PERSONS

I. INTRODUCTION
LAW - an ordinance of reason promulgated for the common good by Him who is in charge
CLASSIFICATION OF LAW according to the manner of promulgation
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
POSITIVE LAW - promulgated expressly or
directly
Divine Positive Law - like the 10
Commandments
Divine-Human Positive Law - like the
commandments of the Catholic church
Human Positive Law - like Congressional
statutes or executive orders

CONCEPT OF LAW AS DERECHO AND LEY
Derecho: general or abstract concept of law
Science of moral rules
Founded on rational nature of man
Demandable and reciprocal
Purpose: govern the free activity of man for the realization of the individual and social ends

Ley: specific or material concept of law
A rule of human conduct
Promulgated by legitimate authority
Considered as obligatory and for general observance
Purpose: govern the relations of persons in society
It is founded upon the concepts of order, coexistence, and liberty

Derecho divisions of law: divine law and human law
Ley divisions of law: mandatory, prohibitory and permissive
HUMAN POSITIVE LAW - a reasonable rule of action, expressly or directly promulgated by
competent human authority for the common good, and, usually, but not necessarily, imposing a
sanction in case of disobedience.
- Essential elements:
a. Reasonable rule of action
b. Due promulgation - for otherwise obedience can hardly be expected
c. Promulgation by competent authority
d. Generally, a sanction imposed for disobedience
- Classification
a. According to whether a right is given, or merely the procedure for enforcement is
laid down:
1) Substantive law - that which establishes rights and duties
2) Remedial law (or procedural or adjective law) - that which prescribes the
manner of enforcing legal rights and claims
b. According to the scope or content of the law:
1) Private law - that which regulates the relations of the members of a
community with one another; consists of Civil and Commercial laws
2) Public law - that which governs the relations of the individual with the State
or community as a whole; includes Political law, Criminal law, and Remedial
law
c. According to force and effect:
1) Mandatory laws - those which have to be complied with because they are
expressive of public policy: disobedience is punished either by direct
penalties or by considering an act or contract void
e.g. a donation of real property must be in a public instrument to be
valid to be valid as between the parties (Art. 729, NCC)
2) Permissive laws - those which may be deviated from, if the individual so
desires
e.g. in the case of hidden treasure, the finder gets 50% and the owner
of the land on which it is found gets 50%. (Art. 438, NCC). However, by
agreement, the proportion can be changed.
CIVIL LAW
- 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
Mass of precepts
Determines and regulates the relations of assistance, authority and obedience existing:
- among members of a family
- among members of a society
Purpose: protection of private interest, family relations and property rights.

CIVIL CODE
- a compilation of existing civil laws, scientifically arranged into books, titles, chapters, and sub-
heads and promulgated by legislative authority
Collection of legal provisions
Regulates the private relations and determines the respective rights and obligations of
the members of civil society
With reference to persons, things and civil acts

Language: English text shall prevail in the interpretation; Spanish terms shall be interpreted
according to their original sources.
II. EFFECT AND APPLICATION OF LAWS
Republic Act No. 386:
Article 1. This act shall be known as the Civil Code of the Philippines.
Effectivity of the Civil Code of the Philippines
o The Civil Code of the Philippines took effect on Aug. 30, 1950. This date is exactly one year
after the Official Gazette publishing the Code was released for circulation, the said release
having been made on Aug. 30, 1949. (Lara v. Del Rosario, 94 Phil. 778)

A. Effectivity of laws

Article 2. Laws shall take effect after 15 days following the completion of their
publication in the Official Gazette, or in a newspaper of general circulation, unless otherwise
provided (as amended by E.O. 200, 18 June 1987).

Tanada v. Tuvera - UNLESS OTHERWISE PROVIDED... refers to the date of effectivity and not to
the requirement of publication, which cannot in any event be omitted; PUBLICATION is
INDISPENSABLE.

Omission would offend DUE PROCESS insofar as it would deny the public the knowledge of
the laws that are supposed to govern them; Section 6 of the Bill of Rights recognizes "the
right of the people to information on matters of public concern."

The term "laws" should refer to ALL LAWS and not only to those of general application;
Presidential Decrees and Executive Orders, Administrative rules and regulations must also
be published if their purpose is to ENFORCE or IMPLEMENT EXISTING LAW including even
those naming a public place after a favored individual or exempting him from certain
prohibitions or requirements.

The circulars issued by the MONETARY BOARD must be published if they are meant not
merely to interpret but to "FILL IN THE DETAILS" of the Central Bank Act.

INTERPRETATIVE REGULATIONS AND THOSE MERELY INTERNAL IN NATURE, that is,
regulating only the personnel of the administrative agency and not the public, need not be
published. Neither is publication required of the so-called LOI issued by administrative
superiors concerning the rules or guidelines to be followed by their subordinates in the
performance of their duties.

The charter of a city must be published notwithstanding that it applies to only a portion of
the national territory and directly affects only the inhabitants of that place.
PUBLICATION MUST BE IN FULL or it is no publication at all since its purpose is to inform the
public of the contents of the laws.

o Phil. International Trading Corp. v. Angeles, 21 October 1996
An Administrative Order is not exempt from Article 2 and regulations must also be
published if their purpose is to enforce or implement existing law pursuant also to a valid
delegation.
The administrative order issued by PITC dated August 30, 1989 was not published
in the Official Gazette or in a newspaper of general circulation. Hence, the law was invalid
when obligations were supposed to take effect.


B. Ignorantia Legis Non Excusat
Art. 3. Ignorance of the law excuses no one from compliance therewith.
Latin ignorantia legis non excusat.
Applicability - applies to all domestic laws, mandatory or prohibitive, not to permissive or
suppletory laws, and whether substantive or remedial on grounds of expediency, policy, and
necessity, to prevent evasion of the law. However, this maxim is not applicable to permissive or
suppletory laws. Ignorance of foreign law is not ignorance of the law but ignorance of the fact
because foreign laws must be alleged and proved as matters of fact, there being no judicial notice of
said foreign laws.
Processual Presumption If the foreign law is not properly alleged and proved, the presumption
is that it is the same as our law.
Ignorance of fact eliminates criminal intent as long as there is no negligence; Ignorance of law is not
an excuse for complying with the law.
o Laureano v. CA, 2 February 2000
The Philippines laws should be applied in this case because the defendant who
claims the applicability of the Singapore laws has the burden of proof but defendant
failed to do so. Therefore, the SC decided to apply processual presumption.

o Yao Kee v. Sy Gonzales, 167 S 736
Well-established in this jurisdiction is the principle that Philippine courts cannot
take judicial notice of foreign laws. They must be alleged and proved as any other
fact. Accordingly, in the absence of proof of the Chinese law on marriage, it should
be presumed that it is the same as ours. For failure to prove the foreign law or
custom, and consequently the validity of the marriage in accordance with said law
or custom, the marriage between Yao-Kee and Sy-Kiat cannot be recognized in this
jurisdiction.

C. Lex prospicit, Non Respicit

Art. 4: Laws shall have no retroactive effect, unless the contrary is provided.
Basis and Purpose
The general rule, laws are prospective, not retroactive. If the rule was that laws were
retroactive, grave injustice would occur, for these would punish individuals for violations of laws
not yet enacted. While ignorance of the law does not serve as an excuse, such ignorance refers only
to laws that have already been enacted.
Exceptions:
a. If the laws themselves provide for retroactivity
- but in no case must an ex post facto law be passed
b. If the laws are remedial in nature
- because no vested rights in the rules of procedure
c. If the statute is penal in nature, provided:
i. It is favorable to the accused or to the convict;
ii. And that the accused or convict is not a habitual delinquent
d. If the laws are of an emergency nature and are authorized by the police power of the
government
e. If the law is curative
- to cure errors and irregularities
- but must not impair vested rights nor affect final judgments
f. If a substantive rights be declared for the first time, unless vested rights are
impaired
- the Supreme Court has defined vested right as some right or interest in property
that has become fixed and established that it is no longer open to controversy
Limitations:
Ex post facto law
Impairment of obligation and contracts

o Aruego, Jr. v. CA, 254 S 711
The present law cannot be given retroactive effect insofar as the instant case is
concerned, as its application will prejudice the vested right of the respondent,
Antonia Aruego, to have her case decided under Article 285 of the Civil Code. The
right was vested to her by the fact that she filed her action under the regime of the
Civil Code.
The trial court, which acquired jurisdiction over the case by the filing of the
complaint, never lost jurisdiction over the same despite the passage of E.O. No. 209.
The ruling reinforces the principle that the jurisdiction of a court, whether in
criminal or civil cases, once attached cannot be ousted by subsequent happenings or
events. The Supreme Court denied the petition and affirmed the decision of the trial
court.
o Bernabe v. Alejo, 21 January 2002
The Supreme Court held that Article 285 of the civil Code is a substantive law, as it
gives Adrian the right to file his petition for recognition within four years from
attaining majority age. Therefore, the Family Code cannot impair or take Adrians
right to file an action for recognition, because that right had already vested prior to
its enactment. Born in 1981, Adrian was only seven years old when the Family Code
took effect and only twelve when his alleged father died in 1993. The minor must be
given his day in court.

D. Mandatory/ Prohibitory Laws
Definition: Those which have to be complied with, because they are expressive of public policy.
Art. 5. Acts executed against the provisions of mandatory or prohibitory laws shall be void,
except when the law itself authorizes their validity.
Effect of Violation of Mandatory or Prohibitory Laws:
General rule: Acts executed against the provisions of mandatory or prohibitory laws shall be
void.
Exceptions:
a.) When the law itself authorizes their validity.
b.) When the law makes the act merely voidable.
c.) When the law makes the act valid but subjects the wrongdoer to criminal responsibility.
d.) When the law makes the act itself void but recognizes legal effects flowing therefrom.
e.) When the law itself makes certain acts valid although generally void.
E. Waiver of Rights
Art. 6. Rights may be waived, unless the waiver is contrary to law, public order, public
policy, morals, or good customs, or prejudicial to a third person with a right recognized by
law.
Rules for the Waiver of Rights
General rule: Rights can be waived.
Exception: When the waiver is contrary to law, public order, public policy, morals, or good
customs, or prejudicial to a third person with a right recognized by law.
Rights the power or privilege given to one person and as a rule demandable of another.
Rights may be:
Real Rights (jus in rem) enforceable against the whole world. (Absolute rights)
Personal Rights (jus in personam) enforceable against a particular individual.
(Relative Rights)
Waiver the intentional or voluntary relinquishment of a known right, or such conduct as
warrants an inference of the relinquishment of such right.
Requisites of 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 certain formalities.
5. The waiver must not be contrary to law, public order, public policy, morals or good customs,
or prejudicial to others with a right recognized by law.

Rights which cannot be waived:
1. natural rights
2. alleged rights (future rights)
3. those which renunciation would infringe public policy
4. those which renunciation is prejudicial to a third person with a right recognized by law.

o People v. Morial, 15 August 2001
A person under custodial investigation enjoys the right to counsel from its inception
so does he enjoy such right until its termination. Even granting that accused consented to
Atty. Aguilar during the investigation and to answer questions during the lawyers absence,
such consent was an invalid waiver of his right to counsel and his right to remain silent.
The right cannot be waived unless the same is made in writing and with the presence of a
counsel.
F. Judicial Application and Interpretation of Laws
Art. 8. Judicial decisions applying or interpreting the laws or the Constitution shall form a
part of the legal system of the Philippines.
Are Judicial Decisions Laws?
Judicial decisions, though not laws, are evidence, however, of what the laws mean and this is
why they are part of the legal system of the Philippines. The interpretation placed upon the
written law by competent court has the force of law.
Stare Decisis Non Quieta Movere (adherence to precedents)
States that once a case has been decided one way, then another case, involving exactly the
same point at issue, should be decided in the same manner.
Ratio Decidendi
Final judgment which states the reason for such judgment
Obiter Dictum
Opinions not necessarily to the determination of a case. They are not binding and cannot
have the force of judicial precedents.
G. Rules on Application and Interpretation of Laws
Art. 9. No judge or court shall decline to render judgment by reason of the silence, obscurity
or insufficiency of the laws.
Dura Lex Sed Lex
The law may be hard, but it is still the law.
o Pp. v. Veneracion, 249 S 251
The Rules of Court mandates that after an adjudication of guilt, the judge should
impose "the proper penalty and civil liability provided for by the law on the accused."

This
is not a case of a magistrate ignorant of the law. This is a case in which a judge, fully aware
of the appropriate provisions of the law, refuses to impose a penalty to which he disagrees.
In so doing, respondent judge acted without or in excess of his jurisdiction or with grave
abuse of discretion amounting to a lack of jurisdiction in imposing the penalty of Reclusion
Perpetua where the law clearly imposes the penalty of Death. The case is hereby
REMANDED to the Regional Trial Court for the imposition of the penalty of death upon
private respondents in consonance with respondent judge's finding that the private
respondents in the instant case had committed the crime of Rape with Homicide under
Article 335 of the Revised Penal Code, as amended by Section 11 of Republic Act No. 7659,
subject to automatic review by the SC of the decision imposing the death penalty.

Duty of the Court to Render Judgment
The court must give a decision , whether he knows what law to apply or not.
Effect of Silence, Obscurity or Insufficiency of Laws
The court may apply any rule he desires as long as the rule chosen is in harmony with
general interest, order,morals and public pplicy.
Judicial Aids
a. Customs which are not contrary to law, public order, and public order
b. Decisions of foreign and local courts on similar cases
c. Opinions of highly qualified writers and professors
d. Rules of statutory construction
e. Principles laid down in analogous instances.

H. Cessante Ratione Cessat Ipsa Lex in Criminal Law
When the reason for the law ceases, the law automatically ceases to be one.
Art. 10. In case of doubt in the interpretation or application of laws, it is presumed that the
lawmaking body intended right and justice to prevail.
Presumption
Interpret not by the letter that kill but by the spirit that gives life
o Phil. Rabbit Bus Lines v. Arciaga, 148 S 438
Sec 3. of Rule 38 of the Rules of Court provides for a petition to be filed within sixty (60)
days after the petitioner learns of the judgment and in this case the Petition for Relief was
filed 61 days after the receipt of the notice of the dismissal. Furthermore, the counsel for
private respondents did not move for reconsideration of the Order for dismissal, nor for
new trial. Neither did he appeal, thereby allowing the decision to become final and
executory.
The private respondent could have availed of the sixty day period provided for by
Rule 38 to file Petition for relief of judgment but he allowed the opportunity to lapse, thus,
the rule of equity is not applicable in this case. Moreover, the petitioner did not satisfactory
showed that he has faithfully and strictly complied with the provisions of the said Rule. He
cannot invoke equity as a ground for the reopening of the case. Indeed, to him is applicable,
the well known maxim that, equity aids the vigilant, not those who slumber on their
rights.
o Ursua v. CA, 10 April 1996
Ursua is acquitted of the crime charged. C.A No. 142, approved on November 7, 1936
entitled An Act to Regulate the Use of Aliases, was amended by R.A. No. 6085 on August 4
1969. C.A. No. 142 as amended was made primarily to penalize the act of using an alias
name publicly and in business transactions in addition to his real name unless such alias
was duly authorized by proper judicial proceeding.
The fact that the petitioner introduced himself in the Office of the Ombudsman as
Oscar Perez served only the request of his lawyer to obtain a copy of the complaint in
which the petitioner was a respondent. There is no evidence showing that he had used or
was intending to use that name as his second name in addition to his real name. Hence, the
use of a fictitious name or a different name belonging to another person in a single instance
without any sign or indication that the user intends to be known by this name in addition to
his real name from that day forth does not fall within the prohibition contained in C.A. No.
142 as amended by R.A. 6085. There exists a valid presumption that undesirable
consequences were never intended by a legislative measure and that a construction of
which the statue is fairly susceptible is favored.

Art. 13: Computation of Periods
Year: 365 days; month: 30 days; day: 24 hours; night: sunset to sunrise; week: 7 consecutive
days.

Calendar month: if months are designated by their name, they shall be computed by the
number of days which they respectively have.

Computation of periods: the first day shall be excluded, and last day included, unless the latter
is a Sunday or a legal holiday, in which event, the time shall run until the end of the next day which
is neither a Sunday or a legal holiday.

When the act and the period are CONTRACTUAL, the act must be done on the last day, even if
the latter is a Sunday or a legal holiday.

o Labad v. University of Southern Phil., 9 August 2001
Based on Section 1, Rule 22 of the Rules of Court and as applied in several cases,
where the last day for doing any act required or permitted by law falls on a Saturday, a
Sunday, or a legal holiday in the place where the court sits, the time shall not run until the
next working day. In this case, petitioner still had until December 28, 1998, a Monday and
the next business day to move for a 15-day extension considering that December 26, 1998,
the last day for petitioner to file her petition for review fell on a Saturday. The motion for
extension filed on December 28, 1998 was thus filed on time since it was filed before the
expiration of the time sought to be extended.

I. Applicability of Customs
Article 11. Customs which are contrary to law, public order or public policy shall not be
countenanced.

Article 12. A custom must be proved as a fact, according to the rules of evidence.
Custom
A custom is a rule of human action (conduct) established by repeated acts and uniformly
observed or practiced as a rule of society, thru the implicit approval of the lawmakers, and
which is obligatory and legally binding.
Requisites:
a. A custom must be proved as a fact, according to the rules of evidence.
b. The custom must not be contrary to law, public order or public policy.
c. There must be a number of repeated acts.
d. The repeated acts must have been uniformly performed.
e. There must be a juridical intention to make a rule of social conduct.
f. There must be a sufficient lapse of time.

Custom Propter Legem v. Custom Contra Legem
Custom propter legem- in accordance with the law
Custom contra legem against the law
J. How Laws Lose Their Effectivity
Article 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.
1. Lapse of a Law:
laws which, without any repeal, cease to have effect because they lapse by their own terms.
A law may expressly provide that it shall be effective only for a fixed period.

Laws may lapse without the necessity of any repeal as exemplified by the law granting the
President, Emergency Powers or the annual appropriations law.
2. Repeal:
Annulment of a law by a subsequent one.
Express Repeal and Implied Repeal:
Repeal of repealing law: The law first repealed shall not be revived unless so expressly
provided. But if the prior law was repealed, not expressly but by implication, the repeal of the
repealing law will revive the prior law, unless the language of the last law provides otherwise.
Implied repeal- insofar as there are inconsistencies between a prior and a subsequent law
Effect of Repeal of Repealing Law on Law First Repealed
a. When a law which expressly repeals a prior law is itself repealed, the law first repealed
shall not thereby revived, unless expressly so provided.
b. when a law which repeals a prior law, not expressly but by implication, is itself repealed,
the repeal of the repealing law revives the prior law, unless the language of the repealing
law provides otherwise.
3. Declaration of Unconstitutionality
Generally, an unconstitutional law confers no right, creates no office, affords no protection
and justifies no acts performed under it, there are instances when the operation and effects of
the declaration of its unconstitutionality may be relaxed or qualified because the actual
existence of the law prior to such declaration is an operative fact and may have consequences
which cannot justly be ignored.
Supremacy of the Constitution
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.

K. Binding Effect of Laws
Art. 14 in relation to Art. 2, Revised Penal Code
Territoriality and Generality
Territoriality: Penal laws and those of public security and safety shall be enforceable
throughout the territorial jurisdiction of the Philippines, subject to the principles of
public international law and to treaty stipulation.
Generality: Penal laws and those of public security and safety shall be obligatory upon all
who live or sojourn in Philippine territory, subject to the principles of public international
law and to treaty stipulation.

Exceptions
1. Principles of public international law.
Treaty stipulations: VFA
Laws of preferential application: RA 75
2. The presence of treaty stipulations.

Ex-territoriality
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.
o Assali v. Commissioner of Customs, 26 S 382
Since the ship is registered in the Philippines, it is subjected to our Revised Penal
Code, even outside our territorial jurisdiction. Likewise, in international law, it was agreed
upon that a state has the right to protect itself as well as its revenues, a right not limited to
its own territory but extending to the high seas.

L. Theory of Statutes/ Conflict of Law Rules
Nationality/Personal Theory
- the status and capacity of an individual are generally governed by the law of his
nationality.

Nationality principle: 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: the sum total of a persons rights, duties, and capacities.

Characteristics of Status:

a. It is inalienable.
b. It is imprescriptible.
c. It cannot be the object of compromise.
d. The action to claim it cannot be renounced.
e. The rights arising from it cannot be exercised by creditors.

Protective Principle: Art. 17, par. 3
Prohibitive laws concerning persons, their acts or property, and those which have for their
object public order, public policy and good customs shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions agreed upon in a foreign country.
(11a)

o Recio v. Recio, 2 October 2001
The Court decided that a divorce obtained abroad by an alien may be recognized in
the Philippine jurisdiction, provided such decree is valid according to the national law of
the foreigner. Thus, the Court declares the marriage between Grace J. Garcia and Rederick
A. Recio, a naturalized Australian citizen, solemnized on January 12, 1994 at Cabanatuan
City as dissolved and both parties can now remarry under existing and applicable laws to
any and/or both parties.

o Llorente v. CA, 23 November 2000
The Court recognized the divorce obtained by Lorenzo H. Llorente from his first wife
Paula was valid and recognized in this jurisdiction as a matter of comity
Furthermore, the clear intent of Lorenzo to bequeath his property to his second wife
and children by her is glaringly shown in the will he executed. The Court does not wish to
frustrate his wishes, since he was a foreigner, not covered by our laws on family rights
and duties, status, condition and legal capacity.
Whether the will is intrinsically valid and who shall inherit from Lorenzo are issues
best proved by foreign law which must be pleaded and proved.

o Van Dorn v. Romillo, 139 S 139
Owing to the nationality principle embodied in article 15 of the Civil Code, only
Philippines nationals are covered by the policy against absolute divorces. Aliens may obtain
divorces abroad, which may be recognized in the Philippines, provided they are valid
according to their national law. A divorce decree granted by a U.S. Court between a Filipina
and her American husband is binding on the American husband. Since the couple had
obtained a divorced in Nevada, the husband is estopped from asserting his rights over
supposed conjugal property. The American husband in this instance who was granted
absolute divorce with his Filipina wife is cut off from marital and successional rights with
the latter.

Lex Rei Sitae (Mobilia Sequntur Personam abandoned): Art. 16
Real property as well as personal property is subject to the law of the country where it is
situated.
Exception: National Law shall govern:
(1.) intestate and testamentary succession (capacity to succeed), both with respect to the
(2.) order of succession and to the
(3.) amount of successional rights and to the
(4.) intrinsic validity of testamentary provisions shall be regulated by the national law of the
person whose succession is under consideration, whatever maybe the nature of the property and
regardless of the country wherein said property may be found.

In contracts where the real property is given as security, the principal contract shall be
governed by the proper law of the contract, but the accessory contract shall be governed
by this article.


Domiciliary Theory
The basis for determining personal law of an individual is his domicile.
Renvoi
It literally means a referring back. It arises when one state follows the nationality theory
and the other the domiciliary theory, the problem may be referred back to the law of the first state.
o Aznar v. Garcia, 7 S 95
Art. 16 of the Philippine Civil Code states that intestate and testamentary
successionsshall 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
where said property may be found. Since Edward Christensen was a California citizen, the
Philippines where he executed his testament referred back to the laws of which he was a
citizen of California, USA. However, no single American law governing the validity of
testamentary provisions was found, therefore it referred to no other than the private law of
the state of which the decedent was a citizen State of California. Referring then to
California Civil Code, Article 946 authorizes the reference or return of the question to the
law of the testators domicile. Finding therefore that Philippines is the domicile of the
deceased, the validity of the provisions of his will depriving his acknowledged natural child,
the appellant, should be governed by the Philippine Law, pursuant to the Civil Code of
California, not by the internal law of California.

o Bellis v. Bellis, 20 S 358
The children are not entitled to their legitimes for under Texas Law which must be
applied because it is the national law of the deceased there are no legitimes.
The renvoi doctrine, applied in Testate Estate of Edward Christensen, Adolfo Aznar
v. Christensen Garcia cannot be applied. Said doctrine is usually pertinent where the
decedent is a national of one country and a domiciliary of Texas at the time of his death. So
that even assuming that Texas has a conflicts of law rule providing that the law of the
domicile should govern, the same would not result in a renvoi to Philippine law, but would
still refer to Texas law because the deceased was both a citizen and a domiciliary of Texas.

o PCIB v. Escolin, 56 S 266
Applying the renvoi doctrine, there can be no question that Philippine law governs
the testamentary provisions in the Last Will and Testament of the deceased Linnie Jane
Hodges, as well as the successional rights to her estate, both with respect to movables, as
well as immovables in the Philippines.

Lex Loci Celebrationis: Art. 17, pars. 1 and 2
It is a principle which applies the law of the place where the contract was executed as far as the
formalities and solemnities (extrinsic validity) are concerned.
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.

o American Airlines v. Court of Appeals, 9 March 2000
The Warsaw Convention to which the Philippines is a party and which has the force
and effect of law in this country applies to all international transportation of persons,
baggage, or goods performed by an aircraft gratuitously or for hire.
The third option of the plaintiff under Art. 28 of the Warsaw Convention e.g., to sue
in the place of business of the carrier wherein the contract was made, is therefore, Manila,
and Philippine courts are clothed with jurisdiction over this case.

Lex loci voluntatis:
The intrinsic validity of contracts shall be governed by the law of the place voluntarily
selected.

Lex loci intentionis:
The intrinsic validity of contracts shall be governed by the law of the place intended by the
parties to the contract.
M. Suppletory Application of the Civil Code of the Philippines
Art. 18. In matters which are governed by the Code of Commerce and special laws, their
deficiency shall be supplied by the provisions of this Code.

III. HUMAN RELATIONS

Right legally enforceable claim
Obligation a legal and/or moral duty
Fundamental Human Rights.
a. right to life
b. right to liberty
c. right to property

Characteristics/ Attributes of Human Rights
a. inalienable it cannot be passed by the State or through certain contract.
b. Inherent innate to human existence.
c. Indivisible

A. Standards/ Norms of Human Rights
Theory of Abuse Rights
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.
Elements:
1. Legal right.
2. Exercise of such right in bad faith.
3. Intent to prejudice others.

o Go v. Cordero, 4 May 2010
The act of Go, Landicho and Tecson in inducing Robinson and AFFA to enter into
another contract directly with ACG Express Liner to obtain a lower price for the second
vessel resulted in AFFAs breach of its contractual obligation to pay in full the
commission due to Cordero and unceremonious termination of Corderos appointment
as exclusive distributor.
Cordero was practically excluded from the transaction when Go, Robinson, Tecson
and Landicho suddenly ceased communicating with him, without giving him any
explanation. While there was nothing objectionable in negotiating for a lower price in
the second purchase of SEACAT 25, which is not prohibited by the Memorandum of
Agreement, Go, Robinson, Tecson and Landicho clearly connived not only in ensuring
that Cordero would have no participation in the contract for sale of the second SEACAT
25, but also that Cordero would not be paid the balance of his commission from the sale
of the first SEACAT 25. This, despite their knowledge that it was commission already
earned by and due to Cordero. Thus, the actuations of Go, Robinson, Tecson and
Landicho were without legal justification and intended solely to prejudice Cordero.
Respondents acted in bad faith and in utter disregard of the rights of Cordero under
the exclusive distributorship agreement.
The failure of Robinson, Go, Tecson and Landico to act with fairness, honesty and
good faith in securing better terms for the purchase of high-speed catamarans from
AFFA, to the prejudice of Cordero as the duly appointed exclusive distributor, is further
proscribed by Article 19 of the Civil Code: 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.
Furthermore, the SC explained that when a right is exercised in a manner which
does not conform with the norms enshrined in Article 19 and results in damage to
another, a legal wrong is thereby committed for which the wrongdoer must be
responsible. The object of this article, therefore, is to set certain standards which must
be observed not only in the exercise of ones rights but also in the performance of ones
duties. These standards are the following: act with justice, give everyone his due and
observe honesty and good faith. Its antithesis, necessarily, is any act evincing bad faith
or intent to injure. Its elements are the following: (1) There is a legal right or duty; (2)
which is exercised in bad faith; (3) for the sole intent of prejudicing or injuring another.
When Article 19 is violated, an action for damages is proper under Articles 20 or 21 of
the Civil Code. Article 20 pertains to damages arising from a violation of law x x x.
Article 21, on the other hand, states: 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.
Article 21 refers to acts contra bonus mores and has the following elements: (1)
There is an act which is legal; (2) but which is contrary to morals, good custom, public
order, or public policy; and (3) it is done with intent to injure.
A common theme runs through Articles 19 and 21, and that is, the act complained of
must be intentional.

o Principio v. Barrientos, 478 S 693
It was held that the Ombudsman cannot impute bad faith on the part of the
petitioner on the assumption that he, together with other BSP officials, was part of the
cabal to apply pressure on RBSMI to sell out by subjecting it to many impositions
through the Monetary Board. Bad faith is never presumed, while good faith is always
presumed. The Ombudsman should have first determined the facts indicating bad faith
instead of relying on the tenuous assumption that there was an orchestrated attempted
to force RBSMI to sell out.

o Villanueva v. Rosqueta, 19 January 2010
Under the abuse of right principle found in Article 19 of the Civil Code, a person
must, in the exercise of his legal right or duty, act in good faith. He would be liable if he
instead acts in bad faith, with intent to prejudice another. Complementing this principle
are Articles 20 and 21 of the Civil Code which grant the latter indemnity for the injury
he suffers because of such abuse of right or duty.
Petitioner Villanueva claims that he merely acted on advice of the OSG when he
allowed Valera to assume the office as Deputy Commissioner since respondent
Rosqueta held the position merely in a temporary capacity and since she lacked the
Career Executive Service eligibility required for the job.
But petitioner Villanueva cannot seek shelter in the alleged advice that the OSG gave
him. Surely, a government official of his rank must know that a preliminary injunction
order issued by a court of law had to be obeyed, especially since the question of Valeras
right to replace respondent Rosqueta had not yet been properly resolved.
That petitioner Villanueva ignored the injunction shows bad faith and intent to spite
Rosqueta who remained in the eyes of the law the Deputy Commissioner. His exclusion
of her from the centennial anniversary memorabilia was not an honest mistake by any
reckoning. Indeed, he withheld her salary and prevented her from assuming the duties
of the position. As the Court said in Amonoy v. Spouses Gutierrez, a partys refusal to
abide by a court order enjoining him from doing an act, otherwise lawful, constitutes an
abuse and an unlawful exercise of right.


Requirements for Actionable Wrong:
a. there is an injury, loss or damage suffered by a person
b. such injury, loss or damage is the proximate cause of anothers act or omission.
c. such injury, loss or damage requires compensation or reparation.

o University of the East v. Jader, 17 February 2000
The SC ordered that petitioner should pay respondent the sum of Thirty-five
Thousand Four Hundred Seventy Pesos (P35, 470.00), with legal interest of 6% per annum
computed from the date of filing of the complaint until fully paid but not entitled to moral
damages. The SC did not believe that respondent suffered shock, trauma and pain because
he could not graduate and could not take the bar examinations. The SC stated that it
behooved on respondent to verify for himself whether he has completed all necessary
requirements to be eligible for the bar examinations. Respondent should have been
responsible enough to ensure that all his affairs, specifically those pertaining to his
academic achievement, are in order.

o Cruz v. NLRC, 7 February 2000
Private respondents illegally dismissed the petitioner because they failed to comply
with the requirement that an employee to be dismissed should be given two written
notices. The first notice is to apprise the employee of the particular acts or omissions by
reason of which her dismissal has been decided upon; and the second is to inform the
employee of the employers decision to dismiss him. Having failed to do the requirement,
respondents have not given the petitioner due process which makes their act illegal and
void. For this, petitioner is entitled to recover moral and exemplary damages.

o Globe McKay v. Barrios, 119 S 461
A telegraph company is a public service corporation owing duties to the general
public and is liable to any member of the public whom it owes a duty for damages
proximately flowing from a violation of that duty.

o RCPI v. CA, 143 S 657
The complaint against RCPI is based on a telegram sent through its Manila Office to
the offended party, Dionela. Dionela alleged that the defamatory words (sa iyo walang
pakinabang dumating-ka diyan-wala kang padala ditto-kahit bulbul mo) on the telegram sent
to him not only wounded his feelings but also caused him undue embarrassment and affected
adversely his business as well because other people have come to know of the said defamatory
words. RCPI, as a defense, alleged that the additional words in Tagalog was a private joke
between the sending and receiving operators and that they were not addressed to or intended
for plaintiff and therefore did not form part of the telegram and that the Tagalog words are not
defamatory.
The SC held that in most cases, negligence must be proved in order that plaintiff may
recover. However, since negligence may be hard to substantiate in some cases, the SC may
apply the doctrine of RES IPSA LOQUITUR or the thing speaks for itself, by considering the
presence of facts or circumstances surrounding the injury.

Exception:
Damnum absque injuria ( there is damage but no legal injury)
Injury: It refers to the legal wrong to be redressed.
Damage: It refers to the amount of money awarded by the court to compensate for the loss or
injury suffered.
Purpose:
It is awarded to compensate the plaintiff for the loss or damage that he suffered, not
to enrich him, or to impose a penalty on the wrongdoer.
Kinds: (MANTLE)
a. moral damages
b. actual or compensatory damages
c. nominal damages
d. temperate damages
e. liquidated damages
f. exemplary damages

B. Liability Ex-Maleficio or Ex-Delicto: (Art. 20 in rel. to Art. 100 of the Revised Penal
Code)
Article 20. every person who, contrary to law, willfully or negligently causes damage to
another, shall indemnify the latter for the same.

Civil liability for delict: Every person who, contrary to law, willfully (dolo) or negligently
(culpa) causes damage to another, shall indemnify the latter for the same.

ART. 100 RPC: Every person criminally liable for a felony is also civilly liable.

Civil liability for quasi-delict: Also, whoever by act or omission causes damage to another, there
being fault or negligence, but no pre-existing contractual relation between the parties, is obliged to
pay for the damage done (Art. 2176).
C. Acts Contrary to Morals, Good Customs or Public Policy
Contra bonus mores
Art. 21. Any person who willfully causes loss or injury to another in manner that is contrary
to morals, good customs or public policy shall compensate the latter for the damage.
Coverage: any act or omission not contrary to law but contrary to morals, good customs and public
policy.
Misconduct: implies a wrongful intention and not merely error in judgment.

Breach of promise to marry

General rule: Not an actionable wrong

Breach of promise to marry as an actionable wrong:
1. When there has been sexual intercourse:

a. The aggrieved party may ask the other to RECOGNIZE THE CHILD, should there be
one, and PROVIDE SUPPORT to said child.
b. Sue for MORAL DAMAGES, if there be criminal or moral seduction, but not if the
intercourse was due to mutual lust; if the cause be the promise to marry, and the
effect be the carnal knowledge, there is criminal or moral seduction.
c. Sue for ACTUAL DAMAGES, should there be any, such as the expenses for the
wedding preparations.

2. When there was no sexual intercourse:

a. Sue for MORAL DAMAGES in case there has been a deliberate desire to inflict loss or
injury or there has been an evident abuse of right.
b. Sue for ACTUAL DAMAGES, should there be any, such as the expenses for the
wedding preparations.

Qualified Seduction vs Simple Seduction
a. there is a moral ascendancy a. no moral ascendancy
b. the victim is virgin b. the victim is no longer virgin but has a
high reputation.

o Hermosisima v. CA, 109 P 629
The SC held that under the Civil Code, there can be no recovery of moral damages
for a breach of promise to marry, as such the omission in the Civil Code of the proposed
Chapter on breach of Promise Suits is a clear manifestation of legislative intent not to
sanction as such, suits for breach of promise to marry, otherwise many innocent man may
become the victims of designing and unscrupulous females. However, if there be seduction,
moral damages may be recovered under Art. 2219, Par.3 of Civil Code of the Philippines.
Francisco was morally guilt of seduction in this case. Soledad, the complainant, who was 10
years older, surrendered herself to him because overwhelmed by her love for him; she
wanted to bind him by having a fruit of their engagement even before they had the benefit
of the clergy. He was, therefore, ordered to pay a monthly pension of P30.00 for the support
of the child; P4500.00 representing the income that complainant had allegedly failed to
earn during her pregnancy and shortly after the birth of the child as actual compensatory
damages; P5000.00 as moral damages; and P500.00 as attorneys fees.

o Galang v. CA, 4 S 55
Beatriz Galang and Rodrigo Quinit were engaged but Rodrigos parents were
strongly opposed to their marriage. He wanted the marriage to take place after his
graduation while the appellee was impatient and wanted the marriage to be held at an
earlier date. On April 26, 1955, Rodrigos parents told him to leave the parental home in
view of his continued relations with Beatriz. On April 27, 1955, the couple lived as husband
and wife in the house of Adolfo Dagawan until May 9 when Rodrigo left and never returned.
The SC here held that moral damages for breach of promise to marry are not
collectible.

o Gashem Shookat Baksh v. CA, 219 S 115
The SC held that in the existing rule under our Civil Law, a breach of promise to
marry itself is not an actionable wrong. However, in this case, it applied Article 21 of the
Civil Code favoring the private respondent.
The SC found out the true character and motive of the petitioner, that is, he used
deception and took advantage of the situation of the private respondent (a high school
graduate and financially unstable) by proposing to support and marry her, just so he can
satisfy his lust. Thus, he clearly violated the Filipinos concept of morality and defied the
traditional respect was not going to marry her after all, she left him.

o Wassmer v. Velez, 12 S 648
The extent to which acts not contrary to law may be perpetrated with impunity, is
not limitless for Article 21 of the Civil Code provides that any person who wilfully 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 damages.
This is not a case of mere breach to marry. As stated, mere breach of promise to
marry is not an actionable wrong. But to formally set a wedding and go through all the
preparation and publicity, only to walk out of it when the matrimony is about to be
solemnized, is quite different.
This is palpably and unjustifiably contrary to good customs for which defendant
must be held answerable in damages in accordance with Article 21 of the Civil Code.
When a breach of promise to marry is actionable under Article 21 of the Civil Code,
moral damages may be awarded under Article 2219(10) of the said Code. Exemplary
damages may also be awarded under Article 2232 of said Code where it is proven that the
defendant clearly acted in a wanton, reckless and oppressive manner.

Article 20 Article 21
The act is contrary to law The act is contrary to morals, good
customs or public policy
The act is done either willfully or
negligently
The act is done willfully

D. Unjust Enrichment
Art. 22. Every person who through an act of performance by another, or any other means,
acquires or comes into possession of something at the expense of the latter without just or
legal ground, shall return the same to him.
Art. 23. Even when an act or event causing damage to another's property was not due to the
fault or negligence of the defendant, the latter shall be liable for indemnity if through the act
or event he was benefited.
Requisites of accion in rem verso:
1. One party must be enriched.
2. The other party suffered loss.
3. There must be a causal relation between the parties.
4. The enrichment must not be justifiable; otherwise, there can be no recovery.
5. There must be no other way to recover such as those based on contract, quasi-contract or
quasi-delict.
6. The indemnity cannot exceed the loss or enrichment, whichever is less.

The incapacity of the defendant to enter into contracts does not bar the accion in rem verso,
so long as he has been unjustly enriched.
The indemnity does not include unrealized profits because defendants enrichment is the
limit of his liability.

Solutio Indebiti: payment by mistake.
Art. 2154. If something is received when there is no right to demand it, and it was unduly
delivered through mistake, the obligation to return it arises.
Remedy:
Restitution: to return the thing acquired by mistake or without legal ground to possess.
o Puyat v. Zabarte, 26 February 2001
This is not a case of unjust enrichment. Unjust enrichment or solutio indebiti
contemplates payment when there is no duty to pay, and the person who receives the
payment has no right to receive it. The petitioner merely argues that the other two
defendants whom he represented were liable together with him. Likewise, there is no
foreign judgment that is contrary to law, morals, public policy or the canons of morality
obtaining in the contrary. The petition, therefore, is hereby denied. Double costs against
petitioner.

E. Unfair Competition
Art. 24. In all contractual, property or other relations, when one of the parties is at a
disadvantage on account of his moral dependence, ignorance, indigence, mental weakness,
tender age or other handicap, the courts must be vigilant for his protection.
Art. 24, In Contractual Relations:
Protection of the underdog: 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 of other handicap, the courts must be vigilant for his protection.
Such protection is only applicable in case of DOUBT as to the interpretation of law
governing the conflict between parties where one is at the disadvantage.

Parens patriae: literally means father or parent of his country; it is the sovereign power of
the state in safeguarding the rights of person under disability; it is the obligation to minimize the
risk to those who, because of their disability, are as yet unable to take care of themselves, in case
where the law is to be applied strictly.
Article 28. Unfair competition in agricultural, commercial or industrial enterprises or
in labor through the use of force, intimidation, deceit, machination or any other unjust,
oppressive or highhanded method shall give rise to a right of action by the person who
thereby suffers damage.
Art. 28, In Industrial, Agricultural and Commercial Enterprises including Labor
Prohibited competition: 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 high-handed method shall give rise to right of action by the person who
thereby suffers damages.

Characteristics: it must involve an injury to a competitor or trade rival, and it must involve
acts which are characterized as contrary to good conscience or unlawful.

Cutthroat competition: when a person starts an opposing place of business, not for the
sake of profit to himself, but regardless of loss, and for the sole purpose of driving his competitor
out of business so that later on, he can take advantage of the effects of his malevolent purpose.

F. Thoughtless Extravagance
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.
Remedy: Injunction
Filed by: Charitable Institution (either government or private)
G. Respect for Personality and Dignity of Others
Rights protected: Every person shall respect the personal dignity, personality, privacy, peace of
mind, personal security, family relations, and social intercourse.
Remedies: damages; prevention; other relief.

Prohibited acts:
1. Prying into the privacy of anothers 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.
5. Other similar acts.

Elements of alienation of affection between spouses:
1. Wrongful conduct of the defendant.
2. Loss of affection or consortium.
3. Causal connection between such conduct and loss.

A stranger would be liable irrespective of his good motives, if he interferes with family
relations, whereas a parent or close relative would not be liable unless there is malice proven
by the plaintiff. A distant relative could escape liability if he proves good faith and honest
motives.
The right to privacy is limited whenever the circumstances show a reasonable interest on the
part of the public in the conduct or affairs of persons who have become public characters.
Also, the right to privacy is limited by the privilege similar to that of fair comment in the law
of defamation.

Right to Privacy:
The right to be left alone or the right to be free from unwarranted publicity, or disclosure
and the right to live without unwarranted interference by the public in matters which the public is
not necessarily concerned.
Spheres of Privacy:
a. person
b. home/dwelling/residence
c. papers and effects
d. correspondence
e. bank deposits

o Concepcion v. CA, 31 January 2000
Concepcion, the petitioner and brother of the deceased husband of Florence, went to
Nestors apartment and accused him of committing adulterous relationship with Florence.
Nestor felt extreme embarrassment and shame. Florence even ceased to do business
with the spouses. The spouses started to quarrel as Allem became doubtful of her husbands
fidelity.
The SC held that Article 26 of the new Civil Code stressed the sacredness of human
personality, which is a concomitant consideration of every plan for human amelioration.
The rights of persons are amply protected, and damages are provided for violations of a
persons dignity, personality, privacy and peace of mind. Thus, the petitioner is liable to the
spouses for P50, 000 as moral damages, P25, 000 for exemplary damages, P10, 000 for
attorneys fees, plus costs of suit

H. Neglect or Refusal of Public Servant
Art. 27. Any person suffering material or moral loss because a public servant or employee
refuse 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.

Non-feasance - The omission of an act which a person ought to do.

Requisites:
1. The defendant is a public official charged with the performance of official duties.
2. There is a violation of an official duty in favor of an individual.
3. There is willfulness or negligence in the violation of such official duty.
4. There is injury to the individual.

Excuses for non-performance: impossibility of performance; contributory negligence of the
plaintiff; ministerial officer with no discretion where the law places on him the imperative duty of
obeying the order of a superior.

Good faith or absence of malice is not a defense for non-performance.

Misfeasance - The improper doing of an act which a person might lawfully do.
Malfeasance - The doing of an act which a person ought not to do at all.
o Amonoy v. Spouses Gutierrez, 15 February 2001
Though petitioner, under the Writ of Demolition issued by the RTC, commenced the
demolition, there was a continuation of the same after the issuance of a Temporary
Restraining Order, enjoining the demolition of respondents house, was issued by the
Supreme Court. Thus, costs against petitioner.
I. Action for Damages based on Crime / Delict
- Arts. 20, 29, 30 and 35 in rel. to Art. 100 of the RPC

Article 29. When the accused in a criminal prosecution is acquitted on the ground that his
guilt has not been proved beyond reasonable doubt, a civil action for damages for the same
act or omission may be instituted. Such action requires only a preponderance of evidence.
Upon motion of the defendant, the court may require the plaintiff to file a bond to answer for
damages in case the complaint should be found to be malicious.
If in a criminal case the judgment of acquittal is based upon reasonable doubt, the court shall
so declare. In the absence of any declaration to that effect, it may be inferred from the text of
the decision whether or not the acquittal is due to that ground.

Article 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.

Article 35. When a person, claiming to be injured by a criminal offense, charges another with
the same, for which no independent civil action is granted in this Code or any special law, but
the justice of the peace finds no reasonable grounds to believe that a crime has been
committed, or the prosecuting attorney refuses or fails to institute criminal proceedings, the
complaint may bring a civil action for damages against the alleged offender. Such civil action
may be supported by a preponderance of evidence. Upon the defendant's motion, the court
may require the plaintiff to file a bond to indemnify the defendant in case the complaint
should be found to be malicious.
If during the pendency of the civil action, an information should be presented by the
prosecuting attorney, the civil action shall be suspended until the termination of the
criminal proceedings.


It is impliedly instituted. Under art. 100 of the Revised Penal Code, a person criminally liable is also
civilly liable.
Parameters Criminal Aspect Civil Aspect
Parties involved State v. defendant Offended party v. defendant
Rules involved
Criminal procedure/penal
code
Civil procedure/civil code
Quantum of evidence
Proof beyond reasonable
doubt
Preponderance of evidence
Purpose
For punishment of the
offender
For reparation of damages

Civil action not barred by acquittal: Art. 29. When the accused in a criminal prosecution is
acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action
for damages for the same act or omission may be instituted.
Reason: difference in the proceedings.

Civil action barred by acquittal: whenever the accused has been found to be not the author of an
act, or that that supposed act attributed to the accused did not exist, this findings, resulting in an
acquittal, would bar a civil action for damages against the accuse.

Also, a separate civil action may be brought to demand civil liability arising from a criminal offense
even if no criminal proceeding is instituted (Art. 30).

Furthermore, a civil action may also be brought even if no independent civil action and criminal
action have been instituted (Art. 35).
Rule 111, Section 1, 2000 Rules of Criminal Procedure:
When the criminal action is instituted, the civil action for the recovery of civil liability
arising from the offense charged shall be deemed instituted unless the offended party waives the
civil action, reserves the right to institute it separately or institutes the civil action prior to the
criminal action.
Suspension of Separate Civil Action: Rule 111, Section 2, 2000 Rules of Criminal Procedure
After the criminal action has been commenced, the separate civil action arising therefrom
cannot be instituted until final judgment has been entered in the criminal action.
If the criminal action is filed after the said civil action has already been instituted, the latter
shall be suspended in whatever state it may be found before judgment on the merits. The
suspension shall last until final judgment is rendered in the criminal action
During the pendency of the criminal action, the running period of prescription of the civil
action which cannot be instituted separately or whose proceeding has been suspended shall be
tolled.
The extinction of the penal action does not carry with it extinction of the civil action.
However, the civil action based on delict shall be deemed extinguished if there is a finding in a final
judgment in the criminal action that the act or omission from which the civil liability may arise did
not exist.

Effect of Acquittal
a. If based on reasonable doubt (innocence), the civil liability is extinguished
b. If due to justifying circumstances, civil liability is extinguished.
Except: Avoidance of greater evil, in which case, civil liability remains.
c. If due to exempting circumstances, civil liability remains.

o Guaring v. CA, 269 S 283
The SC reversed the decision of the Court of Appeals and remanded the case back to
the Court of Appeals for a decision in accordance with law. The judgment of acquittal
extinguishes the liability of the accused for damages only when it includes a declaration
that the facts from which the civil might arise did not exist. Thus, the civil liability is not
extinguished by acquittal where the acquittal is based on reasonable doubt (PNB v. Catipon,
98 Phil. 286) as only preponderance of evidence is required in civil cases. Article 2176 of
the New Civil Code provides:
Art. 2176. Whoever by act or omission causes damage to another, there being fault
or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no
pre-existing contractual relation between the parties, is called a quasi-delict and is
governed by the provisions of this Chapter.
It is now settled that acquittal of the accused, even if based on a finding that he is not
guilty, does not carry with it the extinction of the civil liability based on quasi delict.

o Manantan V. CA, 29 January 2001
Our law recognizes two kinds of acquittal, with different effects on the civil liability
of the accused. First is an acquittal on the ground that the accused is not the author of the
act or omission complained of. This instance closes the door to civil liability. The second
instance is an acquittal based on reasonable doubt on the guilt of the accused. In the case at
bench, the acquittal was based on reasonable doubt; hence, petitioners civil liability was
not extinguished by his discharge.

J. Independent Civil actions
Independent civil action: 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.
It is one that is brought 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.
Evidence Required: Preponderance of Evidence.
Instances when the law grants independent civil action:
1. Art. 32 (breach of constitutional and other rights)
2. Art. 33 (in their generic sense: defamation; fraud; physical injuries)
3. Art. 34 (refusal or failure of a city/municipal police to give protection)
4. Art. 2177 (culpa-aquiliana)

o Bonite v. Zosa, 162 S 173
The SC held that when the accused in a criminal case 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 still be instituted against him, and only a preponderance of
evidence is required to hold the accused liable. The civil liability is not extinguished by
acquittal of the accused, where the acquittal is based on reasonable doubt. In the instant
case, the criminal complaint for homicide through reckless imprudence was dismissed on
the ground that the guilt of the accused (herein private respondent) was not proved beyond
reasonable doubt. Clearly, herein petitioners have the right to file an independent civil
action for damages, the acquittal of the accused in the criminal case notwithstanding.
Lastly, that petitioners actively participated in the prosecution of the criminal case
does not bar them from filing an independent and separate civil action for damages under
Article 29 of the Civil Code. The civil action based on criminal liability and a civil action
under Article 29 are two separate and independent actions

o Pp. v. Bayotas, 236 S 239
The SC held that the death of appellant Bayotas extinguished his criminal liability
and the civil liability based solely on the act complained of, i.e., rape. Consequently, the
appeal is dismissed without qualification.

o Mansion Biscuits v. CA, 23 November 1995
The acquittal of Ty Teck Suan and Siy Gui extinguished both their criminal and civil
liability as it is clear from the order acquitting them that the issuance of the checks in
question did not constitute a violation of B.P. Blg. 22.

Article 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 the press or to maintain a periodical publication;
(4) Freedom from arbitrary or illegal detention;
(5) Freedom of suffrage;
(6) The right against deprivation of property without due process of law;
(7) The right to a just compensation when private property is taken for public use;
(8) The right to the equal protection of the laws;
(9) The right to be secure in one's person, house, papers, and effects against unreasonable
searches and seizures;
(10) The liberty of abode and of changing the same;
(11) The privacy of communication and correspondence;
(12) The right to become a member of associations or societies for purposes not contrary to
law;
(13) The right to take part in a peaceable assembly to petition the Government for redress of
grievances;
(14) The right to be a free from involuntary servitude in any form;
(15) The right of the accused against excessive bail;
(16) The right of the accused to be heard by himself and counsel, to be informed of the
nature and cause of the accusation against him, to have a speedy and public trial, to meet the
witnesses face to face, and to have compulsory process to secure the attendance of witness in
his behalf;
(17) Freedom from being compelled to be a witness against one's self, or from being forced
to confess guilt, or from being induced by a promise of immunity or reward to make such
confession, except when the person confessing becomes a State witness;
(18) Freedom from excessive fines, or cruel and unusual punishment, unless the same is
imposed or inflicted in accordance with a statute which has not been judicially declared
unconstitutional; and
(19) Freedom of access to the courts.
In any of the cases referred to in this article, whether or not the defendant's act or
omission constitutes a criminal offense, the aggrieved party has a right to commence an
entirely separate and distinct civil action for damages, and for other relief. Such civil action
shall proceed independently of any criminal prosecution (if the latter be instituted), and
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.

Art. 32, Civil Liability for Violation of Constitutional Rights
It only requires a preponderance of evidence and the aggrieved party may ask for moral and
exemplary damages but in the latter case, it depends upon the discretion of the court.
Persons Responsible: Public officer or employee or any private individual.
When Responsibility Demandable from a Judge:
General Rule: The responsibility herein set forth is not demandable from a judge.
Exception: Unless his act or omission constitutes a violation of the Penal Code or other
penal laws (see Art. 204 207 of the Revised Penal Code).
o Cojuangco v. CA, 2 July 1999
Article 32 of the Civil Code states that: Any public officer or employee, or any private
individual, who directly or indirectly obstructs, defeats, violates, impedes or impairs any of
the following rights and liberties of another person shall be liable to the latter for damages:
xxx xxx xxx (6) The deprivation of property without due process of law. To be liable, it is
enough that there was a violation of the constitutional rights of petitioner, even of the
pretext of justifiable motives or good faith in the performance of ones duties. The
withholding of the prize winnings of petitioner without a properly issued sequestration
order clearly spoke of a violation of his property rights without due process of law. Mr.
Carrascoso is thereby ordered to pay petitioner nominal damages.

o Alcuaz v. PSBA, 161 S 7 [compared with Non v. Dames, 185 S 523]
It is provided in Par 137 Manual of Regulations for Private Schools, that when a
college student registers in a school, it is understood that he is enrolling for the entire
semester. Likewise, it is provided in the manual that the written contracts required for
college teachers are for one semester. It is thus evident that after the close of the first
semester, the PSBA-QC no longer has any existing contract either with the student or with
thee intervening teachers. Such being the case, the charge of denial of due process is
untenable. It is a time-honored principle that contracts are respected as the law between the
contracting parties.
Due process in disciplinary cases involving students does not entail proceedings and
hearings similar to those prescribed for actions and proceedings in court. Furthermore, the
court found out that petitioners were academically deficient while the intervening teachers
apart from participating in acts of illegality against the school committed various acts of
misconduct. The right of the school to refuse re-enrollment of students for academic
delinquency and violation of disciplinary regulation has always been recognized by the
court.

o Non v. Dames, 185 S 523
The court in Alcuaz, anchored its decision on the termination of contract theory.
But it must be repeatedly emphasized that the contract between the school and the student
is not an ordinary contract. Respondent school cannot justify its actions by relying on Par.
137 of the manual of Regulations for Private Schools. On the other hand, the manual
recognizes the right of the student to be enrolled in his course for the entire period he is
expected to complete it.
It is not denied that what incurred the ire of the school authorities were the student
mass actions conducted in Feb. 1988 and which led and/or participated by the petitioners.
Certainly, excluding students because of failing grades when the cause for the action taken
against them undeniably related to possible breaches of discipline not only is a denial of due
process but also constitutes a violation of the basis tenets of fair play.
Petitioners, who have been refused readmission and who have been effectively
excluded from respondent school for 4 semesters, have already been more than sufficiently
penalized for any breach of discipline they might have committed when they led and
participated in the mass actions that, according to respondents, resulted in the disruption of
classes. To still subject them to disciplinary proceedings would serve no useful purpose and
would only further aggravate the strained relations between petitioners and the officials of
the respondent school.

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

Art. 33, Civil Liability for Defamation, Fraud, Physical Injuries (In generic sense)
Defamation: any act, writing or utterance which tend to prejudice or humiliate another. It includes
slander and libel.
Fraud: Intentional deception to induce another to part with something of value or to surrender a
legal right, like, estafa or swindling.
Physical Injuries: it means bodily injury and not the crime of physical injuries. It includes
attempted, frustrated or consummated homicide, murder, parricide and infanticide so long
as there was physical injury.
o Arafiles v. Philippine Journalist, 25 March 2004
Article 33 contemplates a civil action for the recovery of damages that is entirely
unrelated to the purely criminal aspect of the case. A civil action for libel under this article
shall be instituted and prosecuted to final judgment and proved preponderance of evidence
separately from and entirely independent of the institution, pendency or result of the
criminal action because it is governed by the provisions of the New Civil Code and not by
the Revised Penal Code governing the criminal offense charged and the civil liability arising
therefrom.
The presentation of the news item subject of petitioners complaint may have been
in a sensational manner, but it is not per se illegal. Respondents could of course have been
more circumspect in their choice of words as the headline and first 7 paragraphs of the
news item give the impression that a certain director of the NIAS actually committed the
crimes complained by Despuig. The succeeding paragraphs sufficiently conveyed to the
readers, however, that the narration of events was only an account of what Despuig had
reported at the police headquarters. In determining the manner in which a given event
should be presented as a news item and the importance to be attached thereto, newspapers
must enjoy a certain degree of discretion.
The SC thus found that case against respondents has not been sufficiently
established by preponderance of evidence.

o International Flavors v. Argo, 10 Sept. 2001
Article 33 of the New Civil Code contemplates an action against the employee in his
primary civil liability. It does not apply against the employer to enforce its subsidiary
liability, because such liability arises only after conviction of the employee in the criminal
case or when the employee is adjudged guilty of the wrongful act in a criminal action and
found to have committed the offense in the discharge of his duties. Any action brought
against the employer based on its subsidiary liability before conviction of its employee is
premature.
Having established that respondents did not based their civil action on IFFIs
primary liability under Article 33 but claimed damages from IFFI based on its subsidiary
liability as employer of Costa is premature.

o Marcia v. CA, 120 S 7
Article 33 speaks only of defamation, fraud and physical injuries. The injuries
suffered by the petitioners were alleged to be the result of criminal negligence; they were
not inflicted with malice. Hence, no independent civil action for damages maybe instituted
in connection therewith. Furthermore, Section 3 (c), Rule 111 of the Rules of Court states
that extinction of the penal action does not carry with it extinction of the civil, unless the
extinction proceeds from which the civil might arise did not exist. Otherwise stated, unless
the act from which the civil liability arises is declared to be non-existent in the final
judgment, the extinction of the criminal liability will not carry with it the extinction of the
civil liability.


Article 34. When a member of a city or municipal police force refuses or fails to render aid or
protection to any person in case of danger to life or property, such peace officer shall be
primarily liable for damages, and the city or municipality shall be subsidiarily responsible
therefor. The civil action herein recognized shall be independent of any criminal
proceedings, and a preponderance of evidence shall suffice to support such action.

Art. 34, Civil Liability of Member of Municipal or City Police
Primarily liable: The member of a city or municipal police force who refuses or fails to render aid
or protection to any person in case of danger to life or property.

Subsidiarily liable: The city or municipal government shall be subsidiarily responsible in case of
insolvency of said police officer.

The defense of exercise of due diligence in the selection and supervision of its employees, as
provided under Art. 2180, cannot be used as this is available only to private employers.

Quasi-Delict: Art. 2176
Whoever by act or omission causes damage to another, there being fault or negligence, is
obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict and is governed by the provisions of this
Chapter.
Concept:
Quasi-delict is a civil wrong, not a crime, because it is not caused by an intentional or malicious
act, but by mere fault or negligence. It is independent of contract because if the said act or omission
is in violation of s contract, then, it would be a breach of contract.
Defenses that can be interposed in quasi-delict:
a. Doctrine of Last Clear Chance: where both parties are negligent but the negligent of one
succeeds that of the other by an appreciable interval of time, the one who has the last
reasonable opportunity to avoid the impending harm and fails to do so, is chargeable with
the consequences, without reference to the prior negligence of the other
b. Contributory Negligence: the defendant may claim that plaintiffs own negligence
contributed to the injury. This defense will merely mitigate the award of damages.
c. Proximate Cause of the Loss or Injury is the Negligence of Plaintiff.
d. Defense of Due Diligence in the Selection and Supervision of Employees: only
applicable in culpa aquiliana.
e. Assumption of Risk: It will absolve the defendant from liability.
Requisites:
i. there must be knowledge as to the existence of the danger
ii. there must be an understanding and appreciation of the risk of such danger
by the plaintiff.
iii. the plaintiff voluntarily expose himself to such danger.
f. Prescription: If the action is filed beyond four years from loss or injury.

Res Ipsa Loquitor: (The thing speaks for itself)
A Rule of Evidence. The fact of the injury is prima facie evidence of negligence. It can not be
used with contributory negligence.
Requisites:
1. the accident is one of a kind which does not ordinarily occur unless someone is
negligent,
2. that the instrumentality or agency which caused the injury was under the exclusive
control of the person charged with negligence,
3. that the injury suffered must not have been due to any voluntary action or
contribution on the part of the person injured.

o Barredo v. Garcia, 73 P 607
The plaintiffs may bring a separate civil action against Fausto Barredo because of
the separate individuality of cuasi delito or culpa aquiliana. The SC held that this will make
for the better safeguarding of private rights and is more likely to secure adequate and
efficacious redress.
The court also found out that defendant-petitioner is Fontanillas employer. There is
no proof that he exercised the diligence of a good father of a family to prevent the damage.
It is shown that he was careless in employing Fontanilla who had been caught several times
for violation of the Automobile Law and speeding violations which appeared in the
Records of the Bureau of Public Works available to the public and to himself. Therefore, he
must indemnify plaintiffs under the provisions of article 1903 of the Civil Code.

o Jose v. CA, 18 January 2000
Article 2176 provides that whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of this chapter.
However, private respondents failed to prove their allegation of negligence against
the driver of Bus 203, neither are the allegations of negligence against employer-employee
relations, so the two civil cases against Manila Central Bus Lines and driver Armando Jose,
are hereby dismissed.
The third-party complaint filed against Juanita Macarubo was also dismissed on the
ground that MCL only alleged that John Macarubo is the authorized driver which is not
equivalent to an allegation that he was an employee of Juanita Macarubo. Nor did MCL
present any evidence to prove that Juanita Macarubo was the employer of John Macarubo.

K. Prejudicial Questions
Article 36. Pre-judicial questions, which must be decided before any criminal prosecution
may be instituted or may proceed, shall be governed by rules of court which the Supreme
Court shall promulgate and which shall not be in conflict with the provisions of this Code.
Prejudicial question: One which must be decided before any criminal prosecution may be
instituted or may proceed, because a decision therein is vital to the judgment in the criminal case.

Rule 111, Secs. 6-7 of 2000 Rules of Criminal Procedure
Sec. 6. Suspension by reason of prejudicial question. A petition for suspension of the criminal
action based upon the pendency of a prejudicial question in a civil action may be filed in the office
of the prosecutor or the court conducting the preliminary investigation. When the criminal action
has been filed in court for trial, the petition to suspend shall be filed in the same criminal action at
any time before the prosecution rests.

Elements: Sec. 7
1. The previously instituted civil action involves an issue similar or intimately related to the
issue raised in the subsequent criminal action.
2. The resolution of such issue determines whether or not the criminal action may proceed.

Effect: it will suspend the proceeding in the criminal action.
Prejudicial questions shall be governed by the Rules of Court which the Supreme Court shall
promulgate and which shall not be in conflict with the Civil Code.

o Beltran v. People, 20 June 2000
Petitioner moved for the suspension of the criminal case on the ground that there
was a prejudicial question pending resolution in another case being tried against him,
which concerns the nullity of the sale and recovery of possession and damages. In the
aforementioned civil case, private respondent filed a complaint against the petitioner
seeking the annulment of the second sale of said parcel of land made by the petitioner to a
certain Erlinda Dandoy on the premise that the said land was previously sold to them. In
his answer, petitioner contends that he never sold the property to the private respondents
and that his signature appearing in the deed of absolute sale in favor of the latter was a
forgery, hence, the alleged sale was fictitious and inexistent.
The civil case was filed on March 1, 1985, five years before June 19, 1990 when the
criminal case for estafa was instituted. If the Court in the said Civil Case rules that the first
sale to herein private respondent was null and void, due to the forgery of petitioners
signature in the first deed of sale, it follows that the criminal case for estafa would not
prosper.
The SC held that the pendency of the civil case against petitioner is not a prejudicial
question that would suspend the criminal proceedings.
Accordingly, petitioners admission in the stipulation of facts during the pre-trial of
the criminal amounts to a waiver of his defense of forgery in the civil case. Hence, the
courts have no reason to nullify such waiver, it being not contrary to law, public order,
public policy, morals or good customs, or prejudicial to a third person with a right
recognized by law. Furthermore, it must be emphasized that the pre-trial order was signed
by the petitioner himself. As such, the rule that no proof need be offered as to any facts
admitted at a pre-trial hearing applies.

o Diaz v. Merced, 109 P 155
Merced was married to Eufriciana and without such marriage having been legally
dissolved; he contracted a second marriage with Elizabeth. Facing bigamy charges by the
latter, petitioner alleged force and intimidation by the relatives Elizabeth force him into
marriage and filed for annulment. He also raised the issue of prejudicial question.
The SC held that the civil action must be decided first before the prosecution for
bigamy can proceed.

o Donato v. Luna, 160 S 441
The issue before the Juvenile and Domestic Relation Court is not determinative of
petitioners guilt or innocence in the crime of bigamy. It was petitioners second wife, who
filed the complaint for annulment of the second marriage on the ground that her consent
was obtained through deceit. Pursuant to the doctrine discussed in Landicho vs. Relova,
petitioner cannot apply the rule on prejudicial question since a case for annulment of
marriage can be considered as a prejudicial question to the bigamy case against the accused
only if it is proved that the petitioners consent to such marriage was obtained by means of
duress, violence, and intimidation in order to establish that his act in the subsequent
marriage was an involuntary one and as such the same cannot be the basis for conviction.
The preceding elements do not exist in case at bar. Another event which militates against
petitioners contentions is the fact that it was only when the civil case was filed on
September 28, 1979, or more than the lapse of one year from the solemnization of the
second marriage that petitioner came up with the story that his consent to the marriage
was secured through the use of force, violence, intimidation, and undue influence.
Petitioner also continued to live with private respondent until November 1978, when the
latter left their abode upon learning that Leonilo Donato was already previously married.



IV. PERSONS AND PERSONALITY
Article 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.
Civil personality: the aptitude of being the subject, active or passive, of rights and obligations.

Art. 37, Juridical Capacity and Capacity to Act

Juridical capacity: the fitness to be the subject of legal relations; it is inherent in every natural
person and is lost only through death.

Capacity to act: the power to do acts with legal effect; it can be acquired and may be lost.
Juridical capacity Capacity to act
Passive Active
Inherent Acquired
Lost only through death Lost through death and other means
Can exist even without capacity to act Always exist with juridical capacity
Unlimited/cannot be restricted Limited/can be restricted by
circumstances

Person: Any being, natural or artificial, capable of possessing legal rights and obligations.
Classes of Persons:
a. Natural human beings created by God through the intervention of parents.
b. Juridical those created by law.

A. Natural Persons
Article 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.
Personality: birth determines personality.
Art. 40, Presumptive Personality
Personality begins at conception; 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 Art. 41.

The personality, therefore, has 2 characteristics: it is essentially limited and it is provisional or
conditional.

Actual personality: personality begins at birth.

Article 41. For civil purposes, the foetus is considered born if it is alive at the time it is
completely delivered from the mother's womb. However, if the foetus had an intra-uterine
life of less than seven months, it is not deemed born if it dies within twenty-four hours after
its complete delivery from the maternal womb.

Art. 41, Birth
Birth: the removal of the foetus from the mothers womb; before birth, the foetus is not a person,
but merely a part of the internal organs of the mother. However, because of the expectancy that it
may be born, the law protects it and reserves its rights, making its legal existence, if it should be
born alive, retroact to the moment of its conception.
Legal Conditions:
a. the foetus is considered born if it is alive at the time it is completely delivered from the
mother's womb.
b. If the foetus had an intra-uterine life of less than seven months, it is not deemed born if it
dies within twenty-four hours after its complete delivery from the maternal womb.

Ordinary children: with an intra-uterine life of at least seven months. For civil purposes, the fetus
is considered born if it is alive at the time it is completely delivered from the mothers womb.

Extra-ordinary children: with an intra-uterine life of less than seven months. For civil purposes, it
is not deemed born if it dies within 24 hours after its complete delivery from the maternal womb.

Arts. 38 39, Restrictions or Modifications on Capacity to Act
Restrictions on Capacity to Act:
a. Minority (below 18)
b. insanity or imbecility
c. state of being deaf-mute
d. prodigality (state of squandering money or property to the prejudice of another)
e. civil interdiction
Limitations on Capacity to Act:
f. family relations
g. alienage
h. absence.
i. insolvency
j. trusteeship
o Catalan v. Basa, 31 July 2007
A person suffering from schizophrenia does not necessarily lose his competence to
intelligently dispose his property. By merely alleging the existing of schizophrenia,
petitioners failed to show substantial proof that at the date of the donation.

o Domingo v. CA, 17 October 2001
At the time of the execution of the 0alleged Deed of Sale, Paulina Rigonan was
already of advanced age and senile. She died on March 20, 1966, barely over a year when
the deed was allegedly executed on January 28, 1965. The General Rule is that, a person is
not incompetent to contract merely because of advanced years or by reason of physical
infirmities. However, when such age or infirmities have impaired the mental faculties so as
to prevent the person from properly, intelligently, and firmly protecting her property
rights, then she is undeniably incapacitated. According to testimony of Eugenios wife
Zosima, at the time of the alleged execution of deed, Paulina was already incapacitated
physically and mentally. Given these circumstances, there is sufficient reason to seriously
doubt that she consented to the sale of her parcels of land. Thus, the Deed of Sale executed
by Paulina Rigonan on January 28, 1965 rendered null and void ab initio.


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

Art. 42, Death: it refers to natural or physical death. It extinguishes civil personality
Effect of death upon civil personality is determined by: law, contract or will.

The estate of a deceased is a person that may continue the personality of the deceased for the
purpose of settling debts.

Effects of Death: on rights:
Upon the death of a person, the subject of legal relations disappears. Some of his rights and
obligations are completely extinguished, while others are transmitted to his successors.

corpse is not a person because juridical personality is extinguished by death.


Pp. v. Bayotas, 236 S 239
Death of the accused pending appeal of his conviction extinguishes his criminal
liability as well as the civil liability based solely thereon. In this regard, "the death of the
accused prior to final judgment terminates his criminal liability and only the civil liability
directly arising from and based solely on the offense committed, i.e., civil liability ex delicto in
senso strictiore."


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

Presumption: in the absence of proof, it is presumed that they died at the same time.

Effect of presumption: there shall be no transmission of rights from one to the other.

Rule 131(jj)and (kk) of the Revised Rules of Court on presumptions on survivorship.
(jj) When two persons perish in the same calamity, such as wreck, battle, or conflagration, and it is
not shown who died first, and there are no particular circumstances from which it can be inferred,
the survivorship is presumed from the probabilities resulting from the strength and age of the
sexes, according to the following rules:
1. If both were under the age of fifteen years, the older is presumed to have survived;
2. If both were above the age of sixty, the younger is presumed to have survived;
3. If one is under fifteen and the other above sixty, the former is presumed to have survived;
4. If both be over fifteen and under sixty, and the sexes be different, the male is presumed to
have survived; if the sexes be the same, then the older;
5. If one be under fifteen or over sixty, and the other between those ages, the latter is
presumed to have survived.
(kk) If there is a doubt, as between two or more persons who are called to succeed each other, as to
which of them died first, whoever alleges the death of one prior to the other, shall prove the same;
in the absence of proof, it is presumed that they died at the same time.

B. Juridical Persons: Theory of Special Capacities
Article 44. The following are juridical persons:
(1) The State and its political subdivisions;
(2) Other corporations, institutions and entities for public interest or purpose, created by
law; their personality begins as soon as they have been constituted according to law;
(3) Corporations, partnerships and associations for private interest or purpose to which the
law grants a juridical personality, separate and distinct from that of each shareholder,
partner or member.

Corporation:
It is an artificial being created by operation of law, having the right of succession and the
powers, attributes, and properties expressly authorized by law or incident to its existence.
Art. 44, Classification:
1. The State and its political subdivisions; governed by the laws creating or recognizing them
(Art. 45).
2. Juridical persons for public interest or purpose, created by law; their personality begins as
soon as they have been constituted according to law; governed by the laws creating or
recognizing them (Art. 45);
In case of dissolution, 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
LGUs which during the existence of the institution derived the principal benefits from the
same (Art. 47).
3. Juridical persons for private interest or purpose; their personality begins from the moment
a certificate of incorporation is granted and issued by the SEC; Regulated by laws of general
application on the subject (Art. 45).
Partnerships and associations for private interest or purpose are governed by the
provisions of this Code concerning partnerships. (Art. 45);

in case of dissolution, see the Corporation Code.


Article 45. Juridical persons mentioned in Nos. 1 and 2 of the preceding article are governed
by the laws creating or recognizing them.
Private corporations are regulated by laws of general application on the subject.
Partnerships and associations for private interest or purpose are governed by the
provisions of this Code concerning partnerships.
Art. 45, Governing Law

Nationality test: the nationality of a corporation is generally determined by the place of its
incorporation.

Control test: the nationality of a corporation is determined by the nationality of the controlling
stockholders.

For the grant of 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 in the
Philippines, cannot acquire said rights unless 60% of its capital be Philippine-owned.
During war, for the purpose of determining an enemy corporation, by piercing the veil of
corporate entity, and going to the very nationality of the controlling stockholders, regardless of
where the incorporation had been made.

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

Art. 46, Rights and obligation of a juridical person
Juridical persons may:
a. acquire and possess property of all kinds, (in rel. to Art. 12, Sections 2-3 of the 1987
Constitution)
b. incur obligations
c. bring civil or criminal actions.

V. DOMICILE
Domicile: place of a persons habitual residence; That place where a person has certain settled,
fixed, legal relations because:

it is assigned to him by the law at the moment of birth (domicile of origin).

In case of a foundling, his domicile is the country where he was found.

It is assigned to him by the law after birth on account of a legal disability (constructive
domicile/domicile by operation of law).

He has his home there that to which, whenever he is absent, he intends to return; the place
freely chosen by a person (domicile of choice).

Elements of domicile:
1. Physical presence in a fixed place.
2. Intention to remain permanently.

Intention without physical presence or physical presence without intention will not suffice for
the acquisition of domicile, but will be sufficient for the retention of an existing domicile.

Domicile Residence
more or less permanent more or less temporary
a person can have generally only one
domicile
a person can have several places of
residence
denotes a fixed permanent residence to
which when absent, one has the intention of
returning
denotes a place of abode
domicile is residence coupled with the
intention to remain for an unlimited time
residence is not domicile

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.
Domiciliary theory: the personal laws of a person are determined by his domicile.

Domicile of natural persons: for the exercise of civil rights and the fulfillment of civil obligations,
the domicile of natural persons is the place of their habitual residence.
Art. 51. When the law creating or recognizing them, or any other provision does not fix the
domicile of juridical persons, the same shall be understood to be the place where their legal
representation is established or where they exercise their principal functions.
Domicile of juridical persons: The domicile of juridical persons is
(1.) the place provided for in the law creating or recognizing them or in their articles of
agreement; when the law creating or recognizing them, or any other provision does not fix
the domicile of juridical persons, the same shall be understood to be
(2.) the place where their legal representation is established or where they exercise their
principal functions.

o Marcos v. COMELEC, 248 S 300
It is the fact of residence, not a statement-in a certificate of candidacy which ought
to be decisive in determining whether or not an individual has satisfied the Constitutions
residency qualification requirement. The said statement becomes material only when there
is or appears to be a deliberate attempt to mislead, misinform, or hide a fact which would
otherwise render a candidate ineligible. It would be plainly ridiculous for a candidate to
deliberately and knowingly make a statement in a certificate of candidacy which would lead
to his or her disqualification. A close look at said certificate would reveal the possible source
of the confusion: the entry for residence is followed immediately by the entry for residence
in the constituency where a candidate seeks election. Marcos merely committed an honest
mistake in jotting down the word seven, obviously resulting from the confusion which
prompted Marcos to write down the period of her actual stay in Tolosa, Leyte instead of her
period of residence in the First district, which was since childhood in the space provided.
It must be noted again that residence is used to indicate a place of abode, whether
permanent or temporary, while domicile denotes a fixed permanent residence to which,
when absent, one has the intention of returning. Residence for election purposes is used
synonymously with domicile.




THE FAMILY CODE OF THE PHILIPPINES
(EXECUTIVE ORDER NO. 209, AS AMENDED)

The Family Code took effect on August 3, 1988.
Marriage Defined:
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
family and an inviolable social institution whose nature, consequences and incidents is governed by
law and cannot be the subject of stipulation, except that marriage settlement may fix the property
relations during the marriage within the limits provided by this code.

Marriage in General
Dual Concept:

As a contract: It 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.
As a social institution: Marriage in this jurisdiction is not a mere contract, but a social institution in
which the State is vitally interested. This interest proceeds from the constitutional mandate that the
State recognizes the sanctity of family life and of affording protection to the family as the basic
autonomous social institution.

Constitutional provisions protecting marriage and family:

The State recognizes the sanctity of family life and shall protect and strengthen the family as a
basic autonomous social institution. It shall equally protect the life of the mother and the life
of the unborn from conception. The natural and primary right and duty of parents in rearing
of the youth for civil efficiency and the development of moral character shall receive the
support of the government.
The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall
strengthen its solidarity and actively promote its total development.

Marriage, as an inviolable social institution, is the foundation of the family and shall be
protected by the State.

Marriage distinguished from ordinary contract:

Marriage Contract Ordinary Contract

1. Only two persons of opposite sex may
enter into a contract of marriage, and but one
such contract may exist at the same time

1. May be entered into by any
number of persons, whether of the same
or different sex.

2. The nature, consequences and incidents
of marriage are governed by law and not
subject to an agreement.

Exception: With respect to property relations,
the parties may fix the same within the limits
provided under the Family Code.

2. The parties are free to establish
such stipulations, clauses, terms and
conditions as they may deem convenient
provided they are not contrary to law,
morals, good customs, public order or
public policy.


3. Cannot be revoked, dissolved or
otherwise terminated by the parties, but only
by the sovereign power of the State.

3. The parties may, by mutual
agreement, terminate and ordinary
contract.

4. Marriage is not a mere contract, but also
a social institution.



Presumptions favoring marriage:

(i) That if a man and a woman deport themselves as husband and wife, they are presumed, in the
absence of counter-presumption or evidence special to the case, to be in fact married.
(ii) That the law favors the validity of marriage and the burden of proof to show the nullity of the
marriage rests upon the party seeking its nullity.


REQUISITES FOR A VALID MARRIAGE

ESSENTIAL REQUISITES:
1. legal capacity
2. Consent

Legal Capacity to Contract Marriage

o AGE: 18 years of age determined from the actual date of solemnization
o SEX: between man and woman only * Heterosexual marriage
o No other legal impediments
e.i. prior subsisting marriage






Sexes of the parties:
If the parties are of the same sex, there is in fact no marriage, even if the marriage is solemnized
outside of the Philippines and valid there as such because marriage, in this jurisdiction, is defined
as a special contract of permanent union between a man and a woman.

In Silverio v. Republic, it was held that in this jurisdiction there is no law legally recognizing sex
reassignment and its effect. Citing the Civil register Law (Act 3753), the Court held that the sex of
a person is determined at birth visually done by the birth attendant (the physician or midwife) by
examining the genitals of the infant. If the determination of a persons sex made at the time of his
or her birth is not attended by error, the same is immutable and may not be changed by reason of
sex reassignment surgery.
In Republic of the Philippines v. Jennifer Cagandahan, however, the Supreme Court allowed the
correction of entries in the birth certificate of the respondent to change her sex or gender, from
female to male, on the ground of her medical condition known as Congenital Adrenal Hyperplasia
(CAH), and her name from Jennifer to Jeff. Biologically, nature endowed respondent with mixed
(neither consistently and categorically female nor consistently and categorically male)
composition. Respondent has female (XX) chromosomes. However, respondents body system
naturally produces high levels of male hormones (androgen). As a result, respondent has
ambiguous genitalia and the phenotypic nature of a male. But in respondents case, he has simply
let nature take its course and has not taken unnatural steps to arrest or interfere with what he
was born with. And accordingly, he has already ordered his life to that of a male. In this kind of
situation, according to the Court, the determining factor in his gender classification would be
what the individual, like respondent, having reached the age of majority, with good reason thinks
of his/her sex.

Age of the parties

If any party is below 18 years of age, the marriage is void even if the same is with the consent of
the parents and even if the marriage is solemnized outside the Philippines and valid there as
such.

The minimum age for marriage should be reckoned, not on the date of filing of the application
for issuance of a marriage license, but on the date of the marriage.
Absence of legal impediments:
If the parties are suffering from the impediments mentioned in Articles 37 and 38 of the Family
Code, the marriage is void, even if the marriage is solemnized outside the Philippines and valid
there as such.





Consent
o Given freely and voluntarily
o Declared openly by the parties

If there s no consent, the marriage is void. Thus, if the marriage is contracted through mistake
of one contracting party with respect to the actual physical identity of the other, the marriage is
void because there is no real consent.

If consent was given by a party who is at least 18 but below 21 but without parental, such
consent is defective, thus rendering the marriage voidable.

If consent was given by a party who was of unsound mind at the time of the celebration of the
marriage, the same is defective, rendering the marriage voidable.

If consent was given but it was vitiated by fraud, force, intimidation or undue influence, the
marriage is voidable because the consent is defective.

THE FORMAL REQUISITES:
1. Authority of the solemnizing officer
2. Valid marriage license
3. Marriage ceremony

Authority of Solemnizing Officer
Persons authorized to solemnize marriages


Persons authorized


Requisites

1. Members of the judiciary

(a) Justices of the SC
(b) Justices of the CA
(c) Justices of the Sandiganbayan
(d) Justices of the RTCs
(e) Justices of the CTAs
(f) Judges of the MTCs

a) Must be incumbent members; and

b) Must solemnize the marriage within the courts
jurisdiction.

Marriages outside of the courts jurisdiction:
Where a judge solemnized a marriage outside his
courts jurisdiction, this is a mere irregularity in the
formal requisite, which while it may not affect the
validity of the marriage, may subject the officiating
official to administrative liability.


2. Priest, rabbi, imam and other
religious ministers












a) Must be duly authorized by his respective church
or sect in writing;

b) His written authority must be duly registered to
the civil registrar.

c) He must act within the limits of such written
authority; and

d) At least one of the contracting parties must belong
to his church or sect.


3. Ship captain or airplane chief

a) Marriage must be in articulo mortis (at the point of
death)

b) Marriage must be between passengers and/or
crew members.

Note: Such authority may be exercised not only while
the ship is at sea or the plane is in flight but also
during stopovers at ports of call.


4. Military commanders of a unit

a) Must be a commissioned officer, or an officer in
the armed forces holding rank by virtue of a
commission from the President;
b) Assigned chaplain to his unit must be absent;
c) Marriage must be in articulo mortis; and
d) Marriage must be solemnized within the zone of
military operations.
Note: The contracting parties need not be members of
the armed forces. They can be civilians.


5. Consul-general, consul or vice consul

a) Marriage must be celebrated abroad in the country
where the consul holds office; and
b) Marriage must be between Filipino citizens.


6. Mayors

Note: Marriages solemnized by a mayor outside of his
territorial jurisdiction remain valid because this is a
mere irregularity in a formal requisite.


Marriage license
- prima facie evidence of consent
- applied for and issued by the Local Civil Register of the Municipality or City where one or both
of the parties reside
The application must be accompanied by:
a. Parental Consent
- if one or both of the parties are 18 20
b. Parental Advice
- if one or both of the parties are 21 25

If the marriage was celebrated without a marriage license, the same is void.

If the marriage license was spurious or fake, the marriage is also void.

If there is a mere irregularity in the issuance of the marriage license, the validity of the marriage
shall not be affected but the party(ies) responsible for the irregularity shall be civilly, criminally
and administratively liable.

Rules with respect to issuance of marriage license and effects of non-compliance:


Subject
Matter

Rule

Effect of non-
compliance

Place of Issuance:

(1) If local, in the local civil registrar
of the city or municipality where
either contracting party
habitually resides.
(2) If abroad, in the office of the
consular officials.


If obtained elsewhere, the
marriage is still valid because
this is a mere irregularity in a
formal requisite which does not
affect the validity of the
marriage. A marriage license
shall be valid in any part of the
Philippines.
In case of non-compliance, the
marriage is still valid in the
Philippines if the same is valid
in the place where the marriage
is solemnized.

Period of effectivity:

A marriage license is valid only for a
period of 120 days from date of
issue and is deemed automatically
cancelled at th expiration of said
period.

A marriage celebrated after the
expiry date of the license is
void.

Requirement of parental
consent

If any party is below 21, parental
consent must be exhibited to the
local civil registrar.

If the license is issued
notwithstanding the absence of
parental consent, the marriage
becomes voidable because of
lack of parental consent, not
because of the irregularity in
the issuance of the license.

Requirement of parental
advice:

If any party is between 21 and 25,
parental advice is required.

If parental advice is not
obtained, or if the same is
unfavourable, the marriage
license shall be issued only
after 3 months following the
completion of the publication of
the application. If issued
earlier, the marriage is still
valid because this is a mere
irregularity in a formal
requisite which does not affect
the validity of the marriage.

Requirement of the
certificate of marriage
counselling:

The certificate of marriage
counselling is required is any party
is 25 and below.

In the absence of such
certification, the issuance of the
license shall be suspended for 3
months from the completion of
the publication of the
application. If the license is
issued without observing the 3-
month period, the marriage is
still valid because this is a mere
irregularity in a formal
requisite which does not affect
the validity of the marriage.

Publication of
application for issuance
of license:

The application for the issuance of
the marriage license must be
published for 10 consecutive days
and the license shall be issued only
after the completion of the period of
the publication.

If the license is issued prior to
the completion of the period of
publication, the marriage is still
valid because this is a mere
irregularity in a formal
requisite which does not affect
the validity of the marriage.

Requirement of
certificate of legal
capacity to contract
marriage:

If either or both parties are citizens
of a foreign country, a certificate of
legal capacity to contract marriage
must be submitted.

The absence of certificate of
legal capacity is merely an
irregularity in complying with
the formal requirement if
procuring a marriage license
which will not affect the
validity of the marriage.


Duty of local civil registrar in case there is impediment:

The local civil registrar is required to issue the marriage license after the completion of the 10-day
period of publication, even if any impediment is known to him or brought to his attention, unless
the court will order otherwise at the instance of the local registrar or that of any interested party.



Marriages which are exempt from license requirement:


1.Marriages in articulo
mortis

Reminders:

(1) Marriage remains valid even f the ailing party subsequently
survives.
(2) In lieu of the license, the solemnizer must execute an affidavit
stating that: (a) he performed the marriage in articulo mortis;
and (b) he took steps to ascertain the ages, relationship and
absence of legal impediments of the parties. The absence of such
affidavit is a mere irregularity which will not affect the validity of
the marriage.

2. Marriages in remote
places

Requisite: 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.
Reminder: In lieu of the license, the solemnizer must execute an
affidavit stating that: (a) 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; and (b) he took
steps to ascertain the ages, relationship and absence of legal
impediments of the parties. The absence of such affidavit is a mere
irregularity which will not affect the validity of the marriage.

3. Marriages among
Muslims and ethnic
cultural communities.

Requisites:
(a) Marriage must be among Muslims or among members of ethnic
cultural communities; and
(b) Marriage must be solemnized in accordance with their customs,
rites or practices.

4. Legal ratification of
marital cohabitation.

Requisites:
(a) Man and woman must have been living together as husband and
wife for at least five years before the marriage;
(b) Parties must have no legal impediment to marry each other;
(c) Fact of absence of legal impediment between the parties must be
present at the time of the marriage;
(d) Parties must execute an affidavit stating that they have lived
together for at least five years and are without legal impediment
to marry each other and;
(e) Solemnizing officer must execute a sworn statement that he had
ascertained the qualifications of the parties and that he had
found no legal impediment to their marriage.


Marriage Ceremony
What constitutes a marriage ceremony:
No prescribed form or religious rite for the solemnization of the marriage is required. In
essence, a marriage ceremony simply refers to the personal declaration by the contracting parties
before the solemnizing officer that they are taking each other as husband and wife.


Requisites for marriage ceremony to exist:


Requisites

Consequences


1. Personal appearance before a
solemnizing officer

A marriage celebrated through video conferencing where
either or both parties do not appear personally before the
solemnizing officer is not valid if celebrated in the
Philippines. If celebrated abroad, however, and valid there
as such, it shall likewise be considered as valid in the
Philippines.


2. Personal declaration by the
contracting parties that they are
taking each other as husband
and wife.

a) A marriage by proxy, if celebrated in the Philippines, is
not valid. However, if celebrated abroad and valid there
as such, it shall likewise be considered as valid in the
Philippines.

b) No prescribed form or religious rite is required. Hence,
the failure of the solemnizing officer to ask the parties
whether they take each other as husband and wife
cannot be regarded as a fatal omission if the parties
nonetheless signed the marriage contract in the
presence of the solemnizing officer. A declaration by
word of mouth of what the parties had already stated in
writing would be a mere repetition, so that its omission
should not be regarded as a fatal defect.


3. Such personal declaration by the
parties must be done in the
presence of the solemnizing
officer.

Hence, there is no marriage ceremony if what transpired
was a mere private act of signing a marriage contract by the
contracting parties, without the presence of the solemnizing
officer.

Compare with Infante v. Arenas: If the signing of the
marriage contract was done in the presence of the
solemnizing officer, there is a marriage ceremony even if
the parties did not verbalize their consent to the marriage.



a) What is mandatory is that the consent of the parties be
given before a solemnizing officer. The requirement that
the same e given in the presence of at least two
witnesses of legal age is merely directory.




Effect of absence, defect or irregularity:

Absence, defect or irregularity Effect

(1) Absence of any of the essential
requisites.

Marriage is void.

(2) Absence of any of the formal requisites.

Marriage is void.

Exception: Even if the solemnizing officer has no
authority, the marriage is valid if either or both
parties believed in good faith that the
solemnizing officer had the legal authority to do
so.

(3) Defect in consent

Marriage is voidable.

(4) Irregularity in any of the formal
requisites.

Does not affect the validity of the marriage but
the party responsible for the irregularity shall
be civilly, criminally and administratively liable.

Validity of Marriages Celebrated Abroad

General Rule:
For marriages involving Filipino citizens celebrated abroad, the rule is that such marriages
are considered valid in the Philippines if they are valid in the place where they are celebrated, the
principle of Lex Loci Celebraciones.
Hence, the following marriages are valid

(a) Marriages without a marriage license if such is not required in the place of celebration.
However, if the marriage is celebrated before the Philippine consular officials pursuant to
Article 10 of the Family Code, a marriage license is still necessary.
(b) Marriages celebrated by a person who is authorized to solemnize marriages in the place of
celebration even if he or she is not deemed to be authorized to solemnize marriages under
Philippine laws.
(c) Marriages by proxy, if valid in the place of celebration.
(d) Marriages through video conferencing, if valid in the place of celebration.

Exceptions:
The following marriages are void even if they are celebrated abroad and considered valid in
the place of their celebration:

(a) If a party thereto is below 18 and he or she is a Filipino citizen.

(b) If the marriage is bigamous or polygamous.

(c) If the marriage is contracted through mistake of one contracting party as to the identity of
the other.

(d) If one of the parties in a subsequent marriage is already a party to a prior marriage which
has been annulled or judicially declared void but fails comply with the requirements of
Article 52 of the Family Code.

(e) If one of the parties to such marriage, at the time of its celebration, is psychologically
incapacitated to comply with the essential marital obligations.

(f) If the marriage is incestuous.

(g) If the marriage is void by reason of public policy as enumerated in Article 38 of the Family
Code.

When Divorce Considered Valid
General Rule:
Under existing laws and jurisprudence, the rule is that divorce is not recognized as valid in
the Philippines if the parties are both citizens of the Philippines.

Exception:
In a mixed marriage involving a Filipino citizen and a foreigner, the family code allows the
foreigner to remarry in case the divorce is validly obtained abroad by the alien spouse capacitating
him or her to remarry.










Requisites for application of 2
nd
paragraph of Art. 26:


Requisites

Reminders


1. It must be a case of mixed marriage
(one party is Filipino and the other is
an alien)


In applying the provision of the second paragraph of
Article 26, the reckoning point is not the relationship of
the parties at the time of the celebration of the
marriage, but their citizenship at the time a valid
divorce is obtained abroad by the alien spouse
capacitating him or her to remarry. Thus, in a case
where both parties were Filipino citizens at the time of
the celebration of the marriage, but later on, one of
them becomes naturalized as a foreign citizen and
thereafter obtains a valid divorce decree, Article 26 of
the Family Code applies.



2. The divorce must be obtained by the
alien spouse and not by the Filipino
spouse.


Article 26 will not apply if it is the Filipino spouse who
obtains the decree of divorce. In this case, what will
apply is Article 15, in relation to Article 17 of the NCC,
pursuant to which a divorce obtained abroad by citizen
of the Philippines is not recognized as valid in the
Philippines.


3. The divorce obtained by the alien
spouse must capacitate him or her to
remarry.


a) If the divorce decree obtained was a limited
divorce or a mensa et thoro; or if the foreign
law restricts remarriage even after the divorce
decree becomes absolute, the Filipino spouse is
not likewise capacitated to remarry.

b) A divorce obtained abroad by an alien may be
recognized in our jurisdiction, provided such
decree is valid according to the national law of
the foreigner.

c) Before the divorce decree can be recognized by
our courts, the party pleading it must prove the
divorce as a fact and demonstrate its
conformity to the foreign law allowing it, which
must be proved considering that our courts
cannot take judicial notice of foreign laws.
VOID MARRIAGES

Characteristics of Void Marriages

(1) Inexistent from the very beginning. Hence, as a rule, if the marriage is void abintio, it is ipso
facto void without need of any judicial declaration of nullity.

Exception: For purposes of remarriage, even if the prior marriage is void ab initio, a judicial
declaration of its nullity is required before a subsequent marriage can be contracted, otherwise,
the subsequent marriage is in itself void ab initio and the second marriage is contracted during the
existence of the first marriage resulting in the crime of bigamy.

(2) A void marriage can be attacked collaterally.

Qualification: But only by the compulsory or intestate heirs of the spouses upon the death of a
spouse in a proceeding for the settlement of the estate of the deceased spouse filed in the regular
courts.


(3) A void marriage can be questioned even after the death of either party.

Qualification: But no longer by way of a petition for declaration of nullity of the marriage because
the same can be filed during the lifetime of the parties. Under the new Rule on Declaration of
Absolute Nullity of Void Marriages and Annulment of Voidable Marriages (AM No. 02-11-10-SC), a
petition for declaration of absolute nullity of a void marriage may be filed solely by the husband or
the wife and in case a party dies at any stage of the proceedings before the entry of judgment, the
court shall order the case closed and terminated, but without prejudice to a collateral attack that
may be done by the compulsory or intestate heirs of the spouses upon the death of a spouse in a
proceeding for the settlement of the estate of the deceased spouse.

(4) The action or defense for the declaration of absolute nullity of a marriage is imprescriptible.

Qualification: A petition for declaration of nullity of the marriage can only be filed during the
lifetime of the parties.

(5) Any proper interested party may attack a void marriage.

Qualification: Only compulsory or intestate heirs of the spouses may attack the validity of the
marriage, for the purpose of protecting their successional rights, upon the death of a spouse in a
proceeding for the settlement of the estate of the deceased spouse.

(6) Void marriages have no legal effects except those expressly declared by law, such as:

(a) As to property relations: in void marriages, regardless of the cause thereof, the property
relations of the parties during the period of cohabitation, are governed by Article 147 and
148, as the case may be. Exception: If the marriage is declared void by reason of non-
compliance with Article 40 of the Family Code, the absolute community of the conjugal
partnership, as the case may be, shall be dissolved and liquidated.

(b) As to its effect on the children born to such void marriages: As a rule, children born of void
marriages are considered illegitimate, but children of void marriages under Articles 36 and 53
are exceptionally declared as legitimate.


Personality to File Petition for Declaration of Nullity of a Void Marriage

Rules for Marriages under the FC:

(a) If the marriage is entered into during the effectivity of the Family Code which took effect on
August 3, 1988, apply Sec. 2(a) of the new Rule on Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable Marriages which makes it the sole right of the
husband or the wife to file a petition for declaration of absolute nullity if void marriage.
The same cannot be filed by the compulsory or intestate heirs of the spouses because they
have only inchoate rights prior to the death of their predecessor, and hence can only question
the validity of the marriage of the spouses upon the death of a spouse in a proceeding for the
settlement of the estate of the deceased spouse filed in the regular courts.

(b) Compulsory or intestate heirs can still question the validity of the marriage of the spouses, if
void, not in a proceeding for declaration of nullity, but upon the death of a spouse in a
proceeding for the settlement of the estate of the deceased spouse filed in the regular courts.

Rule for Marriages under the Civil Code:
If the marriage is entered into during the effectivity of the Civil Code or prior to August 3,
1988, apply the case of Ninal v. Bayadog, supra, which allowed therein petitioners to file a petition
for the declaration of nullity of their fathers marriage to therein respondent after the death of their
father. Note that the new Rule on Declaration of Absolute Nullity of Void Marriages and Annulment
of Voidable Marriages expressly covers marriages under the Family Code only.

Void Marriages Not Expressly Enumerated under the FC
(a) Marriages between persons of the same sex, even if the marriage is celebrated abroad and
valid there as such. Under the FC, a marriage is defined as 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. Hence, a union between persons of the same sex is not even
considered as a marriage under Philippine laws.
(b) Marriages where parties did not appear personally before the solemnizing officer or did not
give their consent in the presence of the solemnizing officer, such as marriages by proxy or
marriages celebrated through video conferencing. Our marriage law requires personal
appearance before the solemnizing officer before whom the parties must take their personal
declaration that they are taking each other as husband and wife.
(c) Marriages where the parties merely signed a marriage contract, without the presence of the
solemnizing officer. In these cases, no marriage ceremony is performed at all by a duly
authorized solemnizing officer.

Void Marriages under Article 35 of the FC

Par. 1 Any Party Below 18:

Rule: If any party is below 18, the marriage is void.

No Exception: Hence, marriage is void even with the consent of the parents or guardians, and even
if solemnized abroad and valid in the place of celebration.

Par. 2 Solemnizer, not legally authorized:

Rule: If solemnizers not legally authorized to perform marriages, marriage is void, but if the
marriage is celebrated abroad and valid there as such, it is also considered valid in the Philippines
even if the solemnizer is not one of those authorized under Philippine laws.

Exception: If either or both parties believed in good faith that the solemnizing officer had the legal
authority to do so, the marriage is valid.

NOTE: The good faith must be based on mistake of facts and not mistake of law because ignorance
of the law excuses no one from compliance therewith.

Par. 3 Lack of Valid Marriage License:

Rule: If marriage is celebrated without a valid marriage license, marriage is void.

Exception: If the marriage is celebrated abroad and valid there as such because no license is
required in the place of celebration, the marriage is also valid here in the Philippines. But if the
marriage is solemnized by Philippine consular officials pursuant to Article 10 of the FC, a license is
still necessary.

NOTE:

A certification issued by the local civil registrar that their office has no record of the alleged
marriage license is adequate to prove the non-issuance of a marriage license in the absence of
any circumstance of suspicion. It enjoys probative value, he being the officer charged under
the law to keep a record of all data relative to the issuance of a marriage license.

To be sufficient proof of the non-issuance of a marriage license, the certification to be issued
by the Local Civil Registrar must categorically state that the document does not exist in his
office or the particular entry could not be found in the register despite diligent search. If there
is no showing that the local civil registry exerted diligent efforts to locate the records of the
said marriage license, the marriage cannot be declared void by reason of absence of a
marriage license.

Par. 4 Bigamous or Polygamous Marriages:

Rule: If the marriage is bigamous or polygamous, it is void, even if the same is celebrated abroad
and valid there as such.

Exception: Under Article 41 of the FC, a subsequent bigamous marriage is exceptionally considered
as valid if the following requisites are complied with

(1) The prior spouse (absentee) of the spouse present must have been absent for 4 consecutive
years, or 2 years where there is danger of death under the circumstances stated in Article 391
of the Civil Code at the time of disappearance;
(2) The spouse present has a well-founded belief that the absence spouse is already dead; and
(3) The spouse present has obtained a judicial declaration of presumptive death.

NOTE:
If a subsequent marriage is contracted during the subsistence of a prior marriage (which is
either perfectly valid or voidable), the subsequent marriage is bigamous, hence void, and the
crime of bigamy is committed.
If a subsequent marriage is contracted by the spouse present during the period of absence of
his or her absentee spouse but without judicial declaration of presumptive death of the
absentee spouse, the marriage is bigamous, hence void, and the crime of bigamy is
committed.
If a subsequent marriage is contracted without securing a judicial declaration of nullity of the
prior void marriage, the subsequent marriage is also void, not by reason of Article 35(4) of
the FC but by reason of non-compliance with Article 40 of the FC, but the crime of bigamy is
also committed.


Par. 5 Mistake In Identity:

Rule: If a contracting party committed a mistake as to the identity of the other, the marriage is void,
even if the same is celebrated abroad and valid there as such.

NOTE: The mistake in identity must be with reference to the actual physical identity of the other
contracting party.

Par. 6 Non-Compliance With Article 52 of FC:

Requirements under Article 52:
If a previous marriage is annulled or judicially declared void, the following shall be recorded
in the appropriate civil registry and registries of property:
(1) the judgment of annulment or of absolute nullity of marriage;
(2) the partition and distribution of the properties of the spouses; and
(3) the delivery of the childrens presumptive legitimes.


Effect of Failure to Comply With Article 52: If either of the former spouses remarries without
complying with the provisions of Article 52 of the FC, the following are the effects:
(1) The subsequent marriage is void, even if the same is celebrated abroad and valid there as such.
(2) But the children conceived or born of such subsequent void marriage are legitimate.
(3) And the property relations of such subsequent void marriage shall be governed by Article 147
of the FC.








Valid Subsequent Bigamous Marriage under Article 41 of the FC
Applicable law:

(a) If the subsequent marriage took place prior to August 3, 1988, apply the provisions of the Civil
Code which does not require a judicial declaration of presumptive death in order for the
marriage to be valid. Under the Civil Code, a judicial declaration of presumptive death is not
necessary so long as the prescribed period of absence is met. Hence, if the subsequent
marriage took place prior to the effectivity of the Family Code, the same is valid
notwithstanding the absence of such judicial declaration.

(b) If the subsequent marriage is celebrated during the effectivity of the Family Code which now
requires judicial declaration of presumptive death, the absence of the same shall render the
marriage is void for being bigamous and the spouse present liable for the crime of bigamy.

In Manuel v. People, the accused contracted another marriage in 1996 (or after the effectivity of
the Family Code) and after the absence of his first wife for almost 21 years but the subsequent
marriage was celebrated without a judicial declaration of presumptive death of the absentee
spouse. When he was prosecuted for the crime of bigamy, the accused posited the theory that the
requirement of a judicial declaration of presumptive death under Article 41 of the Family Code is
only a requirement for the validity of the subsequent or second marriage but its absence does not
make him liable for the crime of bigamy. In upholding his conviction for the crime of bigamy, the SC
explained that Article 41 of the FC was enacted to harmonize civil law and Article 349 of the RPC
and to put to rest the confusion spawned by the previous rulings of the Court and comments on
eminent authorities in Criminal Law.

Hence, under existing laws and jurisprudence, in a case where a spouse is absent for the requisite
period, the present spouse may contract a subsequent marriage only after securing a judgment
declaring the presumptive death of the absent spouse to avoid being charged and convicted of
bigamy.

Requisites for validity of subsequent marriage under Article 41:

(a) The prior spouse (absentee) of the spouse present must have been absent for 4 consecutive
years, or 2 years where there is danger of death under the circumstances stated in Article 391
of the Civil Code at the time of disappearance.
(b) The spouse present has a well-founded belief that the absent spouse is already dead; and
(c) The spouse present has obtained a judicial declaration of presumptive death.
Requisites for issuance of judicial declaration of presumptive death:

(a) The absent spouse has been missing for 4 consecutive years, or 2 consecutive years if the
disappearance occurred where there is danger of death under the circumstances laid down in
Article 391 of the Civil Code.

(b) The spouse present wishes to remarry.

(c) The spouse present has a well-founded belief that the absentee spouse is already dead; and

(d) The spouse present files a summary proceeding for the declaration of presumptive death of the
absentee.

NOTE: In Republic v. Bermudez-Lorino, it was held that the order of the trial court granting the
petition for judicial declaration of presumptive death pursuant to Article 41 of the FC is
immediately final and executor. Hence, according to the Court, the right to appeal was not granted
to any of the parties therein. It was therefore erroneous for the OSG to file a notice of appeal, and
for the RTC to give due course thereto.

Termination of the subsequent marriage:

Under the Civil Code, a subsequent marriage being voidable, it is terminated by final
judgment of annulment in a case instituted by the absent spouse who reappears or by either of the
spouses in the subsequent marriage. Under the Family Code, no judicial proceeding to terminate a
subsequent marriage is necessary. Under present law, the subsequent marriage is automatically
terminated by the recording of the affidavit of reappearance of the absent spouse, without
prejudice to the fact of reappearance being judicially determined in case such fact is disputed.

Effect of reappearance of the absentee spouse:

If the absentee reappears, but no step is taken to terminate the subsequent marriage, either
by affidavit or by court action, such absentees mere reappearance, even if made known to the
spouses in the subsequent marriage, will not terminate such marriage. Since the second marriage
has been contracted because of a presumption that the former spouse is dead, such presumption
continues inspite of the spouses physical reappearance, and by fiction of law, he or she must still be
regarded as legally an absentee until the subsequent marriage is terminated as provided by law.

In SSS v. JarqueVda. De Bailon, both the prior and subsequent marriages where contracted before
the effectivity of the Family Code but the spouse present nonetheless secured a judicial declaration
of presumptive death of the absentee spouse. Upon the death of the spouse present in 1998, the
right of the second spouse to the SSS death benefits was questioned because it was claimed that the
absentee spouse was still alive. The SC held that since the subsequent marriage is not terminated by
registration of an affidavit of reappearance or by judicial declaration but by death of either spouse,
the effects of dissolution of valid marriages shall arise.

Effects of automatic termination of subsequent marriage:

Upon the recording of the affidavit of reappearance by any interested party, the subsequent
marriage is automatically terminated and the following effects shall follow:
(1) Automatic resumption of the previous marriage;
(2) Since the subsequent marriage is automatically terminated and without need of a judicial
proceeding, the second spouse may immediately contract another marriage without need of
complying with the requirements outlined in Article 52 of the FC, which provision
contemplates of a prior marriage that has been terminated by reason of a judgment of
annulment or of absolute nullity of the marriage;
(3) Since the terminated subsequent marriage is exceptionally considered valid, the following are
its additional effects:

(a) Status of children: children of the terminated marriage are considered legitimate.
(b) The absolute community or conjugal partnership, as the case may be, shall be dissolved and
liquidated. However, if either party contracted the marriage in bad faith, his or her share in
the net profits shall be forfeited in favor of: (i) common children; (ii) in default thereof,
children of the guilty spouse by a previous marriage; or (iii) in default thereof, the innocent
spouse. Net profits refers to the increase in the market value in the community or conjugal
property at the time of the celebration of the marriage and its market value at the time of
the dissolution of the marriage but minus charges and obligations for which the community
is liable.

***However, if both parties acted in bad faith, in which case the marriage is declared void,
the property relations of the subsequent void marriage is governed by Article 148 of the FC because
the marriage is bigamous.

(c) Donations propter nuptias:

General rule: shall remain valid.

Exception:
If the donee contracted the marriage in bad faith, the donation is revoked by operation of
law. If both acted in bad faith, the donation is also revoked by operation of law.

(d) Designation as beneficiary in insurance policy:

General rule:
If the designation of beneficiary in the insurance policy is irrevocable, the insured has no
right to change designated beneficiary.
Exception:
If the beneficiary acted in bad faith in contracting the subsequent marriage, the innocent
spouse may revoke such designation, even if the same be stipulated as irrevocable.

(e) Disqualification to inherit: (i) the spouse who contracted marriage in bad faith is
disqualified to inherit from the innocent spouse by testate and intestate succession; (ii) if
both acted in bad faith, in which case the marriage is void, testamentary dispositions by ne
in favor of the other are revoked by operation of law, but the parties are not disqualified to
inherit from each other by testamentary succession.

Void Marriages under Article 37; Incestuous Marriages
Marriages considered incestuous: between ascendants and descendants of any degree, whether the
relationship is legitimate or illegitimate; and (2) between brothers and sisters, whether of the full
or half-blood and whether the relationship is legitimate or illegitimate.

Rule: Incestuous marriages are void, even if the same are celebrated abroad and valid there as such.

Void Marriages under Article 38; By Reason of Public Policy
Par.1 Between Collateral Blood Relatives:

Rule: Marriages between collateral blood relatives up to 4
th
civil degree, whether legitimate
or illegitimate, are void even if the same are celebrated abroad and valid there as such.

Relationships included:
(1) uncles and nieces;
(2) aunts and nephews; and
(3) first cousins.
Hence, marriages between second cousins are valid in the Philippines.

Par. 2 Between Step-Parents and Step Children:

Rule: Marriages between step-parents and step-children are void, even if the same are celebrated
abroad and valid there as such.

NOTES:

The prohibition still applies even after the termination of the marriage which is the very
source of the relationship by affinity, regardless of the cause of such termination (it can
either be death, annulment or declaration of nullity of the marriage).
The marriage between step-brothers and step-sisters is no longer prohibited. Hence, the
same is now valid.

Par. 3 Between Parents-In-Law and Children-In-Law:

Rule: Marriages between parents-in-law and children-in-law are void, even if the same are
celebrated abroad and valid there as such.

NOTES: The prohibition applies even after the termination of the marriage which is the very source
of the relationship by affinity, regardless of the cause of such termination (it can either be death,
annulment or declaration of nullity of the marriage).

Par. 4 By Reason of Adoptive Relationships:

Prohibited marriages by reason of adoption:
The adopter cannot marry:
(1) the adopted; or
(2) the surviving spouse of the adopted.
The adopted, on the other hand, cannot marry:
(1) the adopter;
(2) the surviving spouse of the adopter;
(3) the legitimate child of the adopter; and (
4) another adopted child of the same adopter.
Any such marriages shall be void, even if the same is celebrated abroad and valid there as such.


Not prohibited:
(1) Marriages between an adopted child and an illegitimate child of the adopter;
(2) marriages between the former spouse of the adopter and the adopted, since the law prohibits
only marriages involving the surviving spouse which connotes death as reason for termination of
the marriage (thereby excluding annulment and declaration of nullity); and
(3) Marriages between the former spouse of the adopted and the adopter, for the same reason.

Par . 5. By Reason of Intentional Killing of Anothers Spouse:

Rule: If the spouse another is intentionally killed for the purpose of marrying the surviving spouse,
the marriage is void even if the same is celebrated abroad and valid there as such.
NOTES:

The marriage is void even if the surviving spouse does not conspire in the killing of his or her
spouse.
The killing must be animated primarily by the intention or desire to do away with the victim
for the purpose of marrying the surviving spouse.
The law does not require a prior criminal conviction to render the marriage void.


Void Marriage under Article 40 of the FC

Situation Contemplated:

To distinguish Article 40 from Article 35(4) of the FC, the former should refer to situations where
the prior marriage is itself void but a party thereto did not secure a judicial declaration of nullity of
the prior marriage before contracting a subsequent marriage. In such a situation, the subsequent
marriage is void, not because it is bigamous under Article 35(4) of the FC, but because of failure to
comply with Article 40 of the FC.

If the prior marriage is perfectly valid, or at least voidable, and a party thereto contracts another
marriage prior to its termination, the subsequent marriage is void for being bigamous pursuant to
Article 35(4) of the FC.

Effect of failure to comply with Article 40:
Even if the prior marriage is void but a party thereto fails to secure a judicial declaration of
its nullity before contracting another marriage, the subsequent marriage is also void and such party
is liable for the crime of bigamy.
Under existing jurisprudence, one must first secure a final judicial declaration of nullity of
his previous marriage before he can validly contract another marriage and failure to do so shall
make him liable for the crime of bigamy if he contracts a subsequent marriage. In other words, if
the marital vinculum of the previous marriage subsists because of the absence of judicial
declaration of its nullity, the second marriage is contracted during the existence of the first
marriage resulting in the crime of bigamy.
Applicability of Article 40:

Article 40 applies and a judicial declaration of nullity of a void marriage is necessary in
cases where a marriage, at least ostensibly, had taken place, although latter declared void ab initio.
But f no marriage ceremony at all was performed by a duly authorized solemnizing officer, there is
no marriage that took place, even ostensibly.

In Morigo v. People, the SC held that if what transpired was a mere signing of the marriage
contract by the parties, without the presence of the solemnizing officer, there is no marriage to
speak of because there is no actual marriage ceremony that was performed by a duly authorized
solemnizing officer. There is no need in this case of a judicial declaration of nullity. Hence, even if a
party to such signing of a marriage contract enters into another marriage without complying with
the requirements of Article 40 of the FC, no crime of bigamy is committed.

Void Marriage under Article 44 of the FC
Requisites of Article 44, FC:
The void marriage under Article 44 of the FC has the following requisites:

(1) The prior spouse (absentee) of the spouse present must have been absent for 4 consecutive
years, or 2 years where there is danger of death under the circumstances stated in Article 391
of the Civil Code at the time of disappearance;

(2) The spouse present has obtained a judicial declaration of presumptive death. [Note: If the
marriage is solemnized in the absence of such judicial declaration, it is void pursuant to Article
35(4), FC.]

(3) But the spouse present and the second spouse acted in bad faith, meaning, both knew, at the
time of the celebration of the subsequent marriage, that the absentee spouse is still alive.

Effect if both parties in the subsequent marriage under Article 41 acted in bad faith:

(1) The subsequent marriage is void ab initio;
(2) All donations propter nuptias made by one in favor of the other are revoked by operation of
law;
(3) All testamentary dispositions made by one in favor of the other are revoked by operation of
law; and
(4) The parties shall be liable for the crime of bigamy.

Void Marriage under Article 36: Psychological Incapacity

Concept:
Psychological Incapacity refers to no less than a mental (not physical) incapacity that causes a
party to be truly incognitive of the basic marital covenants that concomitantly must be assumed
and discharged by the parties to the marriage. Hence, psychological incapacity pertains to the
inability to understand the obligations of marriage, as opposed to a mere inability to comply with
them. It is not enough to prove that the parties failed to meet their responsibilities and duties as
married persons; it is essential that they must be shown to be incapable of doing so, due to some
psychological, not physical, illness.

In psychological incapacity, the spouse declared to be psychologically incapacitated has
innate incapacity or inability to comply with the essential obligations of marriage because of an
utter insensitivity or inability to understand such obligations. As such, he or she cannot be held
liable to pay moral damages to the other spouse based on Articles 2217 and 21 of the NCC which
connotes wilfulness of the acts complained of, if the same acts constitutive of the psychological
incapacity were to be made the basis for the award of moral damages. It is contradictory to
characterize acts as a product of psychological incapacity, and hence beyond the control of the
party because of an innate inability, while at the same time considering the same set of acts as
wilful.


Characteristics of Psychological Incapacity:

(1) Gravity The illness must be grave or serious enough to bring about the disability of the party
to assume essential obligations of marriage.

(2) Juridical Antecedence It must be rooted in the history of the party and must be proven to be
existing at the time of the marriage, although the overt manifestations may emerge only after
the marriage; and

(3) Incurability it must be shown to me medically or clinically permanent or incurable and such
incurability may be absolute or even relative only in regards to other spouse, not absolutely
against everyone of the same sex.

Need for Expert Testimony and Examination of Respondent:

Under Sec. 2(d) of the new Rule on Declaration of Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages, it has been clarified that a petition for declaration of nullity
under Article 36 of the Family Code need not allege expert opinion on the psychological incapacity
or on its root cause. What must be alleged are the physical manifestations indicative of said
incapacity. This has been categorically explained in Barcelona v. CA and Paras v. Paras.

In Marcos v. Marcos, the SC clarified that there is no requirement that the
defendant/respondent spouse should be personally examined by a physician or psychologist as a
condition sine qua non for the declaration of nullity of marriage based on psychological incapacity.
What is important, however, as stated in Marcos v. Marcos is the presence of evidence that can
adequately establish the partys psychological condition. If the totality of evidence presented is
enough to sustain a finding of psychological incapacity, then actual medical examination of the
person concerned need not be resorted to.

Certification of the OSG:
The requirement in Republic v. Molina case for the Solicitor General to issue a certification
stating his reasons for his agreement or opposition to the petition for declaration for nullity of
marriage based n Article 36 of the FC has been dispensed with following the implementation of A.M
No. 02-11-10-SC, or Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of
Voidable Marriages.
Applicability of Molina Guidelines to Mixed Marriages:
The court may not refuse to apply the guidelines in the Molina case simply because the
marriage is a mixed one and that the respondent is a foreign citizen. The SC held in Republic v.
Quintero-Hamano that such guidelines may not be relaxed just because the spouse alleged to be
psychologically incapacitated happens to be a foreign national. The norms used for determining
psychological incapacity should apply to any person regardless of nationality because the rules
were formulated on the basis of studies of human behaviour in general.

Psychological Incapacity and Bigamy:
In Tenebro v. Court of Appeals, the accused was prosecuted for the crime of bigamy.
Subsequently, however, his second marriage was declared a nullity by reason of psychological
incapacity. He then argued that he is not liable for the crime of bigamy since the subsequent judicial
declaration of nullity retroacts the date of the celebration of the second marriage. The SC held that a
declaration of nullity of the second marriage on the ground of psychological incapacity is of
absolutely no moment insofar as the States penal laws are concerned two reasons:

(1) A second subsequent marriage contracted during the subsistence of a prior valid marriage is
void ab initio regardless of petitioners psychological capacity or incapacity. Since a marriage
contracted during the subsistence of a valid marriage is automatically void, the nullity of this
second marriage is not per se an argument for the avoidance of criminal liability for bigamy.
Article 349 of the RPC penalizes the mere act of contracting a second or subsequent marriage
during the subsistence of a valid marriage.

(2) In psychological incapacity as ground for the nullity of a marriage, there is recognition written
into the law itself that such a marriage, although void ab initio, may still produce legal
consequences. Among these legal consequences is incurring criminal liability for bigamy.

Cases where Psychological Incapacity was found to exist:

In Antonio v. Reyes, the respondent was a pathological liar and which he lies were held to
be indicative of her failure to distinguish truth from fiction, or at least abide by the truth. In
declaring her psychologically incapacitated, the SC held that a person unable to distinguish
between fantasy and reality would similarly be unable to comprehend the legal nature of
the marital bond, much less its psychic meaning, and the corresponding obligations
attached to marriage.

In Chi Ming Tsoi v. CA, the husband was declared psychologically incapacitated because of
his continuous and unexplainable refusal to have sexual intercourse with the wife for an
unreasonable length of time. In declaring him psychologically incapacitated, the SC held that
the senseless refusal of one of the parties to engage in sexual intercourse for purposes of
procreation is equivalent to psychological incapacity.

Cases not indicative of Psychological Incapacity:

In Dedel v. Court of Appeals, which involved a promiscuous wife who left her family to live
with one of her many paramours, the SC ruled that the acts of sexual infidelity and
abandonment do not constitute psychological incapacity absent a showing of the presence of
such promiscuity at the inception of the marriage. The same ruling was made by the court in
Villalon v. Villalon where it was further held that the acts of unfaithfulness must be shown as
manifestations of a disordered personality which makes petitioner completely unable to
discharge the essential obligations of marriage, otherwise, mere sexual infidelity will not be
considered proof that petitioner is suffering from psychological incapacity.
In Carating-Siayngco v. Siayngco, the wifes inability to conceive led her husband to other
women so he could fulfil his ardent wish to have a child of his own flesh and blood. The SC
ruled that this is not a manifestation of psychological incapacity as contemplated by the Family
Code.

In Republic v. Molina, Choa v. Choa and Perez-Ferraris v. Ferraris, the SC declared that a
mere showing of irreconcilable differences and conflicting personalities does not constitute
psychological incapacity.

In Paras v. Paras, which involved a husband who has gone astray from the path of marriage
because of a conflicting relationship with his wife and her family and repeated life setbacks,
the SC held that these are not sufficient to establish that he is psychologically incapacitated.

In Hernandez v. Court of Appeals, the SC held that habitual alcoholism, sexual infidelity or
perversion, and abandonment do not by themselves constitute grounds for declaring a
marriage void based on psychological incapacity.

In Republic v. Cuison-Melgar, the SC held that immaturity, habitual alcoholism, unbearable
jealousy, maltreatment, constitutional laziness, and abandonment of his family cannot, by
themselves, be equated with psychological incapacity. It must be shown that these acts are
manifestations of a disordered personality which makes the respondent completely unable to
discharge the essential obligations of marital state.


Effects of judicial declaration of nullity of marriage

Retroactivity:

Rule: The judicial declaration of the nullity of the marriage retroacts to the date of its celebration
insofar as the vinculum between the spouses is concerned. Hence, it is considered as having never
to have taken place.

Exceptions:

(1) Even if the first marriage is void but no judicial declaration of its nullity is obtained prior to
contracting a subsequent marriage, the subsequent marriage is void and there is liability for
the crime of bigamy.

(2) The subsequent judicial declaration of nullity of marriage on the ground of psychological
incapacity does not retroact to the date of the celebration of the marriage insofar as
Philippine penal law on bigamy is concerned; hence, there is still liability for the crime of
bigamy.

Status of Children:

General Rule: As a rule, children of void marriages are considered illegitimate.

Exceptions: Even if the marriage is void ab initio, the children are still considered legitimate:

(1) If the marriage is void by reason of psychological incapacity.

(2) If the marriage is void by reason of non-compliance with the requirements of Article 52 of the
FC.

Property Relations:

General Rule: If the marriage is void, regardless of the cause thereof, the property relations of the
spouses during the period of cohabitation are governed by the provisions of Article 147 or 148, as
the case may be.

Article 147 applies to unions of parties who are legally capacitated and not barred by any
impediment to contract marriage, but whose marriage is nonetheless void, such as when the
marriage is declared void on the ground of psychological incapacity or when it was celebrated
without a valid marriage license.

Article 148, on the other hand, applies to void marriages where parties are incapacitated to
marry each other, such as when the marriage s bigamous or one of the parties thereto is below
18 year of age.

Exception: If the subsequent marriage is void by reason of non-compliance with Article 40 (but the
prior marriage is indeed void ab initio), the property relations of the parties to the subsequent
marriage would still be absolute community or conjugal partnership of gains, as the case may

Effect on donation propter nuptias:

General Rule: If the marriage is judicially declared void, donations propter nuptias are revocable at
the instance of the donor.

Exceptions:

(1) If the subsequent marriage is judicially declared void by reason of Article 40 of the FC, the
donation remains valid except if the donee spouse contracted the marriage in bad faith, in
which case, the donation is revoked by operation of law.

(2) If the marriage is void under Article 44 of the FC (where both parties to a subsequent marriage
under Article 41 of the FC acted in bad faith), all donations propter nuptias made by one in
favor of the other are revoked by operation of law.

Effect on Designation as Beneficiary in Insurance Policy:

General Rule: If the designation of a spouse as a beneficiary in the others insurance policy is
irrevocable, the insured cannot change such designation even if the marriage between the spouses
be void.
Exception: If the subsequent marriage is judicially declared void by reason of Article 40 of the FC,
the innocent spouse may revoke such designation if the beneficiary spouse acted in bad faith, even
if such designation be stipulated as irrevocable.

Effect of Right to Inherit:

(a) Intestate succession: Since the parties are no longer spouses, they cannot inherit from each
other by way of intestate succession.
(b) Testamentary succession: Any testamentary provision by one in favor of the other shall remain
valid except:

(1) If the subsequent marriage is judicially declared void by reason of Article 40 of the FC, the
spouse who contracted the subsequent marriage in bad faith is disqualified to inherit from
the innocent spouse.
(2) If the marriage is void under Article 44 of the FC (where both parties to a subsequent
marriage under Article 41 of the FC acted in bad faith), all testamentary dispositions made by
one in favor of the other are revoked by operation of law. Note, however, that the parties are
not disqualified to institute each other as voluntary heir in their respective wills to be
executed after the judicial declaration of nullity.

Parental Authority and Custody of Children:

General Rule: If the marriage is judicially declared void, the children of said void marriage are
considered illegitimate, in which case, they shall be under the parental authority and custody of
their mother. The illegitimate father, as a consequence, is not entitled to custody, even if he admits
paternity. Such recognition could be a ground for ordering the latter to give support to, but not
custody of, the illegitimate children. But the illegitimate father is entitled to visitation rights in view
of the constitutionally protected inherent and natural right of parents over their children.

(a) Qualification: If the marriage is judicially declared void by reason of psychological incapacity
under Article 36 of the FC or non-compliance with the requirements of Article 52 of the FC,
the children of said void marriage are legitimate, but parental custody authority and custody
shall be exercised by the parent designated by the court. In matters of custody, the paramount
criterion is the welfare of the child. However, if the child is under 7 years of age, the law
presumes that the mother is the best custodian, unless the court will find compelling reasons
to deprive her of custody. The non-custodial parent is entitled, however. To visitation rights.



VOIDABLE MARRIAGES
- Valid until annulled
- Caused by vitiated consent AFTER the time of celebration of the marriage

Grounds: (UP-FAVS)
1. Age of the party in whose behalf it is sought to have the marriage annulled was 18 years of
age or over but below 21, and the marriage was solemnized without the consent of the parents,
guardian or person exercising substitute parental authority over the party, in that order, and both
lived together as husband and wife;
2. Unsound mind of either party
3. Fraudulent means of obtaining consent of either party

Circumstances amounting to Fraud under Article 46: (SPND)
a. Non-disclosure of a previous conviction by final judgment of the other party of a crime
involving moral turpitude;
b. Concealment by the wife of the fact that at the time of the marriage, she was Pregnant by a
man other than her husband;
c. Concealment of a Sexually transmissible disease, regardless of its nature, existing at the
time of the marriage; and
d. Concealment of Drug addiction, habitual alcoholism, homosexuality or lesbianism existing
at the time of the marriage.
NOTES:
Misrepresentation as to character, health, rank, fortune or chastity is not a ground for annulment.
The enumeration in Article 46 is EXCLUSIVE.

4. Vitiated consent of either party through force, intimidation or undue influence
Force
actual physical coercion
- Such degree as to deprive the party of volition
- Must be serious and irresistible
Intimidation mental coercion
Undue influence
- Moral ascendancy of a party is abused to obtain consent
5. Physical incapability of either party to consummate the marriage with the other, and such
incapacity continues and appears to be incurable

Requisites for annulment due to Impotence under Art.45(5) (CUPIN)
a. Impotence exists at the time of the celebration of the marriage
b. The impotence is permanent
c. incurable
d. The impotence is unknown to the other spouse
e. The other spouse must not also be impotent

Doctrine of Triennial Cohabitation
presumption that the husband is impotent should the wife still remain a virgin after 3 years of
living together with her husband.

6. Sexually-transmissible disease of either party found to be serious and appears to be
incurable

NOTE: Mode of ratification for Nos. 1-4 is COHABITATION. In Nos. 5 & 6, there is no ratification to
speak of since the defect is permanent. The latter can be convalidated only by prescription, i.e. 5
years from the date of marriage. Specifically, in no.5, the healthy spouse may still annul the
marriage within 5yrs. after celebration.




Ground (F
2
I
2
NS) Persons Who May Sue Prescriptive Period
1.Force, intimidation, or
undueInfluence
Injured party


w/in 5 years from the time the
force, intimidation, or undue
influence ceased
2. Fraud Injured party w/in 5 years from the dis-covery of
fraud
3. incapability to consum-
mate
Injured party w/in 5 years after the celebration of
the marriage
4. Insanity (a) sane spouse who has
no knowledge of the
insanity
(b) relatives, guardians or
persons ha-ving legal
charge of the insane
(c) insane spouse
(a) anytime before the death of
either party
(b) anytime before the death of
either party
(c) during lucid interval or after
regaining sanity
5. Non- consent (a) parent/ legal guardian
having charge of the no-
consent party
(b)no consent party
(a) anytime before the no consent
party reaches 21
(b) w/in 5 years after reaching 21
6. STD Injured party w/in 5 years after the celebration of
the marriage


NOTE: In Nos. 1, 2, 4, and 5, when cohabitation takes place after the defect ceases to exist, the
prescriptive period is rendered moot and academic. Whichever comes first mayconvalidate the
marriage: Cohabitation or Prescription.



Requisites for annulment due to Disease under Article 45(6) (ICSIIF)
- Either party is inflicted with a sexually transmissible disease (STD)

ADDITIONAL REQUIREMENTS FOR ANNULMENT OR DECLARATION OF NULLITY
1. Prosecuting attorney or fiscal should:
a. Take steps to prevent collusion between the parties
b. Take care that evidence is not fabricated or suppressed
2. The following must be accomplished:
a. Partition and distribution of the properties of the spouses
b. Delivery of the childrens presumptive legitimes
c. Recording of the judgment of annulment or absolute nullity.

NOTES:
There will be collusion only if the parties had arranged to make it appear that a ground existed
or had been committed although it was not, or if the parties had connived to bring about a
matrimonial case even in the absence of grounds therefore. (Ocampo vs. Florenciano)
A grant of annulment of marriage or legal separation by default is fraught
with danger of collusion. If the defendant spouse fails to answer the complaint, the court cannot
declare him or her in default but instead, should order the prosecuting attorney to determine if
collusion exists between the parties.
o However, petitioners vehement opposition to the annulment proceedings negates the
conclusion that collusion existed between the parties. Under these circumstances, the non-
intervention of a prosecuting attorney to assure lack of collusion between the contending
parties is not fatal to the validity of the proceedings in the trial court. (Tuason vs. CA, GR 116607,
April 10, 1996)

Distinction Between Void and Voidable Marriage
VOID

VOIDABLE

As to nature

Inexistent from the time of performance Valid until annulled
As to susceptibility
to
ratification

Cannot be ratified

Can be ratified either by
freecohabitation or
prescription



RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARRIAGES AND ANNULMENT OF
VOIDABLE MARRIAGES(A.M. 00-11-01-SC)
o took effect on March 15, 2003
o this Rule shall govern petitions for declaration of absolute nullity of void marriages
and annulment of voidable marriages under the Family Code of the Philippines.
o the Rules of Court has suppletory application


As to effect on
property

No community property, only co-
ownership (Art 147)

Absolute community exists
unless another system is
agreed upon in marriage
settlement
As to effect on
children

Children are illegitimate Exceptions:
a.In case of psycho incapacity (Art 36)
b.Children born of subsequentmarriage
(Art 53)

Children are legitimate if
conceived before decree of
annulment

As to how
marriage may
be impugned

a.May be attacked directly or
collaterally but for purpose of
remarriage, there must be
judicial declaration of nullity.
b.Can still be impugned evenafter death
of parties

a.Cannot be attacked
collaterally,
only directly, i.e. there must be
a
decree of annulment
b.Can no longer be impugned
after death of one of the
parties


LEGAL SEPARATION
Grounds: (SAMBA-LIPAD)
1. repeated Physical violence or grossly abusive conduct directed against the petitioner, a
common child, or a child of the petitioner
2. Attempt of the 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
3. Attempt by the respondent against the life of the petitioner
4. final judgment sentencing the respondent to imprisonment of more than 6 years even if
pardoned
5. Drug addiction or habitual alcoholism of the respondent
6. Lesbianism or homosexuality of the respondent
7. Abandonment of the petitioner by the respondent without justifiable cause for more than 1
year
8. physical violence or Moral pressure to compel petitioner to change religious or political
affiliation
9. contracting by respondent of a subsequent Bigamous marriage; and
10. Sexual infidelity or perversion.

NOTES:
Cooling-off Period 6 months period designed to give the parties enough time to further
contemplate their positions with the end in view of attaining reconciliation between them.
The enumeration in Article 55 regarding legal separation is EXCLUSIVE.

Grounds for denial of petition:
(CCCC-MP-DR)
a. Condonation -NOTE: failure of the husband to look for his adulterous wife is NOT condonation
to wife's adultery. (Ocampo vs. Florenciano)
b. Consent
c. Connivance
d. Collusion
e. Mutual Guilt
f. Prescription
g. Death of either party during the pendency of the case (Lapuz-Sy vs. Eufemio)
h. Reconciliation of the spouses during the pendency of the case

Effects of filing petition:
a. The spouses shall be entitled to live separately from each other.
b. The husband shall have no more right to have sexual intercourse with his wife.
c. In the absence of an agreement between the parties, the court shall designate the husband, the
wife, or a 3
rd
person to manage the absolute community or conjugal partnership property.

EFFECTS OF RECONCILIATION
1. Legal separation proceedings if still pending shall be terminated
2. Final decree of legal separation shall be set aside but the separation of propertyand any
forfeiture of the share of the guilty spouse shall subsist unless thespouses agree to revive
their former property regime


Effects of decree of legal separation:
a. The spouses shall be entitled to live separately from each other but the marriage bond is not
severed.
b. The absolute community or conjugal partnership shall be dissolved and liquidated.
c. The custody of the minor children shall be awarded to the innocent spouse subject to the
provisions of Art. 213 of the Code.
d. The offending spouse shall be disqualified from inheriting from the innocent spouse by
intestate succession and the provisions in favor of the offending spouse made in the will of the
innocent spouse shall be revoked by operation of law.
e. The innocent spouse may revoke the donations made by him/her in favor of the offending
spouse, as well as the designation of the latter as beneficiary in any insurance policy, even if the
designation be irrevocable.

Effects of Reconciliation of the Spouses:
a. The legal separation proceedings, if still pending, shall thereby be terminated at whatever stage.
b. The final decree of legal separation shall be set aside, but the separation of property and any
forfeiture of share of the guilty spouse already effected shall subsist, unless the spouses agree to
revive their former property regime.

RULE ON LEGAL SEPARATION
(A.M. 02-11-11-SC)
took effect on March 15, 2003
this Rule shall govern petitions for legal separation under the Family Code in the Philippines;
the Rules of Court shall apply suppletorily
please refer to the Remedial Law Memory Aid for the procedural provisions of the Rule

MARITAL RIGHTS AND OBLIGATIONS
(JL-FORM)
1. live together
2. observe mutual love, respect & fidelity
3. render mutual help & support
4. fix the family domicile
5. joint responsibility for the support of the family
6. management of the household


Exercise of Profession
GENERAL RULE: Husband & wife can engage in any lawful enterprise or profession without
the consent of the other.
EXCEPTION: Upon objection of the other spouse only on valid, serious and moral grounds, may
the formers consent be necessary.
Property Relations Between Husband & Wife
Governed by:
1. marriage settlements executed before the marriage or antenuptial agreements
2. provisions of the Family Code
3. local customs (when spouses repudiate absolute community)

MARRIAGE SETTLEMENTS
It is a contract entered into by the future spouses fixing the matrimonial property regime that
should govern during the existence.

Requisites:
1. made before celebration of marriage
2. in writing (even modifications)
3. signed by the parties
4. not prejudice third persons unless registered in the civil registry
5. to fix terms and conditions of their property relations
6. additional signatories
a. 18-21: parents
b. civil interdictees& disabled: guardian

Not applicable when:
1. both spouses are aliens, even if married in the Philippines
2. as to extrinsic validity of contracts
3. contrary stipulation

DONATIONS BY REASON OF MARRIAGE
Requisites: (COBB)
1. made before celebration of marriage
2. in consideration of marriage
3. in favor of one or both future spouses



BASES DONATIONS PROPTER NUPTIAS ORDINARY DONATIONS
Formalities
Governed by the rules on ordinary
donations except that if future property is
donated, it must conform with formalities
of wills
Governed by rules on
donations (Arts. 725-773,
NCC)
Present Property May be donated but up to 1/5 of donors
present property
No limit except that donor
shall leave property enough
for his support
Future property May be included provided donation is
mortis causa
Cannot be included
Grounds for revocation Art. 86, FC Arts. 760, 764, & 765, NCC

Rule on Donation Between Spouses During Marriage
GENERAL RULE: VOID, either direct or indirect donation
EXCEPTIONS:
1. moderate gifts on occasions of family celebrations
2. donations mortis causa

NOTE: This rule also applies to common-law spouses. (Article 87, Family Code)

Grounds for Revocation (VIRAL-CN)
1. marriage Not celebrated or declared Void ab initio except those made in marriage settlements
2. marriage without parental Consent
3. marriage is Annulled and donee is in bad faith
4. upon Legal separation, the donee being the guilty spouse
5. complied Resolutory condition
6. donee commits acts of Ingratitude

ABSOLUTE COMMUNITY OF PROPERTY(ACP)
- The property regime of the spouses in the absence of a marriage settlement or when the
marriage is void. This is so because it is more in keeping with Filipino culture.

GENERAL RULE: Community property shall consist of all property owned by the spouses at the time
of the marriage or acquired thereafter.
EXCEPTIONS: (BEG)
1. property acquired before the marriage by either spouse who has legitimate descendants by
a former marriage
2. property for personal and exclusive use except jewelry
3. property acquired during the marriage by gratuitous title, except when the donor, testator
or grantor expressly provides otherwise
NOTE: No waiver of rights allowed during the marriage except in case of judicial separation of
property. The waiver must be in a public instrument.
Administration of the community property
GENERAL RULE: It shall belong to both spouses jointly.
EXCEPTIONS:
1. In case of disagreement, husbands decision shall prevail.
2. In case one spouse is incapacitated or unable to participate in the administration of the
common properties, other spouse may assume sole powers.

NOTE: These powers do not include:
a. Disposition
b. encumbrance

NOTE: Any alienation or encumbrance is void ifwithout the written consent of the other spouse
Rule on Game of Chance
LOSS: Shall be borne by the loser-spouse and shall not be charged to the community property
WINNINGS: Shall form part of the community property

Steps in Liquidation of AC: (IP-DDP)
1. Inventory
a. Inventory of Community Property
b. Inventory of separate property of the wife
c. Inventory of separate property of the husband
2. Payment of Community Debts
First, pay out of community assets, if not enough, husband and wife are solidarily liable
3. Delivery to each spouse his/her separate property if any
4. Division of the net community assets
5. Delivery of presumptive legitimes, if any, to the children


Properties Included and Excluded in the Conjugal Partnership
(1) Properties Excluded (or Separate Properties):

(a) Properties acquired PRIOR to the marriage;

Except:
(i) Fruits and income of said properties, which shall be included in the conjugal
properties;

(ii) Those included therein in the marriage settlement, subject to the 1/5 limitation
under Article 84 and the rule in Article 92 (3) of the FC which apply by analogy.

(b) Properties acquired DURING the marriage by GRANTIU- TOUS title;

Reminders:

(i) Property donated or left by will to the spouses jointly and with designation of
determinate shares, shall pertain to the done-spouse as his or her exclusive
property.

(ii) In the absence of designation, they shall share alike, without prejudice to the
right of accretion.

(c) Properties acquired by right of redemption, by barter or by exchange with property
belonging to only one of the spouses;

(d) Properties purchased with exclusive money.

(2) Properties Included:

(a) Properties acquired by onerous title during the marriage at the expense of common
fund.

(aa) Requisites:

(i) Acquisition is made during the marriage;

(ii) Thru onerous title; and

(iii) At the expense of common fund.
(bb) Presumption of Conjugality: 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 conjugal unless the contrary is proved.
Reminders:
(i) Proof of acquisition of property during the marriage is a condition sine qua
non for the operation of the presumption in favor of conjugal partnership.

(ii) It is not necessary to prove that the property was acquired with the funds of
the conjugal partnership, otherwise, the legal presumption set forth in the
law will be superfluity.

(cc) Exception: For property acquired during the marriage thru the exercise of right of
redemption, even if the redemption price comes from conjugal funds, the property
so acquired shall be the separate property of the spouse to whom the right of
redemption pertains, subject, however to reimbursement.
(b) Property obtained during the marriage from the labor industry, work or profession of
either or said both spouses.

(c) Fruits from conjugal properties and net fruits from separate properties. Net fruits
refer to the remainder of the fruits after deducting the amount necessary to cover the
expenses of administration of said exclusive property.

(aa) Principal and interest payable in installments:
If credit is payable within a period of time and belongs only to one of the spouses:

(i) Sums representing installments on the principal, exclusive property of the
spouse;

(ii) But interest on the principal falling due during the marriage, conjugal
property.

(d) Share in the hidden treasure and those acquired thru fishing or hunting.

(e) Those acquired thru chance, such as winnings from gambling or betting. However,
losses shall be borne exclusively by the loser spouse.

(f) Livestock existing at the time of the dissolution of the partnership, in excess of the
number of each kind brought to the marriage by either spouse.

(3) Property Brought Thru Installment:

(a) Requisites:

(i) Property is brought on installment prior to the marriage;

(ii) Paid party from exclusive funds and partly from conjugal funds.
(b) Rules in determining ownership:
(i) If full ownership was vested prior to marriage, exclusive property of the buyer;
(ii) If full ownership was vested during the marriage, conjugal property;
(iii) In either case, there shall be reimbursement upon liquidation of the partnership.
(4) Improvement on Separate Property:
(a) Requisites:
(i) An improvement is made on the separate property of either spouse;
(ii) Improvement is made during the marriage;
(iii) At the expense of the conjugal partnership or thru the acts or efforts of either or
both spouses.
(b) Rules in determining ownership:
(i) If the ct of improvement and any resulting increase in value are more than the
value of the property at the time of improvement, the entire property shall
belong to the conjugal patnership;
(ii) If less than, the entire property shall belong to the owner-spouse.
(iii) In either case, there shall be reimbursement upon the liquidation of the conjugal
partnership and ownership of the entire property shall be vested only upon
reimbursement.
(iv) Reminder: The obligation to reimburse for the cost of the improvements, under
Article 120 of the FC, rests on the spouse upon whom ownership of the entire
property is vested there is no such obligation on the part of the purchaser of
the property, in case the property is sold by the owner-spouse prior to
reimbursement.


















Obligations Chargeable to the Conjugal Partnership
(1) Support of:
(i) Spouses;
(ii) Common children; and
Summary of Inclusion\Exclusion
Properties Acquired Before Marriage Properties Acquired During Marriage
Gen. Rule: Properties acquired before the
marriage are not included in the CPG, but fruits
and income of said properties accruing during
the marriage are included in the CPG.

Exception: When included in the CPG in the
marriage settlement subject to the following
limitations:

(1) May not exceed more than 1/5 of
present property; and

(2) May not include properties acquired prior
to marriage if either of the future spouses
has legitimate descendants in a former
marriage.
(a) If acquired thru gratuitous title, NOT
included in the CPG but the fruits and
income of said properties are included in
the CPG.

(b) If acquired thru onerous title and;

(1) Using exclusive money or funds, the
property so acquired is exclusive property
(not included in the CPG).

(2) Using conjugal funds, the property so
acquired is generally included in the CPG
except if the acquisition is by way of
exercise of right of redemption. In the latter,
the property belongs to the owner of the
right of redemption regardless of the source
of funds used in the redemption. If the right
pertains to only of the spouses, the property
is exclusive property of said spouse even if
conjugal funds are used in the acquisition.
In this case, the CPG shall only be
reimbursed upon its liquidation.
(iii) Legitimate children of either spouse.
But support of illegitimate children of either spouse is chargeable to exclusive property of
the illegitimate parent.
(2) Debts and obligations:
(a) Antenuptial debts (contracted before the marriage) by either spouse are chargeable to
the conjugal partnership if they have redounded to the benefit of the family.
(b) For those contracted during the marriage:
(i) If contracted by both spouses;
(ii) If contracted by one spouse with the consent of the other;
(iii) If contracted by one spouse without the consent of the other but only to the
extent that they have redounded to the benefit of the family;
(iv) If contracted by the administrator-spouse for the benefit of the conjugal
partnership.
(aa) Personal Debts Contracted By Either Spouse:
Rules:
(i) If contracted for the benefit of the conjugal partnership or for the benefit of
the family, debt is chargeable to the conjugal partnership;
(ii) If not, it can be charged against the exclusive property only of the debtor-
spouse.

Presumption: If either spouse contracts an obligation on behalf of the family business, there is a
legal presumption that such obligation redounds to the benefit of the conjugal
partnership. Thus:
(a) If the husband himself is the principal obligor in the contract, i.e., the direct
recipient of the money and services to be used in or for his own business or
profession, the transaction falls within the term obligations for the benefit of
the conjugal partnership.
(b) But if the money or services are given to another person or entity and the
husband acted only as a surety or guarantor, the transaction cannot by itself be
deemed an obligation for the benefit of the conjugal partnership. It is for the
benefit of the principal debtor and not for the surety or his family.
(3) Taxes and Expenses:
(a) Taxes falling upon the conjugal partnership property;
(b) Taxes falling upon the separate property, if used by the family
(c) Expenses incurred on the conjugal partnership property, whether the repair is major
or minor;
(d) Expenses incurred on a separate property if:
(i) incurred during the marriage;
(ii) for mere preservation; and
(iii) property is used by the family.
(e) Expenses to enable spouse to commence or complete a professional or vocational
course, or other activity for self-improvement;
(f) Value of what is donated or promised by both spouses in favor of common legitimate
children for the exclusive purpose of commencing or completing a professional or
vocational course, or other activity for self-improvement;
(g) Expenses of litigation between the spouses.
REMINDER: If conjugal partnership is insufficient, the spouses are solidarily liable for
the unpaid balance with their separate properties.

Obligations Chargeable to Separate Property
(1) Support of illegitimate children of either spouse is chargeable to exclusive property of
the illegitimate parent.
(2) Liabilities incurred by reason of a crime or quasi-delict.
(3) Expenses of litigation between the spouses if found to be groundless.
(4) Losses during the marriage in any game of chance, betting, sweepstakes or any other
kind of gambling, whether permitted or prohibited by law.
(5) Debts contracted during the marriage:
(a) By the administrator-spouse which did not benefit the community;
(b) By one spouse without the consent of the other which did not benefit the family.
(6) Antenuptial debts by either spouse which did not benefit the family.
(7) Taxes incurred on a separate property which is not used by the family.
(8) Expenses incurred during the marriage on a separate property if: (i) not for its
preservation and (ii) the property is not used by the family.
REMINDERS: The following obligations chargeable to the separate properties of the spouses may be
enforced against the conjugal partnership if:
(1) all the responsibilities of the partnership have already been covered;
(2) the spouse who is bound have no exclusive properties or the same are insufficient, subject to
reimbursement upon liquidation of the partnership:

(a) Personal debts of either spouse contracted before the marriage which did not
redound to the benefit of the family.
BUT: If the personal debt is contracted during the marriage, note that the same
may not be enforced against the conjugal partnership.
(b) Support of illegitimate children of their spouse;
(c) Fines and indemnities arising from delicts and quasi-delicts.


Administration and Disposition of Conjugal Property
(1) Administration:
(a) Rule: The administration of conjugal partnership property belongs to both spouses
jointly.
(b) Sole Administration , When Allowed:
(i) If one spouse is incapacitated or otherwise unable to participate in the
administration of conjugal properties, the other may assume sole power of administration,
without need of court approval or authorization.
(ii) 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 as sole administrator.
(iii) During the pendency of a legal separation case, the court may designate either of
the spouses as sole administrator.
(2) Disposition or Encumbrance of Conjugal Property:
(a) Governing Law:
i. Rule under Family Code:
The present law specifically requires the written consent of the other spouse, or authority of the
court for the disposition or encumbrance of conjugal partnership property without which, the
disposition or encumbrance shall be void.
ii Disposition of Encumbrance Before August 3, 1988:
However, when the sale is made before the effectivity of the Family Code, the applicable law is
the Civil Code. In other words, the rule under Article 124 of the FC applies only if the disposition
or encumbrance takes place during the effectivity of the Family Code.
(b) Rule under the Civil Code: Article 173 of the Civil Code provides that the
disposition of the real property of the conjugal partnership by the husband
without the wifes consent is that void and merely voidable and the wife could,
during the marriage and within 10 years from the questioned transaction, seeks
its annulment. In Felipe v. Aldon, the SC applied Article 173 in a case where the
wife sold some parcels of land belonging to the conjugal partnership without the
consent of the husband. It was therein ruled that the contract of sale was
voidable subject to annulment by the husband.
(c) Contract, Void in its Entirety: In the sale of conjugal properties, the consent of
both the husband and the wife is now required and the absence of the consent of
one renders the entire sale null and void including the portion of the conjugal
property pertaining to the spouse who contracted the sale. In words, sale is void
in its entirety.
(i) Reason for the Rule: The reason of the husband or wife to one-half of the
conjugal assets does not vest until the liquidation of the conjugal partnership, or after
dissolution of the marriage, when it is finally determined that, after settlement of conjugal
obligations, there are net assets left which can be divided between the spouses of their
respective heirs. Prior thereto, the interest of each spouse in the conjugal assets is inchoate, a
mere expectancy, which constitutes neither a legal nor an equitable estate. Hence, either of the
spouses may not give what he has not.
(ii) Article 493 of Civil Code, Not Applicable in Conjugal Partnership: In
Homeowners Savings & Loan Bank v. Dailo, the bank contended that the mortgage of a
conjugal property by the husband without the consent of the wife is not void in its entirety, but
valid with respect to the share of the consenting spouse, citing the provisions of Article 493 of
the NCC which allows a co-owner to dispose of his ideal share without the consent of the other.
The SC held, however, that the rules on co-ownership, including Article 493, do not apply to
conjugal partnership of gains because the said property regime is a special type of partnership.
Hence, it is the rules on partnership which apply suppletory to conjugal partnership of gains
and not the rules on co-ownership.

Dissolution or Termination of Conjugal Partnership
Procedure for Liquidation of Absolute Community
[Government by same rules applicable to absolute community; see discussion in Nos. 72
and 73]

REGIME OF SEPARATION OF PROPERTY
(Arts. 134- 146, FC)
Separation of Property of Spouses During the Marriage
(1) When can it govern:
(a) By express declaration in the marriage settlement:
Reminders:
(i) If separation of property is agreed upon in the marriage settlement, the spouses may no
longer adopt absolute community or conjugal partnership during the marriage because these
2 regimes can only commence at the precise moment of the celebration of the marriage.
(ii) The separation may refer to the present or future property or both.
(iii) The separation may be total or partial. In case of partial separation, properties
not agreed upon as separate shall pertain to the absolute community.
(b). By judicial order:
(i) Upon finality of a decree of legal separation;
(ii) Upon a joint petition of the spouses for voluntary separation (or without
need for a cause)
(iii) Upon petition for judicial separation due to a sufficient cause.
(c.) By failure of the surviving spouse to liquidate the absolute community or
conjugal partnership of gains of a previous marriage which has been terminated
by death within the one-year period required by law prior to contracting
another marriage. The subsequent marriage is mandatorily governed by a
regime of complete separation.
(2) Judicial Separation For Sufficient Cause:
Grounds:
(i) Other spouses has been sentenced to a penalty which carries with it civil
interdiction;
(ii) Other spouses has been judicially declared an absentee;
(iii) Other spouses has lost parental authority by court decree;
(iv) Other spouses has abandoned the petitioner or has failed to comply with marital
obligations;
(v) The administrator-spouse in the marriage settlement has abused his/her power;
(vi) That spouses have been separated in fact for at least 1 year and reconciliation is
highly improbable.
Reminder: In (i) to (iii), presentation of the final judgment is enough basis for the grant
of the decree of judicial separation.
(3) Revival of Previous Property Regime:
(a) Grounds for revival:
(i) If voluntary, the parties may agree to the revival even if the absence of a
reason/ground. However, no voluntary separation may thereafter be
granted.
(ii) If for sufficient cause, upon cessation of the ground which was the basis
of the judicial order for separation. If judicial separation is for a
sufficient cause, the spouses can gain petition for judicial separation so
long as there is a new cause/ground.
(b) Procedure for revival: [same as those followed upon reconciliation of the
spouses after the finality of legal separation]
(4) Transfer of Administration of Exclusive Property to Another Spouse During the
Marriage:
(a) By agreement:
Requisites:
(i) By means of a public instruments;
(ii) To be recorded in the registry of property of the place where the
property is located.
(b) By order of the court upon petition, based on any of these grounds:
(i) Other spouse becomes the guardian of the other;
(ii) Other spouses is judicially declared an absentee;
(iii) Other spouses are sentenced to a penalty which carries with it civil interdiction;
or
(iv) Other spouse becomes fugitive from justice or hiding as an accused in a criminal
case.
(c) Automatic termination of administration: 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.


PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE
(Arts. 147 148, FC)

Property Regimes in Void Marriages
(a) Rule: In a void marriage, regardless of the cause thereof, the property relations of the
parties during the period of cohabitation are governed by the provisions of Article 147
or Article 148, such as the case maybe, of the Family Code. In other words, there is no
absolute community or conjugal partnership in a void marriage.
(b) Exception: If the subsequent marriage is void by reason of non-compliance with
Article 40 (but the prior marriage is indeed void ab initio), the property relation of the
parties to the subsequent marriage will still be absolute community or conjugal
partnership of gains, as the case maybe.
Property Regime under Article 147, FC
(1) Applicability: Applies when a man and a woman, suffering no legal impediment to
marry each other, so exclusively live together as husband and wife under a void
marriage or without the benefit of marriage.
(2) Requisites: For Article 147 to operate, the man and the woman:
(i) must be capacitated to marry each other;
(ii) live exclusively with each other as husband and wife; and
(iii) their union is without the benefit of marriage or their marriage is void.
Reminder: The term capacitated in the provision (in the first paragraph of the law)
refers to the legal capacity of a party to contrast marriage, i.e., any male or female of the
age of eighteen years or upwards not under any of the impediments mentioned in
Articles 37 and 38 of the Code.

(3) Examples of marriages governed by Article 147:
(i) Marriages declared void by reason of psychological incapacity;
(ii) Marriages celebrated without a valid marriage license.
(4) Rule on Distribution of Properties:
(a) Wages and Salaries: Wages and salaries earned by either party during the cohabitation
shall be owned by the parties in equal shares and will be divided equally between them, even if
one party earned the wages and the other did not contribute thereto.
(b) Properties Acquired During Cohabitation: Property acquired by both parties through
their work and industry shall be governed by the rule on equal co-ownership. Any property
acquired during the union is prima facie presumed to have been obtained through their joint
efforts. A party who did not participate in the acquisition of the property shall still be
considered as having contributed thereto jointly if said partysefforts consisted in the care and
maintenance of the family household. Unlike the conjugal partnership of gains, the fruits of the
couples separate property are not, however, included in the co-ownership.
(i) During the cohabitation, the parties are prohibited from disposing by
acts inter vivos or encumbering their respective shares in the co-owned property without the
consent of the other. In other words, Article 493 of the NCC does not apply.
(ii) In MBTC v. Pascual, the validity of an encumbrance of the entire property
made by one of the parties without the others consent was upheld with the SC with respect
only to the share of the consenting co-owner, applying the provisions of Article 493 of the NCC.
In this case, the encumbrance was made after the termination of the cohabitation (or after the
finality of the judgment declaring the marriage void by reason of psychological incapacity).
(iii) If the cohabitation is by reason of a void marriage and only one of the parties
acted in bad faith, the share of the latter in the co-ownership shall be forfeited in favor of the
following, which forfeiture shall take place upon the termination of the cohabitation:
1) the common children, if any;
2) in default of common children, the surviving defendants of the property who acted in bad
faith;
3) in the absence of descendants, the innocent party.

Property Regime under Article 148, FC
1) Applicability: Article 148 of the Family Code applies in cases where the parties in union
are incapacitated to marry each other. It refers to the property regime of bigamous
marriages, adulterous relationships, relationships in a state of concubine, relationships
where both man and woman are married to other persons, multiple alliances of the same
married man.
(i) Requisites: For Article 148 to operate, the man and the woman:
(ii) Retroactive Application of Art. 148, FC: Although the adulterous cohabitation of
the parties or the acquisition of the property occurred before the effectivity of
the Family Code (on August 3, 1998), Article 148 thereof applies because this
provision was intended precisely to fill up the hiatus in Article 144 of the Civil
Code. Before Article 148 of the Family Code was enacted, there was no provision
governing property relations of couples living in a state of adultery or
concubinage.
2) Rule of Distribution of Properties:
(a) Wages and Salaries: Wages and salaries earned by each party belong to him or her
exclusively.
(b) Property Acquired During Cohabitation:
Only properties acquired by both of the parties thru actual joint contribution of money,
property or industry shall belong to the co-ownership, in proportion to their respective
contributions. It must be stressed that actual contribution is required by Article 148, in contrast
to Article 147 which states that efforts in the care and maintenance of the family and household,
are regarded as contributions to the acquisition of common property by one who has no salary
or income or work or industry. If the actual contribution of the party is not proved, there will be
no co-ownership and no presumption of equal share.
(i) If one of the parties in the cohabitation 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.
(ii) If there is no such valid marriage, the share of the party who acted in bad faith
(whether either or both in bad faith) shall be forfeited, which forfeiture shall take place upon
the termination of the cohabitation, in favor of:
1) the common children, if any;
2) in default of common children, the surviving descendants of the party who acted in
bad faith;
3) in the absence of descendants, the innocent party.


FUNERALS


The duty and the right to make arrangements for the funeral of a relative shall belong to the
following:
1) Surviving spouse
2) Descendant nearest in degree (absence of no. 1)
3) Ascendant (absence of no. 2)
4) Brothers and sisters (absence of no. 3)
- preferential in character and only those who have legal relationship can fulfill the duty

o Eugenio v. Velez
The Court held that the man with whom the deceased has been living with prior to
her death was not entitled to bury her. The presumption of marriage cannot be applied
here because there are no proofs that they in fact get married. Furthermore, he has been
in fact married to another. Thus, the right to bury the deceased was given to her
brothers and sisters.

- funerals and burial arrangement must be consistent with the social standing of the
deceased, and in the following manner:
1) Expressed wishes of the deceased
- either in a will or written instrument
2) Religious beliefs/ affiliations
3) Persons enumerated under the law shall decide

- the NCC provides that anyone who disrespect or allows disrespect to the dead body shall
be liable for damages to the family of the deceased




XI. EMANCIPATION AND AGE OF MAJORITY
R.A. 6809:
Emancipation shall terminate parental authority over the person and property of the child
who shall then be qualified and responsible for all acts of civil life, save the exception established by
existing laws in special cases.
Contracting marriage shall require parental consent until the age of 21.
Emancipation takes place by attainment of majority. Unless otherwise provided, majority
commences at the age of 18 years.
Effects: 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.


XII. SURNAMES
Article 364. Legitimate and legitimated children shall principally use the surname of the
father.
Article 365. An adopted child shall bear the surname of the adopter.
Article 366. A natural child acknowledged by both parents shall principally use the surname
of the father. If recognized by only one of the parents, a natural child shall employ the
surname of the recognizing parent.
Article 367. Natural children by legal fiction shall principally employ the surname of the
father.
Article 368. Illegitimate children referred to in article 287 shall bear the surname of the
mother.
Article 369. Children conceived before the decree annulling a voidable marriage shall
principally use the surname of the father.
Article 370. A married woman may use:
(1) Her maiden first name and surname and add her husband's surname, or
(2) Her maiden first name and her husband's surname or
(3) Her husband's full name, but prefixing a word indicating that she is his wife, such as
"Mrs."
Article 371. In case of annulment of marriage, and the wife is the guilty party, she shall
resume her maiden name and surname. If she is the innocent spouse, she may resume her
maiden name and surname. However, she may choose to continue employing her former
husband's surname, unless:
(1) The court decrees otherwise, or
(2) She or the former husband is married again to another person.
Article 372. When legal separation has been granted, the wife shall continue using her name
and surname employed before the legal separation.
Article 373. A widow may use the deceased husband's surname as though he were still living,
in accordance with article 370.
Article 374. In case of identity of names and surnames, the younger person shall be obliged
to use such additional name or surname as will avoid confusion.
Article 375. In case of identity of names and surnames between ascendants and descendants,
the word "Junior" can be used only by a son. Grandsons and other direct male descendants
shall either:
(1) Add a middle name or the mother's surname, or
(2) Add the Roman numerals II, III, and so on.
Article 376. No person can change his name or surname without judicial authority.
Article 377. Usurpation of a name and surname may be the subject of an action for damages
and other relief.
Article 378. The unauthorized or unlawful use of another person's surname gives a right of
action to the latter.
Article 379. The employment of pen names or stage names is permitted, provided it is done
in good faith and there is no injury to third persons. Pen names and stage names cannot be
usurped.
Article 380. Except as provided in the preceding article, no person shall use different names
and surnames.

Arts. 364-380, Civil Code of the Phillipines in rel. to Art. 178, Revised Penal Code
a. Legitimate and legitimated children shall principally use the surname of the father. A.
364
b. An adopted child shall bear the surname of the adopter. A. 365
o In Re: Adoption of Stephanie Garcia, 454 S 541
There is no law regulating the use of a middle name. Even Article 176 of the
Family Code, as amended by Republic Act No. 9255, otherwise known as An Act
Allowing Illegitimate Children To Use The Surname Of Their Father, is silent as to
what middle name a child may use.
The middle name or the mothers surname is only considered in Article
375(1), NCC, in case there is identity of names and surnames between ascendants
and descendants, in which case, the middle name or the mothers surname shall be
added.
Hence, since there is no law prohibiting an illegitimate child adopted by her
natural father, like Stephanie, to use, as middle name her mothers surname, the SC
finds no reason why she should not be allowed to do so.

o In Re: Julian Lin Wang, 30 March 2005
There is no proper and reasonable cause for a change of name. There is no
showing of Singaporean laws regarding names, and the possible effects of
confusion and discrimination are imaginary than real. Philippine law dictates that
the legitimate and legitimated children shall carry the surnames of the father and
the mother.
The touchstone for the grant of a change of name is that there be proper and
reasonable cause for which the change is sought. To justify a request for change of
name, petitioner must show not only some proper or compelling reason therefore
but also that he will be prejudiced by the use of his true and official name. Among
the grounds for change of name which have been held valid are: (a) when the name
is ridiculous, dishonorable or extremely difficult to write or pronounce; (b) when
the change results as a legal consequence, as in legitimation; (c) when the change
will avoid confusion; (d) when one has continuously used and been known since
childhood by a Filipino name, and was unaware of alien parentage; (e) a sincere
desire to adopt a Filipino name to erase signs of former alienage, all in good faith
and without prejudicing anybody; and (f) when the surname causes
embarrassment and there is no showing that the desired change of name was for a
fraudulent purpose or that the change of name would prejudice public interest.

c. A natural child acknowledged by both parents shall principally use the surname of the
father. If recognized by only one of the parents, a natural child shall employ the surname
of the recognizing parent. A. 366

d. Natural children by legal fiction shall principally employ the surname of the father. A.
367

e. Illegitimate children referred to in article 287 shall bear the surname of the mother. A.
368

f. Children conceived before the decree annulling a voidable marriage shall principally use
the surname of the father. A. 369

g. A married woman may use: A. 370
(1) Her maiden first name and surname and add her husband's surname, or
(2) Her maiden first name and her husband's surname or
(3) Her husband's full name, but prefixing a word indicating that she is his wife,
such as "Mrs."
o Remo v. The Hon. Sec. of Foreign Affairs, 5 March 2010
A married woman has an option, but not a duty, to use the surname
of the husband in any of the ways provided by Article 370 of the Civil Code. She
is therefore allowed to use not only any of the three names provided in Article
370, but also her maiden name upon marriage. She is not prohibited from
continuously using her maiden name once she is married because when a woman
marries, she does not change her name but only her civil status. Further, this
interpretation is in consonance with the principle that surnames indicate
descent.
In the present case, petitioner, whose marriage is still subsisting and who
opted to use her husbands surname in her old passport, requested to resume her
maiden name in the replacement passport arguing that no law prohibits her from
using her maiden name. Petitioner cites Yasin as the applicable
precedent. However, Yasin is not squarely in point with this case. Unlike
in Yasin, which involved a Muslim divorcee whose former husband is already
married to another woman, petitioners marriage remains subsisting. Another
point, Yasin did not involve a request to resume ones maiden name in a
replacement passport, but a petition to resume ones maiden name in view of the
dissolution of ones marriage.
The law governing passport issuance is RA 8239 and the applicable
provision in this case is Section 5(d), which limits the instances when a married
woman may be allowed to revert to the use of her maiden name in her
passport. These instances are death of husband, divorce decree, annulment or
nullity of marriage.
Since petitioners marriage to her husband subsists, placing her case outside
of the purview of Section 5(d) of RA 8239 (as to the instances when a married
woman may revert to the use of her maiden name), she may not resume her
maiden name in the replacement passport. This prohibition, according to
petitioner, conflicts with and, thus, operates as an implied repeal of Article 370 of
the Civil Code.

In the case of renewal of passport, a married woman may either adopt her
husbands surname or continuously use her maiden name. If she chooses to
adopt her husbands surname in her new passport, the DFA additionally requires
the submission of an authenticated copy of the marriage certificate. Otherwise,
if she prefers to continue using her maiden name, she may still do so. The DFA
will not prohibit her from continuously using her maiden name.
HOWEVER, ONCE A MARRIED WOMAN OPTED TO ADOPT HER HUSBANDS
SURNAME IN HER PASSPORT, SHE MAY NOT REVERT TO THE USE OF HER
MAIDEN NAME, EXCEPT IN THE CASES ENUMERATED IN SECTION 5(D) OF RA
8239. THESE INSTANCES ARE: (1) DEATH OF HUSBAND, (2) DIVORCE, (3)
ANNULMENT, OR (4) NULLITY OF MARRIAGE. SINCE PETITIONERS MARRIAGE
TO HER HUSBAND SUBSISTS, SHE MAY NOT RESUME HER MAIDEN NAME IN
THE REPLACEMENT PASSPORT. OTHERWISE STATED, A MARRIED WOMAN'S
REVERSION TO THE USE OF HER MAIDEN NAME MUST BE BASED ONLY ON THE
SEVERANCE OF THE MARRIAGE.

o Yasin v. Shai'a District Court, 23 February 1995
When a woman marries a man, she need not apply and/or seek
judicial authority to use her husbands name by prefixing the word Mrs. before
her husbands full name or by adding her husbands surname to her maiden first
name. The law grants her such right (Art. 370, Civil Code). Similarly, when the
marriage ties or vinculum no longer exists as in the case of death of the husband
or divorce as authorized by the Muslim Code, the widow or divorcee need not
seek judicial confirmation of the change in her civil status in order to revert to
her maiden name as use of her former husbands is optional and not obligatory
for her. When petitioner married her husband, she did not change her name but
only her civil status. Neither was she required to secure judicial authority to use
the surname of her husband after the marriage as no law requires it.

h. In case of annulment of marriage, and the wife is the guilty party, she shall resume her
maiden name and surname. If she is the innocent spouse, she may resume her maiden
name and surname. However, she may choose to continue employing her former
husband's surname, unless: A. 371
(1) The court decrees otherwise, or
(2) She or the former husband is married again to another person.

i. When legal separation has been granted, the wife shall continue using her name and
surname employed before the legal separation. A. 372

j. A widow may use the deceased husband's surname as though he were still living, in
accordance with article 370. A. 373

k. In case of identity of names and surnames, the younger person shall be obliged to use
such additional name or surname as will avoid confusion. A. 374

l. In case of identity of names and surnames between ascendants and descendants, the
word "Junior" can be used only by a son. Grandsons and other direct male descendants
shall either: A. 375
(1) Add a middle name or the mother's surname, or
(2) Add the Roman numerals II, III, and so on.

m. No person can change his name or surname without judicial authority. A. 376

n. Usurpation of a name and surname may be the subject of an action for damages and
other relief. A. 377 in rel to CA 142

o Cesario v. Ursua, 10 April 1996
Ursua is acquitted of the crime charged. C.A No. 142, approved on November
7, 1936 entitled An Act to Regulate the Use of Aliases, was amended by R.A. No.
6085 on August 4 1969. C.A. No. 142 as amended was made primarily to penalize
the act of using an alias name publicly and in business transactions in addition to
his real name unless such alias was duly authorized by proper judicial
proceeding.
The fact that the petitioner introduced himself in the Office of the
Ombudsman as Oscar Perez served only the request of his lawyer to obtain a
copy of the complaint in which the petitioner was a respondent. There is no
evidence showing that he had used or was intending to use that name as his
second name in addition to his real name. Hence, the use of a fictitious name or a
different name belonging to another person in a single instance without any sign
or indication that the user intends to be known by this name in addition to his
real name from that day forth does not fall within the prohibition contained in
C.A. No. 142 as amended by R.A. 6085. There exists a valid presumption that
undesirable consequences were never intended by a legislative measure and that
a construction of which the statue is fairly susceptible is favored.

o. The unauthorized or unlawful use of another person's surname gives a right of action to
the latter. A. 378

p. The employment of pen names or stage names is permitted, provided it is done in good
faith and there is no injury to third persons. Pen names and stage names cannot be
usurped. A. 379

q. Except as provided in the preceding article, no person shall use different names and
surnames. A. 380

XIII. ABSENCE
Meaning: a special legal status of one who is not in his domicile, his whereabouts being unknown,
and it is uncertain whether he is dead or alive.

ORDINARY ABSENCE EXTRAORDINARY/ QUALIFIED ABSENCE
a. 7 YEARS, person presumed dead for
all purposes except for those of
opening succession
b. 10 YEARS, person presumed dead
for purposes of opening succession
except if he disappeared after the
age of 75, in which case, a period of
5 years is sufficient.
c. 4 YEARS, person presumed dead for
purposes of remarriage of the
spouse present.
For all purposes including those of opening
succession, a period of 4 years and for purposes of
remarriage of the spouse present, a period of 2
years is sufficient under the following
circumstances:
a. Person on board a vessel lost during a sea
voyage or an aeroplane which is missing;
period is counted from the loss of the vessel
or aeroplane.
b. Person in the armed forces who has taken
part in war
c. Person in danger of death under other
circumstances and his existence has not been
known

Stages of Absence
1. Provisional/Temporary
2. Normal/Declared
3. Definite Absence or Presumptive Death
Remedies:
a. When a person disappears from his domicile, his whereabouts being unknown, and
without leaving an agent to administer his property, the judge, at the instance of an interested
party, a relative, or a friend, may appoint a person to represent him in all that may be necessary.
(Art. 281).
This same rule shall be observed when under similar circumstances the power conferred by
the absentee has expired.
b. The appointment referred to in the preceding article having been made, the judge shall
take the necessary measures to safeguard the rights and interests of the absentee and shall specify
the powers, obligations and remuneration of his representative, regulating them, according to the
circumstances, by the rules concerning guardians. (A. 382).
Who May Be Appointed Provisional Representative:
Art. 383. In the appointment of a representative, the spouse present shall be preferred
when there is no legal separation.
If the absentee left no spouse, or if the spouse present is a minor, any competent person
may be appointed by the court. (183a)
Declared Absence
Period
Art. 384. Two years having elapsed without any news about the absentee or since the
receipt of the last news, and five years in case the absentee has left a person in charge of the
administration of his property, his absence may be declared. (184)
o Bienvenido v. CA, 24 October 1994
It was the burden of herein respondents to prove that, at the time of his
second marriage to respondent Luisita, Aurelio's first wife, Consejo Velasco, had
been absent for at least seven years and that Aurelio had no news that she was alive.
To assume these facts because petitioner has not disproved them would be to stand
the principle on its head. Since Aurelio had a valid, subsisting marriage to Consejo
Velasco, his subsequent marriage to respondent Luisita was void for being
bigamous.


Who May File: Art. 385.
The following may ask for the declaration of absence:
(1) The spouse present;
(2) The heirs instituted in a will, who may present an authentic copy of the same;
(3) The relatives who may succeed by the law of intestacy;
(4) Those who may have over the property of the absentee some right subordinated to the
condition of his death. (185)
Effectivity Date
Art. 386. The judicial declaration of absence shall not take effect until six months after its
publication in a newspaper of general circulation. (186a)
Appointment and Powers of Administrator
An administrator of the absentee's property shall be appointed in accordance with article
383.
Art. 388. The wife who is appointed as an administratrix of the husband's property cannot
alienate or encumber the husband's property, or that of the conjugal partnership, without judicial
authority
Termination of Administration
The administration shall cease in any of the following cases:
(1) When the absentee appears personally or by means of an agent;
(2) When the death of the absentee is proved and his testate or intestate heirs appear;
(3) When a third person appears, showing by a proper document that he has acquired the
absentee's property by purchase or other title.
In these cases the administrator shall cease in the performance of his office, and the property shall
be at the disposal of those who may have a right thereto. (190)
Contingent Rights of the Absentee
a. Whoever claims a right pertaining to a person whose existence is not recognized must
prove that he was living at the time his existence was necessary in order to acquire said right. (Art.
393)
b. Without prejudice to the provision of the preceding article, upon the opening of a
succession to which an absentee is called, his share shall accrue to his coheirs, unless he has heirs,
assigns, or a representative. They shall all, as the case may be, make an inventory of the property.
(Art. 394)
c. The provisions of the preceding article are understood to be without prejudice to the
action of petition for inheritance or other rights which are vested in the absentee, his
representatives or successors in interest. These rights shall not be extinguished save by lapse of
time fixed for prescription. In the record that is made in the Registry of the real estate which
accrues to the coheirs, the circumstance of its being subject to the provisions of this article shall be
stated. (Art. 395)
d. Those who may have entered upon the inheritance shall appropriate the fruits received in
good faith so long as the absentee does not appear, or while his representatives or successors in
interest do not bring the proper actions. (Art. 396)
Presumptive Death: Judicial decalaration, not necessary.
Art. 390. After an absence of seven years, it being unknown whether or not the absentee
still lives, he shall be presumed dead for all purposes, except for those of succession.
The absentee shall not be presumed dead for the purpose of opening his succession till after
an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five
years shall be sufficient in order that his succession may be opened.
Presumed Death: Missing Person: Art. 391.
The following shall be presumed dead for all purposes, including the division of the estate
among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing,
who has not been heard of for four years since the loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and has been missing for four
years;
(3) A person who has been in danger of death under other circumstances and his
existence has not been known for four years.
Recovery of Property by Absentee: Art. 392.
If the absentee appears, or without appearing his existence is proved, he shall recover his
property in the condition in which it may be found, and the price of any property that may have
been alienated or the property acquired therewith; but he cannot claim either fruits or rents.
It is because succession has not really taken place.
The fruits or rents are not to be returned due to presumption of good faith in favor of the
possessor.
Purpose
Art. 390. After an absence of seven years, it being unknown whether or not the absentee
still lives, he shall be presumed dead for all purposes, except for those of succession.
The absentee shall not be presumed dead for the purpose of opening his succession till after
an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five
years shall be sufficient in order that his succession may be opened. (n)
Periods
Art. 391. The following shall be presumed dead for all purposes, including the division of
the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing,
who has not been heard of for four years since the loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and has been missing for four
years;
(3) A person who has been in danger of death under other circumstances and his existence
has not been known for four years. (n)

XIV. CIVIL REGISTER
Purpose: Art. 407.
It is for the recording of acts, events and judicial decrees concerning the civil status of
persons.
Probative Value: entries made therein are only prima facie evidence of the facts stated.
Entries: Art. 408 in rel. to RA 3753
(1) Births;
(2) marriages;
(3) deaths;
(4) legal separations
(5) annulments of marriage;
(6) judgments declaring marriages void from the beginning;
(7) legitimations;
(8) adoptions;
(9) acknowledgments of natural children;
(10) naturalization;
(11) loss, or
(12) recovery of citizenship;
(13) civil interdiction;
(14) judicial determination of filiation;
(15) voluntary emancipation of a minor; and
(16) changes of name
Duty of Clerk of Court: Art. 409.
In cases of legal separation, adoption, naturalization and other judicial orders mentioned in
the preceding article, the clerk of the court which issued the decree has the duty:
a. to ascertain whether the same has been registered, and,
b. if this has not been done, to send a copy of said decree to the civil registry of the city
or municipality where the court is functioning.

Nature of the Books and Documents: Art. 410.
The books making up the civil register and all documents relating thereto shall be
considered public documents and shall be prima facie evidence of the facts therein contained.
Liability of Civil Registrar: Art. 411.
Every civil registrar shall be civilly responsible for any unauthorized alteration made in any
civil register, to any person suffering damage thereby. However, the civil registrar may exempt
himself from such liability if he proves that he has taken every reasonable precaution to prevent the
unlawful alteration.
Correction of Entries: Art. 412.
No entry in a civil register shall be changed or corrected, without a judicial order.
Errors which can be corrected in mere summary proceedings are clerical or typographical
errors, not those matters affecting legitimacy or nationality or other controversial matters.

Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname:
No entry in a civil register shall be changed or corrected without a judicial order; except for
clerical or typographical errors and change of first name or nickname which can be corrected or
changed by concerned city or municipal civil registrar or consul general in accordance with the
provisions of this Act and its implementing rules and regulations. Section 1 of R.A. 9048
Publication: Rule 108 of the Revised Rules of Court
Cancellation or correction of entries in the Civil Registry requires publication because the
petition is in rem.
Art. 413. All other matters pertaining to the registration of civil status shall be governed by special
laws.

o Republiv v. Coseteng-Magpayo, 2 February 2011
Claiming that his parents were never legally married, respondent filed on
July 22, 2008 Petition to change his name from Julian Edward Emerson Coseteng
Magpayo to Julian Edward Emerson Marquez-Lim Coseteng.
The change being sought in respondents petition goes so far as to affect
his legal status in relation to his parents. It seeks to change his legitimacy to that of
illegitimacy. Rule 103 then would not suffice to grant respondents supplication.
Since respondents desired change affects his civil status from legitimate to
illegitimate, Rule 108 applies.
Rule 108 directs that a petition which concerns ones civil status should be
filed in the civil registry in which the entry is sought to be cancelled or corrected
that of Makati in the present case, and all persons who have or claim any interest
which would be affected thereby should be made parties to the proceeding.
However, the petition of respondent was filed not in Makati where his birth
certificate was registered but in Quezon City. And as the above-mentioned title of
the petition filed by respondent before the RTC shows, neither the civil registrar of
Makati nor his father and mother were made parties thereto.
Aside from improper venue, he failed to implead the civil registrar
of Makati and all affected parties as respondents in the case.
A petition for a substantial correction or change of entries in the civil
registry should have as respondents the civil registrar, as well as all other persons
who have or claim to have any interest that would be affected thereby. It cannot be
gainsaid that change of status of a child in relation to his parents is a substantial
correction or change of entry in the civil registry.
Non-impleading, however, as party-respondent of one who is inadvertently
left out or is not established to be known by the petitioner to be affected by the
grant of the petition or actually participates in the proceeding is notified through
publication.
In fine, when a petition for cancellation or correction of an entry in the civil
register involves substantial and controversial alterations including those on
citizenship, legitimacy of paternity or filiation, or legitimacy of marriage, a strict
compliance with the requirements of Rule 108 of the Rules of Court is mandated.

o Silverio v. Republic, 22 October 2007
Persons First Name Cannot Be Changed On the Ground of Sex Reassignment.
The State has an interest in the names borne by individuals and entities for
purposes of identification. A change of name is a privilege, not a right. Petitions for
change of name are controlled by statutes. In this connection, Article 376 of the Civil
Code provides that No person can change his name or surname without judicial
authority.
No Law Allows The Change of Entry In The Birth Certificate As To Sex On the
Ground of Sex Reassignment. The determination of a persons sex appearing in his
birth certificate is a legal issue and the court must look to the statutes. In this
connection, Article 412 of the Civil Code provides that No entry in the civil register
shall be changed or corrected without a judicial order. For these reasons, while
petitioner may have succeeded in altering his body and appearance through the
intervention of modern surgery, no law authorizes the change of entry as to sex in
the civil registry for that reason. Thus, there is no legal basis for his petition for the
correction or change of the entries in his birth certificate.
Neither May Entries in the Birth Certificate As to First Name or Sex Be
Changed on the Ground of Equity. The trial court opined that its grant of the petition
was in consonance with the principles of justice and equity. It believed that allowing
the petition would cause no harm, injury or prejudice to anyone. This is wrong.
The Court recognizes that there are people whose preferences and
orientation do not fit neatly into the commonly recognized parameters of social
convention and that, at least for them, life is indeed an ordeal. However, the
remedies petitioner seeks involve questions of public policy to be addressed solely
by the legislature, not by the courts.

o In the Re: Change of Name of Julian Wang, 30 March 2005
The Supreme Court denied the petition. The reasons are insufficient. There
is no proper and reasonable cause for a change of name. There is no showing of
Singaporean laws regarding names, and the possible effects of confusion and
discrimination are imaginary than real. Philippine law dictates that the legitimate
and legitimated children shall carry the surnames of the father and the mother.
The touchstone for the grant of a change of name is that there be proper and
reasonable cause for which the change is sought. To justify a request for change of
name, petitioner must show not only some proper or compelling reason therefore
but also that he will be prejudiced by the use of his true and official name. Among
the grounds for change of name which have been held valid are: (a) when the name
is ridiculous, dishonorable or extremely difficult to write or pronounce; (b) when
the change results as a legal consequence, as in legitimation; (c) when the change
will avoid confusion; (d) when one has continuously used and been known since
childhood by a Filipino name, and was unaware of alien parentage; (e) a sincere
desire to adopt a Filipino name to erase signs of former alienage, all in good faith
and without prejudicing anybody; and (f) when the surname causes embarrassment
and there is no showing that the desired change of name was for a fraudulent
purpose or that the change of name would prejudice public interest.



ADOPTION

What is Adoption?

Adoption is juridical act which creates between two persons a relationship similar to that which
results from legitimate paternity (Prasnick vs Republic, 98 Phil. 669)

Adoption is a juridical act, a proceeding in rem, which creates between the two persons a
relationship similar to that which results from legitimate paternity and filiation.

Adoption is not an adversarial proceeding. An adversarial proceeding is one having opposing
parties, contested, as distinguished from an ex parte application, one of which the party seeking
relief has given legal warning to the other party and afforded the latter an opportunity to contest it
excludes an adoption proceeding. In adoption, there is no particular defendant to speak of since the
proceeding involves the status of a person it being an action in rem.

Governing Rules and Laws

1. AM 02-6-02-SC, August 22, 2002
2. RA 8552, The Domestic Adoption Act of 1998
3. RA 8043, The Inter Country Adoption Act of 1995
4. RA 9523, An Act Requiring Certification of the Department of Social Welfare and
Development (DSWD) to Declare A Child Legally Available For Adoption as a Prerequisite
For Adoption Proceedings, March 12, 2009

DOMESTIC ADOPTION

Applicability:

Applies to domestic adoption of Filipino children, where the entire adoption process beginning
from the filing of the petition up to the issuance of the adoption decree takes place in the
Philippines.

Who May Adopt. The following may adopt:

(a) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral
character, has not been convicted of any crime involving moral turpitude, emotionally and
psychologically capable of caring for children, at least sixteen (16) years older than the adoptee,
and who is in a position to support and care for his/her children in keeping with the means of the
family. The requirement of sixteen (16) year difference between the age of the adopter and adoptee
may be waived when the adopter is the biological parent of the adoptee, or is the spouse of the
adoptee's parent;

(b) Any alien possessing the same qualifications as above stated for Filipino nationals: Provided,
That his/her country has diplomatic relations with the Republic of the Philippines, that he/she has
been living in the Philippines for at least three (3) continuous years prior to the filing of the
application for adoption and maintains such residence until the adoption decree is entered, that
he/she has been certified by his/her diplomatic or consular office or any appropriate government
agency that he/she has the legal capacity to adopt in his/her country, and that his/her government
allows the adoptee to enter his/her country as his/her adopted son/daughter: Provided, Further,
That the requirements on residency and certification of the alien's qualification to adopt in his/her
country may be waived for the following:
(i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of
consanguinity or affinity; or
(ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or
(iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a
relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse; or

(c) The guardian with respect to the ward after the termination of the guardianship and clearance
of his/her financial accountabilities.
Husband and wife shall jointly adopt, except in the following cases:
(i) if one spouse seeks to adopt the legitimate son/daughter of the other; or
(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, However, that
the other spouse has signified his/her consent thereto; or
(iii) if the spouses are legally separated from each other.
In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of the
other, joint parental authority shall be exercised by the spouses.

Who May Be Adopted. The following may be adopted:

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

Whose Consent is Necessary to the Adoption

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


Where to file application

In the Family Court of the province or city where the prospective parents reside. After filing, the
petition shall not be set for hearing without a case study report by a licensed social worker.

Supervised Trial Custody:
a) Temporary parental authority is vested in prospective adopter;
b) Period is at least 6 months, but may be reduced by the court motu propioor upon motion;
c) If adopter is alien, the law mandatorily requires completion of the 6-month trial custody and
may not be reduced, except if: (1) a former Filipino citizen seeks to adopt a relative within
4thdegree of consanguinity or affinity; (2) one seeks to adopt the legitimate son/daughter of
his/her Filipino spouse; (3) one who is married to a Filipino citizen and seeks to adopt jointly with
his/her spouse a relative within the 4th degree of consanguinity or affinity of the Filipino spouse.

Decree of Adoption
Issued by Philippine Family Court.

Consent Required
Written consent of the following to the adoption is required, in the form of affidavit:
(1) adoptee, if 10 years of age or over;
(2) biological parent/s of the child, if known, or the legal guardian, or the proper government
instrumentality which has legal custody of the child;
(3) legitimate and adopted sons or daughters, 10 years of age or over, of the adopter/s and adoptee,
if any;
(4) illegitimate sons/daughters, 10 years of age of over, of the adopter if living with said adopter
and the latters spouse, if any;
(5) spouse, if any, of the person adopting or to be adopted.


SUMMARY OF STEPS TO BE UNDERTAKEN

(1) Preparation of the petition for Adoption. The petition includes documents like birth
certificates, marriage certificate, proof of financial capacity (like ITR, bank deposit, etc), clearances
(barangay, police, NBI, fiscal, court), and others as proof of good moral character, good health, etc.

(2) Upon payment of the filing or docket fee, the petition is raffled to a Family Court (of the city
nearest the place where the petitioner resides). If the petition is sufficient in form and substance,
the court issues an order setting the case for initial hearing and ordering the court social worker to
conduct a case study and home visit.

(3) The court order is published in a newspaper of general circulation once a week for three weeks.
The newspaper is chosen by raffle conducted by the Office of the Clerk of Court, in compliance with
a Supreme Court circular. If a small time newspaper wins in the raffle, the total cost for the
publication could be as low as Php 7,000. But if a big time newspaper like the Bulletin or the
Inquirer wins the raffle, the total cost could be as high as Php 50,000.

(4) Before the initial hearing, the social worker conducts a case study and home visit. The social
worker submits his investigation report and recommendations to the court before the initial
hearing.

(5) On the date of the initial hearing, the petitioner and the prospective adoptee must be present.
The lawyer presents what are known as the jurisdictional facts to satisfy the jurisdictional
requirements of the court.

(6) If there is no opposition to the petition for adoption by any party, then the party may ask the
court permission for an ex-parte presentation of evidence, done before only the court stenographer
and the court appointed commissioner (the branch clerk of court). The court however can require
presentation of evidence in open court.

(7) If the court decision is favorable and there is no appeal by any party, then the court issues a
Certificate of Finality. The lawyer then coordinates with the Local Civil Registrar (of the town or city
where the court is located, and the adoptees birthplace) and the National Statistics Office for the
issuance of a new birth certificate bearing the petitioners surname.

Effects of adoption

(1) Transfer of parental authority except in cases where the biological parent is the spouse of
the adopter, the parental authority of the biological parents shall terminate and the same shall be
vested in the adopters (Sec. 16).
(2) Legitimacy the adoptee shall be considered the legitimate son/daughter of the adopter(s)
for all intents and purposes and as such is entitled to all the rights and obligations provided by law
to legitimate sons/daughters born to them without discrimination of any kind (Sec. 17).
(3) Successional rights
(a) In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal rights of
succession without distinction from legitimate filiation (Sec. 18);
(b) However, if the adoptee and his/her biological parent(s) had left a will, the law on
testamentary succession shall govern (Sec. 18);
(c) Art. 18(3) of the Family Code and Sec. 18, Art V of RA 8552 provide that the adoptee remains
an intestate heir of his/her biological parent (Obiter Dictum in In re In the Matter of Adoption of
Stephanie Naty Astorga Garcia, 454 SCRA 541).
(4) Issuance of new certificate and first name and surname of adoptee
(a) The adoption decree shall state the name by which the child is to be known(Sec. 13). An
amended certificate of birth shall be issued by the Civil Registry attesting to the fact that the
adoptee is the child of the adopter(s) by being registered with his/her surname (Sec. 14);
(b) The original certificate of birth shall be stamped cancelled with the annotation of the
issuance of an amended birth certificate in its place and shall be sealed in the civil registry records.
The new birth certificate to be issued to the adoptee shall not bear any notation that it is an
amended issue (Sec. 14);
(c) All records, books, and papers relating to the adoption cases in the files of the court, the
DSWD, or any other agency or institution participating in the adoption proceedings shall be kept
strictly confidential and the court may order its release under the following conditions only: (1) the
disclosure of the information to a third person is necessary for purposes connected with or arising
out of the adoption; (2) the disclosure will be for the best interest of the adoptee; and (3) the court
may restrict the purposes for which it may be used (Sec. 15).

Instances when adoption may be rescinded

(1) Grounds for rescission:
(a) Repeated physical and verbal maltreatment by the adopter(s) despite having
undergone counseling;
(b) Attempt on the life of the adoptee;
(c) Sexual assault or violence; or
(d) Abandonment and failure to comply with parental obligations (Sec. 19).

(2) Prescriptive period:
(a) If incapacitated within five (5) years after he reaches the age of majority;
(b) If incompetent at the time of the adoption within five (5) years after recovery from
such incompetency (Sec. 21, Rule on Adoption).

Effects of rescission of adoption

(1) Parental authority of the adoptees biological parent(s), if known, or the legal custody of the
DSWD shall be restored if the adoptee is still a minor or incapacitated;
(2) Reciprocal rights and obligations of the adopter(s) and the adoptee to each other shall be
extinguished;
(3) Cancellation of the amended certificate of birth of the adoptee and restoration of his/her
original birth certificate; and
(4) Succession rights shall revert to its status prior to adoption, but only as of the date of
judgment of judicial rescission. Vested rights acquired prior to judicial rescission shall be respected
(Sec. 20).


COMMON ISSUES FOR RESOLUTION

Is the consent of the father of an illegitimate child required in adoption?
Yes. Section 9, paragraph (b) of RA 8552 states that the written consent of the biological
parent/s is necessary.

May the records of the proceedings be revealed to the public?

Confidential Nature of Proceedings and Records All hearings in adoption cases shall be
confidential and shall not be open to the public. All records, books, and papers relating to the
adoption cases in the files of the court, the Department, or any other agency or institution
participating in the adoption proceedings shall be kept strictly confidential.
If the court finds that the disclosure of the information to a third person is necessary for
purposes connected with or arising out of the adoption and will be for the best interest of the
adoptee, the court may merit the necessary information to be released, restricting the purposes for
which it may be used.

Is the adoptees right to inherit from both the adoptive and biological parents under the Family
Code no longer true under RA 8552?
While Article 189 of the Family Code specifically provides that the adoptee has the right to
inherit from both the biological and adoptive parents, this provision does not appear in RA 8552. It
seems therefore that the right of an adopted child to inherit from both biological and adoptive
parents under the Family Code has been repealed by RA 8552. However, in law, implied repeals are
frowned upon. Thus, it may be argued that Article 189 of the Family Code is still good law.


What about adoption by a wife and husband (one a former Filipino citizen and the other a
natural-born citizen of another country)?

The Supreme Court decided this issue in the case of Republic of the Philippines vs. Toledano
G.R. No. 94147 June 8, 1994. Please take note that the case was decided under the provisions of the
Family Code on adoption which have been superseded by RA 8043 and RA 8552. However, the
point of contention in this case, mandatory joint adoption by both husband and wife under Article
185 of the Family Code, has been carried over to RA 8552, specifically, Section 7.


What is the effect OF RA 9523?

Under RA 9523, the time period before a child is considered abandoned has been reduced to
a maximum of three months from the original minimum of six months. RA 9523 made the
declaration of abandonment of child administrative in nature which now requires just a
certification signed by the DSWD secretary instead of a judicial order. Because of the new
regulations, a child could be declared legally available for adoption in less than two months.
Previously, it took as long as three years in court proceedings for such a declaration.

However, as Section 4 of the Implementing Rules and Regulations of RA 9523 clearly states, certain
adoption proceedings in court do not require a Certification Declaring a Child Legally Available for
Adoption. These are:

(1) Adoption of an illegitimate child by any of his/her biological parent
(2) Adoption of a child by his/her step-parent
(3) Adoption of a child by a relative within the fourth degree of consanguinity or affinity


INTER COUNTRY ADOPTION

Persons considering intercountry adoption have a right to accurate information about these
adoptions and the process involved. Such information will enable them to make informed decisions
on initiating and completing such an adoption, the kind of child/ren they can best parent, and
whether they are willing to make the lifetime commitment which is required.

The Inter-Country Adoption Board (ICAB) is mandated by law (Inter-Country Adoption Law
of 1995 or Republic Act 8043) to be the Central Authority on matters relating to the foreign
adoption placement of Filipino children to applicants who are either former Filipinos or foreigners
permanently residing abroad. The Inter-Country Adoption (ICA) Law stipulates certain eligibility
requirements for adoptive applicants intending to adopt a Filipino child who may either be a
relative or non-relative. In the Philippines, Filipino children need to be made socio-legally free for
adoption prior to any kind of alternative family placement. In line with the ICABs mandated
authority is the compliance of the Philippines to an international instrument, The Hague
Convention on the Protection of Children and Co-operation in respect of Inter-country Adoption, to
which the Philippines is a State Party and is denominated as a Sending Country.

WHO MAY BE ADOPTED?

Only a legally free child may be adopted.Requisites:
(a) Below 15 years of age; and
(b) Has been voluntarily or involuntarily committed to the DSWD in accordance with PD 603.





WHO IS ELIGIBLE TO ADOPT?

Residency Requirement:
(1) Any alien or a Filipino citizen permanently residing abroad may file an application for
intercountry adoption of a Filipino child.
(2) Comes from a country with whom the Philippines has diplomatic relations and whose
government maintains a similarly authorized and accredited agency and that adoption is allowed
under his/her national laws.

Age Requirement:

(1) The applicant couple is at least twenty-seven (27) years old at the time of application.
(2) The applicant couple has a minimum age gap of 16 years and/or a maximum of 47 years age
gap.

Marital Status:

(1) The applicant couple should be legally married for a minimum of three (3) years.
(2) If married, they should jointly file for the adoption.
(3) If any one of the spouse applicant has a history of divorce, the second or current marriage
should have completed a minimum of five (5) years upon filing of the application.
(4) Single applicants shall not be refused as prospective adoptive applicants. However, they
shall be informed that they have a lower priority in being matched with children unless matched
with a special needs child (older or sibling group)
(5) Files jointly with his/her spouse, if any, who shall have the same qualifications and none of
the disqualifications to adopt as prescribed above.

Other Requirements:

(1) Has undergone appropriate counseling from an accredited counselor in his/her country;
(2) Has not been convicted of a crime involving moral turpitude;
(3) Is eligible to adopt under his/her national law;
(4) Can provide the proper care and support and give the necessary moral values and example
to the child and, in the proper case, to all his/her other children;

WHERE TO APPLY?

The application shall be filed and officially endorsed to the INTER-COUNTRY ADOPTION
BOARD (ICAB) through the Receiving Countrys Central Authority on Intercountry Adoption or an
ICAB accredited Foreign Adoption Agency in the place of residence of the applicant couple.
FEES AND OTHER CHARGES

Fees and Other Charges

These fees are provided for by Article III Section 13 of the Inter-Country Adoption Act of 1995 (RA
8043) and Section 29 and 40 of the Amended Implementing Rules and Regulations on Inter-
Country Adoption. Effective February 2007, the ICAB fees which applies to all adoption categories
(Regular or Non-Relative, Relative, Special Needs, Special Home Finding, Summer Program and
Medical Missions) are as follows:


(a) Adoption Application Fee$200.00 (non-refundable upon endorsement of the Adoption
Application and Supporting Documents)
(b) Processing FeeUS$2,000.00 for single placement; US $3,000.00 for sibling group of 2 or
more (as of October 13, 2007)
(c) Pre-adoptive placement costs The amount varies from one child to another depending on
what part of the Philippines the child comes from and what country he/she is going to.
Some Embassies of the Receiving Countries charge visa fees and require visa medical
examinations while others do not. The total amount will be quoted by the ICAB in the
placement proposal. (Payment upon acceptance of the matching proposal)
(d) The finalized Local Adoption cases requiring ICABs ratification has its own schedule of fees.
(e) The ICAB also supports the request of the Association of the Child Caring Agencies of the
Philippines (ACCAP) to increase its Child Care Support Fund (CCSF) from US$ 500.00 to US$
1,000.00 per placement.
(f) These new fees will not affect prospective adoptive parents whose adoption applications
were received by the ICAB prior to February 2007 and are currently awaiting approvals and
child proposals. This means that once these families receive a match, they will still pay the
processing fee of US$ 900.00.
(g) All payments (except for the CCSF which shall be addressed to the child caring agency
where the child came from) shall be in the form of a company check or international bank
draft and shall be made payable to the Inter-country Adoption Board. Personal checks,
travelers checks or cash WILL NOT be accepted.
(h) No adoption application will be processed and no Placement Authority will be issued unless
the corresponding fees are received by the ICAB.

Processing Time

Adoption applicants that have substantive Home Study Report (HSR) and complete
supporting documents are reviewed and approved within one month from receipt of the adoption
applicant/s dossier. On the other hand, adoption application with lacking information and/or
documents are reviewed and processed depending upon the submission/completion by the Central
Authority/Foreign Adoption Agency (CA/FAA) of the requested information and/or documents
with the corresponding delay in its approval.
The matching or child referral or allocation largely depends on the stated child preference
(i.e. childs age, gender and state of health or extent of known background) of the Prospective
Adoptive Parents (PAPs). This usually takes nine (9) months to one (1) year after the PAPs
approval. Willingness to accept a special needs child generally shortens the waiting period for child
allocation.

Children Available for Inter-Country Adoption

(1) Children available for intercountry adoption placement are those who cannot be placed
with an adoptive family in the Philippines.(For relative adoption only up to the 4th degree of
consanguinity)
(2) All children have to be cleared for intercountry adoption by the Competent Authority -
Programs and Projects Bureau of the Department of Social Welfare and Development (PPB DSWD)-
Central Office.
(3) Children of either sex are usually available but there may be longer waiting period for girls
because of the Filipino culture whereby families hold on to their daughters since they are generally
more submissive, less difficult to parent and can be relied upon to care for their family of origin
even until parental senescence occurs.
(4) The allowable age of Filipino children for Intercountry Adoption (ICA) is below 15 years old.
A child who is above 15 years old may be processed for ICA when the following circumstances
prevail:
(a) When the child is a part of a sibling group where one or more is below 15 years old;
(b) If the application for adoption of a child was filed (in cases of relative adoption) before
the child reached the age of 15;
(c) Special Home Finding was initiated before the childs 15th birthday; and
(d) Other situations where the intent to adopt was manifested before the child reached 15.

Additional Notes:

(1)The general ages of children cleared for intercountry adoption usually range from 6 months to
10 years old.
(2) Special Needs or Hard to Place children include
(a) Older children (usually boys or girls age 6 to 15 years old)
(b) Sibling groups of 3 or more
(c) Children with major medical/physical problems
(d) Children with major developmental/neurological delay/handicapProcess

Any adoption applicant interested in adopting a Filipino child/ren (either relative or non-
relative) may contact the nearest Central Authority on Intercountry Adoption of their country (if
Ratifier or State Party to The Hague Convention) or any ICAB accredited Foreign Adoption Agency
who is responsible in these Prospective Adoptive Parents preparation and conduct of their Home
Study Report.

Documentary Requirements

(a) Home Study Report
(b) Undertaking of the Couple made under oath
(c) Information and Personal Data Application
(d) Birth Certificate of the Couple (if adopting a relative: Birth Certificate of their common
ancestry delineating relationship up to the 4th degree of consanguinity)
(e) Marriage Contract
(f) Divorce Decree (if applicable)
(g) Physical and Medical Evaluation
(h) Psychological Evaluation by a duly licensed psychiatrist or psychologist.
(i) Written Consent to Adoption by the biological and/or adopted children who are 10 years of
age or over witnessed by the social worker after proper counseling, in the form of a sworn
statement.
(j) Character Reference from (a) Local Church Minister or Priest; (b)Employer; (c) Members of
the immediate community (who have all known the applicants for at least 5 years).
(k) Latest Income Tax Return or any other documents showing the financial capability of the
applicant.
(l) Clearance issued by the police or the proper government agency of the place where the
applicant resides.
(m) Certification from the Justice Department or other appropriate government agency of the
applicants country that the applicant is qualified to adopt under their national law and that the
child to be adopted is allowed to enter the country for trial custody and to reside there permanently
once adopted.
(n) Recent post card size pictures of the applicant, his immediate family and their
home/community
(o) Special Needs Checklist
(p) Self-Report Questionnaire (OPTIONAL)





Additional Notes:

(1) All documents must be written, officially translated in English and must be officially
endorsed by the Central Authority on Intercountry Adoption or ICAB accredited Foreign Adoption
Agency to the ICAB in the Philippines.
(2) All communications relating to adoption application/s and/or child referral shall be
transmitted by the Central Authority or by the ICAB accredited Foreign Adoption Agency directly to
the ICAB. Likewise, all ICAB correspondence/communications shall be transmitted directly to the
concerned Central Authority and/or the Foreign Adoption Agency.
(3) All the Philippine process for Intercountry Adoption (ICA) does NOT require the
intervention of a lawyer either in the Philippines or from the applicants country of residence.


ADOPTION CASES

IN RE: PETITION FOR ADOPTION OF MICHELLE P. LIM
GR Nos. 168992-93, May 21, 2009

FACTS:
Petitioner Monina P. Lim is an optometrist by profession. On 23 June 1974, she married
Primo Lim (Lim). They were childless. Minor children, whose parents were unknown, were
entrusted to them by a certain Lucia Ayuban (Ayuban). Being so eager to have a child of their own,
petitioner and Lim registered the children to make it appear that they were the childrens parents.
The children were named Michelle P. Lim (Michelle) and Michael Jude P. Lim (Michael). Michelle
was barely eleven days old when brought to the clinic of petitioner. She was born on 15 March
1977. Michael was 11 days old when Ayuban brought him to petitioners clinic. His date of birth is 1
August 1983.
The spouses reared and cared for the children as if they were their own. They sent the
children to exclusive schools. They used the surname Lim in all their school records and
documents. Unfortunately, on 28 November 1998, Lim died. On 27 December 2000, petitioner
married Angel Olario (Olario), an American citizen.
Thereafter, petitioner decided to adopt the children by availing of the amnestygiven under
Republic Act No. 8552 (RA 8552) to those individuals who simulated the birth of a child. Thus, on
24 April 2002, petitioner filed separate petitions for the adoption of Michelle and Michael before
the trial court docketed as SPL PROC. Case Nos. 1258 and 1259, respectively. At the time of the
filing of the petitions for adoption, Michelle was 25 years old and already married, while Michael
was 18 years and seven months old.
The trial court rendered judgment dismissing the petitions. The trial court ruled that since
petitioner had remarried, petitioner should have filed the petition jointly with her new husband.

ISSUE:
Is petitioner entitled to adopt the children?

RULING:
(1) Petitioner contends that the rule on joint adoption must be relaxed because it is the
duty of the court and the State to protect the paramount interest and welfare of the child to be
adopted. Petitioner argues that the legal maxim dura lex sed lex is not applicable to adoption
cases. She argues that joint parental authority is not necessary in this case since, at the time the
petitions were filed, Michelle was 25 years old and already married, while Michael was already 18
years of age. Parental authority is not anymore necessary since they have been emancipated having
attained the age of majority.
However, the use of the word shall in the above-quoted provision means that joint
adoption by the husband and the wife is mandatory. This is in consonance with the concept of joint
parental authority over the child which is the ideal situation. As the child to be adopted is elevated
to the level of a legitimate child, it is but natural to require the spouses to adopt jointly. The rule
also insures harmony between the spouses.
The law is clear. There is no room for ambiguity. Petitioner, having remarried at the time
the petitions for adoption were filed, must jointly adopt. Since the petitions for adoption were filed
only by petitioner herself, without joining her husband, Olario, the trial court was correct in
denying the petitions for adoption on this ground.
Neither does petitioner fall under any of the three exceptions enumerated in Section 7. First,
the children to be adopted are not the legitimate children of petitioner or of her husband Olario.
Second, the children are not the illegitimate children of petitioner. And third, petitioner and Olario
are not legally separated from each other.

The fact that Olario gave his consent to the adoption as shown in his Affidavit of Consent does
not suffice. There are certain requirements that Olario must comply being an American citizen. He
must meet the qualifications set forth in Section 7 of RA 8552 such as: (1) he must prove that his
country has diplomatic relations with the Republic of the Philippines; (2) he must have been living
in the Philippines for at least three continuous years prior to the filing of the application for
adoption; (3) he must maintain such residency until the adoption decree is entered; (4) he has legal
capacity to adopt in his own country; and (5) the adoptee is allowed to enter the adopters country
as the latters adopted child. None of these qualifications were shown and proved during the trial.
These requirements on residency and certification of the aliens qualification to adopt
cannot likewise be waived pursuant to Section 7. The children or adoptees are not relatives within
the fourth degree of consanguinity or affinity of petitioner or of Olario. Neither are the adoptees the
legitimate children of petitioner.

(2) Petitioner contends that joint parental authority is not anymore necessary since the
children have been emancipated having reached the age of majority. This is untenable.
Petitioner contends that joint parental authority is not anymore necessary since the
children have been emancipated having reached the age of majority. This is untenable.
(3) Petitioner, in her Memorandum, insists that subsequent events would show that joint
adoption could no longer be possible because Olario has filed a case for dissolution of his marriage
to petitioner in the Los Angeles Superior Court.

The filing of a case for dissolution of the marriage between petitioner and Olario is of no
moment. It is not equivalent to a decree of dissolution of marriage. Until and unless there is a
judicial decree for the dissolution of the marriage between petitioner and Olario, the marriage still
subsists. That being the case, joint adoption by the husband and the wife is required. We reiterate
our ruling above that since, at the time the petitions for adoption were filed, petitioner was married
to Olario, joint adoption is mandatory.


Lahom vs. Sibulo,
G.R. No. 143989. July 14, 2003

The bliss of marriage and family would be to most less than complete without children. The
realization could have likely prodded the spouses Dr. Diosdado Lahom and Isabelita Lahom to take
into their care Isabelitas nephew Jose Melvin Sibulo and to bring him up as their own. At the
tender age of two, Jose Melvin enjoyed the warmth, love and support of the couple who treated the
child like their own. Indeed, for years, Dr. and Mrs. Lahom fancied on legally adopting Jose Melvin.
Finally, in 1971, the couple decided to file a petition for adoption. On 05 May 1972, an order
granting the petition was issued that made all the more intense than before the feeling of affection
of the spouses for Melvin. In keeping with the court order, the Civil Registrar of Naga City changed
the name Jose Melvin Sibulo to Jose Melvin Lahom.

A sad turn of events came many years later. Eventually, in December of 1999, Mrs. Lahom
commenced a petition to rescind the decree of adoption before the Regional Trial Court (RTC),
Branch 22, of Naga City. In her petition, she averred -

7. That x x x despite the proddings and pleadings of said spouses, respondent refused to change his
surname from Sibulo to Lahom, to the frustrations of petitioner particularly her husband until the
latter died, and even before his death he had made known his desire to revoke respondents
adoption, but was prevented by petitioners supplication, however with his further request upon
petitioner to give to charity whatever properties or interest may pertain to respondent in the
future.

x x x

10. That respondent continued using his surname Sibulo to the utter disregard of the feelings of
herein petitioner, and his records with the Professional Regulation Commission showed his name
as Jose Melvin M. Sibulo originally issued in 1978 until the present, and in all his dealings and
activities in connection with his practice of his profession, he is Jose Melvin M. Sibulo.

x x x

13. That herein petitioner being a widow, and living alone in this city with only her household
helps to attend to her, has yearned for the care and show of concern from a son, but respondent
remained indifferent and would only come to Naga to see her once a year.

14. That for the last three or four years, the medical check-up of petitioner in Manila became more
frequent in view of a leg ailment, and those were the times when petitioner would need most the
care and support from a love one, but respondent all the more remained callous and utterly
indifferent towards petitioner which is not expected of a son.

15. That herein respondent has recently been jealous of petitioners nephews and nieces whenever
they would find time to visit her, respondent alleging that they were only motivated by their desire
for some material benefits from petitioner.

16. That in view of respondents insensible attitude resulting in a strained and uncomfortable
relationship between him and petitioner, the latter has suffered wounded feelings, knowing that
after all respondents only motive to his adoption is his expectancy of his alleged rights over the
properties of herein petitioner and her late husband, clearly shown by his recent filing of Civil Case
No. 99-4463 for partition against petitioner, thereby totally eroding her love and affection towards
respondent, rendering the decree of adoption, considering respondent to be the child of petitioner,
for all legal purposes, has been negated for which reason there is no more basis for its existence,
hence this petition for revocation.

Prior to the institution of the case, specifically on 22 March 1998, Republic Act (R.A.) No. 8552, also
known as the Domestic Adoption Act, went into effect. The new statute deleted from the law the
right of adopters to rescind a decree of adoption (under Section 19 of Article VI of R.A. No. 8552).

Jose Melvin moved for the dismissal of the petition, contending principally (a) that the trial court
had no jurisdiction over the case and (b) that the petitioner had no cause of action in view of the
aforequoted provisions of R.A. No. 8552. Petitioner asseverated, by way of opposition, that the
proscription in R.A. No. 8552 should not retroactively apply, i.e., to cases where the ground for
rescission of the adoption vested under the regime of then Article 348 of the Civil Code and Article
192 of the Family Code.

In an order, dated 28 April 2000, the trial court held thusly: On the issue of jurisdiction over the
subject matter of the suit, Section 5(c) of R.A. No. 8369 confers jurisdiction to this Court, having
been designated Family Court in A.M. No. 99-11-07 SC.

On the matter of no cause of action, the test on the sufficiency of the facts alleged in the complaint,
is whether or not, admitting the facts alleged, the Court could render a valid judgment in
accordance with the prayer of said complaint (De Jesus, et al. vs. Belarmino, et al., 95 Phil. 365).

Admittedly, Section 19, Article VI of R.A. No. 8552 deleted the right of an adopter to rescind an
adoption earlier granted under the Family Code. Conformably, on the face of the petition, indeed
there is lack of cause of action.

Petitioner however, insists that her right to rescind long acquired under the provisions of the
Family Code should be respected. Assuming for the sake of argument, that petitioner is entitled to
rescind the adoption of respondent granted on May 5, 1972, said right should have been exercised
within the period allowed by the Rules. From the averments in the petition, it appears clear that
the legal grounds for the petition have been discovered and known to petitioner for more than five
(5) years, prior to the filing of the instant petition on December 1, 1999, hence, the action if any, had
already prescribed. (Sec. 5, Rule 100 Revised Rules of Court)

WHEREFORE, in view of the foregoing consideration, the petition is ordered dismissed.

Via a petition for review on certiorari under Rule 45 of the 1997 Rules of Court, petitioner raises
the following questions; viz:

1. May the subject adoption, decreed on 05 May 1972, still be revoked or rescinded by an adopter
after the effectivity of R.A. No. 8552?

2. In the affirmative, has the adopters action prescribed?

A brief background on the law and its origins could provide some insights on the subject. xxx In the
early part of the century just passed, the rights of children invited universal attention; the Geneva
Declaration of Rights of the Child of 1924 and the Universal Declaration of Human Rights of 1948,
followed by the United Nations Declarations of the Rights of the Child, were written instruments
that would also protect and safeguard the rights of adopted children. The Civil Code of the
Philippines of 1950 on adoption, later modified by the Child and Youth Welfare Code and then by
the Family Code of the Philippines, gave immediate statutory acknowledgment to the rights of the
adopted. In 1989, the United Nations initiated the Convention of the Rights of the Child. The
Philippines, a State Party to the Convention, accepted the principle that adoption was impressed
with social and moral responsibility, and that its underlying intent was geared to favor the adopted
child. R.A. No. 8552 secured these rights and privileges for the adopted. Most importantly, it
affirmed the legitimate status of the adopted child, not only in his new family but also in the society
as well. The new law withdrew the right of an adopter to rescind the adoption decree and gave to
the adopted child the sole right to sever the legal ties created by adoption.

Petitioner, however, would insist that R.A. No. 8552 should not adversely affect her right to annul
the adoption decree, nor deprive the trial court of its jurisdiction to hear the case, both being vested
under the Civil Code and the Family Code, the laws then in force.

The concept of vested right is a consequence of the constitutional guaranty of due process that
expresses a present fixed interest which in right reason and natural justice is protected against
arbitrary state action; it includes not only legal or equitable title to the enforcement of a demand
but also exemptions from new obligations created after the right has become vested. Rights are
considered vested when the right to enjoyment is a present interest, absolute, unconditional, and
perfect or fixed and irrefutable.

In Republic vs. Court of Appeals, a petition to adopt Jason Condat was filed by Zenaida C. Bobiles on
02 February 1988 when the Child and Youth Welfare Code (Presidential Decree No. 603) allowed
an adoption to be sought by either spouse or both of them. After the trial court had rendered its
decision and while the case was still pending on appeal, the Family Code of the Philippines
(Executive Order No. 209), mandating joint adoption by the husband and wife, took effect.
Petitioner Republic argued that the case should be dismissed for having been filed by Mrs. Bobiles
alone and without being joined by the husband. The Court concluded that the jurisdiction of the
court is determined by the statute in force at the time of the commencement of the action. The
petition to adopt Jason, having been filed with the court at the time when P.D. No. 603 was still in
effect, the right of Mrs. Bobiles to file the petition, without being joined by her husband, according
to the Court had become vested. In Republic vs. Miller, spouses Claude and Jumrus Miller, both
aliens, sought to adopt Michael Madayag. On 29 July 1988, the couple filed a petition to formalize
Michaels adoption having theretofore been taken into their care. At the time the action was
commenced, P.D. No. 603 allowed aliens to adopt. After the decree of adoption and while on appeal
before the Court of Appeals, the Family Code was enacted into law on 08 August 1988 disqualifying
aliens from adopting Filipino children. The Republic then prayed for the withdrawal of the
adoption decree. In discarding the argument posed by the Republic, the Supreme Court ruled that
the controversy should be resolved in the light of the law governing at the time the petition was
filed.

It was months after the effectivity of R.A. No. 8552 that herein petitioner filed an action to revoke
the decree of adoption granted in 1975. By then, the new law, had already abrogated and repealed
the right of an adopter under the Civil Code and the Family Code to rescind a decree of adoption.
Consistently with its earlier pronouncements, the Court should now hold that the action for
rescission of the adoption decree, having been initiated by petitioner after R.A. No. 8552 had come
into force, no longer could be pursued.

Interestingly, even before the passage of the statute, an action to set aside the adoption is subject to
the fiveyear bar rule under Rule 100 of the Rules of Court and that the adopter would lose the
right to revoke the adoption decree after the lapse of that period. The exercise of the right within a
prescriptive period is a condition that could not fulfill the requirements of a vested right entitled to
protection. It must also be acknowledged that a person has no vested right in statutory privileges.
While adoption has often been referred to in the context of a right, the privilege to adopt is itself
not naturally innate or fundamental but rather a right merely created by statute. It is a privilege
that is governed by the states determination on what it may deem to be for the best interest and
welfare of the child. Matters relating to adoption, including the withdrawal of the right of an
adopter to nullify the adoption decree, are subject to regulation by the State. Concomitantly, a right
of action given by statute may be taken away at anytime before it has been exercised.

While R.A. No. 8552 has unqualifiedly withdrawn from an adopter a consequential right to rescind
the adoption decree even in cases where the adoption might clearly turn out to be undesirable, it
remains, nevertheless, the bounden duty of the Court to apply the law. Dura lex sed lex would be
the hackneyed truism that those caught in the law have to live with. It is still noteworthy, however,
that an adopter, while barred from severing the legal ties of adoption, can always for valid reasons
cause the forfeiture of certain benefits otherwise accruing to an undeserving child. For instance,
upon the grounds recognized by law, an adopter may deny to an adopted child his legitime and, by a
will and testament, may freely exclude him from having a share in the disposable portion of his
estate.


IN THE MATTER OF THE ADOPTION OF STEPHANIE NATHY ASTORGA GARCIA
G.R. No. 148311. March 31, 2005

FACTS:
On August 31, 2000, Honorato B. Catindig, herein petitioner, filed a petition
[1]
to adopt his
minor illegitimate child Stephanie Nathy Astorga Garcia. He alleged therein, among others, that
Stephanie was born on June 26, 1994; that her mother is Gemma Astorga Garcia; that Stephanie
has been using her mothers middle name and surname; and that he is now a widower and qualified
to be her adopting parent. He prayed that Stephanies middle name Astorga be changed to
Garcia, her mothers surname, and that her surname Garcia be changed to Catindig, his
surname. On March 23, 2001, the trial court rendered the assailed Decision granting the adoption
On April 20, 2001, petitioner filed a motion for clarification and/or reconsiderationpraying
that Stephanie should be allowed to use the surname of her natural mother (GARCIA) as her middle
name.
On May 28, 2001, the trial court denied petitioners motion for reconsideration holding that
there is no law or jurisprudence allowing an adopted child to use the surname of his biological
mother as his middle name.
ISSUE:
Whether or not an illegitimate child may use the surname of her mother as her middle name when
she is subsequently adopted by her natural father.

RULING:
For all practical and legal purposes, a man's name is the designation by which he is known
and called in the community in which he lives and is best known. It is defined as the word or
combination of words by which a person is distinguished from other individuals and, also, as the
label or appellation which he bears for the convenience of the world at large addressing him, or in
speaking of or dealing with him. It is both of personal as well as public interest that every person
must have a name.
The name of an individual has two parts: (1) the given or proper name and (2) the surname
or family name. The given or proper name is that which is given to the individual at birth or at
baptism, to distinguish him from other individuals. The surname or family name is that which
identifies the family to which he belongs and is continued from parent to child. The given name
may be freely selected by the parents for the child, but the surname to which the child is entitled is
fixed by law.
As correctly submitted by both parties, there is no law regulating the use of a middle name.
Even Article 176 of the Family Code, as amended by Republic Act No. 9255, otherwise known as An
Act Allowing Illegitimate Children To Use The Surname Of Their Father, is silent as to what middle
name a child may use.
Adoption is defined as the process of making a child, whether related or not to the adopter,
possess in general, the rights accorded to a legitimate child. It is a juridical act, a proceeding in rem
which creates between two persons a relationship similar to that which results from legitimate
paternity and filiation. The modern trend is to consider adoption not merely as an act to establish a
relationship of paternity and filiation, but also as an act which endows the child with a legitimate
status. This was, indeed, confirmed in 1989, when the Philippines, as a State Party to the
Convention of the Rights of the Child initiated by the United Nations, accepted the principle
that adoption is impressed with social and moral responsibility, and that its underlying
intent is geared to favor the adopted child. Republic Act No. 8552, otherwise known as the
Domestic Adoption Act of 1998, secures these rights and privileges for the adopted.
One of the effects of adoption is that the adopted is deemed to be a legitimate child of the
adopter for all intents and purposes pursuant to Article 189
[21]
of the Family Code and Section
17 Article V of RA 8552.
Being a legitimate child by virtue of her adoption, it follows that Stephanie is entitled to
all the rights provided by law to a legitimate child without discrimination of any kind,
including the right to bear the surname of her father and her mother, as discussed above.
This is consistent with the intention of the members of the Civil Code and Family Law Committees
as earlier discussed. In fact, it is a Filipino custom that the initial or surname of the mother should
immediately precede the surname of the father.
Additionally, as aptly stated by both parties, Stephanies continued use of her mothers
surname (Garcia) as her middle name will maintain her maternal lineage. It is to be noted that
Article 189(3) of the Family Code and Section 18
[24]
, Article V of RA 8552 (law on adoption) provide
that the adoptee remains an intestate heir of his/her biological parent. Hence, Stephanie can well
assert or claim her hereditary rights from her natural mother in the future.
Moreover, records show that Stephanie and her mother are living together in the house built
by petitioner for them at 390 Tumana, San Jose, Baliuag, Bulacan. Petitioner provides for all their
needs. Stephanie is closely attached to both her mother and father. She calls them Mama and
Papa. Indeed, they are one normal happy family. Hence, to allow Stephanie to use her mothers
surname as her middle name will not only sustain her continued loving relationship with her
mother but will also eliminate the stigma of her illegitimacy.
Liberal Construction of Adoption Statutes In Favor Of Adoption
It is a settled rule that adoption statutes, being humane and salutary, should be liberally
construed to carry out the beneficent purposes of adoption. The interests and welfare of the
adopted child are of primary and paramount consideration, hence, every reasonable intendment
should be sustained to promote and fulfill these noble and compassionate objectives of the law.
Lastly, Art. 10 of the New Civil Code provides that:
In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking
body intended right and justice to prevail.
This provision, according to the Code Commission, is necessary so that it may tip the scales in
favor of right and justice when the law is doubtful or obscure. It will strengthen the determination
of the courts to avoid an injustice which may apparently be authorized by some way of interpreting
the law.
[

Hence, since there is no law prohibiting an illegitimate child adopted by her natural father,
like Stephanie, to use, as middle name her mothers surname, There is no reason why she should
not be allowed to do so.















-= END =-