived

Exceptions:

1. When the waiver is contrary to law, public order, public policy, morals, or good
customs;

2. When the waiver is prejudicial to a third person with a right recognized by law

Right – the power or privilege given to one person and as a rule demandable of another.
e.g. the right to recover a debt justly due.

Generally, rights involve two (2) subjects:

1. Active subject – the person entitled.


2. Passive subject – the person obliged to suffer the enforcement of the right.

Rights may be:

1. real rights (jus in re, jus in rem) – enforceable against the whole world (absolute
right)

2. personal rights (jus in personam, jus ad rem) – enforceable against a particulat


individual (relative rights).
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Waiver – intentional relinquishment of a known right; not presumed but must be clearly
and convincingly shown, either by express stipulation or acts admitting no other
reasonable explanation

Requisites of a Valid Waiver

1. The person waiving must be capacitated to make the waiver;

2. The waiver must be made clearly, but not necessarily express;

3. The person waiving must actually have the right which he is renouncing;

4. In certain instances the waiver must comply with the formalities of a donation (like
the express remission of a debt in favor of the waiver);

5. The waiver must not be contrary to law, morals, public policy;

6. The waiver must not prejudice other with a right recognized by law

Examples of Rights that Cannot be Renounced

1. Natural right, such as the right to life

2. Alleged rights which really do not yet exist

3. Those the renunciation of which would infringe upon public policy


4. When the waiver is prejudicial to a third person with a right recognized by law

Examples of Rights that May be Renounced

1. Support in arrears

2. The right granted to prepare at least two days before trial is waivable, expressly or
impliedly

3. The right to object to testimony of a wife on information obtained because of her


domestic relations with her husband

4. The right of the accused to be helped by counsel


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5. The venue of the actions

Art. 7. Laws are repealed only by subsequent ones, and their violation
or non-observance shall not be excused by disuse, or custom, or practice
to the contrary. When the courts declare a law to be inconsistent with
the Constitution, the former shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid
only when they are not contrary to the laws or the Constitution.

Repeal – legislative act of abrogating through a subsequent law the effects of a previous
statute or portions thereof. May be either express or implied.

In general, the sources of law are given in this Article, and in order of preference, they
are:

1. the Constitution
2. laws (or presidential decrees)
3. administrative or executive acts
4. orders, and
5. regulations

How Laws are Repealed?

1. expressly
2. impliedly

Rule for General and Special Law

1. if the general law was enacted prior to the special law, the latter is considered the
exception to the general law

2. if the general law was enacted after the special law, the special law remains
unless:

a. there is an express declaration to the contrary


b. there is a clear, necessary and unreconcilable conflict
c. or unless the subsequent general law covers the whole subject and is clearly
intended to replace the special law on the matter
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Laws may lapse without the necessity of any repeal as exemplified by the law granting
the President, Emergency Powers.

Problem: Wolverine committed an offense, but before the time of trial, the
offense was no longer considered an offense by the law. Should Wolverine be
punished?

Answer: It depends.
a. if there has been a complete repeal, he should not be punished anymore
b. it is otherwise if the law merely lapsed, like example the Import
Control Law

Effect if the Repealing Law is Itself Repealed

1. When a law which expressly repeals a prior law is itself repealed, the law first
repealed shall not be thereby revived, unless expressly so provided

2. When the law which repeals a prior law, not expressly but by implication, it itself
repealed, the repeal of the repealing law revives the prior law, unless the language
of the repealing statutes provides otherwise.

Disuse, custom, or practice to the contrary does not repeal a law.

A mistake in the law or in legislation cannot be corrected by executive fit but by another
legislation.

Unconstitutional Laws, Treaties, Administrative or Executive Order

Rule under the 1935 Constitution – Eight (8) out of eleven (11) Justices must declare the
unconstitutionality of law or treaty. A simple majority of six (6) would suffice to declare
an executive or administrative order unconstitutional.

Rule under the 1973 Constitution – The Supreme Court shall be composed of a Chief
Justice and fourteen (14) Associate Justices. It may sit en banc or in two divisions.
Cases involving the constitutionality of a treaty, executive agreement, or law shall be
heard and decided by the Supreme Court en banc, and may be declared unconstituional
only upon the concurrence of at least ten (10) members. All other cases, which under its
rules are required to be heard en banc, shall be decided with the concurrence of at least
eight (8) members.

Cases heard by a division shall be decided with the concurrence of at least five (5)
members but if such required number is not obtained, the case shall be decided en banc.
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Rule Under the 1987 Constitution

The Supreme Court shall be composed of a Chief Justice and fourteen (14) Associate
Justices.

All cases involving the constitutionality of a treaty, international or executive agreement,


or law, which shall be heard by the Supreme Court en banc, an all other cases which
under Rules of Court are required to be heard en banc, including those involving the
constitutionality, application, or operation of presidential decrees, proclamations, orders,
instructions, ordinances, and other regulations shall be decided with the concurrence of a
majority of the members who actually took part in the deliberations on the issues in the
case and voted thereon.

Cases or matters heard by a division shall be decided or resolved with the concurrence of
a majority of the members who actually took part in the deliberations on the issues in the
case and voted thereon, and in no case, without the concurrence of at least three of such
members. When the required number is not obtained, the case shall be decided en banc.

Some Grounds for declaring a Law Unconstitutional

1. The enactment of the law may not be within the legislative powers of the
lawmaking body

2. Arbitrary methods may have been established

3. The purpose or effect violates the Constitution or its basic principles

Art. 8. Judicial decisions applying or interpreting the laws or the


Constitution shall form part of the legal system of the Philippines.

Judicial decisions although in themselves not laws, assume the same authority as the
statute itself. If he courts would be allowed to legislate, it would be contrary to the
principle of the separation of power.

Constitute evidence of what the law means.


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Legis interpretatio legis vim obtinet - interpretation placed upon the written law by a
competent court has the force of law.

Only the decisions of the Supreme Court, and unreversed decisions of the Court of
Appeals on cases of first impression, establish jurisprudence or doctrines in the
Philippines.

Doctrine of Stare Decisis – it means “adherence to precedents.” Once the case has been
decided one way, then another case, involving the same point at issue, should be decided
in the same manner.

Obiter Dicta – are opinions not necessary to the determination of a case. They are not
binding, and cannot have the force of judicial precedents.

How Judicial Decisions May Be Abrogated

1. By contrary ruling by the Supreme Court itself

2. By corrective legislative acts of Congress

The opinions of the Secretary of Justice although not law, should be given a great weight.

Judicial review of the decision of an administrative official is subject to certain


guideposts. E.g. questions of facts vs. question of laws

When Final Judgment May Be Changed

1. judgment void for lack of jurisdiction over the subject matter

2. when facts and circumstances transpire which render its execution


impossible or unjust, the interested party may ask the court to modify
or alter the judgment to harmonize the same with justice and with facts

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


the silence, obscurity or insufficiency of the laws.

 Ninguno non deue enriquecerse tortizeramente con dano de otro – When


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the statutes are silent or ambiguous, this is one of those fundamental principles which
the courts invoke in order to arrive at a solution that would respond to the vehement
urge of conscience.

A judge must give decision, whether he knows what law to apply or not.

The judge may apply any rule he desires as long as the rule chosen is in harmony with
general interest, order, morals, and public policy. Among such rules may be the
following:

• customs which are not contrary to law, public order, and public policy
• decisions of foreign and local courts on similar cases
• opinions of highly qualified writers and professors
• rules of statutory construction
• principles laid down in analogous instances

The Supreme Court basically is a review court.

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


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

Dura Lex Sed Lex – the law may be hard, but it is still the law.” Hence, the first duty of
the judge is to apply of the law – whether it be wise or not, whether just or unjust –
provided that the law is clear, and there is no doubt.

Construction and interpretation come only after it has been demonstrated that application
is impossible or inadequate without them.

In case of doubt, the judge should presume that “the lawmaking body intended right and
justice to prevail.”

“We should interpret not by the letter that killeth, but by the spirit that giveth life.”
(Cayetano v. Monsod)
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Art. 11. Customs which are contrary to law, public order or public
policy shall not be countenanced.

Custom – a rule of human action (conduct) established by repeated acts, and uniformly
observed or practiced as a rule society, thru the implicit approval of the lawmakers, and
which is therefore generally obligatory and legally binding.

Requisites Before the Courts Can Consider Customs

1. A custom must be proved as a fact, according to the rules of evidence

2. The custom must not be contrary to law, public order, or public policy

3. There must be a number of repeated acts

4. The repeated acts must have been uniformly performed

5. There must be a juridical intention to make rule of social conduct

6. There must be a sufficient lapse of time

Law Distinguished from Custom

While ordinarily a law is written, consciously made, and enacted by Congress, a custom
is unwritten, spontaneous, and comes from society.

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


evidence.

Custom – rule of conduct formed by repetition of acts, uniformly observed (practiced) as


a social rule, legally binding and obligatory.

Kinds of Customs
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1. a general custom is that of a country


2. a custom may be propter legem (in accordance with law) or contra
legem (against the law)

Juridical custom – can supplement statutory law or applied in the absence of such
statute.

Social custom – can’t supplement stat law or applied in the absence of statute.

Custom, even if proven, cannot prevail over a statutory rule or even a legal rule
enunciated by the SC

Art. 13. When the law speaks of years, months, days or nights, it shall be
understood that years are of 365 days each; months, of 30 days; days, of
24 hours; and nights from sunset to sunrise. If months are designated by
their name, they shall be computed by the number of days which they
respectively have. In computing a period, the first day shall be excluded,
and the last day included.

year – 365 days

month – 30 days

day – 24 hours

night – from sunset to sunrise

If the month is designated by its name, it shall be computed by the number of days it has.

In computing the period, the first day shall be excluded, and the last day included.

In an ordinary contract, the general rule is that an act is due even if the last day be Sunday
or a legal holiday.

When then time refers to a period prescribed or allowed by the Rules of Court, by an
order of the Court, or by any applicable statute, if the last day is Sunday or a legal
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holiday, it is understood that the last day is should really be the next day, provided said
day is neither a Sunday nor a legal holiday.

If the extra day in a leap year is not a day of the year, because it is the 366 th day, then to
what year does it belong? Certainly, it must belong to the year where it falls and,
therefore, the 366 days constitute one year.

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

General rule: We adhere in the Philippines to that doctrine in criminal law known as the
theory of territoriality. Therefore any person, whether citizen or alien, can be punished
for committing a crime here. Thus the technical term generality came into being; it
means that even aliens, male or female come under our territorial jurisdiction.

Exceptions:

1. principles of public international law

2. the presence of treaty stipulations

Citizens and foreigners are subject to all penal laws. Will even attach regardless whether
or not a foreigner is merely sojourning in Phil territory BUT they may however be
immune from suit, and therefore, cannot be criminally prosecuted in the Philippines in
certain cases where the Philippine government has waived its criminal jurisdiction over
them on the basis of the principles of public international law and treaty stipulations

1961 Vienna Convention on Diplomatic Relations – provided that the person of the
diplomatic agent shall be inviolable and he shall not be liable to any form of arrest or
detention. He shall enjoy immunity from criminal jurisdiction of the receiving state.
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Art. 15. Laws relating to family rights and duties, or to the status,
condition and legal capacity of persons are binding upon citizens of the
Philippines, even though living abroad.

Status – sum total of a person’s rights, duties, and capacities.

Article 15 stresses the principle of nationality. It refers to:

1. family rights and duties


2. status
3. condition
4. legal capacity

The capacity to enter into an ordinary contract is governed by the


national law of the place where the contract was entered into.

Capacity to enter into other relations or contracts is not necessarily governed by the
national law of the person concerned:

1. Capacity to acquire, encumber, assign, donate or sell property depends on the law of
the place where the property is situated (lex situs or lex rei sitae)

2. Capacity to inherit depends not on the national law of the heir, but on the national law
of the decedent

3. Capacity to get married depends not on the national law of the parties, but on the law
of the place where the marriage was entered into (lex celebrationis or locus regit actum),
subject to certain exceptions.

Art. 16. Real property as well as personal property is subject to the law
of the country where it is situated. However, intestate and testamentary
successions, both with respect to the order of succession and to the
amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the
person whose succession is under consideration, whatever may be the
nature of the property and regardless of the country wherein said
property may be found.
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Property, whether real or personal, is as a rule governed by the lex rei sitae (law of the
place where the property is situated).

Under our present laws, only corporate income derived from Philippine sources may be
taxed in our country.

Exception to the Lex Situs Rule

One important exception to the lex situs rule occurs in the case of successional rights:

1. order of succession
2. amount of successional rights
3. intrinsic validity of the provisions of a will
4. capacity to succeed

The Renvoi Problem

Renvoi – literally means a referring back; the problem arises when there is a doubt as to
whether a reference in our law to a foreign law – (a) is a reference to the internal law of
said foreign law; or (b) is a reference to the whole of the foreign law, including its
conflicts rules.

Article 17. The forms and solemnities of contracts, wills, and other
public instruments shall be governed by the laws of the country in
which they are executed.

When the acts referred to are executed before the diplomatic or


consular officials of the Republic of the Philippines in a foreign country,
the solemnities established by Philippine laws shall be observed in their
execution.

Prohibitive laws concerning persons, their acts or property, and those


which have for their object public order, public policy and good customs
shall not be rendered ineffective by laws or judgments promulgated, or
by determinations or conventions agreed upon in a foreign country.
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First Par: Doctrine Lex Loci Celebrationis

The first paragraph of the Article lays down the rule of lex loci celebrationis insofar as
extrinsic validity (forms and solemnities) is concerned.

Thus, a contract entered into by a Filipino in Japan will be governed by Japanese law
insofar as form and solemnities of the contract are concerned.

Formalities for the acquisition, encumbering and alienation of property (whether real or
personal) shall however, be governed not by the lex loci celebrionis but by lex rei sitae.

Second Par: Rule of Exterritoriality

Diplomatic and consular officials are representatives of the state, therefore Philippine law
should prevail if act is executed before a diplomat, in a foreign country. (basis: by rules
of international law, host country where diplomat is assigned, waives its jurisdiction over
the premises of the diplomatic office of another country located in the said host country).
The theory is that the act is being done within an extension of Philippine territory.

Third Par: Rule Respecting Prohibitive Laws

The third paragraph gives one exception to the rule that a foreign law, contract, or
judgment can be given effect. The reason is that public policy, public order, or good
customs in the Philippines prohibits the same . e.g. an absolute divorce, a contract for
the sale of human flesh (prostitution).

Intrinsic Validity of Contracts

The prevailing rule in Private International Law today is to consider the lex loci
voluntatis (the law of the place voluntarily selected) or the lex loci intentionis (the law of
the place intended by the parties to the contract).

Art. 18. In matters which are governed by the Code of Commerce and
special laws, their deficiency shall be supplied by the provisions of this
Code.
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General Rule: In case of conflict with the Code of Commerce or special laws, the Civil
Code shall only be suppletory, except if otherwise provided for under the Civil Code.

Exceptions: There are instances when the Civil Code expressly declares itself superior
to special laws:

(a) Common carriers – the Code of Commerce supplies the deficiency


(b) Insolvency – the special laws supply the deficiency

The Rule in Statutory Construction: special law governs over the general law in case
of conflict.
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CHAPTER 2
HUMAN RELATIONS

Art. 19. Every person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due, and
observe honesty and good faith.

Reason for the Chapter: A chapter on Human Relations was formulated to present
some basic principles that are to be observed for the rightful relationship between
human beings and the stability of the social order. The lawmakers make it imperative
that everyone duly respect the rights of others.

Stress of the Article

This Article stresses:

1. Acting with justice


2. Giving to everyone his due
3. Observance of honesty and good faith

Thus, rights must never be abused; the moment they are abused, they cease to be rights

Acting with Justice

Art. 20 – indemnification of another due to illegal acts


Art. 21 – indemnification due to immoral acts
Art. 24 – unfair competition
Art. 22 – unjust enrichment

Observance of Honesty and Good Faith

Art. 26 – respect for the personality and dignity of others


Art. 25 – restraint of undue extravagance
Art. 31 – independent civil actions
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Honesty – careful regard for other’s rights and property

Good Faith – honest intention to avoid undue advantage of another

Bad faith does not simply connote bad judgment or negligence; it imparts a dishonest
purpose or some moral obliquity and conscious doing of wrong.

Art. 20. Every person who, contrary to law, willfully or negligently


causes damage to another, shall indemnify the latter for the same.

Willful or Negligent Acts

The article punishes illegal acts whether done willfully or negligently. Thus, in the law of
torts or quasi-delicts – “whoever by act or omission causes damage to another, there
being fault or negligence, is obliged to pay for the damage done.”

Negligence – the failure to observe for the protection of the interests of another person
that degree of care, precaution and vigilance which the circumstances greatly demand,
whereby such other person suffers injury.

Tort

Art. 20 introduces a broader concept of torts in our country, for it embraces: (a) the
Spanish tort – based on negligence; (b) and the American tort – based on malice.

Art. 21. Any person who willfully causes loss or injury to another in a
manner that is contrary to morals, good customs or public policy shall
compensate the latter for the damage.

Art. 21 was intended to fill in the countless gaps of the statutes, which leave so many
victims of moral wrongs helpless, even though they have actually suffered material and
moral injury.
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Deals with acts contra bonus mores .

Article 21 Distinguished from Article 20

1. In Art. 21 – the act is contrary to morals, good customs, or public policy.

In Art. 20 – The act is contrary to law.

3. In Art. 21 – the act is done willfully

In Art. 20 – the act is done either willfully or negligently.

e.g. A student willfully humiliates a professor, causing her to have a nervous breakdown.
This would be contrary to good customs and morals, and the professor can sue for
damages.

Art. 22. Every person who through an act or performance by another,


or any other means, acquires or comes into possession of something at
the expense of the latter without just or legal ground, shall return the
same to him.

Duty in return What Was Acquired Unjustly or Illegally

No person should unjustly enrich himself at then expense of another.

Accion in rem verso – get back what he had intentionally (but unwillingly) paid.

Essential Requisites of an “Accion in Rem Verso”

1. One party must be enriched and the other made poorer

2. There must be a casual relation between the two

3. The enrichment must not be justifiable

4. There must be no other way to recover (so if, for example, a tort or quasi-contract
action is proper, it is not necessary to file a claim in rem verso)
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5. The indemnity cannot exceed the loss or enrichment, whichever is less.

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


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

Duty to indemnify even if the event causing damage was not due to the fault or
negligence of the defendant, but because he received

e.g. Without Wolverine’s knowledge, a flood drives his cattle to the cultivated highland
of Cyclops. Wolverine’s cattle are saved, but Cyclop’s crops are destroyed. True,
Wolverine was not at fault, but he was benefited. It is but right and equitable that he
should indemnify Cyclops.

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

Reason for the Court’s Protection of the Underdog

The law takes a great interest in the welfare of the weak and the handicapped. Thus, we
have “parens patria”.

Parens Patria – literally means “father or parent of his country.” The phrase refers to the
sovereign power of the state in safeguarding the rights of person under disability, such as
the insane and the incompetent.

The State as parens patriae is under the obligation to minimize the risk to those who
because of their minority, are yet to take care of themselves.
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Art. 25. Thoughtless extravagance in expenses for pleasure or display


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

Reason for Curtailing Thoughtless Extravagance

Thoughtless extravagance during emergencies may incite the passions of those who
cannot afford to spend.

Only a charitable institution (whether government or private) may bring the action.

Art. 26. Every person shall respect the dignity, personality, privacy and
peace of mind of his neighbors and other persons. The ff. and similar
acts, though they may not constitute a criminal offense, shall produce a
cause of action for damages, prevention and other relief:
1. Prying into the privacy of another’s residence
2. Meddling with or disturbing the private life or family relations of
another
3. Intriguing to cause another to be alienated from his friends
4. Vexing or humiliating another on account of his religious beliefs,
lowly station in life, place of birth, physical defect, or other
personal condition.

Duty to Respect Dignity and Privacy

This Article enhances human dignity and personality. This is not to sought social
equality, but due regard for decency and propriety.

Remedies
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1. action for damages

2. an action for prevention

3. any other relief

(1) prying into the privacy of another’s residence – includes by implication


respect for another’s name, picture, or personality except insofar as is needed
for publication of information and pictures of legitimate news value.

(2) Meddling with or disturbing the private life or family relations of another –
includes alienation of the affections of the husband or the wife; intriguing
against another’s honor (gossiping, and reliance on hearsay.

(3) Intriguing to cause another to be alienated from his friends – includes


gossiping, and reliance on hearsay.

(4) Vexing or humiliating – includes criticism of one’s health or features without


justifiable legal cause.

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

Refusal or neglect in the Performance of Official Duty

The purpose of Art. 27 is to end the bribery system, where the public official for some
flimsy excuse, delays or refuses the performance of his duty until he gets some kind of
“pabagsak.”

Three kinds of bribes:

1. Pabagsak – gift given so that an illegal thing may be done.


2. Pampadulas – gift given to facilitate the doing of a legal thing.
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3. pampasalamat – gift given in appreciation of a thing already done.

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


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

Reason for Preventing Unfair Competition

The provision is necessary in a system of free enterprise. Democracy becomes veritable


mockery if any person or group of persons by any unjust or high-handed method may
deprive others of a fair chance to engage in business or to earn a living.

While competition is necessary in a free enterprise, it must not be unfair.

Scope:

The Article speaks of unfair competition in:

1. agricultural enterprise

2. commercial enterprises

3. industrial enterprises

4. labor

e.g.

1. strike for trivial, unjust, or unreasonable cause

2. a strike carried out through force, intimidation or other unlawful means

3. cutthroat competition (where one is ready to losa if only to drive somebody else out of
business)
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4. selling the goods above the maximum prices set by the State

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


ground that his guilt has not been proved beyond reasonable doubt, a
civil action for damages for the same act or omission may be instituted.
Such action requires only a preponderance of evidence. Upon motion of
the defendant, the court may require the plaintiff to file a bond to
answer for damages in case the complaint should be found to be
malicious. (2) If in a criminal case the judgment of acquittal is based
upon reasonable doubt, the court shall so declare. In the absence of any
declaration to that effect, it may be inferred from the text of the decision
whether or not the acquittal is due to that ground.

Criminal and Civil Liabilities

Under the Revised Penal Code (Art. 100) a person criminally liable is also civilly liable.
The two liabilities are separate and distinct from each other; the criminal aspect affects
the social order; the civil, private rights.

One is for the punishment of the offender; while the other is for reparation of damages
suffered by the aggrieved party.

Thus, even if the accused be acquitted because of prescription of the crime, he is released
only from criminal liability, not civil liability; otherwise, the victim would be prejudiced

Reason for Art. 29

Criminal liability is harder to prove than civil liability because the former demands proof
of guilt beyond reasonable doubt; the other mere preponderance of evidence. Now then
if criminal conviction is not obtained because of reasonable doubt, there is still a chance
that the civil liability can be held to exist because of preponderance of evidence.

Proof beyond Reasonable Doubt – amount of proof which forms an abiding moral
certainty that the accused committed the crime charged. NOT absolute certainty, BUT
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such degree of proof is more exacting than what is needed in a civil case, which is:

Preponderance of Evidence – as a whole, evidence adduced by one side outweighs that


of the adverse party.

Survival of the civil liability depends on whether the same can be predicated on
sources of obligations other than delict.

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

Civil Liability Arising from an Unprosecuted Criminal Offense (Example)

Wolverine accused Cyclops of stealing his (Wolverine’s) watch, and so He (Wolverine)


brought a civil action against Cyclops to get the watch and damages. If the fiscal
institutes criminal proceedings against Cyclops the civil case is suspended in the
meantime (Rule 110, Revised Rules of Court), this case not being one of those for which
there can be an independent civil action. But if the case

Quantum of evidence still merely preponderance of evidence, even if the civil action
arose from a criminal offense

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

Independent Civil Action – is one that is bought distinctly and separately from a
criminal case allowed for considerations of public policy, because the proof needed for
civil cases is LESS than that required for criminal cases; but with the injunction in
general that in financially recovering in one case should not prevent a recovery of a
damages in the other.
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Instances When the Law Grants an Independent Civil Action

Art. 32 – (breach of constitutional and other rights)


Art. 33 – (defamation, fraud, physical injuries)
Art.34 – (refusal or failure of city or municipality police to give protection)
Art. 2177 – (quasi-delict or culpa aquiliana)

Scope of Art. 31 (Obligation Not Arising from a Crime)

It contemplates a case where the obligation does not arise from a crime, but from some
other act – like a contract or a legal duty.

Examples

A civil action fro recovery of government funds in the hands of a postmaster can prosper
independently of a charge of malversation, since in the first, the obligation arises from
law (ex lege), while in the second the obligation to return the money arises ex delicto.

Art. 32. Any public officer or employee, or any private individual, who
directly or indirectly obstructs, defeats, violates or in any manner
impedes or impairs any of the following rights and liberties of another
person shall be liable to the latter for damages:

1. Freedom of Religion
2. Freedom of Speech
3. Freedom to write for he press or to maintain a periodical
publication
4. Freedom from arbitrary or illegal detention
5. Freedom from suffrage
6. The right against deprivation of property without due process of
law
7. The right to a just compensation when private property is taken
for public use
8. The right to equal protection of the laws
9. The right to be secure in one’s person, house, papers, and effects
against unreasonable searches and seizures
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10.The liberty of abode and of changing the same


11.The privacy of communication and correspondence
12.The right to become a member of associations or societies for
purposes not contrary to law
13.The right to take part in a peaceable assembly to petition the
government for redress of grievances
14.The right to be free from involuntary servitude of any form
15.The right of the accused against excessive bail
16.The right of the accused to be heard by himself and counsel, to be
informed of the nature and cause of the accusation against him, to
have a speedy and public trial, to meet the witnesses face to face,
and to have compulsory process to secure the attendance of
witness in his behalf.
17.Freedom from being compelled to be a witness against one’s self,
or from being forced to confess guilt, or from being induced by a
promise of immunity or reward to make such confession, except
when the person confessing becomes a state witness
18.Freedom from excessive fines, or cruel or unusual punishment,
unless the same is imposed or inflicted in accordance with a
statute which has not been judicially declared unconstitutional
and
19.Freedom of access to the courts

In any of the cases referred to in this article, whether or not the


defendant’s act or omission
constitute a criminal offense, the aggrieved party has a right to
commence an entirely separate and distinct civil action for damages,
and for other relief. Such civil action shall proceed independently or any
criminal prosecution (if the latter be instituted), and may be proved by a
preponderance of evidence. The indemnity shall include moral damages.
Exemplary damages may also be adjudicated. The responsibility herein
set forth is not demandable from a judge unless his act or omission
constitutes a violation of the Penal Code or other penal statute.

Implementation of Constitutional Civil Liabilities


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The civil liberties guaranteed by the Constitution need implementation, hence the
necessity for Art. 32.

Additional rights

• Freedom of suffrage.
• Freedom from being force to confess guilt xxxx

Scope

The following can be made liable:

1. Any public officer or employee.


2. Any private individual even if he is in good faith.

Remedies

The Article allows am independent civil action, whether or nor a crime has been
committed, with indemnification for moral and exemplary damages in addition to other
damages. In the case of exemplary damages, award thereof is discretionary with the
Court.

Defendant in an Independent Civil Action to Safeguard Civil Liberties

The defendant is not the state, but the public officer involved. Hence, the consent of the
state is not required.

Where the State or its government enters into contract, action may be brought in the event
of breach of contract. The State may be sued even without its consent. The reason is that
by entering into a contract, the sovereign state has descended to the level of the citizen,
and its consent to be sued is implied from the very act of entering into such contract.

Art. 33. In cases of defamation, fraud, and physical injuries, a civil


action for damages, entirely separate and distinct from the criminal
action, may be brought by the injured party. Such civil action shall
proceed independently of the criminal prosecution, and shall require
only a preponderance of evidence.
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Independent Civil Action for defamation, fraud, and Fraud Injuries

Art. 33 speaks of:


• Defamation (libel, slander or intrigue against honor)
• Fraud (or estafa or swindling)
• Physical injuries including consummated, frustrated and attempted homicide.

New Concept of Tort

Two kinds of torts in the Phils:


The American concept of tort (which is done maliciously or intentionally).
The Spanish concept of tort (culpa aquiliana or quasi-delict, which is based on
negligence).

Is there any necessity of reserving the civil aspect of the criminal case

The independent civil action of damages arising from physuical injuries under Art. 33
may be brought by the offended party even if he had not reserved the right to file the
same in the criminal case for the same injuries.

Two different courts may at the same time try the same accident, one from the criminal
standpoint, the other from the standpoint of Art. 33. The result of the criminal case,
whether acquittal or conviction, would be in such a case, entirely irrelevant to the civil
action.

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


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

Independent Civil Action for the Liability of City or Municipal Police Force
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• Primarily liability is assessed against the member of the police force who refuses
or fails to render aid or protection.

• Subsidiary liability is imposed on the city or municipality concerned in case of


insolvency.

Does the Article Apply to the Philippine National Police (PNP) Force and to
National Government?

Since Art. 34 speaks merely of a city or municipal police force, it would seem that the
answer is in negative.

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


charges another with the same, for which no independent civil action is
granted in this Code or any special law, but the justice of peace finds no
reasonable grounds to believe that a crime has been committed, or the
prosecuting attorney refuses or fails to institute criminal proceedings,
the complainant may bring a civil action for damages against the alleged
offender. Such civil action shall be supported by preponderance of
evidence. On the defendant’s motion, the court may require the plaintiff
to file a bond to indemnify the defendant in case the complaint should
be found to be malicious. (2)If during the pendency of the civil action,
an information should be presented by the prosecuting attorney, the
civil action shall be suspended until the termination of the criminal
proceedings.

Rule if No Independent Civil Action is Granted

This Article applies to cases when there is no independent civil action (such as when the
liability sought to be recovered arises from a crime); and not to a tortious action such as
that provided from under Art 33.
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Art. 36. Prejudicial questions, which must be decided before any


criminal prosecution may be instituted or may proceed, shall be
governed by the rules of court which the Supreme Court shall
promulgate and which shall not be in conflict with the provisions of this
Code.

Prejudicial Question – is one which must be decided first before a criminal action may
be instituted or may proceed because a decision therein is vital to the judgment in the
criminal case.

Two essential elements of a prejudicial question

1. The civil action involved an issue similar or intimately related to the issue raised
in the criminal action
2. The resolution of such issue determined whether or not the criminal action may
proceed.
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Book I – PERSONS

Title I. CIVIL PERSONALITY

CHAPTER 1
GENERAL PROVISIONS

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

Person – any being, natural or artificial, capable of possession legal rights and
obligations.

Two Kinds of Persons

1. Natural Persons – human beings created by God through the intervention of the
parents

2. Juridical Persons – those created by law

Differences

1. Juridical Capacity – the fitness to be the subject of legal relations

2. Capacity to Act – the power to do acts with legal effect.


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Juridical Capacity Capacity to Act


(a) Passive (a) Active

(b) Inherent (b) Merely acquired

(c) Lost only through death (c) Lost through death and may be
restricted by other causes
(d) Can exist without capacity to act
(d) Exists always with juridical
capacity

Full or Complete Civil Capacity – the union of the two kinds of capacity.

Example of the Use of the Terms

A 1 yr. old boy has juridical capacity but has no capacity to act. When he becomes 18, he
will have full civil capacity.

A person is presumed to have a capacity to act.

Art. 38. Minority, insanity or imbecility, the state of being deaf-mute,


prodigality and civil interdiction are mere restrictions on the capacity to
act, and do not exempt the incapacitated person from certain
obligations, as when the latter arise from his acts or from property
relations, such as easements.

Restrictions on Capacity to Act

(a) minority (below 18)

(b) insanity or imbecility

(c) state of being a deaf-mute

(d) prodigality
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(e) civil interdiction

Minority (below 18)

Generally, a minor needs parental consent before he can enter into an ordinary contract.
If he goes ahead without such consent, the contract is not void but merely voidable: that
is, valid annulled. Incidentally, it wrong to say that a minor has NO capacity to act; he
has, but his capacity is RESTRICTED.

Insanity or imbecility

Insanity – is a condition in which a person’s mind is sick.


Imbecility – is a condition in which a person thinks like a child.

Is a person is under guardianship because of insanity, he is of course presumed insane if


he should enter into a contract. But this presumption is only prima facie or rebuttable. If
it can be shown that he was acting during a lucid interval, the contract will be considered
valid.

State of being deaf-mute

A deaf-mute may either be sane or insane. If sane, prescription may run against him. He
may make a will but cannot be a competent witness to a notarial will.

Prodigality
It is a state of squandering money or property with a morbid desire to prejudice the heirs
of a person.

Civil interdiction
It is the deprivation by the court of a person’s right:

1) To have parental or marital authority.


2) To be the guardian of the person and property of a ward.
3) To dispose of his property by an act inter vivos (he cannot donate, for this is an act
inter-vivos; but he can make a will, for this is a disposition mortis causa.
4) To manage his own property.

Note: the penalty of civil interdiction is given to criminal punished by imprisonment for
12 years and 1 day or more.
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Effect in general of the restrictions:


The restriction in Art. 38 do not extinguish capacity to act. They merely restrict or limit
the same. Thus an insane person’s contract is merely voidable, not void.
The incapacitated person is not exempt from certain obligation arising from his acts.
Example: If he commits a crime, his property may still be liable.

Art. 39. The following circumstances, among others, modify or limit


capacity to act: age, insanity, imbecility, the state of being deaf-mute,
penalty, prodigality, family relations, alienage, absence, insolvency and
trusteeship. The consequences of these circumstances re governed in this
Code, other codes, the Rules of Court, and in special laws. Capacity to
act is not limited on account of religious belief or political opinion. A
married woman, 21 years of age or over, is qualified for all acts of civil
life, except in cases specified by law.

Modifications or Limitations on Capacity to Act.

Art. 38 – Refers to restrictions on capacity to act.


Art. 39 – Includes not only the restrictions or limitations but also those circumstances that
modify capacity to act, like family relation and alienage.

Family Relations

A man cannot marry his mother, or sister, or even a first cousin. The fact a man is the
father of a family creates an obligation to give support to his family and to give his
children their legitime.

Alienage

An alien cannot generally acquire private or public agricultural lands, including those
residential in nature except thru hereditary succession.

Absence

The fact that one has been absent for several years and his whereabouts cannot be
determined, subjects his property to administration by order of the court although his
capacity to is not limited.
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Married Woman

A married woman, eighteen years of age or over, is qualified for all acts of civil life,
except in cases specified by law.

If the married woman be under 21, she is considered a married minor. She therefore
cannot dispose of or encumber her own real property without parental consent.

Bar Answer

Under Art. 2259 which provides that the capacity of a married woman to execute acts and
contract is governed by the new civil Code, even if her marriage was celebrated under the
former laws.
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CHAPTER 2
NATURAL PERSONS

Art. 40. Birth determines personality; but the conceived child shall be
considered born for all purposes that are favorable to it, provided it be
born later with the conditions specified in the following article

Beginning of Personality

Personality does not begin at birth; it begins at conception. This personality at


conception is called presumptive personality.

Rule in Case of Abortive Infants

If a physician operates on a pregnant woman and succeeds in aborting the foetus, the
parents would normally be entitled only to: Moral damages (distress, disappointment of
parental expectation); Exemplary damages, if warranted

But NOT to actual damages (injury to rights of the deceases, his right to life and physical
integrity) for the death of a person, does NOT cover the case of an unborn foetus, since
this is not endowed with personality. And even the moral damages cannot be recovered
by the husband of a woman (who voluntarily sought the abortion) from the physician if
the husband took no steps to investigate the causes of the abortion.

Art. 41. For civil purposes, the foetus is considered born if it is alive at
the time it is completely delivered from the mother’s womb. However, if
the foetus had an intra-uterine life of less than 7 months, it is not
deemed born if it dies within 24 hours after its complete delivery from
the maternal womb.
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Two Kinds of Children

(a) Ordinary – with an intra-uterine life of at least seven months. (mere birth is
sufficient here.)
(b) Extraordinary – if the intra-uterine life be less than seven months. (here the child
must live at least 24 hours after its complete delivery from the maternal womb.)

For Beneficial Civil Purposes

Foetus is considered born only for civil purposes (Art. 41) which are beneficial (Art.40)

Therefore, a conceived child, thru mother, may be the recipient of a donation; but if the
donation be onerous or should be prove burdensome, the donation will not be considered
valid.

A conceived child can be acknowledged even before it is born. It is also already entitled
to be supported.

Requirement of human form eliminated because it has been proved by medical science
that no monster can be born of human being.

Art. 42. Civil Personality is extinguished by death. The effect upon the
rights and obligations of the deceased is determined by law, by contract
and by will.

How Civil Personality is Extinguished

• Civil personality is extinguished by death (physical death).


• Civil interdiction (civil death) merely restrict, not extinguishes, capacity to act.

Effect of Physical Death

Effect of death is determined by:


(a) Law
(b) Contract
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(c) Will

Examples of Determination by Laws

If the person be made a voluntary heir in the will of another and he dies before the
testator, he cannot be represented by his own heir.

Other legal effect of death:


(a) The right to support ends

(b) A marriage, whether voidable or valid, also ends

(c) The tenure of public office ends

(d) If an individual dies, the property or estate left by him should be subject to the tax
in generally the same manner as if he were alive

(e) If a person dies after he has authorized another to sell the former’s property, the
sale after such death is not valid, if made by the agent with knowledge of the
principal’s death. This is true even if the buyer be in good faith.

Is a Person’s “Estate” a Person by Itself?

It has been held that the “estate” of a deceased is a person that may continue the
personality of the deceased even after death – for the purpose of settling debts.

Service of Summons on the Dead

His juridical capacity was lost the moment he died.

Art. 43. If there is doubt, as between 2 or more persons who are called
to succeed each other, as to which of them died first, whoever alleges the
death of one prior to the other, shall prove the same; in the absence of
proof, it is presumed that they died at the same time and there shall be
no transmission of rights from one to the other.

Presumptions on Survivorship Under the Revised Rules of Court


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When two persons perish in the same calamity and it is not shown who died first, and
there are no particular circumstances from which it can be inferred, the survivorship is
presumed from the probability resulting from the strength and age of the sexes, according
to the following rules:

(a) If both were under the age of 15 yrs, the older is presumed to have survived;

(b) If both were above 60, the younger is presumed to have survived;

(c) If one be under 15 and the other above 60, the former is presumed to have
survived;

(d) If both be over 15 and under 60, and the sexes be different, the male is presumed
to have survives; if the sexes is the same, then the older;

(e) If one be under 15 or over 60, and the other between those ages, the latter is
presumed to have survived.
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CHAPTER 2
JURIDICAL PERSONS

Art. 44. The ff. are juridical persons:

1. The state and its political subdivisions


2. Other corporations, institutions and entities for public interest
or purpose, created by law, their personality begins as soon as
they have been constituted according to law
3. Corporations, partnerships and associations for private
interest or purpose to which the law grants a juridical
personality, separate and distinct from that of each
shareholder, partner or member.

Classification of Juridical Persons

(a) Public juridical person

(b) Private juridical person

Public Juridical Persons

(a) Public corporations like the province and the city


(b) The state itself

Private Juridical Persons

(a) Private corporation


(b) Partnership

When Personality of Private Juridical Persons Begins


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A private corporation begins to exist as a juridical person from the moment a certificate
of incorporation is granted to it. The certificate is issued upon filing the articles of
incorporation with the SEC.

Juridical personality is not a matter of absolute right but a privilege which may be
enjoyed only under such terms as the State may deem necessary to impose.

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


article are governed by the laws creating or organizing them. Private
corporations are regulated by laws of general application on the subject.
Partnerships and associations for private interest or purpose are
governed by the provisions of this Code concerning partnerships (36
and 37a)

Determination of Nationality of Juridical Persons

The nationality of a corporation is generally determined by the place of its incorporation.


Two exceptions may for certain purposes, be made to this rule, namely:

(a) For the grant for the rights in the Constitution to the operation of public utilities,
and for the acquisition of land and other natural resources, a corporation, even if
incorporated here, cannot acquire said rights unless 60% of its capital be
Philippine-owned.

(b) During war, we may pierce the veil of corporate identity, and go to the very
nationality of the controlling stockholders regardless of where the incorporation
had been made. A contrary rule may endanger Philippine security.

Even if a foreign corporation is not doing business in the Philippines, and even not
licensed, it may sue here in our country.

Art. 46. Juridical persons may acquire and possess property of all kinds,
as well s incur obligations and bring civil or criminal actions, in
conformity with the laws and regulations of the organization.
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Rights of Juridical Persons

(a) To acquire and possess property of all kinds

(b) To incur obligations

(c) To bring civil or criminal actions

May a Corporation Form a Partnership?


No, because the relationship of trust and confidence which is found on a partnership, is
absent in corporation.

• A religious corporation which is not controlled by Filipinos cannot acquire lands,


otherwise alien religious landholding in this country would be revived. But the
Roman Catholic Church in the Philippines can acquire land because the Catholic
Church in any country, lawfully incorporated in said country, is an entity or
person separate and distinct from the personality of the Pope or of the Holy See.

• An American citizen, under the Parity Amendment, can acquire lands in the
Philippines, exploit our natural resources, and operate public utilities, only if in
his particular state in the United States, Filipinos are granted RECIPROCAL
parity right.

• Under RA 1180, person not citizens of the Philippines: associations, partnership,


or corporations the capital of which are not owned wholly by citizens of the
Philippines, are prohibited from engaging in the retail trade directly or indirectly.

• A Non-Existent Corporation Cannot Sue

• A Non-Existent Partnership Cannot Sue

• Is a partnership does not lawfully exist, it cannot sue, but it may be sued,
otherwise third persons may be prejudiced.

• An Unregistered Labor Organization Cannot Sue

• An admission or representation is rendered conclusive by the person making it, he


cannot denied or disproved it against a person relying on it (through estoppel)

• A person who contracts with a “corporation” cannot later deny its personality.
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• Even is a corporation has been dissolved, it can still continue prosecuting (as
plaintiff) or defending (as defendant) for the next three years, thru its legal
counsel, who may be considered a “trustee” for this purpose.

Art. 47. Upon the dissolution of corporations, institutions and other


entities for public interest or purpose mentioned in No. 2 of Art 44, their
property and other assets shall be disposed of in pursuance of law or the
charter creating them. If nothing has been specified on this point, the
property and other assets shall be applied to similar purposes for the
benefit of the region, province, city or municipality which during the
existence of the institution derived the principal benefits from the same.

Rule if Public Juridical Persons are Dissolved


This Article refers to public corporations or associations. How assets are to be
distributed:
(a) apply the provision of law or charter creating them

(b) if there is no such provision, the assets will be for the benefit of the place which
was already receiving the principal benefits during the existence of the
corporation or association.
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Title II. CITIZENSHIP AND DOMICILE

INTRODUCTORY COMMENTS

Citizenship and Nationality

Citizenship – is the status of being a citizen, or owing allegiance to a certain state for the
privilege of being under its protection. It is political in character

Nationality - refers to a racial & ethnic relationship.

In Civil Law and Private International Law, the two possessed of the same meaning.

Thus, when we say that successional rights depend on the national law of the deceased,
we really refers to the law of the country of which he was a citizen at the moment of
death.

Three Kinds of Citizens

(a) Natural-born citizen – those who are citizens of the Philippines from birth
without having to perform any act to acquire or perfect their Philippine
citizenship.

(b) Naturalized citizens – citizens who become such through judicial proceedings.

(c) Citizen by election – citizens who become such by exercising the option to elect a
particular citizenship, usually within a reasonable time after reaching the age of
majority.

Two Theories on Whether Place or Ancestry Determines Citizenship


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(a) Jus soli – if born in a country, a person is a citizen of the same (not applicable in
the Phils.)

(b) Jus sanguinis – one follows the citizenship of his parents; this is citizenship by
blood. (applied in the Phils.)

Q: Does dual or multiple nationality exist?

A: It depends:

a) from the viewpoint of the countries directly involved, it does not exist
(ordinarily);

b) but from the viewpoint of the third states, it does exist

Q: The deceased was both a Chinese and a Japanese. He died in Manila. Prior his
death, he was domiciled in Japan.

A: Japanese law, obviously is preferred over Chinese law, for the domicile was also in
Japan. In a case like this, it has been said that the domiciliary theory runs to the rescue of
the nationality theory. This is the theory of effective nationality.

Q: A testator, both a Cuban and Algerian in citizenship was domiciled at the moment of
his death in Italy. He died in Alaska, leaving properties in the Philippines. How should
the Philippine court dispose of the successional rights to his estate?

A:
1) first, get the Cuban and Algerian aws on succession, and apply them as they are
consistent with or identical to each other;

2) secondly, in so far as there is conflict, we must apply the law of Italy, the law of
domicile, to resolve the conflict.

Various ways in which this dual or multiple citizenship might arise

(a) through marriage

(b) through a naturalized citizen's failure to comply with certain legal requirements in
the country of origin

(c) from combined application of jus soli and jus sanguinis


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(d) by legislative act of states

(e) by voluntary act of the individual concerned

How statelessness is brought about

(a) he may have been deprived of his citizenship

(b) he may have renounced his nationality

(c) he may have voluntarily asked for release from his original state

(d) he may have been born in a country which recognizes only the principle of jus
sanguinis

The Rule that shall govern of stateless individuals

The Hague Conference of 1928 on International Private Law suggested that the personal
law of the stateless individuals shall be:

1) the law of the domicile (habitual residence); or

2) secondarily, the law of the place of temporary residence

Q: Suppose the individual had no nationality or citizenship, what should apply.

A: It is the law of the domicile.

Citizenship of a Filipino Woman Who Marries a Foreigner

(a) Rule prior to the 1973 Constitution: if she acquired his nationality; she lost
Philippine citizenship

(b) Rule under the 1973 Constitution: she shall retain her Philippine citizenship,
unless by her act or omission she is deemed, under the law, to have renounced her
citizenship.

Citizenship of a Foreign Woman Who Marries a Filipino

(a) Rule prior to the Moy Ya Case: if she has the qualifications and none of the
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disqualifications for Philippine citizenship, she becomes a Filipino. It also applies


to the wife of naturalized Filipino. She does not however, ipso facto, becomes
one. She has to file a petition for citizenship

(b) Rules after the Moy Ya Case: the alien woman marrying a Filipino, native-born
or naturalized is ipso facto a Filipino, provided she is not disqualified to be a
citizen of the Philippines. She does not have to prove that she possesses all the
qualifications and none of the disqualifications

Art. 48. The following are citizens of the Philippines

1. Those who were citizens of the Philippines at the time of the


adoption of the Constitution of the Philippines
2. Those born in the Philippines of foreign parents who, before
the adoption of said Constitution, had been elected to public
office in the Philippines
3. Those whose fathers are citizens of the Philippines
4. Those whose mothers are citizens of the Philippines and, upon
reaching the age of majority, elect Philippine citizenship
5. Those who are naturalized in accordance with law.

Citizens of the Philippines under the 1973 Constitution

(a) Those who were citizens of the Philippines at the time of the adoption of the
Constitution of the Philippines

(b) Those whose fathers or mothers are citizens of the Philippines

(c) Those who elect Philippine citizenship pursuant to the provisions of the
Constitution of nineteen hundred thirty five

(d) Those who are naturalized in accordance with law.

Citizens of the Philippines under the 1987 Constitution

(a) Those who were citizens of the Philippines at the time of the adoption of the
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Constitution of the Philippines

(b) Those whose fathers or mothers are citizens of the Philippines

(c) Those born before January 17, 1973, of Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority

(d) Those who are naturalized in accordance with law.

Art. 49. Naturalization and the loss and reacquisition of citizenship of


the Philippines are governed by special laws.

Naturalization – is the process of acquiring the citizenship of another country.

Attributes of Naturalization

(a) Citizenship is not a right, it is privilege. It is granted to certain aliens under


certain conditions

(b) The requisite conditions for naturalization are laid down by Congress; courts
cannot change or modify them

(c) Only foreigners may be naturalized

(d) Naturalization be revoked, by the cancellation of the certificate of naturalization

(e) Naturalization demands allegiance to our Constitution, laws, and government.

Qualifications for Naturalization

(a) The petitioner must not be less than 21 years of age

(b) He must have at least ten-year continuous residency in the Philippines

(c) He must be of good moral character, and believe in the principles underlying the
Philippine Constitution

(d) He must own real estate in the Philippines worth not less than P5,000, or must
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have lucrative trade, profession, or lawful occupation

(e) He must be able to speak and write English or Spanish and any one of the
principal Philippine Languages

(f) He must have enrolled his minor children of school age in any of the public
schools or private schools recognized by the Bureau of Private Schools where
Philippine history, government, and civics are taught

• A deaf-mute cannot speak, therefore, he cannot be naturalized.

Steps in Naturalization Proceedings

(a) a declaration of intention

(b) the petition must be filed

(c) the petition will then be heard

(d) if the petition is approved, there will be rehearing two years after the
promulgation of the judgment

(e) taking of oath of allegiance

How Citizenship May be Lost in General

(a) by substitution of a new nationality

(b) by renunciation of citizenship

(c) by deprivation

(d) by release (voluntary as distinguished from deprivation)

(e) by expiration

How Citizenship May Be Lost

(a) by naturalization in foreign countries

(b) by express renunciation of citizenship


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How Philippine Citizenship May be reacquired

(1) by naturalization

(2) by repatriation

(3) by direct act of Congress

Repatriation shall be effected by merely taking the necessary oath of allegiance to the
Constitution of the Philippines and registration in the proper civil registry.

Republic Act 7919, otherwise known as The Alien Social Integration Act of 1995, allows
illegal aliens who arrived in the Philippines before June 30, 1992, to apply for permanent
residency status.

The Republic Act 9139, otherwise known as the Administrative Naturalization Act of
2000 provided for the acquisition of Philippine citizenship for certain aliens by
administrative naturalization.

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

‘Domicile’ Distinguished from ‘Citizenship’ or ‘Nationality’

Domicile speaks of one’s permanent place of abode in general; on the other hand.
Citizenship and nationality indicate ties of allegiance and loyalty.

Importance of Knowing Domicile

(The Philippine generally adheres to the nationality theory)

(a) Firstly, our own law makes in some cases the law of the domicile as the
controlling factor in the solution of conflicts problems rather than the national law
of the person involved. This is particularly true in the revocation of wills.
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(b) Secondly, in some codal provisions, both the domiciliary and the nationality
theories are used.

Definition of Domicile
Domicile – is that place where a person has certain settled, fixed, legal
relations because:

(a) it is his domicile of origin

(b) it is his constructive domicile or domicile by operation of law

(c) it is his domicile of choice

The Three Kinds of Domicile

2. Constructive Origin or
1. Domicile of Origin Domicile by Operation of 3. Domicile of choice
Law
Acquired by birth Is given after birth

Applies only to infants Refers to all those who lack


capacity to choose their own
domicile due to legal
disabilities: infants, married
women, idiots and the insane.

Never changes May change from time to


time, depending upon
circumstances

Are fixed by law Are fixed by law Is a result of the


VOLUNTARY WILL
AND ACTION of the
PERSON
CONCERNED.

Rules for the Domicile of Origin (Domicilium Originis)

(a) a legitimate child – is the domicile of choice of his father at the moment of the
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birth
(b) an illegitimate child – is the domicile of choice of the mother at the time of the
birth of the child.
(c) a legitimated child – is the domicile of the father at the time of birth (not the
legitimation) of the child. This is because “legitimation shall take effect from the
time of child's birth
(d) an adopted child – the domicile of the real parent or the parent by consanguinity
(e) a foundling ( an abandoned infant whose parents are unknown) – the country
where it was found

Rules for the Constructive Domicile (Domicilium Necesarium)

a) Rules for Infants

(a) If legitimate – the domicile of choice of the father.


(b) If illegitimate – the domicile of the mother.
(c) If adopted – the domicile of the adopter.
(d) If a ward – the domicile of choice of the guardian.

b) Rules for Married Women

(a) If the married is VALID – the constructive domicile of a wife is the domicile of
her husband.
(b) If the married is VOIDABLE – the marriage is regarded as valid until annulled;
therefore, prior to annulment it is the domicile of the husband, unless she is
permitted under the circumstances to select her own domicile.
(c) If the marriage is VOID, it is as if there was no marriage, and the “wife” is not
really one.

c) Rules for Idiots, Lunatics, and Insane

If they are below the age of majority – they are considered infants under the law
If they are above the age of majority – (1) they have to follow the domicile of choice of
their guardians; (2) if they have no guardians, they have to follow their domicile of
choice shortly before they became insane.

Rules for Domicile of Choice

Domicile of choice – is that which is voluntary chosen by a sui juris – as his more or
less permanent home – that to which, whenever he is absent, he intends to return.
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Requisites to Acquire a New Domicile of Choice

(1) residence or bodily in the new locality

(2) an intention to remain there

(3) and an intention to abandon the old domicile

In other words, there must be an animus non-revertendi and animus manendi.

Persons who (because of lack of voluntariness) cannot acquire a new domicile of


choice

(a) infants, idiots, lunatics, and the insane (because of legal disability)
(b) convict or prisoner
(c) those who are involuntarily exiled
(d) soldiers
(e) public officials and employees, diplomats, and consular officers

Domicile Distinguished from Residence

Domicile Residence
Denotes a fixed permanent residence to Is used to indicate place of abode whether
which when absent, one has the permanent or temporary.
intention of returning.

A person can have generally only one A person can have several places of residence.
domicile.

Constitutional and Penal Safeguard on Domicile

Art. III, Section 6 of the 1987 Constitution provides that: “The liberty of abode and of
changing the same within the limits prescribed by law shall not be impaired except upon
lawful order of the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may be provided by law. “

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

Rules for Determining the Domicile of Juridical Persons

(a) Get the domicile provided for in the law creating or recognizing them or in their
articles of agreement.

(b) If not provided for, get the place:

1. Where their legal representation is established.


2. Or where they exercise their principal functions.

Domicile of a De Facto Partnership.

A defectively organized partnership which the law recognizes as de facto insofar as third
persons are concerned, can possess a domicile for purposes of its de facto existence.

Domicile of a Corporation with a Head Office and with Branches

Where the head office is located.


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THE FAMILY CODE OF THE PHILIPPINES


Executive Order 209, July 06, 1987, as amended
by Executive Order 227, July 17, 1987

Title I. MARRIAGE

CHAPTER I
REQUISITES OF MARRIAGE

Article 1. Marriage is a special contract of permanent union between a


man and a woman entered into in accordance with law for the
establishment of conjugal and family life. It is the foundation of the
family and an inviolable social institution whose nature, consequences,
and incidents are governed by law and not subject to stipulation, except
that marriage settlements may fix the property relations during the
marriage within the limits provided by this Code. (52a)

Characteristics

(a) A special contract between parties who, it is emphasized must be a man and a
woman (no valid marriage being permissible between the same sexes.

(b) A foundation of the family; and

(c) An inviolable social institution.


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Some Principles in Marriage

(a) union – physical and spiritual


(b) of one man with one woman
(c) reciprocal blessings
(d) birth (procreation)
(e) rearing
(f) education of children

Marriage Distinguished from Ordinary Contract

Marriage Ordinary Contract


(a) both a contract and a social (a) Merely a contract
institution

(b) generally, stipulations are fixed by (b) stipulations are generally fixed by
law the parties

(c) can be dissolved only by death or (c) can be ended by mutual agreement
annulment and by other legal causes

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


present:

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

(2) Consent freely given in the presence of the solemnizing officer.


(53a)

Art. 3. The formal requisites of marriage are:


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(1) Authority of the solemnizing officer;

(2) A valid marriage license except in the cases provided for in


Chapter 2 of this Title; and

(3) A marriage ceremony which takes place with the appearance of the
contracting parties before the solemnizing officer and their
personal declaration that they take each other as husband and
wife in the presence of not less than two witnesses of legal age.
(53a, 55a)

Essential Requisites No. 1 – Legal Capacity of the Contracting Parties

The parties must have the necessary age or the necessary consent of parents in certain
cases.

There must be no impediment caused by a prior existing marriage or by certain


relationships by affinity(law) or consanguinity (blood).

Essential Requisites No. 2 – Their Consent Freely Given

If there vitiated consent, the marriage is not void, it is merely voidable.

Formal Requisites No. 1 – Authority of Solemnizing Officer

Under the Family Code, even if the solemnizing officer is not authorized, the marriage
would be valid if either or both parties believe in good faith in his authority to solemnize
the marriage.

Formal Requisites No. 2 – Valid Marriage License

What is required is the marriage license, not the marriage certificate. In fact, a marriage
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may be proved by oral evidence.

Formal Requisites No. 3 – Marriage Ceremony

The ceremony must be witnessed by not less than two persons of legal age.

Note: Absence of any formal requisites, the marriage is void ab initio, unless one or both
of the parties are in good faith.

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


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

A defect in any of the essential requisites shall not affect the validity of
the marriage but the party or parties responsible for the irregularity
shall be civilly, criminally and administratively liable. (n)

Art. 5. Any male or female of the age of eighteen years or upwards not
under any of the impediments mentioned in Articles 37 and 38, may
contract marriage. (54a)

Art. 6. No prescribed form or religious rite for the solemnization of the


marriage is required. It shall be necessary, however, for the contracting
parties to appear personally before the solemnizing officer and declare in
the presence of not less than two witnesses of legal age that they take
each other as husband and wife. This declaration shall be contained in
the marriage certificate which shall be signed by the contracting parties
and their witnesses and attested by the solemnizing officer.

In case of a marriage in articulo mortis, when the party at the point of


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death is unable to sign the marriage certificate, it shall be sufficient for


one of the witnesses to the marriage to write the name of said party, which
fact shall be attested by the solemnizing officer. (55a)

• The husband and wife are presumed to be validly and legally married and could
not be rebutted by a mere denial by the man (or woman of the fact of marriage.

Common-law Marriage – is one where the man and the woman just live together as
husband and wife without getting married.

Marriage by proxy – one where the other party is merely represented by a delegate or
friend. Rules:

• if performed here in the Philippines, the marriage is void because physical


presence of both parties is required under Art. 6 of the Family Code.
• If performed abroad, ordinarily, is valid if the marriage is valid where it was
celebrated.

Art. 7. Marriage may be solemnized by:

(1) Any incumbent member of the judiciary within the court's


jurisdiction;

(2) Any priest, rabbi, imam, or minister of any church or religious sect
duly authorized by his church or religious sect and registered with
the civil registrar general, acting within the limits of the written
authority granted by his church or religious sect and provided
that at least one of the contracting parties belongs to the
solemnizing officer's church or religious sect;

(3) Any ship captain or airplane chief only in the case mentioned in
Article 31;

(4) Any military commander of a unit to which a chaplain is assigned,


in the absence of the latter, during a military operation, likewise
only in the cases mentioned in Article 32;
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(5) Any consul-general, consul or vice-consul in the case provided in


Article 10. (56a)

• a marriage in articulo mortis between passengers or crew memberes may also be


solemnized by a ship captain or an airplane pilot not only while the ship is at sea
or the plane is in flight, but also during stopovers at ports of call.

• a military commander of a unit shall likewise have authority to solemnize


marriages in articulo mortis between persons within the zone of military
operation, whether members of the armed forces or civilians.

• Under the Family Code, governors, mayors, and ambassadors are not authorized
to perform marriages.

• Under the Local Government Code, however, mayors are now authorized to
perform marriages within their jurisdictions.

Article. 8. The marriage shall be solemnized publicly in the chambers of


the judge or in open court, in the church, chapel or temple, or in the
office the consul-general, consul or vice-consul, as the case may be, and
not elsewhere, except in cases of marriages contracted on the point of
death or in remote places in accordance with Article 29 of this Code, or
where both of the parties request the solemnizing officer in writing in
which case the marriage may be solemnized at a house or place
designated by them in a sworn statement to that effect. (57a)

Reason for Public Solemnization

It is based on the premise that the state takes an active interest in the marriage.

Instances Where Public Solemnization is Not Needed

(a) marriages in chambers of the Justice or Judge

(b) marriages in articulo mortis


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(c) marriages in a remote place

(d) when both of the parties request in writing for solemnization in some other place

Art. 9. A marriage license shall be issued by the local civil registrar of the
city or municipality where either contracting party habitually resides,
except in marriages where no license is required in accordance with
Chapter 2 of this Title. (58a)

Where Marriage License Should be Issued

Marriage license should be issued by the local civil registrar of the municipality where
either contracting party habitually resides.

Marriages of Exceptional Character (No Marriage License is Required)

(a) in articulo mortis

(b) in a remote place

(c) marriage of people who have previously cohabited for at least five (5) years

(d) marriages between pagans or Mohammedans, who live in non-Christian


provinces, and who are married in accordance with their customs.

• Religious ratification of a valid marriage does not require a marriage license.

Art. 10. Marriages between Filipino citizens abroad may be solemnized by


a consul-general, consul or vice-consul of the Republic of the
Philippines. The issuance of the marriage license and the duties of the
local civil registrar and of the solemnizing officer with regard to the
celebration of marriage shall be performed by said consular official.
(75a)
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Art. 11. Where a marriage license is required, each of the contracting


parties shall file separately a sworn application for such license with the
proper local civil registrar which shall specify the following:

(1) Full name of the contracting party;

(2) Place of birth;

(3) Age and date of birth;

(4) Civil status;

(5) If previously married, how, when and where the previous


marriage was dissolved or annulled;

(6) Present residence and citizenship;

(7) Degree of relationship of the contracting parties;

(8) Full name, residence and citizenship of the father;

(9) Full name, residence and citizenship of the mother; and

(10) Full name, residence and citizenship of the guardian or


person having charge, in case the contracting party has neither
father nor mother and is under the age of twenty-one years.

The applicants, their parents or guardians shall not be required to


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exhibit their residence certificates in any formality in connection with


the securing of the marriage license. (59a)

Art. 12. The local civil registrar, upon receiving such application, shall
require the presentation of the original birth certificates or, in default
thereof, the baptismal certificates of the contracting parties or copies of
such documents duly attested by the persons having custody of the
originals. These certificates or certified copies of the documents by this
Article need not be sworn to and shall be exempt from the documentary
stamp tax. The signature and official title of the person issuing the
certificate shall be sufficient proof of its authenticity.

If either of the contracting parties is unable to produce his birth or


baptismal certificate or a certified copy of either because of the
destruction or loss of the original or if it is shown by an affidavit of such
party or of any other person that such birth or baptismal certificate has
not yet been received though the same has been required of the person
having custody thereof at least fifteen days prior to the date of the
application, such party may furnish in lieu thereof his current residence
certificate or an instrument drawn up and sworn to before the local civil
registrar concerned or any public official authorized to administer
oaths. Such instrument shall contain the sworn declaration of two
witnesses of lawful age, setting forth the full name, residence and
citizenship of such contracting party and of his or her parents, if known,
and the place and date of birth of such party. The nearest of kin of the
contracting parties shall be preferred as witnesses, or, in their default,
persons of good reputation in the province or the locality.

The presentation of birth or baptismal certificate shall not be required if


the parents of the contracting parties appear personally before the local
civil registrar concerned and swear to the correctness of the lawful age of
said parties, as stated in the application, or when the local civil registrar
shall, by merely looking at the applicants upon their personally
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appearing before him, be convinced that either or both of them have the
required age. (60a)

• The Article sets forth the rules by which the civil registrar shall determine as to
whether the parties have the required age for marriage.

Art. 13. In case either of the contracting parties has been previously
married, the applicant shall be required to furnish, instead of the birth or
baptismal certificate required in the last preceding article, the death
certificate of the deceased spouse or the judicial decree of the absolute
divorce, or the judicial decree of annulment or declaration of nullity of
his or her previous marriage.

In case the death certificate cannot be secured, the party shall make an
affidavit setting forth this circumstance and his or her actual civil status
and the name and date of death of the deceased spouse. (61a)

Art. 14. In case either or both of the contracting parties, not having been
emancipated by a previous marriage, are between the ages of eighteen
and twenty-one, they shall, in addition to the requirements of the
preceding articles, exhibit to the local civil registrar, the consent to their
marriage of their father, mother, surviving parent or guardian, or persons
having legal charge of them, in the order mentioned. Such consent shall
be manifested in writing by the interested party, who personally appears
before the proper local civil registrar, or in the form of an affidavit
made in the presence of two witnesses and attested before any official
authorized by law to administer oaths. The personal manifestation shall
be recorded in both applications for marriage license, and the affidavit,
if one is executed instead, shall be attached to said applications. (61a)

• Without the needed consent, the marriage is voidable.


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Art. 15. Any contracting party between the age of twenty-one and twenty-
five shall be obliged to ask their parents or guardian for advice upon the
intended marriage. If they do not obtain such advice, or if it be
unfavorable, the marriage license shall not be issued till after three
months following the completion of the publication of the application
therefor. A sworn statement by the contracting parties to the effect that
such advice has been sought, together with the written advice given, if
any, shall be attached to the application for marriage license. Should the
parents or guardian refuse to give any advice, this fact shall be stated in
the sworn statement. (62a)

• if the parents refuse to give the advice and this fact is stated in sworn statement
with the Civil Registrar, marriage would of course be still possible.

• If the parties refuse to obtain parental advice, the marriage license must not be
issued till after three months from the end of the 10-day publication. If they
marry without the license, the marriage will be null and void.

Art. 16. In the cases where parental consent or parental advice is


needed, the party or parties concerned shall, in addition to the
requirements of the preceding articles, attach a certificate issued by a
priest, imam or minister authorized to solemnize marriage under Article 7
of this Code or a marriage counselor duly accredited by the proper
government agency to the effect that the contracting parties have
undergone marriage counseling. Failure to attach said certificates of
marriage counseling shall suspend the issuance of the marriage license
for a period of three months from the completion of the publication of
the application. Issuance of the marriage license within the prohibited
period shall subject the issuing officer to administrative sanctions but
shall not affect the validity of the marriage.
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Should only one of the contracting parties need parental consent or


parental advice, the other party must be present at the counseling
referred to in the preceding paragraph. (n)

• Marriage is now a requirement. It is implicitly done by a priest, imam or minister,


or duly accredited marriage counselor.

Art. 17. The local civil registrar shall prepare a notice which shall
contain the full names and residences of the applicants for a marriage
license and other data given in the applications. The notice shall be
posted for ten consecutive days on a bulletin board outside the office of the
local civil registrar located in a conspicuous place within the building and
accessible to the general public. This notice shall request all persons
having knowledge of any impediment to the marriage to advise the local
civil registrar thereof. The marriage license shall be issued after the
completion of the period of publication. (63a)

Art. 18. In case of any impediment known to the local civil registrar or
brought to his attention, he shall note down the particulars thereof and
his findings thereon in the application for marriage license, but shall
nonetheless issue said license after the completion of the period of
publication, unless ordered otherwise by a competent court at his own
instance or that of any interest party. No filing fee shall be charged for
the petition nor a corresponding bond required for the issuances of the
order. (64a)

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


any kind for the issuance of said license. It shall, however, be issued free
of charge to indigent parties, that is those who have no visible means of
income or whose income is insufficient for their subsistence a fact
established by their affidavit, or by their oath before the local civil
registrar. (65a)

Art. 20. The license shall be valid in any part of the Philippines for a
period of one hundred twenty days from the date of issue, and shall be
deemed automatically canceled at the expiration of the said period if the
contracting parties have not made use of it. The expiry date shall be
stamped in bold characters on the face of every license issued. (65a)

Art. 21. When either or both of the contracting parties are citizens of a
foreign country, it shall be necessary for them before a marriage license
can be obtained, to submit a certificate of legal capacity to contract
marriage, issued by their respective diplomatic or consular officials.
Stateless persons or refugees from other countries shall, in lieu of the
certificate of legal capacity herein required, submit an affidavit stating
the circumstances showing such capacity to contract marriage. (66a)

Who Can Issue the Certificate of Legal Capacity?

• Diplomatic officials: ambassador, minister plenipotentiary and envoy


extraordinary, resident minister, charge d'affaires

• Consular Officials: consul-general, consul, vice-consul, consular agent

Art. 22. The marriage certificate, in which the parties shall declare that
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they take each other as husband and wife, shall also state:
(1) The full name, sex and age of each contracting party;

(2) Their citizenship, religion and habitual residence;

(3) The date and precise time of the celebration of the marriage;

(4) That the proper marriage license has been issued according to
law, except in marriage provided for in Chapter 2 of this Title;

(5) That either or both of the contracting parties have secured the
parental consent in appropriate cases;

(6) That either or both of the contracting parties have complied with
the legal requirement regarding parental advice in appropriate
cases; and

(7) That the parties have entered into marriage settlement, if any,
attaching a copy thereof. (67a)

• This article deals with the “marriage certificate.” It is not an essential requisite of
marriage

• The best evidence of the existence of a marriage is the marriage certificate--- but
it is not the only evidence that can be admitted to prove the existence of a
marriage. Testimony of the witnesses may be admitted o this point.

• Q: A man and a woman lived together as husband and wife for many years, but in
the office of the Manila Civil Registry, there was no record that marriage between
them had ever been celebrated. Are we to presume that they are married?

A: Yes, because of their cohabitation for many years. Moreover, the lack of
marriage record in Manila does not rebut the presumption of marriage, for the
marriage could have been celebrated elsewhere.
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Art. 23. It shall be the duty of the person solemnizing the marriage to
furnish either of the contracting parties the original of the marriage
certificate referred to in Article 6 and to send the duplicate and
triplicate copies of the certificate not later than fifteen days after the
marriage, to the local civil registrar of the place where the marriage was
solemnized. Proper receipts shall be issued by the local civil registrar to
the solemnizing officer transmitting copies of the marriage certificate.
The solemnizing officer shall retain in his file the quadruplicate copy of
the marriage certificate, the copy of the marriage certificate, the
original of the marriage license and, in proper cases, the affidavit of the
contracting party regarding the solemnization of the marriage in place
other than those mentioned in Article 8. (68a)

Copies of the Marriage Certificate

(a) one for the contracting parties


(b) two for the local civil registrar
(c) one for the person solemnizing

Art. 24. It shall be the duty of the local civil registrar to prepare the
documents required by this Title, and to administer oaths to all
interested parties without any charge in both cases. The documents and
affidavits filed in connection with applications for marriage licenses shall
be exempt from documentary stamp tax. (n)

Art. 25. The local civil registrar concerned shall enter all applications
for marriage licenses filed with him in a registry book strictly in the
order in which the same are received. He shall record in said book the
names of the applicants, the date on which the marriage license was
issued, and such other data as may be necessary. (n)
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Art. 26. All marriages solemnized outside the Philippines, in accordance


with the laws in force in the country where they were solemnized, and
valid there as such, shall also be valid in this country, except those
prohibited under Articles 35 (1), (4), (5) and (6), 3637 and 38. (17a)
Where a marriage between a Filipino citizen and a foreigner is validly
celebrated and a divorce is thereafter validly obtained abroad by the
alien spouse capacitating him or her to remarry, the Filipino spouse
shall have capacity to remarry under Philippine law. (As amended by
Executive Order 227)

General Rule

If valid where celebrated, it is also valid here (lex loci celebritionis doctrine, the law of
the place of celebration)

The Exceptions

(1) those contracted by any party below eighteen (18) years of age even with the
consent of parents or guardians

(2) those bigamous or polygamous marriages

(3) those contracted through mistake of one contracting party as to the identity of the
other

(4) those subsequent marriages that are void

(5) a marriage contracted by any party who, at the time of celebration, was
psychologically incapacitated

(6) incestuous marriages (between ascendants and descendants; between brothers and
sisters, whether of the full or half-blood)

(7) marriages void for reasons of public policy

• Q: Wolverine, a citizen of Turkey, is validly married there simultaneously to


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three wives, by each whom he has children. Will the marriage be considered as
valid in the Philippines?

A: For the purpose of cohabitation in the Philippines, only the first marriage
should be considered as valid; but for the purpose of considering legitimacy of
children, the marriage are all to be considered as valid.

Effect of Divorce of Marriage Between a Filipino Citizen and a Foreigner

If validly obtained by the alien spouse capacitating him or her to remarry, the Filipino
spouse shall have capacity to remarry under Philippine law.

However, if the foreign divorce is obtained by the Filipino spouse, the divorce is void.
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CHAPTER 2
MARRIAGES EXEMPT FROM THE LICENSE REQUIREMENT

Art. 27. In case either or both of the contracting parties are at the point
of death, the marriage may be solemnized without necessity of a marriage
license and shall remain valid even if the ailing party subsequently
survives. (72a)

Art. 28. If the residence of either party is so located that there is no


means of transportation to enable such party to appear personally
before the local civil registrar, the marriage may be solemnized without
necessity of a marriage license. (72a)

• In a marriage in articulo mortis, while it is advisable that a witness to the marriage


should sign the dying party's signature if the latter be physically unable to do so,
still if upon order of the solemnizing official, another person should so sign, the
marriage is still valid.

• “Danger of death” distinguished from “Point of death:” If a soldier is about to


go to war, he may be in danger of death, but not at the point of death; hence, a
marriage in articulo mortis would not be applicable to him.

• There is no prescribed minimum or maximum distance in a “marriage in a remote


place.”
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Art. 29. In the cases provided for in the two preceding articles, the
solemnizing officer shall state in an affidavit executed before the local
civil registrar or any other person legally authorized to administer oaths
that the marriage was performed in articulo mortis or that the residence
of either party, specifying the barrio or barangay, is so located that
there is no means of transportation to enable such party to appear
personally before the local civil registrar and that the officer took the
necessary steps to ascertain the ages and relationship of the contracting
parties and the absence of legal impediment to the marriage. (72a)

• Failure on the part of the solemnizing officer to execute the necessary affidavit
will not invalidate the marriage, for the affidavit is not being required of the
parties.

Art. 30. The original of the affidavit required in the last preceding
article, together with the legible copy of the marriage contract, shall be
sent by the person solemnizing the marriage to the local civil registrar of
the municipality where it was performed within the period of thirty days
after the performance of the marriage. (75a)

Art. 31. A marriage in articulo mortis between passengers or crew


members may also be solemnized by a ship captain or by an airplane
pilot not only while the ship is at sea or the plane is in flight, but also
during stopovers at ports of call. (74a)

Art. 32. A military commander of a unit, who is a commissioned officer,


shall likewise have authority to solemnize marriages in articulo mortis
between persons within the zone of military operation, whether
members of the armed forces or civilians. (74a)
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Art. 33. Marriages among Muslims or among members of the ethnic


cultural communities may be performed validly without the necessity of
marriage license, provided they are solemnized in accordance with their
customs, rites or practices. (78a)

Art. 34. No license shall be necessary for the marriage of a man and a
woman who have lived together as husband and wife for at least five years
and without any legal impediment to marry each other. The contracting
parties shall state the foregoing facts in an affidavit before any person
authorized by law to administer oaths. The solemnizing officer shall also
state under oath that he ascertained the qualifications of the contracting
parties are found no legal impediment to the marriage. (76a)
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CHAPTER 3
VOID AND VOIDABLE MARRIAGES

INTRODUCTORY COMMENT

Distinctions between a Void and A Voidable Marriage

Void Voidable

(a) can never be ratified (a) can generally be ratified by free


cohabitation

(b) always void (b) valid until annulled

(c) can be attacked directly or (c) cannot be assailed collaterally; there


collaterally must be a direct proceeding

(d) there is no conjugal partnership (d) there is a conjugal ownership


(only co-ownership)

Two Kinds of Impediments in Marriages

(a) diriment impediments – they make the marriage void. e.g. close blood
relationship; prior existing marriage

(b) prohibitive impediments – they do not affect the validity of marriage, but criminal
prosecution may follow

Classification of Impediments

(a) absolute – the person cannot marry at all. e.g. when one is below 18 years old.
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(b) relative – the prohibition is only with respect to certain persons. e.g. a brother
cannot marry his sister.

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

(1) Those contracted by any party below eighteen years of age even
with the consent of parents or guardians;

(2) Those solemnized by any person not legally authorized to perform


marriages unless such marriages were contracted with either or
both parties believing in good faith that the solemnizing officer
had the legal authority to do so;

(3) Those solemnized without license, except those covered the


preceding Chapter;

(4) Those bigamous or polygamous marriages not failing under Article


41;

(5) Those contracted through mistake of one contracting party as to


the identity of the other; and

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

Art. 36. A marriage contracted by any party who, at the time of the
celebration, was psychologically incapacitated to comply with the
essential marital obligations of marriage, shall likewise be void even if
such incapacity becomes manifest only after its solemnization. (As
amended by Executive Order 227)

This incapacity need not necessarily be manifested before or during the marriage
although it is a basic requirement that the psychological defect be existing during
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marriage.

Psychological incapacity – is the condition of a person who does not have the mind,
will, and heart for the performance of marriage.

Said capacity must be a lasting condition.

Under the church laws, examples of psychological incapacity will include: a wrong
concept of marital vows and marital infidelity, adamant refusal to give support,
unbearable jealousy on the part of one party, indolence, extremely low intelligence,
criminality, sadism, epilepsy, habitual alcoholism, drug addiction, compulsive gambling,
homosexuality, lesbianism, satyriasis, nymphomania.

Intendment of the law has 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.

The senseless and protracted refusal of one of the parties of sexual cooperation for the
procreation of children is equivalent to psychological incapacity.

Guidelines in interpreting and applying psychological incapacity:

(a) burden of proof belongs to the plaintiff

(b) root cause must be (1) medically or clinically identified; (2) alleged; (3) proven
by experts; (4) clearly explained in the decision

(c) must be proven to be existing at the time of the celebration of the marriage

(d) shown to be medically or clinically permanent or incurable

(e) illness must be grave enough to bring about the disability

(f) essential marital obligation must be those embraced by Arts. 68-71

(g) interpretations given by the Catholic Church should be given great respect by our
courts

(h) the fiscal and the solicitor-general to appear as council for the State
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Art. 37. Marriages between the following are incestuous and void from
the beginning, whether relationship between the parties be legitimate or
illegitimate:
(1) Between ascendants and descendants of any degree; and
(2) Between brothers and sisters, whether of the full or half blood. (81a)

How Degrees of Generation Are Computed

(a) in the direct line, count all who are included, then minus one.

(b) in the collateral line, go up to the nearest common ancestor, then go down minus
one.

Art. 38. The following marriages shall be void from the beginning for
reasons of public policy:

(1) Between collateral blood relatives whether legitimate or


illegitimate, up to the fourth civil degree;

(2) Between step-parents and step-children;

(3) Between parents-in-law and children-in-law;

(4) Between the adopting parent and the adopted child;

(5) Between the surviving spouse of the adopting parent and the
adopted child;

(6) Between the surviving spouse of the adopted child and the adopter;

(7) Between an adopted child and a legitimate child of the adopter;

(8) Between adopted children of the same adopter; and


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(9) Between parties where one, with the intention to marry the other,
killed that other person's spouse, or his or her own spouse. (82)

• Marriage between stepbrother and step sister of each other is now allowed under
the Family Code.

Art. 39. The action or defense for the declaration of absolute nullity of a
marriage shall not prescribe. (As amended by Executive Order 227 and
Republic Act No. 8533. The phrase "However, in case of marriage
celebrated before the effectivity of this Code and falling under Article 36,
such action or defense shall prescribe in ten years after this Code shall
taken effect" has been deleted by Republic Act No. 8533 [Approved
February 23, 1998]).

Art. 40. The absolute nullity of a previous marriage may be invoked for
purposes of remarriage on the basis solely of a final judgment declaring
such previous marriage void. (n)

• A void marriage must first be declared void for the purposes of remarriage.
Otherwise, the second marriage will also be void.

Art. 41. A marriage contracted by any person during subsistence of a


previous marriage shall be null and void, unless before the celebration of
the subsequent marriage, the prior spouse had been absent for four
consecutive years and the spouse present has a well-founded belief that
the absent spouse was already dead. In case of disappearance where there
is danger of death under the circumstances set forth in the provisions of
Article 391 of the Civil Code, an absence of only two years shall be
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sufficient.
For the purpose of contracting the subsequent marriage under the
preceding paragraph the spouse present must institute a summary
proceeding as provided in this Code for the declaration of presumptive
death of the absentee, without prejudice to the effect of reappearance of
the absent spouse. (83a)

• Under Art. 84 of the Civil Code, no marriage license shall be issued to a widow
till after three hundred (300) days following the death of her husband, unless in
the meantime she has given birth to a child.

• The purpose of 300 hundred days is to prevent doubtful paternity.

• If the widow somehow gets a marriage license within the period prohibited, the
marriage would still be valid, without prejudice to criminal liability.

• Q: if a woman's marriage is annulled, may she be issued a marriage license


without waiting for the period of 300 days.

A: No, unless in the meantime she has given birth to a child or unless the fiurst
marriage had been annulled on the ground of impotence.

• Q: Wolverine and Storm were validly married, but Wolverine was sterile. Later,
Wolverine died. Without waiting for 300 days, Storm got married again. Is Storm
criminally liable?

A: No, for the question of doubtful paternity does not enter the picture, the dead
husband having been proved sterile.

Art. 42. The subsequent marriage referred to in the preceding Article


shall be automatically terminated by the recording of the affidavit of
reappearance of the absent spouse, unless there is a judgment annulling
the previous marriage or declaring it void ab initio.

A sworn statement of the fact and circumstances of reappearance shall


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be recorded in the civil registry of the residence of the parties to the


subsequent marriage at the instance of any interested person, with due
notice to the spouses of the subsequent marriage and without prejudice
to the fact of reappearance being judicially determined in case such fact
is disputed. (n)

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


preceding Article shall produce the following effects:

(1) The children of the subsequent marriage conceived prior to its


termination shall be considered legitimate;

(2) The absolute community of property or the conjugal partnership,


as the case may be, shall be dissolved and liquidated, but if either
spouse contracted said marriage in bad faith, his or her share of
the net profits of the community property or conjugal partnership
property shall be forfeited in favor of the common children or, if
there are none, the children of the guilty spouse by a previous
marriage or in default of children, the innocent spouse;

(3) Donations by reason of marriage shall remain valid, except that if


the donee contracted the marriage in bad faith, such donations
made to said donee are revoked by operation of law;

(4) The innocent spouse may revoke the designation of the other spouse
who acted in bad faith as beneficiary in any insurance policy, even
if such designation be stipulated as irrevocable; and

(5) The spouse who contracted the subsequent marriage in bad faith
shall be disqualified to inherit from the innocent spouse by testate
and intestate succession. (n)
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Art. 44. If both spouses of the subsequent marriage acted in bad faith,
said marriage shall be void ab initio and all donations by reason of
marriage and testamentary dispositions made by one in favor of the
other are revoked by operation of law. (n)

Art. 45. A marriage may be annulled for any of the following causes,
existing at the time of the marriage:

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

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

(3) That the consent of either party was obtained by fraud, unless
such party afterwards, with full knowledge of the facts
constituting the fraud, freely cohabited with the other as husband
and wife;

(4) That the consent of either party was obtained by force,


intimidation or undue influence, unless the same having
disappeared or ceased, such party thereafter freely cohabited with
the other as husband and wife;

(5) That either party was physically incapable of consummating the


marriage with the other, and such incapacity continues and
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appears to be incurable; or

(6) That either party was afflicted with a sexually-transmissible


disease found to be serious and appears to be incurable. (85a)

Grounds for the annulment of marriage

1) non-age (below 18)

2) unsoundness of mind

3) fraud

4) force, intimidation, or undue influence

5) impotence

6) sexually-transmitted diseases (if incurable)

• There is fraud when through insidious words or machinations of the contracting


parties, the other is induced to enter into a contract which, without them, he would
have not agreed to.

• There is force or violence when in order to wrest consent, serious or irresistible


force is employed.

• There is intimidation when one of the contracting parties is compelled by a


reasonable and well-grounded fear of an imminent and grave evil upon his person
or property, or upon the person or property of his spouse, descendants, or
ascendants, to give his consent.

• A threat to enforce one's claim through competent authority, if the claim is just or
legal, does not vitiate consent.

• Physical incapacity, as a ground for the annulment of marriage, refers to


impotency or the inability to perform the sexual act, and not to sterility or the
inability to procreate.
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• If both the husband and wife are impotent, the marriage cannot be annulled
because neither can claim he or she has been aggrieved by the other.

• In general, free and voluntary cohabitation ratifies the voidable marriage.

Distinction Between Annulment and Legal Separation

Annulment Legal Separation

(a) the marriage was defective at the (a) there was no defect of the marriage
very beginning at the beginning

(b) the cause for annulment must be (b) the cause for legal separation arises
already existing at the time of the after the marriage celebration
marriage

(c) there are seven grounds for (c) there are ten grounds for legal
annulment separation

(d) annulment dissolves the marriage (d) the marriage remains


bond; the parties are free to marry
again

(e) the grounds are generally those (e) the very validity of the marriage
given in the lex loci celebrationis itself is not questioned

Art. 46. Any of the following circumstances shall constitute fraud


referred to in Number 3 of the preceding Article:

(1) Non-disclosure of a previous conviction by final judgment of the


other party of a crime involving moral turpitude;

(2) Concealment by the wife of the fact that at the time of the
marriage, she was pregnant by a man other than her husband;

(3) Concealment of sexually transmissible disease, regardless of its


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nature, existing at the time of the marriage; or

(4) Concealment of drug addiction, habitual alcoholism or


homosexuality or lesbianism existing at the time of the marriage.

No other misrepresentation or deceit as to character, health, rank,


fortune or chastity shall constitute such fraud as will give grounds for
action for the annulment of marriage. (86a)

Art. 47. The action for annulment of marriage must be filed by the
following persons and within the periods indicated herein:

(1) For causes mentioned in number 1 of Article 45 by the party


whose parent or guardian did not give his or her consent, within
five years after attaining the age of twenty-one, or by the parent or
guardian or person having legal charge of the minor, at any time
before such party has reached the age of twenty-one;

(2) For causes mentioned in number 2 of Article 45, by the same


spouse, who had no knowledge of the other's insanity; or by any
relative or guardian or person having legal charge of the insane, at
any time before the death of either party, or by the insane spouse
during a lucid interval or after regaining sanity;

(3) For causes mentioned in number 3 of Article 45, by the injured


party, within five years after the discovery of the fraud;

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


party, within five years from the time the force, intimidation or
undue influence disappeared or ceased;

(5) For causes mentioned in number 5 and 6 of Article 45, by the


injured party, within five years after the marriage. (87a)
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Persons Who May Sue for Annulment and Prescriptive Periods

Non-age

Persons -
(1) his or her parent – before party becomes 21
(2) the party himself or herself – after party becomes 21

Period – within 5 years after reaching 21

Unsoundness of mind

Persons – the spouse (who did not know of the other's insanity) or the relatives or
guardians of the insane.

Period – at any time before the death of either party

Fraud

Person – the injured party

Period – within 5 years after the discovery of the fraud

Force or Intimidation or Undue Influence

Person – the injured party

Period – within five (5) years from the time the force or intimidation or undue
influence ceased.

Impotence

Person – injured party

Period – within five (5) years after the celebration of marriage

Sexually Transmissible Disease

Person – injured party


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Period – within Five (5) years after the celebration of marriage

Note that in general, the prescriptive period for annulment of marriage is five (5) years.

Art. 48. In all cases of annulment or declaration of absolute nullity of


marriage, the Court shall order the prosecuting attorney or fiscal assigned
to it to appear on behalf of the State to take steps to prevent collusion
between the parties and to take care that evidence is not fabricated or
suppressed.

In the cases referred to in the preceding paragraph, no judgment shall


be based upon a stipulation of facts or confession of judgment. (88a)

Confession of Judgment Defined

(a) Confession of judgment by warrant of attorney – authority given by defendant


to plaintiff's attorney allowing the latter to tell the court that the defendant
confesses or admits the plaintiff's claim to be true and just.

(b) Confession of judgment or judgment by confession cognovit actionem –


rendered where, instead of defending himself, the defendant chooses to
acknowledge the rightfulness of the plaintiff's action.

• The State prohibits annulment of marriage by summary proceedings. The Rules


of Court expressly disallows such annulment without actual trial.

• In the Family Code, even if the marriage is void, a judicial declaration to that
effect is still required.

• The Court can dismiss the suit for failure of the petitioner to cooperate, resulting
in the failure of the fiscal to determine whether or not the collusion exists.

• After marriage is annulled, the obligation of mutual support between spouses


ceases. But the children should still be supported by them.
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Who Pays for the Attorney's Fees and Other Expenses in Annulment Cases?

(a) if the action prospers, (and the annulment is granted), the absolute community
property shall be liable.

(b) if the marriage is not annulled, whoever brought the action shall pay for the
attorney's fees and other litigation expenses.

Art. 49. During the pendency of the action and in the absence of
adequate provisions in a written agreement between the spouses, the
Court shall provide for the support of the spouses and the custody and
support of their common children. The Court shall give paramount
consideration to the moral and material welfare of said children and
their choice of the parent with whom they wish to remain as provided to
in Title IX. It shall also provide for appropriate visitation rights of the
other parent. (n)

Art. 50. The effects provided for by paragraphs (2), (3), (4) and (5) of
Article 43 and by Article 44 shall also apply in the proper cases to
marriages which are declared ab initio or annulled by final judgment
under Articles 40 and 45.

The final judgment in such cases shall provide for the liquidation,
partition and distribution of the properties of the spouses, the custody and
support of the common children, and the delivery of third presumptive
legitimes, unless such matters had been adjudicated in previous judicial
proceedings.

All creditors of the spouses as well as of the absolute community or the


conjugal partnership shall be notified of the proceedings for liquidation.

In the partition, the conjugal dwelling and the lot on which it is situated,
shall be adjudicated in accordance with the provisions of Articles 102
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and 129.

Art. 51. In said partition, the value of the presumptive legitimes of all
common children, computed as of the date of the final judgment of the
trial court, shall be delivered in cash, property or sound securities, unless
the parties, by mutual agreement judicially approved, had already
provided for such matters.

The children or their guardian or the trustee of their property may ask
for the enforcement of the judgment.

The delivery of the presumptive legitimes herein prescribed shall in no


way prejudice the ultimate successional rights of the children accruing
upon the death of either of both of the parents; but the value of the
properties already received under the decree of annulment or absolute
nullity shall be considered as advances on their legitime. (n)

Art. 52. The judgment of annulment or of absolute nullity of the


marriage, the partition and distribution of the properties of the spouses
and the delivery of the children's presumptive legitimes shall be recorded
in the appropriate civil registry and registries of property; otherwise, the
same shall not affect third persons. (n)

Art. 53. Either of the former spouses may marry again after compliance
with the requirements of the immediately preceding Article; otherwise,
the subsequent marriage shall be null and void.

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


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

• Please note that under the Family Code, a judicial declaration of nullity is
required even for void marriage.

Title II. LEGAL SEPARATION

INTRODUCTORY COMMENT

Two Kinds of Divorces

(a) Absolute divorce – marriage is dissolved

(b) Relative divorce or legal separation – marriage is not dissolved; here the parties
are merely separated from bed and board.

Rules for Absolute Divorce Today Both Under the Civil Code and the Family Code
(Without Prejudice to Moslem Divorces)

(a) if the action is brought here in the Philippines:

1) between Filipinos – will not prosper


2) between foreigners – will not prosper

(b) if the action is brought in a foreign court

1) between Filipinos – will not be recognized here


2) between foreigners – recognized here subject to the following conditions:

• the foreign court has jurisdiction to grant the absolute divorce


• said divorce is recognized as valid by the personal law of the parties
involved
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3) between a Filipino and a foreigner – if obtained by foreigner and valid


according to his personal law – valid for both foreigner and Filipino

'Legal Separation' Distinguished from 'Separation of Property'

Legal Separation Separation of Property

(a) must be done thru the court (a) if one prior to marriage – may be
done thru the marriage settlement; if
done during the existence of the
marriage – must be done thru the
courts

(b) always involves also separation of (b) may exist with or without legal
property separation

(c) may be considered as a cause of (c) may be considered as one of the


separation of property effects of legal separation

(d) the spouse persons are necessarily (d) the spouse persons are not
separated necessarily separated

Art. 55. A petition for legal separation may be filed on any of the
following grounds:

(1) Repeated physical violence or grossly abusive conduct directed


against the petitioner, a common child, or a child of the petitioner;

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


change religious or political affiliation;

(3) Attempt of respondent to corrupt or induce the petitioner, a


common child, or a child of the petitioner, to engage in
prostitution, or connivance in such corruption or inducement;
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(4) Final judgment sentencing the respondent to imprisonment of


more than six years, even if pardoned;

(5) Drug addiction or habitual alcoholism of the respondent;

(6) Lesbianism or homosexuality of the respondent;

(7) Contracting by the respondent of a subsequent bigamous


marriage, whether in the Philippines or abroad;

(8) Sexual infidelity or perversion;

(9) Attempt by the respondent against the life of the petitioner; or

(10) Abandonment of petitioner by respondent without justifiable


cause for more than one year.

For purposes of this Article, the term "child" shall include a child by
nature or by adoption. (9a)

Art. 56. The petition for legal separation shall be denied on any of the
following grounds:

(1) Where the aggrieved party has condoned the offense or act
complained of;

(2) Where the aggrieved party has consented to the commission of the
offense or act complained of;

(3) Where there is connivance between the parties in the commission


of the offense or act constituting the ground for legal separation;
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(4) Where both parties have given ground for legal separation;

(5) Where there is collusion between the parties to obtain decree of


legal separation; or

(6) Where the action is barred by prescription. (100a)

Defenses in Separation

(a) condonation

(b) consent

(c) connivance

(d) mutual guilt (recrimination)

(e) collusion

(f) prescription

Art. 57. An action for legal separation shall be filed within five years from
the time of the occurrence of the cause. (102)

Art. 58. An action for legal separation shall in no case be tried before six
months shall have elapsed since the filing of the petition. (103)

Art. 59. No legal separation may be decreed unless the Court has taken
steps toward the reconciliation of the spouses and is fully satisfied, despite
such efforts, that reconciliation is highly improbable. (n)
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Art. 60. No decree of legal separation shall be based upon a stipulation of


facts or a confession of judgment.

In any case, the Court shall order the prosecuting attorney or fiscal
assigned to it to take steps to prevent collusion between the parties and to
take care that the evidence is not fabricated or suppressed. (101a)

• The law requires proof, not a mere stipulation of facts or confession of judgment.

Art. 61. After the filing of the petition for legal separation, the spouses
shall be entitled to live separately from each other.

The court, in the absence of a written agreement between the spouses,


shall designate either of them or a third person to administer the absolute
community or conjugal partnership property. The administrator
appointed by the court shall have the same powers and duties as those
of a guardian under the Rules of Court. (104a)

Art. 62. During the pendency of the action for legal separation, the
provisions of Article 49 shall likewise apply to the support of the spouses
and the custody and support of the common children. (105a)

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

(1) The spouses shall be entitled to live separately from each other, but
the marriage bonds shall not be severed;
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(2) The absolute community or the conjugal partnership shall be


dissolved and liquidated but the offending spouse shall have no
right to any share of the net profits earned by the absolute
community or the conjugal partnership, which shall be forfeited
in accordance with the provisions of Article 43(2);

(3) The custody of the minor children shall be awarded to the innocent
spouse, subject to the provisions of Article 213 of this Code; and

(4) The offending spouse shall be disqualified from inheriting from the
innocent spouse by intestate succession. Moreover, provisions in
favor of the offending spouse made in the will of the innocent
spouse shall be revoked by operation of law. (106a)

• The dissolution and liquidation of the conjugal partnership upon issuance of the
decree of legal separation shall be automatic.

Art. 64. After the finality of the decree of legal separation, the innocent
spouse may revoke the donations made by him or by her in favor of the
offending spouse, as well as the designation of the latter as beneficiary in
any insurance policy, even if such designation be stipulated as
irrevocable. The revocation of the donations shall be recorded in the
registries of property in the places where the properties are located.
Alienations, liens and encumbrances registered in good faith before the
recording of the complaint for revocation in the registries of property
shall be respected. The revocation of or change in the designation of the
insurance beneficiary shall take effect upon written notification thereof
to the insured.
The action to revoke the donation under this Article must be brought
within five years from the time the decree of legal separation become
final. (107a)
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Two Things that may be revoked

(a) donations

(b) insurance contracts

Art. 65. If the spouses should reconcile, a corresponding joint


manifestation under oath duly signed by them shall be filed with the
court in the same proceeding for legal separation. (n)

Art. 66. The reconciliation referred to in the preceding Articles shall


have the following consequences:

(1) The legal separation proceedings, if still pending, shall thereby be


terminated at whatever stage; and

(2) The final decree of legal separation shall be set aside, but the
separation of property and any forfeiture of the share of the guilty
spouse already effected shall subsist, unless the spouses agree to
revive their former property regime.

The court's order containing the foregoing shall be recorded in the


proper civil registries. (108a)

• generally, if their should be reconciliation, forfeiture of the share of the guilty


spouse remains

• except, when the parties agree to revive the former property regime.
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Art. 67. The agreement to revive the former property regime referred to
in the preceding Article shall be executed under oath and shall specify:

(1) The properties to be contributed anew to the restored regime;

(2) Those to be retained as separated properties of each spouse; and

(3) The names of all their known creditors, their addresses and the
amounts owing to each.

The agreement of revival and the motion for its approval shall be filed
with the court in the same proceeding for legal separation, with copies of
both furnished to the creditors named therein. After due hearing, the
court shall, in its order, take measure to protect the interest of creditors
and such order shall be recorded in the proper registries of properties.
The recording of the ordering in the registries of property shall not
prejudice any creditor not listed or not notified, unless the debtor-
spouse has sufficient separate properties to satisfy the creditor's claim.
(195a, 108a)

• Creditors who were not notified or not listed in the order should not be
prejudiced.
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Title III. RIGHTS AND OBLIGATIONS BETWEEN


HUSBAND AND WIFE

Art. 68. The husband and wife are obliged to live together, observe
mutual love, respect and fidelity, and render mutual help and support.
(109a)

Personal Obligations of Husband and Wife

(a) duty to live together

(b) duty to observe mutual love, respect and fidelity

(c) duty to render mutual help and support

There is a duty and a right to live together: cohabitation or consortium.

The wife may establish a separate residence or domicile in the following cases:

1) the husband continually indulges in illicit relations with others

2) husband is immoderate or barbaric in his demands for sexual intercourse

3) husband grossly insults her


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4) husband maltreats her

5) she was virtually driven out of their home by her husband

6) husband continually gambles, refuses to support the family

7) husband lives as a vagabond

8) husband insists on their living together with his own parents

Art. 69. The husband and wife shall fix the family domicile. In case of
disagreement, the court shall decide.
The court may exempt one spouse from living with the other if the latter
should live abroad or there are other valid and compelling reasons for
the exemption. However, such exemption shall not apply if the same is
not compatible with the solidarity of the family. (110a)

Art. 70. The spouses are jointly responsible for the support of the family.

The expenses for such support and other conjugal obligations shall be
paid from:

(1) the community property and, in the absence thereof,

(2) from the income or fruits of their separate properties. In case of


insufficiency or absence of said income or fruits, such obligations
shall be satisfied

(3) from the separate properties. (111a)


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Art. 71. The management of the household shall be the right and the duty
of both spouses. The expenses for such management shall be paid in
accordance with the provisions of Article 70. (115a)

Note that both of the spouses share in the management.

Art. 72. When one of the spouses neglects his or her duties to the conjugal
union or commits acts which tend to bring danger, dishonor or injury to
the other or to the family, the aggrieved party may apply to the court for
relief. (116a)

Art. 73. Either spouse may exercise any legitimate profession, occupation,
business or activity without the consent of the other. The latter may
object only on valid, serious, and moral grounds.

In case of disagreement, the court shall decide whether or not:


(1) The objection is proper; and
(2) Benefit has occurred to the family prior to the objection or
thereafter. If the benefit accrued prior to the objection, the resulting
obligation shall be enforced against the separate property of the spouse
who has not obtained consent.

The foregoing provisions shall not prejudice the rights of creditors who
acted in good faith. (117a)

TITLE IV
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PROPERTY RELATIONS BETWEEN HUSBAND


AND WIFE

CHAPTER 1
GENERAL PROVISIONS

Art. 74. The property relationship between husband and wife shall be
governed in the following order:

(1) By marriage settlements executed before the marriage;

(2) By the provisions of this Code; and

(3) By the local custom. (118)

Marriage settlement – contract entered into by the future spouses fixing the matrimonial
property regime that should govern during the existence of the marriage.

Art. 75. The future spouses may, in the marriage settlements, agree upon:

(1) the regime of absolute community,

(2) conjugal partnership of gains,

(3) complete separation of property, or

(4) any other regime.

In the absence of a marriage settlement, or when the regime agreed upon


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is void, the system of absolute community of property as established in this


Code shall govern. (119a)

Requisites for a Marriage Settlement

(a) must be made before the celebration of marriage

(b) must not contain provisions contrary to law, good morals, good customs, public
order, and public policy

(c) must generally confine itself only to property relations

(d) must be in writing

(e) if made by minors, their parents must consent by signing also

Art. 76. In order that any modification in the marriage settlements may
be valid, it must be made before the celebration of the marriage, subject
to the provisions of Articles 66, 67, 128, 135 and 136. (121)

Art. 77. The marriage settlements and any modification thereof shall be
in writing, signed by the parties and executed before the celebration of
the marriage. They shall not prejudice third persons unless they are
registered in the local civil registry where the marriage contract is
recorded as well as in the proper registries of properties. (122a)

Requisites of Marriage Settlement as well as any of its modifications

(1) in writing

(2) signed by the parties thereto

(3) executed before the celebration of the marriage


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(4) marriage must be celebrated

(5) duly registered in the civil registry of property in order to bind third persons

Art. 78. A minor who according to law may contract marriage may also
execute his or her marriage settlements, but they shall be valid only if the
persons designated in Article 14 to give consent to the marriage are made
parties to the agreement, subject to the provisions of Title IX of this
Code. (120a)

Art. 79. For the validity of any marriage settlement executed by a


person upon whom a sentence of civil interdiction has been pronounced
or who is subject to any other disability, it shall be indispensable for the
guardian appointed by a competent court to be made a party thereto.
(123a)

The guardian of a person under civil interdiction or a person suffering disability (except
minority) must be made to a party of the marriage settlement.

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


the property relations of the spouses shall be governed by Philippine laws,
regardless of the place of the celebration of the marriage and their
residence.

This rule shall not apply:

(1) Where both spouses are aliens;

(2) With respect to the extrinsic validity of contracts affecting property


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not situated in the Philippines and executed in the country where


the property is located; and

(3) With respect to the extrinsic validity of contracts entered into in the
Philippines but affecting property situated in a foreign country
whose laws require different formalities for its extrinsic validity.
(124a)

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


in the preceding articles in consideration of a future marriage, including
donations between the prospective spouses made therein, shall be
rendered void if the marriage does not take place. However, stipulations
that do not depend upon the celebration of the marriages shall be valid.
(125a)

CHAPTER 2
DONATIONS BY REASON OF MARRIAGE

Art. 82. Donations by reason of marriage are (Requisites):

(1) those which are made before its celebration,

(2) in consideration of the same, and

(3) in favor of one or both of the future spouses. (126)

Donations Propter Nuptias Distinguished from Wedding Gifts


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Donations propter nuptias are wedding gifts, but not all wedding gifts are donations
propter nuptias, for said wedding gifts may come after the celebration of the marriage.

Art. 83. These donations are governed by the rules on ordinary donations
established in Title III of Book III of the Civil Code, insofar as they are
not modified by the following articles. (127a)

To be valid, a donation propter nuptias must be accepted, for no one may be compelled
to accept the generosity of another.

Art. 84. If the future spouses agree upon a regime other than the absolute
community of property, they cannot donate to each other in their marriage
settlements more than one-fifth of their present property.

Any excess shall be considered void.

Donations of future property shall be governed by the provisions on


testamentary succession and the formalities of wills. (130a)

Art. 85. Donations by reason of marriage of property subject to


encumbrances shall be valid. In case of foreclosure of the encumbrance
and the property is sold for less than the total amount of the obligation
secured, the donee shall not be liable for the deficiency. If the property is
sold for more than the total amount of said obligation, the donee shall be
entitled to the excess. (131a)

Art. 86. A donation by reason of marriage may be revoked by the donor in


the following cases:
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(1) If the marriage is not celebrated or judicially declared void ab initio


except donations made in the marriage settlements, which shall be
governed by Article 81;

(2) When the marriage takes place without the consent of the parents
or guardian, as required by law;

(3) When the marriage is annulled, and the donee acted in bad faith;

(4) Upon legal separation, the donee being the guilty spouse;

(5) If it is with a resolutory condition and the condition is complied


with;

(6) When the donee has committed an act of ingratitude as specified by


the provisions of the Civil Code on donations in general. (132a)

Art. 87. Every donation or grant of gratuitous advantage, direct or


indirect, between the spouses during the marriage shall be void, except:

moderate gifts which the spouses may give each other on the occasion of
any family rejoicing.

The prohibition shall also apply to persons living together as husband and
wife without a valid marriage. (133a)

Reasons for the General Prohibition of Donations Between Spouses

(a) to protect creditors

(b) to prevent the weaker spouse from being influenced by the stronger spouse

(c) to prevent indirect violation of the rule prohibiting modifications of the marriage
settlement during the existence of the marriage
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CHAPTER 3
SYSTEM OF ABSOLUTE COMMUNITY

Section 1. General Provisions

Art. 88. The absolute community of property between spouses shall


commence at the precise moment that the marriage is celebrated. Any
stipulation, express or implied, for the commencement of the
community regime at any other time shall be void. (145a)

Art. 89. No waiver of rights, shares and effects of the absolute community
of property during the marriage can be made except in case of judicial
separation of property.

When the waiver takes place upon a judicial separation of property, or


after the marriage has been dissolved or annulled, the same shall appear
in a public instrument and shall be recorded as provided in Article 77.

The creditors of the spouse who made such waiver may petition the court
to rescind the waiver to the extent of the amount sufficient to cover the
amount of their credits. (146a)
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Art. 90. The provisions on co-ownership shall apply to the absolute


community of property between the spouses in all matters not provided
for in this Chapter. (n)

Section 2. What Constitutes Community Property

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


settlements, the community property shall consist of all the property
owned by the spouses at the time of the celebration of the marriage or
acquired thereafter. (197a)

Community property - consist of all the property owned by the spouses at the time of
the celebration of the marriage or acquired thereafter.

Art. 92. The following shall be excluded from the community property:

(1) Property acquired during the marriage by gratuitous title by either


spouse, and the fruits as well as the income thereof, if any, unless
it is expressly provided by the donor, testator or grantor that they
shall form part of the community property;

(2) Property for personal and exclusive use of either spouse. However,
jewelry shall form part of the community property;

(3) Property acquired before the marriage by either spouse who has
legitimate descendants by a former marriage, and the fruits as well
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as the income, if any, of such property. (201a)

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


the community, unless it is proved that it is one of those excluded
therefrom. (160)

Section 3. Charges and Obligations of the Absolute Community

Art. 94. The absolute community of property shall be liable for:

(1) The support of the spouses, their common children, and legitimate
children of either spouse; however, the support of illegitimate
children shall be governed by the provisions of this Code on
Support;

(2) All debts and obligations contracted during the marriage by the
designated administrator-spouse for the benefit of the community,
or by both spouses, or by one spouse with the consent of the other;

(3) Debts and obligations contracted by either spouse without the


consent of the other to the extent that the family may have been
benefited;

(4) All taxes, liens, charges and expenses, including major or minor
repairs, upon the community property;

(5) All taxes and expenses for mere preservation made during marriage
upon the separate property of either spouse used by the family;

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


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professional or vocational course, or other activity for self-


improvement;

(7) Ante-nuptial debts of either spouse insofar as they have redounded


to the benefit of the family;

(8) The value of what is donated or promised by both spouses in favor


of their common legitimate children for the exclusive purpose of
commencing or completing a professional or vocational course or
other activity for self-improvement;

(9) Ante-nuptial debts of either spouse other than those falling under
paragraph (7) of this Article, the support of illegitimate children of
either spouse, and liabilities incurred by either spouse by reason of
a crime or a quasi-delict, in case of absence or insufficiency of the
exclusive property of the debtor-spouse, the payment of which shall
be considered as advances to be deducted from the share of the
debtor-spouse upon liquidation of the community; and

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


found to be groundless.

If the community property is insufficient to cover the foregoing


liabilities, except those falling under paragraph (9), the spouses shall be
solidarily liable for the unpaid balance with their separate properties.
(161a, 162a, 163a, 202a-205a)

Art. 95. Whatever may be lost during the marriage in any game of chance,
betting, sweepstakes, or any other kind of gambling, whether permitted
or prohibited by law, shall be borne by the loser and shall not be charged
to the community but any winnings therefrom shall form part of the
community property. (164a)
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Section 4. Ownership, Administrative,


Enjoyment and Disposition of the Community Property

Art. 96. The administration and enjoyment of the community property


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

In the event that one spouse is incapacitated or otherwise unable to


participate in the administration of the common properties, the other
spouse may assume sole powers of administration. These powers do not
include disposition or encumbrance without authority of the court or the
written consent of the other spouse. In the absence of such authority or
consent, the disposition or encumbrance shall be void. However, the
transaction shall be construed as a continuing offer on the part of the
consenting spouse and the third person, and may be perfected as a
binding contract upon the acceptance by the other spouse or
authorization by the court before the offer is withdrawn by either or both
offerors. (206a)

Art. 97. Either spouse may dispose by will of his or her interest in the
community property. (n)

• Either spouse may not dispose inter vivos of his interest to the extent of ½ unless
otherwise stipulated in the marriage settlement.

• He may dispose of such interest only by will (mortis causa act) observing: (1)
formalities of a will; and (2) the provisions on legitimes and free portion.
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Art. 98. Neither spouse may donate any community property without the
consent of the other. However, either spouse may, without the consent of
the other, make moderate donations from the community property for
charity or on occasions of family rejoicing or family distress. (n)

General rule: Neither spouse may donate any community property without the consent
of the other.

Exceptions:

(a) charity

(b) occasions of family rejoicing or family distress

Section 5. Dissolution of Absolute Community Regime

Art. 99. The absolute community terminates:

(1) Upon the death of either spouse;

(2) When there is a decree of legal separation;

(3) When the marriage is annulled or declared void; or

(4) In case of judicial separation of property during the marriage under


Articles 134 to 138. (175a)

Art. 100. The separation in fact between husband and wife shall not
affect the regime of absolute community except that:
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(1) The spouse who leaves the conjugal home or refuses to live therein,
without just cause, shall not have the right to be supported;

(2) When the consent of one spouse to any transaction of the other is
required by law, judicial authorization shall be obtained in a
summary proceeding;

(3) In the absence of sufficient community property, the separate


property of both spouses shall be solidarily liable for the support of
the family. The spouse present shall, upon proper petition in a
summary proceeding, be given judicial authority to administer or
encumber any specific separate property of the other spouse and
use the fruits or proceeds thereof to satisfy the latter's share.
(178a)

Art. 101. If a spouse without just cause abandons the other or fails to
comply with his or her obligations to the family, the aggrieved spouse
may petition the court for receivership, for judicial separation of
property or for authority to be the sole administrator of the absolute
community, subject to such precautionary conditions as the court may
impose.

The obligations to the family mentioned in the preceding paragraph


refer to marital, parental or property relations.

A spouse is deemed to have abandoned the other when her or she has
left the conjugal dwelling without intention of returning. The spouse
who has left the conjugal dwelling for a period of three months or has
failed within the same period to give any information as to his or her
whereabouts shall be prima facie presumed to have no intention of
returning to the conjugal dwelling. (178a)

Effects of Abandonment without Just Cause


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(a) receivership
(b) judicial separation of property
(c) sole administration of the absolute community

Take note of the 3 month period when the other spouse left the conjugal dwelling
without the intention of returning.

Section 6. Liquidation of the Absolute Community


Assets and Liabilities

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


following procedure shall apply:

(1) An inventory shall be prepared, listing separately all the properties


of the absolute community and the exclusive properties of each
spouse.

(2) The debts and obligations of the absolute community shall be paid
out of its assets. In case of insufficiency of said assets, the spouses
shall be solidarily liable for the unpaid balance with their separate
properties in accordance with the provisions of the second
paragraph of Article 94.

(3) Whatever remains of the exclusive properties of the spouses shall


thereafter be delivered to each of them.

(4) The net remainder of the properties of the absolute community


shall constitute its net assets, which shall be divided equally
between husband and wife, unless a different proportion or
division was agreed upon in the marriage settlements, or unless
there has been a voluntary waiver of such share provided in this
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Code. For purpose of computing the net profits subject to


forfeiture in accordance with Articles 43, No. (2) and 63, No. (2),
the said profits shall be the increase in value between the market
value of the community property at the time of the celebration of
the marriage and the market value at the time of its dissolution.

(5) The presumptive legitimes of the common children shall be


delivered upon partition, in accordance with Article 51.

(6) Unless otherwise agreed upon by the parties, in the partition of


the properties, the conjugal dwelling and the lot on which it is
situated shall be adjudicated to the spouse with whom the majority
of the common children choose to remain. Children below the age
of seven years are deemed to have chosen the mother, unless the
court has decided otherwise. In case there in no such majority, the
court shall decide, taking into consideration the best interests of
said children. (n)

Art. 103. Upon the termination of the marriage by death, the community
property shall be liquidated in the same proceeding for the settlement of
the estate of the deceased.

If no judicial settlement proceeding is instituted, the surviving spouse


shall liquidate the community property either judicially or extra-judicially
within six months from the death of the deceased spouse. If upon the lapse
of the six months period, no liquidation is made, any disposition or
encumbrance involving the community property of the terminated
marriage shall be void.

Should the surviving spouse contract a subsequent marriage without


compliance with the foregoing requirements, a mandatory regime of
complete separation of property shall govern the property relations of the
subsequent marriage. (n)
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Art. 104. Whenever the liquidation of the community properties of two or


more marriages contracted by the same person before the effectivity of
this Code is carried out simultaneously, the respective capital, fruits and
income of each community shall be determined upon such proof as may
be considered according to the rules of evidence. In case of doubt as to
which community the existing properties belong, the same shall be
divided between the different communities in proportion to the capital and
duration of each. (189a)

Chapter 4. Conjugal Partnership of Gains

Section 1. General Provisions

Art. 105. In case the future spouses agree in the marriage settlements
that the regime of conjugal partnership gains shall govern their property
relations during marriage, the provisions in this Chapter shall be of
supplementary application.

The provisions of this Chapter shall also apply to conjugal partnerships


of gains already established between spouses before the effectivity of this
Code, without prejudice to vested rights already acquired in accordance
with the Civil Code or other laws, as provided in Article 256. (n)

Conjugal Partnership – it is that formed by a husband and his wife whereby they place
in a common fund the fruits of their separate property, and the income from their work or
industry, the same to be divided between them equally upon the dissolution of the
marriage or partnership.

Conjugal Partnership Ordinary Partnership

• no juridical personality • has juridical personality


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• regulated generally by law • regulated by agreement between the


parties and only subsidiarily by law

• generally managed by the husband • management depends upon the


stipulation of the parties

• purpose is not particularly for profit • purpose is for profit

• few grounds for dissolution • many grounds for dissolution

Art. 106. Under the regime of conjugal partnership of gains, the husband
and wife place in a common fund the proceeds, products, fruits and
income from their separate properties and those acquired by either or both
spouses through their efforts or by chance, and, upon dissolution of the
marriage or of the partnership, the net gains or benefits obtained by either
or both spouses shall be divided equally between them, unless otherwise
agreed in the marriage settlements. (42a)

Properties Covered by the Conjugal Partnership

(a) the proceeds, products, fruits and income from the separate properties of the
spouses;

(b) those acquired by either or both of the spouses: by their efforts, or by chance

Art. 107. The rules provided in Articles 88 and 89 shall also apply to
conjugal partnership of gains. (n)

Rule Under Art. 88: Absolute community of property between spouses shall commence
at the precise moment that the marriage is celebrated.

Rule Under Art. 89: No waiver of rights, interests, shares and effects of the absolute
community of property during the marriage can be made except in case of judicial
separation of property.
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Art. 108. The conjugal partnership shall be governed by the rules on the
contract of partnership in all that is not in conflict with what is expressly
determined in this Chapter or by the spouses in their marriage settlements.
(147a)

Section 2. Exclusive Property of Each Spouse

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

(1) That which is brought to the marriage as his or her own;

(2) That which each acquires during the marriage by gratuitous title;

(3) That which is acquired by right of redemption, by barter or by


exchange with property belonging to only one of the spouses; and

(4) That which is purchased with exclusive money of the wife or of the
husband. (148a)

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


and enjoyment of their exclusive properties.

Either spouse may, during the marriage, transfer the administration of his
or her exclusive property to the other by means of a public instrument,
which shall be recorded in the registry of property of the place the
property is located. (137a, 168a, 169a)
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Art. 111. A spouse of age may mortgage, encumber, alienate or otherwise


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

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


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

Art. 113. Property donated or left by will to the spouses, jointly and with
designation of determinate shares, shall pertain to the donee-spouses as
his or her own exclusive property, and in the absence of designation, share
and share alike, without prejudice to the right of accretion when proper.
(150a)

E.g.

If a friend donates to a married couple a parcel of land, the land will not be conjugal, but
separate property (½ for each). This is acquisition by gratuitous title. If a different
proportion or designation of shares is made, such will be followed.

Art. 114. If the donations are onerous, the amount of the charges shall be
borne by the exclusive property of the donee spouse, whenever they have
been advanced by the conjugal partnership of gains. (151a)

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


and similar benefits shall be governed by the rules on gratuitous or
onerous acquisitions as may be proper in each case. (n)
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• If the benefits are being given by reason of payment from the conjugal property,
these shall pertain to the conjugal partnership like annuities or proceeds of
insurance.

Section 3. Conjugal Partnership Property

Art. 116. All property acquired during the marriage, whether the
acquisition appears to have been made, contracted or registered in the
name of one or both spouses, is presumed to be conjugal unless the
contrary is proved. (160a)

Art. 117. The following are conjugal partnership properties:

(1) Those acquired by onerous title during the marriage at the expense
of the common fund, whether the acquisition be for the
partnership, or for only one of the spouses;

(2) Those obtained from the labor, industry, work or profession of


either or both of the spouses;

(3) The fruits, natural, industrial, or civil, due or received during the
marriage from the common property, as well as the net fruits from
the exclusive property of each spouse;
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(4) The share of either spouse in the hidden treasure which the law
awards to the finder or owner of the property where the treasure is
found;

(5) Those acquired through occupation such as fishing or hunting;

(6) Livestock existing upon the dissolution of the partnership in excess


of the number of each kind brought to the marriage by either
spouse; and

(7) Those which are acquired by chance, such as winnings from


gambling or betting. However, losses therefrom shall be borne
exclusively by the loser-spouse. (153a, 154a, 155, 159)

Art. 118. Property bought on installments paid partly from exclusive


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

• The determining factor here is: when does the ownership took effect? Is it before
or during marriage?

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


belongs to one of the spouses, the sums which may be collected during the
marriage in partial payments or by installments on the principal shall
be the exclusive property of the spouse. However, interests falling due
during the marriage on the principal shall belong to the conjugal
partnership. (156a, 157a)
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Art. 120. The ownership of improvements, whether for utility or


adornment, made on the separate property of the spouses at the expense
of the partnership or through the acts or efforts of either or both
spouses shall pertain to the conjugal partnership, or to the original
owner-spouse, subject to the following rules:

When the cost of the improvement made by the conjugal partnership and
any resulting increase in value are more than the value of the property at
the time of the improvement, the entire property of one of the spouses
shall belong to the conjugal partnership, subject to reimbursement of the
value of the property of the owner-spouse at the time of the
improvement; otherwise, said property shall be retained in ownership by
the owner-spouse, likewise subject to reimbursement of the cost of the
improvement.

In either case, the ownership of the entire property shall be vested upon
the reimbursement, which shall be made at the time of the liquidation of
the conjugal partnership. (158a)
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Section 4. Charges Upon and Obligations of


the Conjugal Partnership

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

(1) The support of the spouse, their common children, and the
legitimate children of either spouse; however, the support of
illegitimate children shall be governed by the provisions of this
Code on Support;

(2) All debts and obligations contracted during the marriage by the
designated administrator-spouse for the benefit of the conjugal
partnership of gains, or by both spouses or by one of them with
the consent of the other;

(3) Debts and obligations contracted by either spouse without the


consent of the other to the extent that the family may have
benefited;

(4) All taxes, liens, charges, and expenses, including major or minor
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repairs upon the conjugal partnership property;

(5) All taxes and expenses for mere preservation made during the
marriage upon the separate property of either spouse;

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


professional, vocational, or other activity for self-improvement;

(7) Ante-nuptial debts of either spouse insofar as they have redounded


to the benefit of the family;

(8) The value of what is donated or promised by both spouses in favor


of their common legitimate children for the exclusive purpose of
commencing or completing a professional or vocational course or
other activity for self-improvement; and

(9) Expenses of litigation between the spouses unless the suit is found
to groundless.

If the conjugal partnership is insufficient to cover the foregoing liabilities,


the spouses shall be solidarily liable for the unpaid balance with their
separate properties. (161a)

Art. 122. The payment of personal debts contracted by the husband or


the wife before or during the marriage shall not be charged to the
conjugal properties partnership except insofar as they redounded to the
benefit of the family.

Neither shall the fines and pecuniary indemnities imposed upon them be
charged to the partnership.

However, the payment of personal debts contracted by either spouse


before the marriage, that of fines and indemnities imposed upon them,
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as well as the support of illegitimate children of either spouse, may be


enforced against the partnership assets after the responsibilities
enumerated in the preceding Article have been covered, if the spouse
who is bound should have no exclusive property or if it should be
insufficient; but at the time of the liquidation of the partnership, such
spouse shall be charged for what has been paid for the purpose above-
mentioned. (163a)

Art. 123. Whatever may be lost during the marriage in any game of
chance or in betting, sweepstakes, or any other kind of gambling
whether permitted or prohibited by law, shall be borne by the loser and
shall not be charged to the conjugal partnership but any winnings
therefrom shall form part of the conjugal partnership property. (164a)
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Section 5. Administration of the


Conjugal Partnership Property

Art. 124. The administration and enjoyment of the conjugal partnership


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

In the event that one spouse is incapacitated or otherwise unable to


participate in the administration of the conjugal properties, the other
spouse may assume sole powers of administration. These powers do not
include disposition or encumbrance without authority of the court or the
written consent of the other spouse. In the absence of such authority or
consent, the disposition or encumbrance shall be void. However, the
transaction shall be construed as a continuing offer on the part of the
consenting spouse and the third person, and may be perfected as a
binding contract upon the acceptance by the other spouse or authorization
by the court before the offer is withdrawn by either or both offerors.
(165a)
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Art. 125. Neither spouse may donate any conjugal partnership property
without the consent of the other. However, either spouse may, without the
consent of the other, make moderate donations from the conjugal
partnership property for charity or on occasions of family rejoicing or
family distress. (174a)
General Rule: Neither spouse may donate any conjugal partnership property without
the consent of the other.

Exceptions: Moderate donations for:


• charity or
• on occasions of family rejoicing or
• family distress.
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Section 6. Dissolution of Conjugal Partnership Regime

Art. 126. The conjugal partnership terminates:

(1) Upon the death of either spouse;


(2) When there is a decree of legal separation;
(3) When the marriage is annulled or declared void; or
(4) In case of judicial separation of property during the marriage under
Articles 134 to 138. (175a)

Art. 127. The separation in fact between husband and wife shall not
affect the regime of conjugal partnership, except that:

(1) The spouse who leaves the conjugal home or refuses to live therein,
without just cause, shall not have the right to be supported;

(2) When the consent of one spouse to any transaction of the other is
required by law, judicial authorization shall be obtained in a
summary proceeding;
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(3) In the absence of sufficient conjugal partnership property, the


separate property of both spouses shall be solidarily liable for the
support of the family. The spouse present shall, upon petition in a
summary proceeding, be given judicial authority to administer or
encumber any specific separate property of the other spouse and use
the fruits or proceeds thereof to satisfy the latter's share. (178a)

Art. 128. If a spouse without just cause abandons the other or fails to
comply with his or her obligation to the family, the aggrieved spouse may
petition the court for receivership, for judicial separation of property, or
for authority to be the sole administrator of the conjugal partnership
property, subject to such precautionary conditions as the court may
impose.

The obligations to the family mentioned in the preceding paragraph


refer to marital, parental or property relations.
A spouse is deemed to have abandoned the other when he or she has left
the conjugal dwelling without intention of returning. The spouse who
has left the conjugal dwelling for a period of three months or has failed
within the same period to give any information as to his or her
whereabouts shall be prima facie presumed to have no intention of
returning to the conjugal dwelling. (167a, 191a)

Effects of Abandonment without Just Cause

(a) receivership
(b) judicial separation of property
(c) sole administration of the conjugal partnership
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Section 7. Liquidation of the


Conjugal Partnership Assets and Liabilities

Art. 129. Upon the dissolution of the conjugal partnership regime, the
following procedure shall apply:

(1) An inventory shall be prepared, listing separately all the


properties of the conjugal partnership and the exclusive
properties of each spouse.

(2) Amounts advanced by the conjugal partnership in payment of


personal debts and obligations of either spouse shall be credited to
the conjugal partnership as an asset thereof.

(3) Each spouse shall be reimbursed for the use of his or her exclusive
funds in the acquisition of property or for the value of his or her
exclusive property, the ownership of which has been vested by law
in the conjugal partnership.

(4) The debts and obligations of the conjugal partnership shall be paid
out of the conjugal assets. In case of insufficiency of said assets, the
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spouses shall be solidarily liable for the unpaid balance with their
separate properties, in accordance with the provisions of
paragraph (2) of Article 121.

(5) Whatever remains of the exclusive properties of the spouses shall


thereafter be delivered to each of them.

(6) Unless the owner had been indemnified from whatever source, the
loss or deterioration of movables used for the benefit of the family,
belonging to either spouse, even due to fortuitous event, shall be
paid to said spouse from the conjugal funds, if any.

(7) The net remainder of the conjugal partnership properties shall


constitute the profits, which shall be divided equally between
husband and wife, unless a different proportion or division was
agreed upon in the marriage settlements or unless there has been a
voluntary waiver or forfeiture of such share as provided in this
Code.

(8) The presumptive legitimes of the common children shall be


delivered upon the partition in accordance with Article 51.

(9) In the partition of the properties, the conjugal dwelling and the lot
on which it is situated shall, unless otherwise agreed upon by the
parties, be adjudicated to the spouse with whom the majority of the
common children choose to remain. Children below the age of
seven years are deemed to have chosen the mother, unless the
court has decided otherwise. In case there is no such majority, the
court shall decide, taking into consideration the best interests of
said children. (181a, 182a, 183a, 184a, 185a)

Art. 130. Upon the termination of the marriage by death, the conjugal
partnership property shall be liquidated in the same proceeding for the
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settlement of the estate of the deceased.

If no judicial settlement proceeding is instituted, the surviving spouse shall


liquidate the conjugal partnership property either judicially or extra-
judicially within six months from the death of the deceased spouse. If
upon the lapse of the six-month period no liquidation is made, any
disposition or encumbrance involving the conjugal partnership property
of the terminated marriage shall be void.

Should the surviving spouse contract a subsequent marriage without


compliance with the foregoing requirements, a mandatory regime of
complete separation of property shall govern the property relations of the
subsequent marriage. (n)

Liquidation Under the Revised Rules of Court

When the marriage is dissolved by the death of the husband or wife, the community
property shall be inventoried, administered, and liquidated, and the debts thereof paid, in
the testate or intestate proceedings of the deceased spouse.

Art. 131. Whenever the liquidation of the conjugal partnership properties


of two or more marriages contracted by the same person before the
effectivity of this Code is carried out simultaneously, the respective
capital, fruits and income of each partnership shall be determined upon
such proof as may be considered according to the rules of evidence. In
case of doubt as to which partnership the existing properties belong, the
same shall be divided between the different partnerships in proportion to
the capital and duration of each. (189a)

Art. 132. The Rules of Court on the administration of estates of deceased


persons shall be observed in the appraisal and sale of property of the
conjugal partnership, and other matters which are not expressly
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determined in this Chapter. (187a)

Art. 133. From the common mass of property support shall be given to the
surviving spouse and to the children during the liquidation of the
inventoried property and until what belongs to them is delivered; but from
this shall be deducted that amount received for support which exceeds the
fruits or rents pertaining to them. (188a)

Chapter 5. Separation of Property of the


Spouses and Administration of Common Property by
One Spouse During the Marriage

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


settlements, the separation of property between spouses during the
marriage shall not take place except by judicial order. Such judicial
separation of property may either be voluntary or for sufficient cause.
(190a)

General Rule: Separation of property between spouses during the marriage shall not
take place.

Except: By judicial order.

Art. 135. Any of the following shall be considered sufficient cause for
judicial separation of property:

(1) That the spouse of the petitioner has been sentenced to a penalty
which carries with it civil interdiction;
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(2) That the spouse of the petitioner has been judicially declared an
absentee;

(3) That loss of parental authority of the spouse of petitioner has been
decreed by the court;

(4) That the spouse of the petitioner has abandoned the latter or failed
to comply with his or her obligations to the family as provided for
in Article 101;

(5) That the spouse granted the power of administration in the


marriage settlements has abused that power; and

(6) That at the time of the petition, the spouses have been separated in
fact for at least one year and reconciliation is highly improbable.

In the cases provided for in Numbers (1), (2) and (3), the presentation of
the final judgment against the guilty or absent spouse shall be enough
basis for the grant of the decree of judicial separation of property.
(191a)

Art. 136. The spouses may jointly file a verified petition with the court
for the voluntary dissolution of the absolute community or the conjugal
partnership of gains, and for the separation of their common properties.

All creditors of the absolute community or of the conjugal partnership of


gains, as well as the personal creditors of the spouse, shall be listed in the
petition and notified of the filing thereof. The court shall take measures to
protect the creditors and other persons with pecuniary interest. (191a)

Art. 137. Once the separation of property has been decreed, the absolute
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community or the conjugal partnership of gains shall be liquidated in


conformity with this Code.

During the pendency of the proceedings for separation of property, the


absolute community or the conjugal partnership shall pay for the support
of the spouses and their children. (192a)

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


partnership, the provisions on complete separation of property shall
apply. (191a)

Art. 139. The petition for separation of property and the final judgment
granting the same shall be recorded in the proper local civil registries and
registries of property. (193a)

Art. 140. The separation of property shall not prejudice the rights
previously acquired by creditors. (194a)

Art. 141. The spouses may, in the same proceedings where separation of
property was decreed, file a motion in court for a decree reviving the
property regime that existed between them before the separation of
property in any of the following instances:

(1) When the civil interdiction terminates;

(2) When the absentee spouse reappears;


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(3) When the court, being satisfied that the spouse granted the power
of administration in the marriage settlements will not again abuse
that power, authorizes the resumption of said administration;

(4) When the spouse who has left the conjugal home without a decree
of legal separation resumes common life with the other;

(5) When parental authority is judicially restored to the spouse


previously deprived thereof;

(6) When the spouses who have separated in fact for at least one year,
reconcile and resume common life; or

(7) When after voluntary dissolution of the absolute community of


property or conjugal partnership has been judicially decreed
upon the joint petition of the spouses, they agree to the revival of the
former property regime. No voluntary separation of property may
thereafter be granted.

The revival of the former property regime shall be governed by Article


67. (195a)

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


spouse may be transferred by the court to the other spouse:

(1) When one spouse becomes the guardian of the other;

(2) When one spouse is judicially declared an absentee;

(3) When one spouse is sentenced to a penalty which carries with it


civil interdiction; or

(4) When one spouse becomes a fugitive from justice or is in hiding as


an accused in a criminal case.
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If the other spouse is not qualified by reason of incompetence, conflict of


interest, or any other just cause, the court shall appoint a suitable person
to be the administrator. (n)

Chapter 6. Regime of Separation of Property

Art. 143. Should the future spouses agree in the marriage settlements that
their property relations during marriage shall be governed by the regime
of separation of property, the provisions of this Chapter shall be
suppletory. (212a)

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


both. It may be total or partial. In the latter case, the property not agreed
upon as separate shall pertain to the absolute community. (213a)

Art. 145. Each spouse shall own, dispose of, possess, administer and enjoy
his or her own separate estate, without need of the consent of the other. To
each spouse shall belong all earnings from his or her profession, business
or industry and all fruits, natural, industrial or civil, due or received
during the marriage from his or her separate property. (214a)
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Art. 146. Both spouses shall bear the family expenses in proportion to
their income, or, in case of insufficiency or default thereof, to the current
market value of their separate properties.

The liabilities of the spouses to creditors for family expenses shall,


however, be solidary. (215a)

Chapter 7. Property Regime of Unions Without


Marriage

Art. 147. When a man and a woman who are capacitated to marry each
other, live exclusively with each other as husband and wife without the
benefit of marriage or under a void marriage, their wages and salaries
shall be owned by them in equal shares and the property acquired by both
of them through their work or industry shall be governed by the rules on
co-ownership.

In the absence of proof to the contrary, properties acquired while they


lived together shall be presumed to have been obtained by their joint
efforts, work or industry, and shall be owned by them in equal shares. For
purposes of this Article, a party who did not participate in the
acquisition by the other party of any property shall be deemed to have
contributed jointly in the acquisition thereof if the former's efforts
consisted in the care and maintenance of the family and of the household.

Neither party can encumber or dispose by acts inter vivos of his or her
share in the property acquired during cohabitation and owned in
common, without the consent of the other, until after the termination of
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their cohabitation.

When only one of the parties to a void marriage is in good faith, the share
of the party in bad faith in the co-ownership shall be forfeited in favor of
their common children. In case of default of or waiver by any or all of
the common children or their descendants, each vacant share shall
belong to the respective surviving descendants. In the absence of
descendants, such share shall belong to the innocent party. In all cases,
the forfeiture shall take place upon termination of the cohabitation.
(144a)

Please take note: The other party of any property shall be deemed to have contributed
jointly in the acquisition thereof if the former's efforts consisted in the care and
maintenance of the family and of the household.

Art. 148. In cases of cohabitation not falling under the preceding Article,
only the properties acquired by both of the parties through their actual
joint contribution of money, property, or industry shall be owned by them
in common in proportion to their respective contributions. In the absence
of proof to the contrary, their contributions and corresponding shares are
presumed to be equal. The same rule and presumption shall apply to
joint deposits of money and evidences of credit.

If one of the parties is validly married to another, his or her share in the
co-ownership shall accrue to the absolute community or conjugal
partnership existing in such valid marriage. If the party who acted in bad
faith is not validly married to another, his or her shall be forfeited in the
manner provided in the last paragraph of the preceding Article.
The foregoing rules on forfeiture shall likewise apply even if both
parties are in bad faith. (144a)
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TITLE V

THE FAMILY

Chapter 1. The Family as an Institution

Art. 149. The family, being the foundation of the nation, is a basic social
institution which public policy cherishes and protects. Consequently,
family relations are governed by law and no custom, practice or
agreement destructive of the family shall be recognized or given effect.
(216a, 218a)

Art. 50. Family relations include those:

(1) Between husband and wife;


(2) Between parents and children;
(3) Among brothers and sisters, whether of the full or half-blood.
(217a)
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• The enumeration of “brothers and sisters” as members of the same family does
not comprehend “sisters-in-law” and “brother-in-law.”

Art. 151. No suit between members of the same family shall prosper
unless it should appear from the verified complaint or petition that
earnest efforts toward a compromise have been made, but that the same
have failed. If it is shown that no such efforts were in fact made, the
same case must be dismissed.

This rules shall not apply to cases which may not be the subject of
compromise under the Civil Code . (222a)

Chapter 2. The Family Home

Art. 152. The family home, constituted jointly by the husband and the wife
or by an unmarried head of a family, is the dwelling house where they and
their family reside, and the land on which it is situated. (223a)

Reason: When creditors seize the family house, they virtually shatter the family itself.

Art. 153. The family home is deemed constituted on a house and lot from
the time it is occupied as a family residence. From the time of its
constitution and so long as any of its beneficiaries actually resides
therein, the family home continues to be such and is exempt from
execution, forced sale or attachment except as hereinafter provided and
to the extent of the value allowed by law. (223a)
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Art. 154. The beneficiaries of a family home are:

(1) The husband and wife, or an unmarried person who is the head of
a family; and

(2) Their parents, ascendants, descendants, brothers and sisters,


whether the relationship be legitimate or illegitimate, who are
living in the family home and who depend upon the head of the
family for legal support. (226a)

Art. 155. The family home shall be exempt from execution, forced sale or
attachment except:

(1) For nonpayment of taxes;

(2) For debts incurred prior to the constitution of the family home;

(3) For debts secured by mortgages on the premises before or after


such constitution; and

(4) For debts due to laborers, mechanics, architects, builders,


materialmen and others who have rendered service or furnished
material for the construction of the building. (243a)

Art. 156. The family home must be part of the properties of the absolute
community or the conjugal partnership, or of the exclusive properties of
either spouse with the latter's consent. It may also be constituted by an
unmarried head of a family on his or her own property.

Nevertheless, property that is the subject of a conditional sale on


installments where ownership is reserved by the vendor only to
guarantee payment of the purchase price may be constituted as a family
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home. (227a, 228a)

Note: Property purchased under an ongoing installment plan may be constituted as a


family home.

Art. 157. The actual value of the family home shall not exceed, at the time
of its constitution, the amount of the three hundred thousand pesos in
urban areas, and two hundred thousand pesos in rural areas, or such
amounts as may hereafter be fixed by law.

In any event, if the value of the currency changes after the adoption of
this Code, the value most favorable for the constitution of a family home
shall be the basis of evaluation.

For purposes of this Article, urban areas are deemed to include chartered
cities and municipalities whose annual income at least equals that legally
required for chartered cities. All others are deemed to be rural areas.
(231a)

Art. 158. The family home may be sold, alienated, donated, assigned or
encumbered by the owner or owners thereof with the written consent of
the person constituting the same, the latter's spouse, and a majority of the
beneficiaries of legal age. In case of conflict, the court shall decide.
(235a)

Art. 159. The family home shall continue despite the death of one or both
spouses or of the unmarried head of the family for a period of ten years
or for as long as there is a minor beneficiary, and the heirs cannot
partition the same unless the court finds compelling reasons therefor. This
rule shall apply regardless of whoever owns the property or constituted
the family home. (238a)
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Art. 160. When a creditor whose claims is not among those mentioned in
Article 155 obtains a judgment in his favor, and he has reasonable
grounds to believe that the family home is actually worth more than the
maximum amount fixed in Article 157, he may apply to the court which
rendered the judgment for an order directing the sale of the property
under execution. The court shall so order if it finds that the actual value
of the family home exceeds the maximum amount allowed by law as of the
time of its constitution. If the increased actual value exceeds the
maximum allowed in Article 157 and results from subsequent voluntary
improvements introduced by the person or persons constituting the
family home, by the owner or owners of the property, or by any of the
beneficiaries, the same rule and procedure shall apply.

At the execution sale, no bid below the value allowed for a family home
shall be considered. The proceeds shall be applied first to the amount
mentioned in Article 157, and then to the liabilities under the judgment
and the costs. The excess, if any, shall be delivered to the judgment debtor.
(247a, 248a)

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


provided for in this Chapter, a person may constitute, or be the
beneficiary of, only one family home. (n)

Art. 162. The provisions in this Chapter shall also govern existing family
residences insofar as said provisions are applicable. (n)
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TITLE VI

PATERNITY AND FILIATION

Chapter 1. Legitimate Children

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


Natural filiation may be legitimate or illegitimate. (n)

Distinction Between 'Paternity' and 'Filiation'

While paternity (maternity) is the civil status relationship of the father (mother) to the
child, filiation is the civil status of the child to the father or mother.

Classification of Filiation

(a) by nature (legitimate or illegitimate)


(b) by adoption
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Distinctions Between Legitimate and Illegitimate Children

Legitimate Children Illegitimate Children

1. Use of surname – right to bear 1. Required to use mother's surname


surname of father

2. Parental authority – joint authority 2. Under the sole parental authority of


of parents mother

3. Support – preferential to support 3. No such preference


over mother if father has no
sufficient means to both claims
4. Entitled to ½ of legitimate child's
4. Successional right – entitled to inheritance
inheritance

5. Not primary beneficiaries


5. Beneficiary right under the SSS
and GSIS – primary beneficiaries
6. No such benefit
6. Paternity leave – father is entitled
to paternity leave of 7 days with full
pay

• The Family Code shall have retroactive effect insofar as it does not prejudice or
impair vested or acquired rights in accordance with the Civil Code or other laws.

Art. 164. Children conceived or born during the marriage of the parents
are legitimate.

Children conceived as a result of artificial insemination of the wife with


the sperm of the husband or that of a donor or both are likewise
legitimate children of the husband and his wife, provided, that both of
them authorized or ratified such insemination in a written instrument
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executed and signed by them before the birth of the child. The instrument
shall be recorded in the civil registry together with the birth certificate
of the child. (55a, 258a)

Legitimate child – one conceived or born during the marriage of the parents.

Artificial insemination – a medical procedure by which the semen is introduced into the
vagina by means other than copulation for the purpose of procreation.

Requisites for test-tube babies to be legitimate

The parents must have---

(a) authorized or ratified such insemination


(b) in a written instrument
(c) executed and signed by them before the birth of the child

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

Illegitimate child – one conceived and born outside a valid marriage.

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


grounds:

(1) That it was physically impossible for the husband to have sexual
intercourse with his wife within the first 120 days of the 300 days
which immediately preceded the birth of the child because of:

(a) the physical incapacity of the husband to have sexual intercourse with
his wife;

(b) the fact that the husband and wife were living separately in such a way
that sexual intercourse was not possible; or
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(c) serious illness of the husband, which absolutely prevented sexual


intercourse;

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

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


the written authorization or ratification of either parent was
obtained through mistake, fraud, violence, intimidation, or undue
influence. (255a)

Art. 167. The child shall be considered legitimate although the mother
may have declared against its legitimacy or may have been sentenced as
an adulteress. (256a)

Art. 168. If the marriage is terminated and the mother contracted another
marriage within three hundred days after such termination of the former
marriage, these rules shall govern in the absence of proof to the
contrary:

(1) A child born before one hundred eighty days after the solemnization
of the subsequent marriage is considered to have been conceived
during the former marriage, provided it be born within three
hundred days after the termination of the former marriage;

(2) A child born after one hundred eighty days following the celebration
of the subsequent marriage is considered to have been conceived
during such marriage, even though it be born within the three
hundred days after the termination of the former marriage. (259a)
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Art. 169. The legitimacy or illegitimacy of a child born after three


hundred days following the termination of the marriage shall be proved
by whoever alleges such legitimacy or illegitimacy. (261a)

Art. 170. The action to impugn the legitimacy of the child shall be
brought within one year from the knowledge of the birth or its recording
in the civil register, if the husband or, in a proper case, any of his heirs,
should reside in the city or municipality where the birth took place or was
recorded.

If the husband or, in his default, all of his heirs do not reside at the place
of birth as defined in the first paragraph or where it was recorded, the
period shall be two years if they should reside in the Philippines; and three
years if abroad. If the birth of the child has been concealed from or was
unknown to the husband or his heirs, the period shall be counted from
the discovery or knowledge of the birth of the child or of the fact of
registration of said birth, whichever is earlier. (263a)

Who Can Question the Legitimacy of A Child?

General Rule: Only the husband.

Exceptions:

1. If the husband should die before the expiration of the period fixed for bringing the
action;

2. If he should die after the filing of the complaint, without having desisted from the
same;

3. If the child should be born after the death of the husband (Art. 171)
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Art. 171. The heirs of the husband may impugn the filiation of the child
within the period prescribed in the preceding article only in the
following cases:

(1) If the husband should died before the expiration of the period fixed
for bringing his action;

(2) If he should die after the filing of the complaint without having
desisted therefrom; or

(3) If the child was born after the death of the husband. (262a)

• The term heirs includes testamentary, voluntary, compulsory, or legal heirs.


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Chapter 2. Proof of Filiation

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


following:

(1) The record of birth appearing in the civil register or a final


judgment; or

(2) An admission of legitimate filiation in a public document or a


private handwritten instrument and signed by the parent
concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be


proved by:

(1) The open and continuous possession of the status of a legitimate


child; or

(2) Any other means allowed by the Rules of Court and special laws.
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(265a, 266a, 267a)

Filiation proceeding – a special statutory proceeding, criminal in form, but in the nature
of a civil action to enforce a civil obligation or duty specifically for the purpose of
establishing parentage and putative father's duty to support his illegitimate child.

Means Allowed By the Rules of Court

(a) an act or declaration concerning pedigee

(b) family reputation or tradition concerning pedigree

(c) common reputation respecting pedigree

(d) judicial admission

(e) admissions of a party

(f) admission by silence

• Oral evidence may be admitted if the needed document cannot be presented.

The term “continuous” means that there must be a showing of permanent intention of the
supposed father to consider the child as his own, by continuous and clear manifestation of
paternal affection and care.

Art. 173. The action to claim legitimacy may be brought by the child
during his or her lifetime and shall be transmitted to the heirs should the
child die during minority or in a state of insanity. In these cases, the heirs
shall have a period of five years within which to institute the action.

Who May Claim the Legitimacy of the Child?

General Rule: The Child himself may file the action.


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Exceptions: His heirs may do so if:

(a) if the child dies during minority;


(b) if the child dies during incapacity
(c) if the heir will merely continue the action (survival of the action)

Art. 174. Legitimate children shall have the right:

(1) To bear the surnames of the father and the mother, in conformity
with the provisions of the Civil Code on Surnames;

(2) To receive support from their parents, their ascendants, and in


proper cases, their brothers and sisters, in conformity with the
provisions of this Code on Support; and

(3) To be entitled to the legitime and other successional rights granted


to them by the Civil Code . (264a)
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Chapter 3. Illegitimate Children

Art. 175. Illegitimate children may establish their illegitimate filiation in


the same way and on the same evidence as legitimate children.

The action must be brought within the same period specified in Article
173, except when the action is based on the second paragraph of Article
172, in which case the action may be brought during the lifetime of the
alleged parent. (289a)

Art. 176. Illegitimate children shall use the surname and shall be under
the parental authority of their mother, and shall be entitled to support in
conformity with this Code. The legitime of each illegitimate child shall
consist of one-half of the legitime of a legitimate child. Except for this
modification, all other provisions in the Civil Code governing
successional rights shall remain in force. (287a)

• If the father acknowledges the child in writing, the child can use the surname of
his father.
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Chapter 4. Legitimated Children

Art. 177. Only children conceived and born outside of wedlock of parents
who, at the time of the conception of the former, were not disqualified by
any impediment to marry each other may be legitimated. (269a)

Requisites for a Child to be Legitimated

(a) Conceived and born outside wedlock of parents who at the time of the conception
of the child, were not disqualified by any impediment to marry each other;

(b) A subsequent valid marriage between the parents.

• Being a catholic priest is not an impediment.

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


between parents. The annulment of a voidable marriage shall not affect
the legitimation. (270a)
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Art. 179. Legitimated children shall enjoy the same rights as legitimate
children. (272a)

Art. 180. The effects of legitimation shall retroact to the time of the
child's birth. (273a)

Art. 181. The legitimation of children who died before the celebration of
the marriage shall benefit their descendants. (274)

Art. 182. Legitimation may be impugned only by those who are prejudiced
in their rights, within five years from the time their cause of action
accrues. (275a)
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TITLE VII

ADOPTION

Art. 183. A person of age and in possession of full civil capacity and legal
rights may adopt, provided he is in a position to support and care for his
children, legitimate or illegitimate, in keeping with the means of the
family.

Only minors may be adopted, except in the cases when the adoption of a
person of majority age is allowed in this Title.

In addition, the adopter must be at least sixteen years older than the
person to be adopted, unless the adopter is the parent by nature of the
adopted, or is the spouse of the legitimate parent of the person to be
adopted. (27a, E. O. 91 and PD 603)

Adoption – the process of making a child possess in general the rights accorded to a
legitimate child.
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Qualifications of Adopter

(a) he must be of age (at least 18 years old);

(b) in possession of full civil capacity and legal rights;

(c) in a possession to support and care for his children in keeping with the means of
the family;

(d) generally at least 16 years older than the adopted

General rule: Only minors may be adopted.

Exception: Those of major age may be adopted if allowed under this Title.

When Adopter May Be Less Than 16 Years Older than the Adopted

(a) when the adopter is the parent by nature of the adopted;

(b) when the adopter is the spouse of the legitimate parent of the person to be adopted

• Child's welfare is paramount, hence, no mother shall be separated from a child


under 7 years of age unless the court finds compelling reason to rule otherwise.

Art. 184. The following persons may not adopt:

(1) The guardian with respect to the ward prior to the approval of the
final accounts rendered upon the termination of their guardianship
relation;

(2) Any person who has been convicted of a crime involving moral
turpitude;

(3) An alien, except:

(a) A former Filipino citizen who seeks to adopt a relative by


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consanguinity;

(b)One who seeks to adopt the legitimate child of his or her Filipino
spouse; or

(c) One who is married to a Filipino citizen and seeks to adopt jointly
with his or her spouse a relative by consanguinity of the latter.

Aliens not included in the foregoing exceptions may adopt Filipino


children in accordance with the rules on inter-country adoptions as may
be provided by law. (28a, E. O. 91 and PD 603)

Art. 185. Husband and wife must jointly adopt, except in the following
cases:

(1) When one spouse seeks to adopt his own illegitimate child; or

(2) When one spouse seeks to adopt the legitimate child of the other.
(29a, E. O. 91 and PD 603)

Art. 186. In case husband and wife jointly adopt or one spouse adopts the
legitimate child of the other, joint parental authority shall be exercised by
the spouses in accordance with this Code. (29a, E. O. and PD 603)

• In case there is disagreement in the exercise of such joint parental authority, the
father's decision will prevail, unless there is a judicial order to the contrary.

Art. 187. The following may not be adopted:

(1) A person of legal age, unless he or she is a child by nature of the


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adopter or his or her spouse, or, prior to the adoption, said person
has been consistently considered and treated by the adopter as his or
her own child during minority.

(2) An alien with whose government the Republic of the Philippines has
no diplomatic relations; and

(3) A person who has already been adopted unless such adoption has
been previously revoked or rescinded. (30a, E. O. 91 and PD 603)

Art. 188. The written consent of the following to the adoption shall be
necessary:

(1) The person to be adopted, if ten years of age or over,

(2) The parents by nature of the child, the legal guardian, or the
proper government instrumentality;

(3) The legitimate and adopted children, ten years of age or over, of the
adopting parent or parents;

(4) The illegitimate children, ten years of age or over, of the adopting
parent, if living with said parent and the latter's spouse, if any; and

(5) The spouse, if any, of the person adopting or to be adopted. (31a, E.


O. 91 and PD 603)

• De facto guardian can give consent in adoption cases.

Art. 189. Adoption shall have the following effects:


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(1) For civil purposes, the adopted shall be deemed to be a legitimate


child of the adopters and both shall acquire the reciprocal rights
and obligations arising from the relationship of parent and child,
including the right of the adopted to use the surname of the
adopters;

(2) The parental authority of the parents by nature over the adopted
shall terminate and be vested in the adopters, except that if the
adopter is the spouse of the parent by nature of the adopted,
parental authority over the adopted shall be exercised jointly by
both spouses; and

(3) The adopted shall remain an intestate heir of his parents and other
blood relatives. (39(1)a, (3)a, PD 603)

Art. 190. Legal or intestate succession to the estate of the adopted shall be
governed by the following rules:

(1) Legitimate and illegitimate children and descendants and the


surviving spouse of the adopted shall inherit from the adopted, in
accordance with the ordinary rules of legal or intestate succession;

(2) When the parents, legitimate or illegitimate, or the legitimate


ascendants of the adopted concur with the adopter, they shall
divide the entire estate, one-half to be inherited by the parents or
ascendants and the other half, by the adopters;

(3) When the surviving spouse or the illegitimate children of the


adopted concur with the adopters, they shall divide the entire
estate in equal shares, one-half to be inherited by the spouse or the
illegitimate children of the adopted and the other half, by the
adopters.

(4) When the adopters concur with the illegitimate children and the
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surviving spouse of the adopted, they shall divide the entire estate
in equal shares, one-third to be inherited by the illegitimate
children, one-third by the surviving spouse, and one-third by the
adopters;

(5) When only the adopters survive, they shall inherit the entire
estate; and

(6) When only collateral blood relatives of the adopted survive, then
the ordinary rules of legal or intestate succession shall apply.
(39(4)a, PD 603)

• The article applies only in legal or intestate succession

• Difference between par. 3 and 4:


◦ In par. 3, the word OR is used (illegitimate children or surviving souse); in
par. 4, AND is the word used. In par. 3, the estate is divided into two (2)
parts; in par. 4, three (3) parts are involved.

• In par. 5, if only the survivors are the adopters, they get the entire estate. Clearly,
all the indications point out that the adoption shall exclude collateral relatives of
the adopted.

• In par. 6, the rules are set forth in Arts. 1004-1010 of the Civil Code, i.e., when
only collateral relatives survive.

Issue: May the adopted represent his adopting parent in the latter's right to inherit from
his (adopter) parents or ascendants?

Held: If the adopting parent should die before the adopted child does, the latter cannot
represent the former the inheritance from the parents or ascendants of the adopter. The
adopted child is not related to the deceased in that case, because the filiation created by
fiction of law is exclusively between the adopter and the adopted. By adoption, the
adopters can make for themselves an heir but they cannot make one for their kindred.
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Art. 191. If the adopted is a minor or otherwise incapacitated, the


adoption may be judicially rescinded upon petition of any person
authorized by the court or proper government instrumental acting on his
behalf, on the same grounds prescribed for loss or suspension of
parental authority. If the adopted is at least eighteen years of age, he may
petition for judicial rescission of the adoption on the same grounds
prescribed for disinheriting an ascendant. (40a, PD 603)

• The Article speaks of judicial rescission (or cancellation) of the adoption.


Grounds – those for the suspension of loss of parental authority.

• The adopted child can bring the action himself when he is at least 18 years of age.
Grounds – same as those disinheriting an ascendant.

Art. 192. The adopters may petition the court for the judicial rescission of
the adoption in any of the following cases:

(1) If the adopted has committed any act constituting ground for
disinheriting a descendant; or

(2) When the adopted has abandoned the home of the adopters during
minority for at least one year, or, by some other acts, has definitely
repudiated the adoption. (41a, PD 603)

Art. 193. If the adopted minor has not reached the age of majority at the
time of the judicial rescission of the adoption, the court in the same
proceeding shall reinstate the parental authority of the parents by nature,
unless the latter are disqualified or incapacitated, in which case the
court shall appoint a guardian over the person and property of the
minor. If the adopted person is physically or mentally handicapped, the
court shall appoint in the same proceeding a guardian over his person or
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property or both.

Judicial rescission of the adoption shall extinguish all reciprocal rights


and obligations between the adopters and the adopted arising from the
relationship of parent and child. The adopted shall likewise lose the right
to use the surnames of the adopters and shall resume his surname prior to
the adoption.

The court shall accordingly order the amendment of the records in the
proper registries. (42a, PD 603)

TITLE VIII

SUPPORT

Art. 194. Support comprises everything indispensable for sustenance,


dwelling, clothing, medical attendance, education and transportation, in
keeping with the financial capacity of the family.

The education of the person entitled to be supported referred to in the


preceding paragraph shall include his schooling or training for some
profession, trade or vocation, even beyond the age of majority.

Transportation shall include expenses in going to and from school, or to


and from place of work. (290a)

Kinds of Support

(a) as to amount
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1) natural (bare necessities of life)


2) civil (in accordance with the financial standing)

(b) as to source of obligation

1) legal (from provision of law)


2) voluntary (from agreement or from provision of a will)

(c) special kind – alimony pendente lite (pending litigation)

Support Includes:

(a) food or sustenance


(b) dwelling or shelter
(c) clothing
(d) medical attendance
(e) education
(f) transportation

• Effect of reaching age of majority: the person is still entitled to support. If he has
not yet finished his studies, he is still entitled generally to be supported.

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


following are obliged to support each other to the whole extent set forth
in the preceding article:

(1) The spouses;

(2) Legitimate ascendants and descendants;

(3) Parents and their legitimate children and the legitimate and
illegitimate children of the latter;

(4) Parents and their illegitimate children and the legitimate and
illegitimate children of the latter; and

(5) Legitimate brothers and sisters, whether of full or half-blood (291a)


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• If the wife commits adultery, she loses the right to be supported.

Issue: If the husband and the wife commit concubinage and adultery, can the wife still
demand support from the husband?

Held: Yes, because they are in pari delicto (mutually guilty), and therefore, it is as if
both acted in good faith.

Art. 196. Brothers and sisters not legitimately related, whether of the full
or half-blood, are likewise bound to support each other to the full extent
set forth in Article 194, except only when the need for support of the
brother or sister, being of age, is due to a cause imputable to the
claimant's fault or negligence. (291a)

Art. 197. In case of legitimate ascendants; descendants, whether


legitimate or illegitimate; and brothers and sisters, whether legitimately
or illegitimately related, only the separate property of the person obliged
to give support shall be answerable provided that in case the obligor has
no separate property, the absolute community or the conjugal partnership,
if financially capable, shall advance the support, which shall be deducted
from the share of the spouse obliged upon the liquidation of the absolute
community or of the conjugal partnership. (n)

Art. 198. During the proceedings for legal separation or for annulment of
marriage, and for declaration of nullity of marriage, the spouses and their
children shall be supported from the properties of the absolute community
or the conjugal partnership. After the final judgment granting the
petition, the obligation of mutual support between the spouses ceases.
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However, in case of legal separation, the court may order that the guilty
spouse shall give support to the innocent one, specifying the terms of such
order. (292a)

Art. 199. Whenever two or more persons are obliged to give support, the
liability shall devolve upon the following persons in the order herein
provided:

(1) The spouse;

(2) The descendants in the nearest degree;

(3) The ascendants in the nearest degree; and

(4) The brothers and sisters. (294a)

Art. 200. When the obligation to give support falls upon two or more
persons, the payment of the same shall be divided between them in
proportion to the resources of each.

However, in case of urgent need and by special circumstances, the judge


may order only one of them to furnish the support provisionally, without
prejudice to his right to claim from the other obligors the share due from
them.

When two or more recipients at the same time claim support from one
and the same person legally obliged to give it, should the latter not have
sufficient means to satisfy all claims, the order established in the
preceding article shall be followed, unless the concurrent obligees should
be the spouse and a child subject to parental authority, in which case the
child shall be preferred. (295a)
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Art. 201. The amount of support, in the cases referred to in Articles 195
and 196, shall be in proportion to the resources or means of the giver and
to the necessities of the recipient. (296a)

Art. 202. Support in the cases referred to in the preceding article shall be
reduced or increased proportionately, according to the reduction or
increase of the necessities of the recipient and the resources or means of
the person obliged to furnish the same. (297a)

Art. 203. The obligation to give support shall be demandable from the
time the person who has a right to receive the same needs it for
maintenance, but it shall not be paid except from the date of judicial or
extra-judicial demand.

Support pendente lite may be claimed in accordance with the Rules of


Court.

Payment shall be made within the first five days of each corresponding
month or when the recipient dies, his heirs shall not be obliged to return
what he has received in advance. (298a)

Art. 204. The person obliged to give support shall have the option to fulfill
the obligation either by paying the allowance fixed, or by receiving and
maintaining in the family dwelling the person who has a right to receive
support. The latter alternative cannot be availed of in case there is a moral
or legal obstacle thereto. (299a)
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• Art. 2217 of the Civil Code on moral damages can have a retroactive effect on
actions for support.

Art. 205. The right to receive support under this Title as well as any
money or property obtained as such support shall not be levied upon on
attachment or execution. (302a)

Reason: Sound public policy – support is necessary for one's survival.

Art. 206. When, without the knowledge of the person obliged to give
support, it is given by a stranger, the latter shall have a right to claim the
same from the former, unless it appears that he gave it without intention
of being reimbursed. (2164a)

• The Article is based on the principle that no one shall unjustly enrich himself at
the expense of another.

Art. 207. When the person obliged to support another unjustly refuses or
fails to give support when urgently needed by the latter, any third person
may furnish support to the needy individual, with right of reimbursement
from the person obliged to give support. This Article shall particularly
apply when the father or mother of a child under the age of majority
unjustly refuses to support or fails to give support to the child when
urgently needed. (2166a)
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Art. 208. In case of contractual support or that given by will, the excess
in amount beyond that required for legal support shall be subject to levy
on attachment or execution.

Furthermore, contractual support shall be subject to adjustment


whenever modification is necessary due to changes of circumstances
manifestly beyond the contemplation of the parties. (n)

TITLE IX

PARENTAL AUTHORITY

Chapter 1. General Provisions

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

Parental authority (Patria Potestas) – the sum total of the right of parents over the
persons and property of their children.

Purpose of Parental Authority

It has for its purpose not only the sound physical development of the children, but also
the cultivation of their intellectual perceptions, and the nourishment of their appetitive
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and sensitive faculties.

Kinds of Parental Authority

1. over the persons; and


2. over the property

• Parental authority is also attached illegitimate children on the same nature as


legitimated and adopted children.

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


transferred except in the cases authorized by law. (313a)

General rule: parental authority and responsibility may not be renounced.

Except: in the cases authorized by law.

• Parental authority is both a right and a duty.

Consequences of Parental Authority

(a) it is intransmissible

(b) if the parents die, the administrator of the estate does not exercise parental
authority;

(c) it cannot be waived. Except in the following cases:


1) when there is guardianship approved by the court;
2) when there is adoption approved by the court;
3) when there is emancipation by concession; and
4) when there is surrender of the child to an orphan asylum.

Art. 211. The father and the mother shall jointly exercise parental
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authority over the persons of their common children. In case of


disagreement, the father's decision shall prevail, unless there is a judicial
order to the contrary.

Children shall always observe respect and reverence towards their parents
and are obliged to obey them as long as the children are under parental
authority. (311a)

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

Art. 213. In case of separation of the parents, parental authority shall be


exercised by the parent designated by the Court. The Court shall take into
account all relevant considerations, especially the choice of the child over
seven years of age, unless the parent chosen is unfit. (n)

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


substitute parental authority shall be exercised by the surviving
grandparent. In case several survive, the one designated by the court,
taking into account the same consideration mentioned in the preceding
article, shall exercise the authority. (355a)

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


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against his parents and grandparents, except when such testimony is


indispensable in a crime against the descendant or by one parent against
the other. (315a)

• The descendant cannot be compelled, but if he wants to testify, he may do so.

• The Article applies to a criminal, not a to a civil case.

Chapter 2. Substitute and Special Parental Authority

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


following person shall exercise substitute parental authority over the
child in the order indicated:

(1) The surviving grandparent, as provided in Art. 214;

(2) The oldest brother or sister, over twenty-one years of age, unless
unfit or disqualified; and

(3) The child's actual custodian, over twenty-one years of age, unless
unfit or disqualified.

Whenever the appointment or a judicial guardian over the property of


the child becomes necessary, the same order of preference shall be
observed. (349a, 351a, 354a)
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Art. 217. In case of foundlings, abandoned neglected or abused children


and other children similarly situated, parental authority shall be
entrusted in summary judicial proceedings to heads of children's homes,
orphanages and similar institutions duly accredited by the proper
government agency. (314a)

• Take note of summary proceedings.

Art. 218. The school, its administrators and teachers, or the individual,
entity or institution engaged in child are shall have special parental
authority and responsibility over the minor child while under their
supervision, instruction or custody.

Authority and responsibility shall apply to all authorized activities


whether inside or outside the premises of the school, entity or institution.
(349a)

Art. 219. Those given the authority and responsibility under the
preceding Article shall be principally and solidarily liable for damages
caused by the acts or omissions of the unemancipated minor. The parents,
judicial guardians or the persons exercising substitute parental authority
over said minor shall be subsidiarily liable.

The respective liabilities of those referred to in the preceding paragraph


shall not apply if it is proved that they exercised the proper diligence
required under the particular circumstances.

All other cases not covered by this and the preceding articles shall be
governed by the provisions of the Civil Code on quasi-delicts. (n)
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Chapter 3. Effect of Parental Authority


Upon the Persons of the Children

Art. 220. The parents and those exercising parental authority shall have
with the respect to their unemancipated children on wards the following
rights and duties:

(1) To keep them in their company, to support, educate and instruct


them by right precept and good example, and to provide for their
upbringing in keeping with their means;

(2) To give them love and affection, advice and counsel, companionship
and understanding;

(3) To provide them with moral and spiritual guidance, inculcate in


them honesty, integrity, self-discipline, self-reliance, industry and
thrift, stimulate their interest in civic affairs, and inspire in them
compliance with the duties of citizenship;
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(4) To enhance, protect, preserve and maintain their physical and


mental health at all times;

(5) To furnish them with good and wholesome educational materials,


supervise their activities, recreation and association with others,
protect them from bad company, and prevent them from
acquiring habits detrimental to their health, studies and morals;

(6) To represent them in all matters affecting their interests;

(7) To demand from them respect and obedience;

(8) To impose discipline on them as may be required under the


circumstances; and

(9) To perform such other duties as are imposed by law upon parents
and guardians. (316a)

Art. 221. Parents and other persons exercising parental authority shall be
civilly liable for the injuries and damages caused by the acts or omissions
of their unemancipated children living in their company and under their
parental authority subject to the appropriate defenses provided by law.
(2180(2)a and (4)a )

Art. 222. The courts may appoint a guardian of the child's property or a
guardian ad litem when the best interests of the child so requires. (317)

Art. 223. The parents or, in their absence or incapacity, the individual,
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entity or institution exercising parental authority, may petition the proper


court of the place where the child resides, for an order providing for
disciplinary measures over the child. The child shall be entitled to the
assistance of counsel, either of his choice or appointed by the court, and
a summary hearing shall be conducted wherein the petitioner and the
child shall be heard.

However, if in the same proceeding the court finds the petitioner at fault,
irrespective of the merits of the petition, or when the circumstances so
warrant, the court may also order the deprivation or suspension of
parental authority or adopt such other measures as it may deem just and
proper. (318a)

Art. 224. The measures referred to in the preceding article may include
the commitment of the child for not more than thirty days in entities or
institutions engaged in child care or in children's homes duly accredited
by the proper government agency.

The parent exercising parental authority shall not interfere with the care
of the child whenever committed but shall provide for his support. Upon
proper petition or at its own instance, the court may terminate the
commitment of the child whenever just and proper. (391a)
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Chapter 4. Effect of Parental Authority Upon


the Property of the Children

Art. 225. The father and the mother shall jointly exercise legal
guardianship over the property of the unemancipated common child
without the necessity of a court appointment. In case of disagreement, the
father's decision shall prevail, unless there is a judicial order to the
contrary.

Where the market value of the property or the annual income of the child
exceeds P50,000, the parent concerned shall be required to furnish a bond
in such amount as the court may determine, but not less than ten per
centum (10%) of the value of the property or annual income, to guarantee
the performance of the obligations prescribed for general guardians.

A verified petition for approval of the bond shall be filed in the proper
court of the place where the child resides, or, if the child resides in a
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foreign country, in the proper court of the place where the property or
any part thereof is situated.

The petition shall be docketed as a summary special proceeding in which


all incidents and issues regarding the performance of the obligations
referred to in the second paragraph of this Article shall be heard and
resolved.

The ordinary rules on guardianship shall be merely suppletory except


when the child is under substitute parental authority, or the guardian is
a stranger, or a parent has remarried, in which case the ordinary rules
on guardianship shall apply. (320a)

• The father and mother ipso jure become the legal guardian of the child's property.

Art. 226. The property of the unemancipated child earned or acquired


with his work or industry or by onerous or gratuitous title shall belong to
the child in ownership and shall be devoted exclusively to the latter's
support and education, unless the title or transfer provides otherwise.

The right of the parents over the fruits and income of the child's property
shall be limited primarily to the child's support and secondarily to the
collective daily needs of the family. (321a, 323a)

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


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


(322a)

Chapter 5. Suspension or Termination of Parental


Authority

Art. 228. Parental authority terminates permanently:

(1) Upon the death of the parents;

(2) Upon the death of the child; or

(3) Upon emancipation of the child. (327a)

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


authority also terminates:
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(1) Upon adoption of the child;

(2) Upon appointment of a general guardian;

(3) Upon judicial declaration of abandonment of the child in a case


filed for the purpose;

(4) Upon final judgment of a competent court divesting the party


concerned of parental authority; or

(5) Upon judicial declaration of absence or incapacity of the person


exercising parental authority. (327a)

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


the person exercising the same of a crime which carries with it the penalty
of civil interdiction. The authority is automatically reinstated upon
service of the penalty or upon pardon or amnesty of the offender. (330a)

Art. 231. The court in an action filed for the purpose in a related case
may also suspend parental authority if the parent or the person
exercising the same:

(1) Treats the child with excessive harshness or cruelty;

(2) Gives the child corrupting orders, counsel or example;

(3) Compels the child to beg; or

(4) Subjects the child or allows him to be subjected to acts of


lasciviousness.
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The grounds enumerated above are deemed to include cases which have
resulted from culpable negligence of the parent or the person exercising
parental authority.

If the degree of seriousness so warrants, or the welfare of the child so


demands, the court shall deprive the guilty party of parental authority or
adopt such other measures as may be proper under the circumstances.

The suspension or deprivation may be revoked and the parental authority


revived in a case filed for the purpose or in the same proceeding if the
court finds that the cause therefor has ceased and will not be repeated.
(33a)

Art. 232. If the person exercising parental authority has subjected the
child or allowed him to be subjected to sexual abuse, such person shall be
permanently deprived by the court of such authority. (n)

Art. 233. The person exercising substitute parental authority shall have
the same authority over the person of the child as the parents.

In no case shall the school administrator, teacher of individual engaged


in child care exercising special parental authority inflict corporal
punishment upon the child. (n)
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TITLE X

EMANCIPATION AND AGE OF MAJORITY

Art. 234. Emancipation takes place by the attainment of majority. Unless


otherwise provided, majority commences at the age of twenty-one years.

Emancipation also takes place:

(1) By the marriage of the minor; or

(2) By the recording in the Civil Register of an agreement in a public


instrument executed by the parent exercising parental authority and
the minor at least eighteen years of age. Such emancipation shall be
irrevocable. (397a, 398a, 400a, 401a)
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How Emancipation Takes Place

1. marriage of the minor;

2. attainment of the age of majority;

3. parental concession (child must be at least 18, and must consent);

4. judicial concession (child must be at least 18, and must consent, and must be
deemed convenient for the minor)

Art. 235. The provisions governing emancipation by recorded agreement


shall also apply to an orphan minor and the person exercising parental
authority but the agreement must be approved by the court before it is
recorded. (n)

Art. 236. Emancipation for any cause shall terminate parental authority
over the person and property of the child who shall then be qualified and
responsible for all acts of civil life. (412a)

Art. 237. The annulment or declaration of nullity of the marriage of a


minor or of the recorded agreement mentioned in the foregoing. Articles
234 and 235 shall revive the parental authority over the minor but shall
not affect acts and transactions that took place prior to the recording of
the final judgment in the Civil Register. (n)

Effects of Emancipation by Marriage or by Voluntary Concession

1. Parental authority over the person is completely extinguished.


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2. Parental authority over the property:

• he can administer
• but he cannot borrow money, alienate or encumber real property, or sue
without parental assistance.

TITLE XI

SUMMARY JUDICIAL PROCEEDINGS IN THE


FAMILY LAW

Chapter 1. Prefatory Provisions

Art. 238. Until modified by the Supreme Court, the procedural rules
provided for in this Title shall apply as regards separation in fact between
husband and wife, abandonment by one of the other, and incidents
involving parental authority. (n)
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Chapter 2. Separation in Fact

Art. 239. When a husband and wife are separated in fact, or one has
abandoned the other and one of them seeks judicial authorization for a
transaction where the consent of the other spouse is required by law but
such consent is withheld or cannot be obtained, a verified petition may be
filed in court alleging the foregoing facts.

The petition shall attach the proposed deed, if any, embodying the
transaction, and, if none, shall describe in detail the said transaction
and state the reason why the required consent thereto cannot be
secured. In any case, the final deed duly executed by the parties shall be
submitted to and approved by the court. (n)
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Art. 240. Claims for damages by either spouse, except costs of the
proceedings, may be litigated only in a separate action. (n)

Art. 241. Jurisdiction over the petition shall, upon proof of notice to the
other spouse, be exercised by the proper court authorized to hear family
cases, if one exists, or in the regional trial court or its equivalent sitting in
the place where either of the spouses resides. (n)

Art. 242. Upon the filing of the petition, the court shall notify the other
spouse, whose consent to the transaction is required, of said petition,
ordering said spouse to show cause why the petition should not be
granted, on or before the date set in said notice for the initial
conference. The notice shall be accompanied by a copy of the petition
and shall be served at the last known address of the spouse concerned.
(n)

Art. 243. A preliminary conference shall be conducted by the judge


personally without the parties being assisted by counsel. After the initial
conference, if the court deems it useful, the parties may be assisted by
counsel at the succeeding conferences and hearings. (n)

Art. 244. In case of non-appearance of the spouse whose consent is


sought, the court shall inquire into the reasons for his failure to appear,
and shall require such appearance, if possible. (n)
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Art. 245. If, despite all efforts, the attendance of the non-consenting
spouse is not secured, the court may proceed ex parte and render
judgment as the facts and circumstances may warrant. In any case, the
judge shall endeavor to protect the interests of the non-appearing
spouse. (n)

Art. 246. If the petition is not resolved at the initial conference, said
petition shall be decided in a summary hearing on the basis of affidavits,
documentary evidence or oral testimonies at the sound discretion of the
court. If testimony is needed, the court shall specify the witnesses to be
heard and the subject-matter of their testimonies, directing the parties
to present said witnesses. (n)

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

Art. 248. The petition for judicial authority to administer or encumber


specific separate property of the abandoning spouse and to use the fruits
or proceeds thereof for the support of the family shall also be governed by
these rules. (n)
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Chapter 3. Incidents Involving Parental Authority

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

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

Art. 251. Upon the filing of the petition, the court shall notify the parents
or, in their absence or incapacity, the individuals, entities or institutions
exercising parental authority over the child. (n)
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Art. 252. The rules in Chapter 2 hereof shall also govern summary
proceedings under this Chapter insofar as they are applicable. (n)

Chapter 4. Other Matters Subject to Summary


Proceedings

Art. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise
govern summary proceedings filed under Articles 41, 51, 69, 73, 96, 124
and 127, insofar as they are applicable. (n)
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TITLE XII

FINAL PROVISIONS

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

Art. 255. If any provision of this Code is held invalid, all the other
provisions not affected thereby shall remain valid.
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CODES AND NOTES BY PORFERIO JR. AND MELFA D. SALIDAGA

Art. 256. This Code shall have retroactive effect insofar as it does not
prejudice or impair vested or acquired rights in accordance with the Civil
Code or other laws.

Art. 257. This Code shall take effect one year after the completion of its
publication in a newspaper of general circulation, as certified by the
Executive Secretary, Office of the President.