PERSONS & FAMILY RELATIONS

CIVIL LAW

Persons and Family Relations

TABLE OF CONTENTS
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
X.
XI.
XII.
XIII.
XIV.

100% UP LAW

Civil Personality
Citizenship and Domicile
Marriage
Void Marriages
Voidable Marriages
Legal Separation
Rights and Obligations Between Husband and Wife
Property Relations Between Spouses
The Family
Paternity and Filiation
Adoption
Support
Parental Authority
Funerals

UP

BAROPS

2008

3
6
6
8
11
14
16
16
25
26
29
32
32
34

Page 2 of 325

PERSONS & FAMILY RELATIONS

CIVIL LAW

I. CIVIL PERSONALITY
A. CONCEPT AND CLASSES OF PERSONS
Person - any being, natural (Art. 40, CC) or
juridical (Art. 42, CC), susceptible to legal
rights and obligations, and can be a subject of
legal relations.
Kinds of Capacity: (Art. 37, CC)
Juridical Capacity

Capacity to Act

Fitness to be the subject

of legal relations.
Inherent
in
every
natural person

Power to do acts
with legal effect
Acquired
and
may be lost
Subject
to
certain
restrictions

Lost only through death

Inherent
and
ineffaceable attribute of
man; attaches to him by
the mere fact of his
being a man.

Conditional and
variable, it is
acquired
and
may be lost.

Effect of Death:
The effect of death upon the rights and
obligations of the deceased is determined by
law, by contract and by will (Art 42, par. 2).
Doubt as to the order of death:
If they are called to succeed each other,
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 will be no transmission
of rights from one to the other. (Art. 43, CC)
Joaquin v. Navarro
93 Phil 257 (1953)
The rule on Art. 43 was not applied in
determining whether the mother or the son
died first. There were eyewitnesses who can
give evidence as to who died first. It is only
applied when it is impossible to determine
who died first that the presumption applies.
2. Juridical persons
Kinds of juridical persons: (Art. 44, CC)

Kinds of persons:

1. The State and its political subdivisions;

2. Other corporations, institutions and
entities for public interest or purpose,
created by law;
3. Corporations,
partnerships
and
associations for private interest or
purpose to which the law grants a
juridical personality.

1. Natural persons
General Rule:
Birth determines personality (Art 40). Death
extinguishes civil personality (Art 42).
Exception:
A conceived child is considered born for all
purposes that are FAVORABLE to it, provided
it be born later (Art 40, 2nd clause) with the
following circumstances:

Governing laws:
Juridical Person
State
Political
subdivision
Public corporation
Private corporation

a. It is alive at the time it is completely

delivered from the mother's womb.
b. But if the fetus had an intra-uterine life
of less than seven months, it should
survive for at least 24 hours after its
complete delivery. (Art. 41, CC)
Test of life: complete respiration.

Partnerships

Burden of proof:
The presumption is that it was alive and the
burden of proof is on the party who alleges
the contrary.
Geluz v. CA
G.R. No. 16439 (1961)
An unborn fetus is not endowed with
personality.
Parents of an unborn fetus
cannot sue for damages on its behalf as the
fetus, having no personality, does not have
rights which it can pass on.
The family,
however, can recover moral damages.

100% UP LAW

UP

Governing law
Constitution
Charter
Charter
Corporation
Code,
Articles
of
Incorporation and ByLaws
Stipulations
of
the
parties
and
suppletorily by the
general provisions on
partnership

Juridical persons may acquire and possess

property of all kinds, incur obligations, and
bring civil or criminal actions (Art. 46, CC).

BAROPS

2008

Page 3 of 325

PERSONS & FAMILY RELATIONS

CIVIL LAW

B. CAPACITY TO ACT AND

RESTRICTIONS THEREON

Effect on Marriage:
- Marriage contracted by any minor is
VOID.

Presumption of Capacity:
Standard Oil Co. v. Arenas
19 Phil 363 (1911)
To prove insanity, it has to be proven that:
(1) The monomania of wealth was habitual
and that it contributed to mental perturbation;
(2) that the act was caused by the
monomania itself; (3) that the monomania
existed at the moment he signed the surety.
Capacity to act is presumed unless previously
declared incapable by the court.

Effect on Crimes:
- 9 years and below= EXEMPT from
criminal liability. (Art. 12, RPC)
- Over 9 years and under 15 = EXEMPT,
(Art. 12, RPC)
- Unless
he
acted
with
discernment
=
Penalty
is
lowered by at least 2 degrees.
(Art. 68, RPC)
- 15 years and below 18 = MITIGATING
circumstance. (Art. 13, RPC)

Restrictions/limitations on capacity to
act: (Art. 38, 39, CC,)

2. Insanity

1.
2.
3.
4.
5.
6.
7.
8.
9.

Effect on Contracts:
- Insane persons cannot give consent to a
contract. (Art. 1327, CC)
- Contracts entered into during a lucid
interval are valid. (Art. 1328, CC)
- The incapacitated person is not obliged
to make any restitution except insofar as
he has been benefited. (Art. 1399, CC)

Minority
Insanity or imbecility
State of being deaf-mute
Prodigality
Civil interdiction
Family relations
Alienage
Absence
Married women (Art. 2259, CC)

Effect on Crimes:
- Insane persons are EXEMPT from
criminal liability unless they acted during
a lucid interval. (Art. 12, RPC)

1. Minority
RA 6809 Majority commences at the age of
18 years.
Effect on Contracts:
- Minors cannot give consent to a
contract. (Art. 1327, CC).
- The parents consent is binding on the
minor. (Shields v. Gross, 58 NY 2d 338)
- If one of the parties to a contract is a
minor, the contract is voidable. (Art.
1390, CC)
- If both parties are minors, the contract
is unenforceable. (Art. 1403, CC)
- Persons who are capable cannot allege
the incapacity of the other party. (Art.
1379, CC)
- The minor is not obliged to make
restitution except insofar as he has been
benefited. (Art. 1399, CC)
- If there is active representation by the
minors that they are of legal age, the
contract is valid. (Mercado v. Espiritu, 37
Phil. 215)
- If there is only passive representation,
the contract is not valid. The fraud must
be actual and not constructive. Mere
silence does not constitute fraud.
However, the minors must make
restitution to the extent they profited
from the money received. (Braganza v.
de Villa Abrille, 105 Phil. 456)

Effect on Marriage:
- A marriage is VOIDABLE if either party
was of unsound mind at the time of the
marriage.
- Except: When the insane person, after
coming to reason, freely cohabited with
the other.
Dumaguin v. Reynolds
10 Phil. 381 (1952)
The presumption of mental incapacity in a
person under guardianship for mental
derangement may be rebutted by evidence.
That person may enter a valid contract
provided it is proven
1. That he was not insane at the time he
entered into the contract, and
2. That his mental defect did not affect
his capacity to appreciate the meaning
and significance of the transaction.
3. State of being deaf-mute
-

100% UP LAW

UP

BAROPS

Deaf-mutes cannot give consent to a

contract. (Art. 1327, CC)
If the testator is a deaf-mute, he must
personally read the will. If unable to
read, he must designate 2 persons to
read it and communicate to him the
contents thereof. (Art. 807, CC)
Deaf-mutes cant be witnesses to a will.
(Art. 820, CC)

2008

Page 4 of 325

PERSONS & FAMILY RELATIONS

CIVIL LAW
8. Absence

4. Prodigality
Martinez v. Martinez
1 Phil. 182
To make a person legally unfit to run his own
affairs, his acts of prodigality must show:
1. A morbid mind, and
2. A tendency to spend or waste the
estate so as to expose the family to
want or deprive the forced heirs of
their inheritance.
5. Civil Interdiction
Civil interdiction deprives the offender during
the time of his sentence of the following
rights (PA-G-MA-MD)
1. Parental authority,
2. Guardianship as to the person or
property of any ward,
3. Marital authority,
4. Management his property
5. Disposition of his property (Art. 34,
RPC)

General Rule:
Absence of 7 years + unknown whether the
absentee still leaves = presumed dead for all
purposes.
Except:
For the purpose of opening his succession, in
which case, the absentee is presumed dead
after 10 years. If disappeared after the age
of 75 years, 5 years will be sufficient. (Art.
390, CC)
Rule:
The following are presumed dead for ALL
purposes, including the division of estate
among the heirs: (VA-A-D)
1. A person on board a vessel during a
sea voyage, or an aeroplane which is
missing, who has not been heard of for
4 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 4 years;
3. A person who has been in danger of
death under other circumstances and
existence has not been known for 4
years. (Art. 391, CC)

6. Family Relations
Effect on Crimes:
- No criminal liability if one acts in defense
of spouse, ascendants, descendants,
brothers or sisters, relatives by affinity
and consanguinity within the 4th civil
degree provided the requisites in Art. 11
and 12 of RPC are followed.
- Mitigating circumstance: If one acts in
immediate vindication of a grave offense
committed
against
his
spouse,
ascendants, or relatives by affinity
within the same degrees. (Art. 13, RPC)

Administration
and
enjoyment
of
conjugal partnership where one spouse is
absent:
-

Effect on Marriage:
- Incestuous and void Marriages
between ascendants and descendants;
between brothers and sisters, whether
full or half blood. (Art. 37, FC)

Effect on Prescription:
- Prescription does not run between
husband and wife. (Art. 1109, CC)
Effect on Property Relations:
- Husband and wife cannot sell property to
each other except:
- When separation of property
was agreed in the marriage
settlements;
- When there has been a judicial
separation of property. (Art.
1490, CC)
7. Alienage

100% UP LAW

UP

The other spouse may assume sole

powers of administration.
These powers to NOT include disposition
or encumbrance without court authority
or written consent of the other spouse.
Effect of want of authority/consent:
VOID disposition or encumbrance.
BUT, the transaction is construed as a
CONTINUING OFFER on the part of the
consenting spouse and the 3rd person.
It may be perfected as a binding
contract upon the acceptance by the
other spouse or authorization by the
court before the offer is withdrawn by
either or both offerors. (Art. 124, FC)

9. Married Women
General Rule:
A married woman may not sue or be sued
alone without joining her husband.
Except: (Rule 3, Sec. 4, ROC)
1. When they are judicially separated.
2. If they have in fact been separated for
at least 1 year;
3. When there is a separation of property
agreed
upon
in
the
marriage
settlements;

BAROPS

2008

Page 5 of 325

PERSONS & FAMILY RELATIONS

CIVIL LAW

4. If the administration of all the property

in the marriage has been transferred to
her;
5. When the litigation is between husband
and wife;
6. If the suit concerns her paraphernal
property;
7. When the action is upon the civil
liability arising from a criminal offense;
8. If the litigation is incidental to the
profession, occupation or business in
which she is engaged;
9. In any of the civil action referred to in
Art. 25-35 CC.
10. In an action upon a quasi-delict.

Domicile of parents of a person at

the time he was born.
2. Domicile of Choice
Domicile chosen by a person,
changing his domicile of origin.
A 3rd requisite is necessary
intention not to return to ones
domicile as his permanent place.
3. Domicile by Operation of Law (i.e.,
Article 69, domicile of minor)
Construction of residence:
-

Although residence and domicile are

used interchangeably, they are NOT
synonymous
in
connection
with
citizenship,
jurisdiction,
limitations,
school
privileges,
probate
and
succession. (Uytengsu v. Republic,
1954)

As used in the Naturalization Law,

residence
means
actual
and
substantial residence, not domicile.
(Uytengsu v. Republic, 1954)
HOWEVER, in election law, residence is
synonymous
with
domicile.
(Romualdez-Marcos v. Comelec, 1995)

Note: In cases #7-9, the husband must be

joined as party defendant if Art. 163, par. 3
applies.

II. CITIZENSHIP AND DOMICILE

A. FILIPINO CITIZENS
1. Those who are citizens of the
Philippines at the time of the adoption
of the 1987 Constitution;
2. Those whose fathers or mothers are
citizens of the Philippines;
3. Those born before January 17, 1973,
of
Filipino
mothers,
who
elect
Philippine citizenship upon reaching the
age of majority; and
4. Those
who
are
naturalized
in
accordance with law. (Art IV, 1, 1987
Consti.)
B. DOMICILE
For Natural Persons:
The place of their habitual residence (Art. 50,
CC).
For Juridical Persons:
The place where their legal representation is
established, or where they exercise their
primary functions, unless there is a law or
other provision that fixes the domicile (Art.
51, CC).
Domicile vs. Residence:
While domicile is permanent (there is intent to
remain), residence is temporary and may be
changed anytime (there is no necessary intent
to remain).
Requisites of Domicile:
1. Physical Presence
2. Intent to remain permanently

III. MARRIAGE
A. DEFINITION
MARRIAGE

AND

NATURE

OF

Definition of Marriage:
1. A special contract
2. of permanent union
3. between a man and a woman
4. entered into in accordance with law
5. for the establishment of conjugal and
family life.
6. It is the foundation of the family and
7. an inviolable social institution
8. whose
nature,
consequences,
and
incidents are governed by law and not
subject to stipulation,
9. except that marriage settlements may fix
the property relations during the marriage
within the limits provided by this Code.
(Art. 1, FC)
Breach of promise to marry:
Tanjanco v. CA
18 SCRA 994
Breach of promise to marry is not an
actionable wrong. The fact that the woman
agreed to have sexual intercourse for a year
does not constitute seduction but mutual
passion.

Kinds of Domicile:
Wassmer v. Velez
12 SCRA 648

1. Domicile of Origin
100% UP LAW

UP

BAROPS

2008

Page 6 of 325

PERSONS & FAMILY RELATIONS

CIVIL LAW

While mere breach is not an actionable wrong,

Velez is still liable under Art. 21 of the Civil
Code which provides that when a person
willfully causes loss or injury contrary to good
custom, he shall compensate the latter for
damages (costs of the wedding preparations).
It is the abuse of right which can be a cause
for moral or material damages.
Trinidad v. CA
289 SCRA 188 (1998)
Absence of a marriage certificate is not proof
of absence of marriage. To prove the fact of
marriage, the following would constitute
competent evidence: (1) the testimony of
witnesses to matrimony; (2) the couples
public cohabitation; and (3) birth and
baptismal certificates of children born during
the union.
Presumption of marriage:
In case of doubt, all presumptions favor the
solidarity of the family.
Thus, every
intendment of law or facts leans towards the
validity of marriage, the indissolubility of the
marriage bonds, etc. (Art. 221, FC)
B. ESSENTIAL REQUISITES OF MARRIAGE
1. Legal Capacity of contracting parties
who must be Male and Female;
2. Consent freely given in the presence of
the solemnizing officer. (Art. 2, FC)
Jones v. Hallahan
501 S.W. 2d 588
A license to enter into a same-sex marriage is
a nullity since the parties are incapable of
entering into a marriage as the term is
defined. Marriage is defined by law as one
entered into by a man and a woman.
People v Santiago
51 Phil 68
When a person only married another to avoid
prosecution because he raped her the same
morning, the marriage is void for absence of
consent on the part of the rapist. It was a
mere ruse for him to escape criminal liability.
Effects of absence of and defect in the
requisites of marriage: (Art. 4, FC)

Essential
Formal

Absence
Void*
Void*

Defect
Voidable

Irregularity
No effect on
validity but
party
responsible
will be
liable.

*Except when it is solemnized by an

unauthorized person with either or both

100% UP LAW

UP

contracting parties having good faith that he

had authority to do so (Art 35, par. 2)
C. FORMAL REQUISITES OF MARRIAGE
(SO-ML-MC)
1. Authority of the solemnizing officer;
2. A valid marriage license;
3. Marriage ceremony (Art 3, FC)
a. Authority of solemnizing officer
Who
are
authorized
to
solemnize
marriages? (JPSMCM)
1. Any incumbent member of the judiciary
within the courts jurisdiction (Art. 7, par.
1);
2. Any priest, rabbi, imam, or minister of any
church or religious sect
a. Must be authorized by his church or
religious sect.
b. Must be registered with the civil
registrar general.
c. Must act within the limits of the
written authority granted by the
Church.
d. At least one of the parties must be a
member of the church or religious
sect to which the solemnizing officer
belongs. (Art. 7, par. 2)
3. Ship captain or airplane chief in the
following cases;
a. Where one or both of the parties are
in articulo mortis,
b. While the ship is at sea or
c. While the plane is in flight, or
d. At stopovers or ports of call (Art 7,
par. 3; Art 31, FC).
4. Any military commander of a unit to which
a chaplain is assigned, in the absence of
the latter (Art 7, par. 4 FC);
a. Can only solemnize marriages in
articulo mortis between persons
within the zone of military operation,
whether members of the armed
forces or civilians (Art 32, FC).
5. Consul-general, consul, or vice consul (Art.
7, par. 5 FC)
a. Can solemnize marriages between
Filipino citizens abroad. The issuance
of the marriage license and the
duties of the local civil registrar shall
also be performed by said consular
official. (Art. 10, FC)
6. Mayors (LGC)
b. Marriage License
Marriages exempt from marriage license
requirement: (ARMC)
1. Marriage in articulo mortis (Art. 27, FC)
2. Marriage in remote and inaccessible places
(Art. 28, FC)

BAROPS

2008

Page 7 of 325

PERSONS & FAMILY RELATIONS

CIVIL LAW

3. Marriages
by
Muslims
and
cultural
minorities. (Art. 33, FC)
4. Marriage by parties with who have
cohabited for at least 5 years. (Art. 34,
FC)
Ninal v Badayog
GR 133778 (2000)
There must be no legal impediment during the
entire five or more years that the parties are
living as husband and wife.
Things to do at the local civil registrar:
a) File an application of marriage license
at the proper local civil registrar. (Art.
11, FC)
b) Present birth or baptismal certificate.
(Art. 12, FC)
c) If aged 18-21 years, present parental
consent. (Art. 14, FC)
d) If aged 21-25, present parental
advice. (Art. 15, FC)
e) If aged 18-25, present certificate of
marriage counseling from your priest.
(PD 965)
f) Pay the required fees. (Art 19, FC)
g) If foreigner, present certificate of
legal capacity issued by diplomat or
consular officials. (Art. 21, FC)

2. Marriage in a remote place in accordance

with Art. 29;
3. Where both of the parties request the
solemnizing officer in writing, in which
case the marriage may be solemnized at a
house or place designated by then in a
sworn statement.
D. MARRIAGES CELEBRATED ABROAD
General Rule:
Marriages solemnized outside the RP in
accordance with the law of the foreign country
shall be valid in the Philippines (lex loci
celebrationis). (Art. 26, FC)
Exceptions: (AgeBI53PIPP)
1. Marriage between persons below 18
years old Art. 35(1)
2. Bigamous or polygamous marriage
Art. 35(4)
3. Mistake in identity Art. 35 (5)
4. Marriages void under Article 53 Art.
35 (6)
5. Psychological incapacity Art. 36
6. Incestuous marriages Art. 37
7. Marriage void for reasons of public
policy Art. 38

c. Marriage Ceremony
There is no particular form or religious rite
required by law. (Art. 6, FC)
Minimum requirements by law:
1. The contracting parties appear personally
before the solemnizing officer
2. They declare in the presence of at least
two witnesses of legal age,
3. That they take each other as husband and
wife
4. The declaration shall be contained in the
marriage certificate,
5. Which shall be signed by the contracting
parties and their witnesses and attested
by the solemnizing officer. (Art. 6, FC)
Note: In a marriage in articulo mortis, when
one or both parties are unable to sign the
marriage certificate, it shall be sufficient for
one of the witnesses to write the name of said
party, which shall be attested by the
solemnizing officer. (Art 6, par. 2)
Places
where
marriage
celebrated (CCO): (Art. 8, FC)

may

be

General Rule:
1. Chambers of the judge or in open court;
2. Church, chapel, or temple
3. Office of the Consul-general, consul, or
vice-consul, as the case may be.
Exceptions:
1. Marriage in articulo mortis;
100% UP LAW

UP

IV. VOID MARRIAGES

A. GROUNDS
a. Under Art. 35
1. Contracted by anyone below 18 years old,
even with consent of parents
2. Solemnized by anyone not authorized to
do so,
a. except when one or both parties
believe that the solemnizing officer
had authority to do so.
3. There is no marriage license,
a. except
in
marriage
under
exceptional circumstances
4. It is bigamous or polygamous,
a. except when first spouse has been
absent for four years, or two years
under extraordinary circumstances,
and the remaining spouse has a
well-founded belief that the absent
spouse is dead, and is judicially
declared presumptively dead. (Art.
41)
5. There is a mistake in identity of the other
contracting party.
6. The subsequent marriage is void under
Art. 53:
a. Marriage is void when Art. 52 is
not complied with: the following
must
be
recorded
in
the
appropriate civil registry:

BAROPS

2008

Page 8 of 325

PERSONS & FAMILY RELATIONS

CIVIL LAW

i. Judgment of annulment or
of
absolute
nullity
of
marriage;
ii. Partition and distribution of
the
properties
of
the
spouses
iii. Delivery
of
presumptive
legitimes of the children.
b. Under Art. 36
7. Psychological incapacity of any contracting
party, at the time of the celebration of the
marriage, to comply with the essential
marital obligations.
c. Under Art. 37
(Incestuous Relationships)
8. Between ascendants and descendants of
any degree, legitimate or illegitimate.
9. Between brothers and sisters, whether full
or half-blood, legitimate or illegitimate.
d. Under Art. 38
(For Reasons of Public Policy)
10. Between
collateral
blood
relatives,
legitimate or illegitimate, up to the fourth
civil degree.
11. Between step-parents and step-children.
12. Between parents-in-law and children-inlaw.
13. Between adopting parent and adopted
child.
14. Between the surviving spouse of the
adopting parent and the adopted child.
15. Between the surviving spouse of the
adopted child and the adopter.
16. Between an adopted child and a legitimate
child of the adopter.
17. Between adopted children of the same
adopter.
18. Between parties where one, with the
intention to marry the other, killed that
other person's spouse, or his or her own
spouse.
The following CAN marry each other:
1. Brother-in-law and sister-in-law
2. Stepbrother and stepsister
3. Guardian and ward
4. Adopted child and illegitimate child of
the adopted
e. Under Art. 44
Subsequent marriage contracted under Art. 41
and both parties are in bad faith.
Declaration of nullity of marriage
-

The action imprescriptible. (Art. 39,

FC)
For purposes of remarriage, the nullity
of a previous marriage may be invoked
solely on the basis of a final judicial
declaration of nullity (JDN) of the
previous marriage. (Art. 40, FC)

100% UP LAW

UP

Terre v. Terre
211 SCRA 6
Parties are not allowed to assume that their
marriage is void even if such is the fact. They
must file an action for declaration of nullity
under Art. 40 before they remarry.
Atienza v. Brillantes
243 SCRA 32
Art. 40 is applicable to remarriages entered
into after the effectivity of the Family Code,
regardless of the date of the first marriage.
The Family Code retroacts to the extent that it
does not impair rights.
Domingo v. CA
226 SCRA 572 (1993)
A marriage void for lack of marriage license
still needs a judicial declaration of such fact
even for a purpose OTHER than remarriage
(e.g. liquidation, partition, distribution and
separation of property between spouses,
custody and support of children, and delivery
of the latters presumptive legitime). Art. 40
not mean that JDN can only be invoked for
purposes of remarriage.
PSYCHOLOGICAL INCAPACITY
(Art. 36, FC)
Chi Ming Tsoi v. CA
266 SCRA 234 (1997)
Psychological
incapacity
involves
the
senseless, constant, and prolonged refusal to
comply with the essential marital obligations.
Procreation is one of the essential marital
obligations under the Family Code. The
prolonged refusal of a spouse to have sex with
his spouse, even though capable, is equivalent
to psychological incapacity.
Santos v. CA
G.R. 112109 (1995)
Psychological incapacity under Art. 36, FC is
not meant to comprehend all possible cases of
psychoses. It should refer, rather, 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.
Psychological
incapacity must be characterized by (a)
gravity, (b) juridical antecedence, and (c)
incurability.
Carating-Siayngco v. Siayngco
G.R. No. 158896 (2004)
Sexual infidelity, per se, does not constitute
psychological incapacity. It must be shown
that
respondents
unfaithfulness
is
a
manifestation of a disordered personality
which makes him completely unable to
discharge the essential obligations of the
marital state and not merely due to his ardent
wish to have a child of his own flesh and

BAROPS

2008

Page 9 of 325

PERSONS & FAMILY RELATIONS

CIVIL LAW

blood.
Mere
showing
of
irreconcilable
differences and conflicting personalities does
not constitute psychological incapacity.
Republic v. Quintero-Hamano
G.R. No. 149498 (2004)
In proving psychological incapacity, there
should be no distinction between an alien
spouse and a Filipino spouse. We cannot be
lenient in the application of the rules merely
because
the
spouse
alleged
to
be
psychologically incapacitated happens to be a
foreign national. The medical and clinical rules
to determine psychological incapacity were
formulated on the basis of studies of human
behavior in general.
Republic v. Molina
268 SCRA 198 (1997),
Guidelines for the interpretation of Art. 36:
1. The burden of proof to show the nullity of
the marriage belongs to the plaintiff.
2. The root cause of the psychological
incapacity must be:

3.
4.
5.

6.

7.

8.

a. medically or clinically identified,

b. alleged in the complaint,
c. sufficiently proven by the experts,*
d. clearly explained in the decision.
The incapacity must be proven to be
existing at the time of the celebration of
the marriage.
Such incapacity must also be shown to be
medically or clinically permanent or
incurable.
Such illness must be grave enough to
bring about the disability of the party to
assume the essential obligations of
marriage.
The essential marital obligations must be
those embraced by Articles 68 up to 71 of
the Family Code as regards the husband
and wife as well as Articles 220, 221, and
225 of the same Code in regard to parents
and their children.
Interpretations given by the National
Appellate Matrimonial tribunal of the
Catholic Church in the Philippines, should
be given great respect by our courts.
The trial court must order the prosecuting
attorney or fiscal and the Solicitor General
to appear as counsel for the state.**

1. The appearance of the Solicitor General

is no longer necessary.
2. Expert opinion need not be alleged, as
long as the physical manifestations of
psychological incapacity at the time of
celebration of marriage are alleged.
Tenebro v. CA
G.R. No. 150758 (2004)
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 the
Philippine penal laws are concerned.
As such, an individual who contracts a second
or
subsequent
marriage
during
the
subsistence of a valid marriage is criminally
liable for bigamy, notwithstanding the
subsequent declaration that the second
marriage is void ab initio on the ground of
psychological incapacity.
Buenaventura v. CA
G.R. No. 127358 (2005)
By declaring the petitioner as psychologically
incapacitated (hence beyond the control of the
party because of an innate inability), the
possibility of awarding moral damages on the
same set of facts was negated.
The award of moral damages should be
predicated, not on the mere act of entering
into the marriage, but on specific evidence
that it was done deliberately and with malice
by a party who had knowledge of his or her
disability and yet willfully concealed the same
Mallion v. Alcantara
G.R. No. 141528
Res judicata applies to a petition for nullity of
marriage due to lack of marriage license,
where a prior petition for nullity of marriage
based on psychological incapacity had been
denied. There is only one cause of action for
both petitionsthe nullity of the marriage.
Moreover, in the first case, petitioner
impliedly conceded that the marriage was
conduced in accordance with law, since he
never raised the issue of lack of marriage
license. Petitioner is now bound by this
admission.

*NOTE HOWEVER, that in the later case of

Marcos v. Marcos (343 SCRA 755; 2000), it
was held that there is no need for the
respondent to be examined by an expert, as
the
psychological
incapacity
may
be
established by the totality of the evidence
presented.
** A.M. No. 02-11-10-SC (March 13, 2003)
made the ff. modifications to the Molina
doctrine:

100% UP LAW

UP

BAROPS

2008

Page 10 of 325

PERSONS & FAMILY RELATIONS

CIVIL LAW

BIGAMOUS MARRIAGE (Art. 41, FC)

Exception: Said second marriage is not

bigamous if the first marriage was void due to
the fact that no marriage ceremony was
solemnized at all. Here, the parties merely
signed a marriage contract on their own. No
semblance of marriage, no need for judicial
declaration of nullity.

2 Kinds of bigamous marriage:

VOID
bigamous
marriage
Contracted during
subsistence
of
previous marriage

VOIDABLE
bigamous marriage
Contracted by spouse
present
upon
the
presumption of death
of first spouse

Good
faith
of
remarrying party
is immaterial; if in
bad
faith,
he
becomes liable for
bigamy
General Rule:
Marriage contracted by any person during the
subsistence of a previous marriage is VOID.
Good faith is immaterial here.
Exception:
If before the celebration of the subsequent
marriage
1. The first spouse has been absent for
four consecutive years, or two years
under extraordinary circumstances,
and
2. The surviving spouse has a wellfounded belief that the spouse is dead,
and
3. There is a judicial declaration of
presumptive death, without prejudice
to the effect of the reappearance of the
absent spouse.
Note: This is a
VOIDABLE bigamous marriage.
Exception to the exception:
When both parties in the subsequent marriage
acted in bad faith, the marriage is still void
(Art. 44, FC).
People v. Mendoza
95 Phil. 845 (1954)
Mendoza contracted three marriages. He
contracted the second marriage during the
subsistence of the first marriage. He
contracted the third marriage after the death
of his first wife. He was prosecuted for bigamy
on his third marriage. The Supreme Court
held that he is not guilty for bigamy for his
third marriage, since his prior subsisting
marriage has already been extinguished by
the death of his first wife. It is the second
marriage that is bigamous.
Morigo v. People
G.R. No. 145226 (2004)
General Rule: Even if the first marriage is
judicially declared void only after contracting
the second marriage, the second marriage is
still bigamous.

100% UP LAW

UP

B. EFFECTS OF NULLITY
(ChiPCuPCDRDIDS) (Arts. 50-54, 43-44)
1. Children considered illegitimate
2. Property Regime is dissolved liquidation,
partition and distribution of the properties
of the spouses. If either spouse acted in
bad faith, his/her share in the net profits
will be forfeited:
a. In favor of the common children
b. If none, in favor of the guilty
spouse by previous marriage
c. If none, in favor of the children of
the innocent spouse.
3. Custody and support of the common
children will be decided
4. Presumptive legitimes must be delivered
5. Creditors of the spouses and of the
absolute
community
or
conjugal
partnership must be notified of the
proceedings of liquidation.
6. Conjugal dwelling given to the spouse
with whom majority of the children choose
to remain.
7. Parties can remarry after compliance
with Art. 52, FC.
8. Donation propter nuptias remains valid,
(but if the donee contracted marriage in
bad faith, donations will be revoked)
9. Insurance benefits innocent spouse may
revoke designation of guilty party as
beneficiary, even if such designation is
irrevocable
10. Donations - If both parties of subsequent
marriage acted in bad faith, any donations
and testamentary dispositions made by
one party to the other by reason of
marriage will be revoked
11. Succession Rights Party in bad faith
disqualified to inherit from innocent
spouse, whether testate or intestate
Note: Except for #1, the above also effects
apply to marriages which are annulled (and to
voidable bigamous marriages.)

V. VOIDABLE MARRIAGES
A. GROUNDS (CIF-mspd-FIS) (Art. 45, FC)
1. One of the parties is 18 or above but
below 21, and there is no parental
consent.
2. Either party was of unsound mind
(insanity).

BAROPS

2008

Page 11 of 325

PERSONS & FAMILY RELATIONS

CIVIL LAW

3. The consent of either party was obtained

through fraud (different from mistake in
identity):
a. through
non-disclosure
of
a
previous conviction of a crime
involving moral turpitude;
b. through concealment of the wife of
the fact that she was pregnant by
another man;
c. through concealment of a sexuallytransmitted disease, even if not
serious or incurable;*
d. through
concealment
of
drug
addiction, habitual alcoholism or
homosexuality/lesbianism. (Art.46,
FC)
4. The consent of either party was obtained
through force, intimidation, or undue
influence.
5. Either party is physically unable to
consummate the marriage (impotence;
this is different from sterility).
6. Either party has a serious and incurable
sexually-transmissible disease, even if not
concealed.*

further proceedings if the defendant fails to

answer. A certification by the prosecutor that
he was present during the hearing and even
cross-examined the plaintiff does not suffice
to comply with the mandatory requirement.
Ground
(Art. 45)
Lack of
parental
consent

Insanity

*STD: Art. 45 v. Art. 46

Art. 45 STD
Ground
annulment

for

Does not have to

be concealed
Must be serious
and incurable
It
is
the
concealment that
gives rise to the
annulment

Art. 46 STD
The STD is a type of
fraud
which
is
a
ground for annulment
Must be concealed

Who can
file
(Art. 47)
1.
Underage
party

Prescription
(Art. 47)
1. 5
years
after
attaining
21.

2. Parent
or
guardian

2. Before
child
reaches
21.

1. Sane
spouse
with no
knowledge
of the
others
insanity
2. Legal
guardian
of insane
party
3. Insane
party

1. Any
time
before
the death
of insane
party

Need not be serious

nor incurable
The STD itself is the
ground for annulment

Buccat v Buccat
72 Phil. 19
It held that it is unbelievable that the wife
could have concealed the fact that she was 6
months pregnant at the time of the marriage.
Annulment not granted.
Aquino v Delizo
109 Phil. 21
The Supreme Court granted annulment
because the wife concealed the fact that she
was 4 months pregnant during the time of the
marriage. It argued that since Delizo was

Fraud

Injured
party
(defrauded party)

Force,
intimida
tion,
undue
influence

Injured
party

2. During
lucid
interval
or after
regaining
sanity,
and
before
death
Five
years
after
discovery
of fraud

Five
years
after
disappea
-rance of
force or
intimidation

Ratification
(Art. 45)
Free
cohabitation after
attaining
age of
21.

Free
cohabitation of
insane
party
after
coming
to reason

Free
cohabitation after
having
full
knowledge of
fraud
Free
cohabitation after
the force
has
ceased
or
disappered

naturally plump, Aquino could hardly be

expected to know, by mere looking, whether
or not she was pregnant at the time of the
marriage.
Corpuz v. Ochoterena
AM No. RTJ-04-1861 (2004)
In a legal separation or annulment case, a
prior collusion investigation by the prosecuting
attorney is a condition sine qua non for
100% UP LAW

UP

BAROPS

2008

Page 12 of 325

PERSONS & FAMILY RELATIONS

Ground
(Art. 45)
Impoten
ce

STD

Who can
file
(Art. 47)
Healthy
party

Prescripti
on
(Art. 47)
Five
years
after
marriage

Healthy
party

Five
years
after
marriage

CIVIL LAW

Ratificati
on
(Art. 45)
Deemed
ratified
when
action
prescribes
Deemed
ratified
when
action
prescribes

B. MARRIAGE WHEN ONE SPOUSE

IS ABSENT
Requirements for subsequent marriage to
be valid when prior spouse is absent:
(Art. 41, FC)
1. The prior spouse had been absent for 4
consecutive years, or 2 years in cases
under Art. 391 CC.
2. The spouse present has a well-founded
belief that the absent spouse was already
dead.
3. The spouse present must institute a
summary proceeding for the declaration of
presumptive death of the absentee,
without prejudice to the effect of
reappearance of the absent spouse.

C. EFFECTS OF PENDING
ACTIONS/DECREE (Art. 49, FC)
1. The court shall provide for the support
of the spouses,
2. The custody of the common children,
giving paramount consideration to their
moral and material welfare, their
choice of parent with whom they wish
to remain.
3. The court shall also provide for
visitation rights of other parent.
No child under 7 years shall be separated
from the mother unless there is a compelling
reason to do so.
To prevent collusion between the parties,
fabrication or suppression of evidence, the
prosecuting attorney or fiscal shall appear on
behalf of the State. (Art. 48, FC)
D. VOID MARRIAGES vs.
VOIDABLE MARRIAGES
Void Marriage
Nature
Covalidatio
n

INEXISTENT
from
the
beginning
CANNOT
be
covalidated

Effect of reappearance of absent spouse:

General rule:
The subsequent marriage remains valid.
Exception:
It is automatically terminated by the recording
of the affidavit of reappearance of the absent
spouse.
Exception to the exception:
If there is a judgment annulling the previous
marriage or declaring it void ab initio. (Art.
42, FC)

Effect on
property

No Community
Property, only
Co-ownership

Legitimacy of
children

General
rule:
Children
are
ILLEGITIMATE
(Art. 165)
Exception:
In
void
marriages
by reason of
psychologica
l incapacity
(Art. 36) or
non-partition
of properties
in a previous
marriage
(Art.
53),
children are
considered
LEGITIMATE
.

Republic v. Bermudez-Lorino
G.R. No. 160258 (2005)
The RTC rendered a decision declaring the
presumptive death of respondents absent
spouse based on Art. 41, FC. The Republic
appealed the decision to the CA. Applying
Art. 247 FC, the SC ruled that the CA did not
have jurisdiction over the appeal because
summary proceedings are immediately final
and executory, and therefore unappealable.

100% UP LAW

UP

BAROPS

2008

Voidable
Marriage
VALID
until
annulled
by
court
CAN
be
covalidated by
prescription or
free
cohabitation
ACP
exists
unless another
system
is
instituted
through
marriage
settlement
Children
are
LEGITIMATE if
conceived
before decree
of annulment

Page 13 of 325

PERSONS & FAMILY RELATIONS

Void Marriage
How
to
impugn

Effect of
death of
parties

May
be
attacked
DIRECTLY
or
COLLATERALLY
, except for
purpose
of
remarriage
(there must be
JDN)
May still be
impugned after
death
of
parties

CIVIL LAW

Voidable
Marriage
Can only be
attacked
DIRECTLY
(there must be
annulment
decree)

Can no longer
be impugned
after death of
parties

E. JURISDICTION
Tamano v. Ortiz
291 SCRA 584 (1998)
PD No. 1083 (Code of Muslim Personal Laws
of the Philippines) does not provide for a
situation where the parties were married both
in civil and Muslim rites. Consequently, the
shari'a courts are not vested with original and
exclusive jurisdiction when it comes to
marriages celebrated under both civil and
Muslim laws. Hence, the Regional Trial Courts
have jurisdiction over such cases.

VI. LEGAL SEPARATION

A. GROUNDS (VAPIDHIBLA) (Art. 55, FC)
1.

2.
3.

4.

5.

6.

Repeated physical violence or grossly

abusive
conduct
directed
against
petitioner, a common child, or a child of
the petitioner.
Physical violence or moral pressure to
compel petitioner to change religious or
political affiliation.
Attempt of respondent to corrupt or
induce petitioner, a common child, or
child of petitioner, to engage in
prostitution or connivance in such
corruption or inducement.
Final judgment sentencing respondent to
imprisonment of more than 6 years, even
if pardoned (executive pardon, not
pardon from offended party).
Drug addiction or habitual alcoholism of
respondent.
a. When it existed from the time of
celebration, and concealed from
petitioner, can be a ground for
annulment of marriage.
b. When it occurred only after the
marriage, it is only a ground for
legal separation, whether concealed
or not.
Lesbianism
or
homosexuality
of
respondent.
a. Same as rules on drug addiction

100% UP LAW

UP

7.

Contracting
by
respondent
of
a
subsequent bigamous marriage, whether
in the Philippines of abroad.
8. Sexual infidelity or perversion.
9. Attempt on the life of petitioner by
respondent.
a. There is no need for criminal
conviction.
10. Abandonment of petitioner by respondent
without justifiable cause for more than
one year.
Gandioco v Pearanda
155 SCRA 725 (1989)
In sexual infidelity as a ground for legal
separation, there is no need for prior
conviction for concubinage, because legal
separation only requires a preponderance of
evidence, as opposed to proof beyond
reasonable doubt required in concubinage.
Lapuz v. Eufemio
43 SCRA 177
The action of the plaintiff in filing for legal
separation does not survive after her death.
Death of either spouse dissolves the marriage.
An action for legal separation is purely
personal between the spouses.
Dela Cruz. v. Dela Cruz
22 SCRA 333
Abandonment
is
not
mere
physical
abandonment but also financial and moral
desertion. There must be an intention never
to return.
B. DEFENSES
Grounds for denying
(4CMRPD) (Art. 56, FC)

legal

separation

1. Condonation by aggrieved party

2. Consent by aggrieved party to the
commission of the offense
3. Connivance between parties in the
commission of the offense
4. Mutual guilt in ground for legal
separation
5. Collusion between parties to obtain
decree of legal separation
6. Prescription
of
action
for
legal
separation (5 years from occurrence of
the cause of action)
7. Death of either party during pendency
of action (Lapuz-Sy v Eufemio, G.R.
No. L-30977, 1972)
8. Reconciliation
of
parties
during
pendency of action (Art. 66 par.1)
C. WHEN TO FILE/TRY ACTIONS
Prescription:
Action
prescribes
in five
years
occurrence of cause (Art. 57, FC)

BAROPS

2008

from

Page 14 of 325

PERSONS & FAMILY RELATIONS

CIVIL LAW

Reconciliation period:
Action cannot be tried before six months have
elapsed since the filing of the petition (Art. 58.
FC)
Attempts on reconciliation:
Action cannot be tried unless the court has
attempted to reconcile the spouses, and
determined
that
despite
such
efforts,
reconciliation is highly improbable (Art. 59,
FC)
Confession:
No decree of legal separation shall be based
upon a stipulation of facts or a confession of
judgment (Art. 60, par. 1. FC)
Collusion:
The court shall assign the prosecuting
attorney or fiscal to make sure that there is
no collusion between the parties, and that
evidence is not fabricated or suppressed (Art.
60, par. 2, FC)
D. EFFECTS OF FILING PETITION FOR
LEGAL SEPARATION (LAC)
1. The spouses are entitled to live separately
(Art. 61, par. 1. FC).
2. Administration of Community or Conjugal
Property If there is no written
agreement between the parties, the court
shall designate one of them or a third
person to administer the ACP or CPG. (Art.
61, par. 2, FC)
3. Custody of children The court shall give
custody of children to one of them, if there
is no written agreement between the
spouses. It shall also provide for visitation
rights of the other spouse. (Art. 62, cf.
Art. 49. FC)
E. EFFECTS OF DECREE FOR
LEGAL SEPARATION
1. The spouses can live separately (Art. 63.
FC)
2. The ACP of CPG shall be dissolved and
liquidated, and the share of the guilty
spouse shall be forfeited in favor the
common children, previous children, or
innocent spouse (Art. 63. cf. Art. 42, par.
2).
3. Custody of the minor children shall be
awarded to the innocent spouse (Art. 63.
FC)
4. Guilty spouse shall be disqualified from
inheriting from innocent spouse by
intestate succession. The provisions in
favor of the guilty party in the will of the
innocent spouse shall also be revoked by
operation of law. (Art. 63, FC)
5. Donation propter nuptias in favor of the
guilty spouse may be revoked (Art. 64.
FC)
100% UP LAW

UP

6. Innocent
spouse
may
also
revoke
designation of guilty spouse as beneficiary
in an insurance policy, even if such
stipulations are irrevocable (Art. 64. FC).
7. Obligation for mutual support ceases, but
the court may order the guilty spouse to
support the innocent spouse. (Art. 198,
FC)
8. The wife shall continue to use the surname
of the husband even after the decree for
legal separation. (Art. 372, CC)
F. RECONCILIATION
How done:
Should the spouses reconcile, they should file
a corresponding joint manifestation under
oath of such reconciliation. (Art. 65, FC)
Effects of Reconciliation:
1. Proceedings for legal separation shall
be terminated at whatever stage. (Art.
66, FC)
2. If there is a final decree of legal
separation, it shall be set aside. (Art.
66, FC)
3. The separation of property and
forfeiture of share of guilty spouse
shall subsist, unless the spouses agree
to revive their former property regime
or to institute another property regime.
( Art. 66 cf. Art. 67, FC)
4. Joint custody of children is restored.
5. The right to intestate succession by
guilty spouse from innocent spouse is
restored.
6. The right to testamentary succession
depends on the will of the innocent
spouse.
G. DIVORCE
General Rule:
Decrees of absolute divorce obtained by
Filipinos abroad have no validity and are not
recognized in the Phil. dfd
Exception
(partial recognition of absolute divorce):
- When the divorce is validly obtained by
the alien spouses abroad which
capacitates him/her to remarry, the
Filipino spouse shall likewise have the
capacity to remarry. (Art. 26, par. 2
FC)
Twin elements for the application of par.
2, Art. 26, FC:
1. There is a valid marriage that has been
celebrated between a Filipino citizen
and a foreigner; and
2. A valid divorce is obtained abroad by
the alien spouse capacitating him or
her to remarry.

BAROPS

2008

Page 15 of 325

PERSONS & FAMILY RELATIONS

CIVIL LAW

Republic v. Orbecido
G.R. No. 154380 (2005)
Given a valid marriage between 2 Filipino
citizens, where one party is later naturalized
as a foreign citizen and obtains a valid divorce
decree capacitating him or her to remarry, the
Filipino spouse remarry under Philippine law.
The RECKONING POINT is not the citizenship
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 the latter to remarry.

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.
Yasin v. Sharia District Court
G.R. No. 94986 (1995)
The woman only has an option and not a duty
to use the surname of her husband, as
provided for in Art. 370, CC. Moreover, when
her husband dies, the woman can revert to
her old name without need for judicial
declaration.
2. Widows:

VII. RIGHTS AND OBLIGATIONS

BETWEEN HUSBAND & WIFE

A widow may use the deceased husbands

surname as though he were still living. (Art.
373, CC)

A. OBLIGATION OF SPOUSES
(Arts. 68-71, FC)

3. Mistresses:

Live together
Observe mutual love, respect, and fidelity
Render mutual help and support
Fix the family domicile.
a. In case of disagreement, the court
shall decide.
5. Jointly support the family.
6. Manage the household.

Legamia v IAC
G.R. No. 63817 (1984)
The Supreme Court allowed the mistress to
use her live-in partners name, since everyone
already knew that she was a mistress, so as
to avoid confusion.

B. RIGHTS OF SPOUSES (Arts. 72-73, FC)

Tolentino v. CA
G.R. No. 41427 (1988)
A divorced woman may continue using the
surname of her former husband. Philippine
laws are silent in this issue. Moreover, there
is no usurpation as she never represented
herself as Mrs. Arturo Tolentino after the
divorce, but simply as Mrs. Consuela DavidTolentino.

1.
2.
3.
4.

1. In case the other spouse neglects his or

her duties or commit acts which tend to
bring danger, dishonor or injury to the
family, the aggrieved party may apply the
court for relief.
2. Either spouse may exercise any legitimate
profession, without need for consent of the
other.
a. The other spouse may only object
on valid, serious, and moral
grounds.
b. In case of disagreement, the Court
shall decide whether (1) the
objection is proper, and (2) benefit
has accrued to the family before OR
after the objection.
i. If
BEFORE,
enforce
obligation
against
the
separate property of spouse
who
has
not
obtained
consent.
ii. If AFTER, enforce obligation
against community property
C. USE OF SURNAME

4. Divorcees

VIII. PROPERTY RELATIONS

BETWEEN SPOUSES
A. GENERAL PROVISIONS
Order to be followed: (ARTS. 74, 75, FC):
1. Marriage
settlements
before
marriage spouses can agree to
whatever regime they want, be it ACP,
CPG, or complete separation.
2. Family Code If there are no
marriage settlements, or if the regime
agreed upon is void, the Absolute
Community of Property will be followed
3. Local Customs

1. Married Women: (Art. 370, CC)

A married woman may use:
1. Her maiden first name and surname
and add her husband's surname, or
100% UP LAW

UP

BAROPS

2008

Page 16 of 325

PERSONS & FAMILY RELATIONS

CIVIL LAW

General Rule: (Art. 80, FC)

Property relations between Filipino spouses
are governed by Philippine laws, regardless of
the place of marriage and their residence.
Hence:
The rule that ACP is the default mode of
property relations absent any marriage
settlement applies to all Filipinos, regardless
of the place of the marriage and their
residence.
Exceptions: (Art. 80, FC)
1. Where both spouses are aliens
2. As to the extrinsic validity of contracts
3. Contrary stipulation
Requirements for Marriage Settlements:
(Art. 77, FC)
1. Must be in writing (public or private)
2. Signed by the parties
3. Executed before the celebration of the
marriage
4. If party needs parental consent,
parent/guardian must be a party to the
settlement
5. If party is under civil interdiction or
other disability (not including insanity),
court appointed guardian must be a
party
6. Must be registered in local civil registry
to affect third persons (If not
registered, will not prejudice third
persons, ACP will apply)
General Rule:
All modifications to the marriage settlement
must be made before the marriage is
celebrated.
Exceptions:
1. Legal Separation (Art. 63 (2), FC)
o The
property
regime
is
dissolved.
2. Revival of the former property regime
upon reconciliation if the spouses
agree (Art. 66 (2))

2. Made in consideration of the marriage

3. In favor of one or both spouses
Donations excluded:
1. Ordinary wedding gifts given after the
celebration of the marriage
2. Donations in favor of future spouses made
before marriage but not in consideration
thereof
3. Donations made in favor of persons other
than the spouses even if founded on the
intended marriage
Who may donate:
1. spouses to each other
2. parents of one or both spouses
3. 3rd persons to either or both spouses
Solis v. Barroso
53 Phil. 912 (1928)
Moreover, in donations propter nuptias, the
marriage is really a consideration but not in
the sense of giving birth to the obligation.
There can be a valid donation even if the
marriage never took place.
However, the
absence of marriage is a ground for the
revocation of the donation.
Mateo v. Lagua
G.R. No. 26270 (1969)
Donations propter nuptias are without onerous
consideration, marriage being merely the
occasion or motive for the donation, not its
cause. Being liberalities, they remain subject
to reduction for inofficiousness upon the
donors death, if they should infringe the
legitime of a forced heir.
Distinguished from Ordinary Donations:

3. A spouse may petition the court for:

a. Receivership
b. Judicial separation of property, or
c. The authority to be the sole
administrator
of
the
conjugal
partnership
If the other spouse abandons the
other without just cause or fails to
comply with his or her obligations
to the family. (Art. 128)
4. Judicial Dissolution (Arts. 135 and 136)

DONATIONS
PROPTER NUPTIAS
Does not require
express acceptance
May be made by
minors (Art. 78)
May include future
property
If present property is
donated and property
is not absolute
community, limited
to 1/5
Grounds for
revocation - In Art.
86

ORDINARY
DONATIONS
Express
acceptance
necessary
Cannot be made
by minors
Cannot include
future property
No limit to
donation of
present property
provided
legitimes are not
impaired
Grounds for
revocation - in
donation laws

B. DONATIONS BY REASON OF MARRIAGE

Requisites of donations propter nuptias:
(Art. 82, FC)
1. Made before the celebration of marriage
100% UP LAW

UP

BAROPS

2008

Page 17 of 325

PERSONS & FAMILY RELATIONS

CIVIL LAW

RULES:
1. Before Marriage
General Rule:
Future spouses cannot donate to each other
more than 1/5 of their present property
(excess shall be considered void) (Art. 84, FC)
Exception:
If they are governed by ACP.
2. During Marriage
General Rule:
Spouses cannot donate to each other, directly
or indirectly (donations made by spouses to
each other during the marriage are void) (Art.
87, FC)
Exception:
Moderate gifts on the occasion of any family
rejoicing.
Grounds for Revocation of
Propter Nuptias (Art. 86, FC)

Donation

1. If the marriage is not celebrated or

judicially declared void ab initio, except
donations made in settlements.
2. When the marriage takes place without
the consent of the parents or guardians,
as required by law.
3. When the marriage is annulled, and the
donee acted in bad faith.
4. Upon legal separation, if the donee is the
guilty spouse.
5. If there is a resolutory condition, and it is
not complied with.
6. When donee has committed an act of
ingratitude: (Art. 765, CC)
a. An offense against person or property
of donor, or his wife or children under
parental authority
b. An imputation to the donor of any
criminal offense, or any act involving
moral turpitude, even if proven, unless
the crime is committed against the
donee, his wife or children under his
authority.
c. Refusing to support the donor, if
he/she is legally required to do so.
*The action for filing
donation prescribes.

for

revocation

of

Matabuena v Cervantes
38 SCRA 284 (1971)
The donation between common-law spouses
falls within the provision prohibiting donations
between spouses during marriage.

100% UP LAW

UP

Harding v. Commercial Union

38 Phil. 464 (1918)
The prohibition on donations can only be
assailed by persons who bear such relation to
the parties or the property itself, that their
rights are being interfered with. Here, the
insurance company of the donated car cannot
assail the validity of the donation.
Sumbad v. CA
G.R. No. 106060 (1999)
The donation made by a man to a woman was
held valid because no proof was shown that
they were still living in a common-law
relationship at the time of the donation.
C. ABSOLUTE COMMUNITY OF PROPERTY
1. IN GENERAL
When it commences: At the precise
moment of the celebration of the marriage
(Art. 88, FC). However, if the marriage is
celebrated before the Family Code took effect
(1988), the default property regime is the
Conjugal Partnership of Gains (CPG).
Waiver of Rights: (Art. 89, FC)
General Rule:
NOT ALLOWED
Exceptions:
1. When there is judicial separation of
property
2. When there is legal separation
3. When the marriage is dissolved (by
death of one of the spouses)
4. When the marriage is annulled
2. WHAT CONSTITUTES COMMUNITY
PROPERTY
What it consists: All the property owned by
the spouses at the time of the celebration of
the marriage or acquired thereafter. (Art. 91,
FC)
Under the ACP, spouses cannot

exclude

specific properties from the regime.

What is Excluded (BGM): (Art. 92, FC)
1. Properties acquired by a gratuitous title,
i.e. donation, inheritance by testate and
intestate succession, including the fruits of
such properties
EXCEPT: When it was expressly
provided by the donor or testator that the
property shall form part of the ACP
2. Properties for personal use
EXCEPT: Jewelry - they form part of
the ACP

BAROPS

2008

Page 18 of 325

PERSONS & FAMILY RELATIONS

CIVIL LAW

3. Properties acquired before the marriage,

for those with legitimate descendants with
a former marriage (to protect rights of
children by a former marriage).
Presumption:
All properties acquired during the marriage
form part of the ACP, unless it be proven that
they are excluded. (Art. 93, FC)
3. CHARGES UPON THE ACP (Art. 94, FC):
(4 debts, 2 taxes, 2 expenses,
support, donation)
1. Support
- Spouses
o Even if not living together
except when a spouse leaves
conjugal home without just
cause
o Even during pendency of action
for
legal
separation
or
annulment of marriage
- Common children
- Legitimate
children
of
previous
marriage
2. Debts and Obligations Contracted During
Marriage
- Either by both spouses or one of them,
with the consent of the other.
- In (2) and (3), creditors need not
prove that the debts benefited the
family.
3. Debts Contracted by one Spouse Without
Consent of the other
- ACP liable only to the extent that the
debt benefited the family.

10. Expenses of Litigation between Spouses

4. ADMINISTRATION, OWNERSHIP AND
DISPOSITION OF ACP
Administration of property:
Belongs to both spouses jointly. If they
disagree the husbands decision prevails.
However, the wife has five years from the
date of the decision to go to court for
recourse. Otherwise, it is presumed that she
agreed with the husbands decision. (Art. 96,
FC)
Except:
When the other spouse is incapacitated, or
unable to participate in the administration
(e.g. when abroad).
Disposition of property:
Either spouse may, through a will, dispose
his/her interest in the community property.
(Art. 97, FC) However, the will should refer
only to his/her own share in the community
property.
Donation of property:
Donation of one spouse without the consent of
the other is not allowed (Art. 98, FC)
Except:
1. Moderate donations to charity due to
family rejoicing or distress;
2. Moderate gifts by each spouse to the
other due to family rejoicing. (note:
Whats moderate depends on the
socio-economic status of the family)

4. Tax, Liens, Repairs on Community

Property
- Includes both major and minor repairs
5. Taxes and Expenses for Mere preservation
of Separate properties
- Applies only to separate properties by
either spouse being used by the family,
not those that do not benefit the
family.
- Expenses limited to minor repairs.
6. Expenses for professional, Vocational, or
Self-Improvement Course of Spouses
7. Ante-nuptial Debts that Benefited the
Family
- If the ante-nuptial debt did not benefit
the family, applicable rule is (9).
8. Donations by Both Spouses to Common
Legitimate Children
9. Ante-Nuptial Debts not under (7), Support
of Illegitimate Children, Liabilities of Either
Spouse Arising from Crime or Quasi-Delict
100% UP LAW

UP

Only ff the debtor-spouse has no

exclusive property or his or her
property is insufficient.
The payments by the ACP are deemed
advances to be deducted from the
share of the guilty spouse upon the
liquidation of the absolute community.

5. DISSOLUTION OF ACP
ACP terminates upon: (Art. 99, FC)
1. Death of either spouse follow rules in
Art. 103
2. Legal Separation follow rules in Arts. 63
and 64
3. Annulment or judicial declaration of nullity
follow rules in Arts. 50 to 52
4. Judicial separation of property during
marriage follow rules in Arts. 134 to 138
Rules on De Facto Separation:
(ART. 100, FC):
De facto separation does not affect the ACP.
EXCEPT that:
1. Spouse who leaves the conjugal home
without just cause shall not be entitled

BAROPS

2008

Page 19 of 325

PERSONS & FAMILY RELATIONS

2.

3.
4.
5.

6.

CIVIL LAW

to support. He/She, however, is still

required to support the other spouse
and the family.
If consent is necessary for transaction
but
is
withheld
or
otherwise
unobtainable, authorization may be
obtained from the court.
Support for family will be taken from
the ACP.
If ACP is insufficient, spouses shall be
solidarily liable.
If it is necessary to administer or
encumber separate property of spouse
who left, spouse present may ask for
judicial authority to do this.
If ACP is not enough and one spouse
has no separate property, spouse who
has property is liable for support,
according to provisions on support.

Abandonment: (Art. 101, FC)

Present spouse may petition the court for:
(a) receivership;
(b) judicial separation of property; or
(c) authority to be the sole administrator
of the absolute community, subject to
precautionary conditions that the court
may impose.

balance of separate properties shall be

delivered to respective spouses or their
heirs, and they will also divide into two
equal shares whatever is left of the
community assets, without prejudice to
the provisions of law on forfeitures and
delivery of presumptive legitimes.
Rules in Case of Termination of Marriage
by Death of One of the Spouses:
(Art. 103, FC)
1. The community property shall be
liquidated in the same proceeding for
the settlement of the estate of the
deceased spouse.
2. If
no
such
judicial
settlement
proceeding is instituted, surviving
spouse shall liquidate the community
property either judicially or extrajudicially within one year from the
death of the deceased spouse.
Procedure for Liquidation of Community
Properties of Two Marriages:
(Art. 104, FC)
1. Determine the capital, fruits, and
income of each community upon such
proof as may be considered according
to the rules of evidence.
2. In case of doubt as to which
community the existing properties
belong, they shall be divided between
two communities in proportion to the
capital and duration of each.

*Spouse is prima facie considered to have

abandoned the other spouse and the family if:
1. he/she has left for a period of three
months,
2. he/she has failed to inform his/her
whereabouts for a period of three
months.
6. LIQUIDATION OF ASSETS
AND LIABILITIES
Process of liquidation of ACP:
(Art. 102, FC)
1. Inventory of assets of ACP and of
spouses, with market values.
2. Obligations are paid with community
property, and separate obligations not
charged to ACP paid by respective
assets of spouses.
3. Balance, or net remainder is divided
equally
between
the
spouses,
irrespective of how much each brought
into the community.
4. If obligations exceed the assets of the
ACP, nothing is divided. Creditors can
go after the separate properties of the
spouses, which are solidarily liable for
the deficiency.
5. If personal obligations of a spouse
exceed his/her separate property,
creditor can go after the share of the
spouse on the net remainder of the
ACP,
without
prejudice
to
the
provisions of law on forfeitures and
delivery of presumptive legitimes.
6. After
covering
all
community
obligations and obligations of spouses,
100% UP LAW

UP

Onas v. Javillo
59 Phil. 733 (1934)
Javillo contracted 2 marriages. SC ruled that
each
absolute
community
should
be
considered owner of the parcels of land
acquired during its existence.
Death
discontinues ACP.
Vda. De Delizo v. Delizo
G.R. No 32820 (1976)
In case of doubt as to which community the
existing properties belong, the same shall be
divided between the different communities in
proportion to the capital and duration of each.
D. CONJUGAL PARTNERSHIP OF GAINS
WHERE IT APPLIES:
1. For marriages before the implementation
of the Family Code.
2. For marriages after the Family Code, if
agreed to by the parties through a
marriage settlement.
HUSBAND AND WIFE PLACE IN COMMON
FUND:

BAROPS

2008

Page 20 of 325

PERSONS & FAMILY RELATIONS

1.
2.
3.

CIVIL LAW

The proceeds, products, fruits, and income

of their separate properties;
Everything acquired by them within
marriage through their own efforts;
Everything acquired by them by chance

EXCLUSIVE
SPOUSES:

PROPERTIES

OF

THE

I. Property by direct acquisition, or property

that is originally exclusive:
1. Property brought into marriage by each
spouse as his/her own Art. 109(1)
2. Property acquired by either spouse
during the marriage by gratuitous
title Art 109 (2)
II. Property by substitution:
3. Property
acquired
by
right
of
redemption,
by
barter,
or
by
exchange with property belonging to
either spouse Art. 109 (3)
4. Property purchased with exclusive
money of either spouse- Art. 109 (4)
III. Other Separate Property:
5. Collection of credits belonging to one
spouse exclusively
6. Sale of separate property of a spouse
7. Indemnity paid in cash of expropriation
of separate property or under an
insurance policy covering separate
property.
8. Possession does not affect ownership
of separate property.
PROPERTIES THAT COMPOSE CPG:
1. Acquired by Onerous Title during the
Marriage at Expense of Common Fund
(Art. 117 (1));
2. Acquired through the Labor, Industry,
Work, Profession of Either or both
Spouses (Art. 117 (2));
3. Fruits from common property;
4. Net fruits of exclusive property of each
spouse (Art. 117 (3));
5. Share of either spouse in hidden treasure,
whether as finder or owner of property
where treasure is found (Art. 117(4));
6. Acquired through occupation such as
fishing or hunting (Art. 117 (5));
7. Livestock existing at dissolution of
partnership in excess of what is brought
by either spouse to the marriage (Art. 117
(6));
8. Acquired by chance, such as winnings from
gambling or betting (Art. 117 (7))
NOTE:
A. If winning ticket is bought by a spouse
with his or her own money or was
given gratuitously by a friend = the
prize will be separate property of the
spouse who owns the ticket

100% UP LAW

UP

B. If winning ticket is bought by conjugal

funds = prize is conjugal
- presumption is ticket bought during
marriage is bought by conjugal
funds
Property bought on installments paid partly
from exclusive funds of the spouses and partly
from conjugal funds:
a.If full ownership is vested before the
marriage it shall belong to the buyerspouse
b.If full ownership was vested during
the marriage it shall belong to the
conjugal partnership
Property belonging to one spouse converted
into another kind totally different in nature
from its original form during marriage
becomes conjugal in the absence of proof
that the expenses of conversion were
exclusively for the account of the original
owner-spouse, subject to reimbursement of
the value of the original property from the
conjugal partnership
Upon dissolution of marriage or partnership,
the net gains or benefits from the partnership
shall be divided equally between the spouses,
unless they have agreed on another manner
of division in their marriage settlement.
Money
received
under
the
Social
Security Act is not conjugal, although the
employee-spouse contributes to the SSS with
his salaries, but belongs to the designated
beneficiary under the Social Security Law
Intellectual property, like copyright or
patent, should, according to Tolentino, citing
Planiol and Ripert, be considered separate
property of the spouse who produces or
invents or discovers it, this property being of
a special type, almost a part of one's person
or taken from his personality and the physical
or external manifestation of his intellect or
genius, that it is not simply a product of one's
work or industry but should be considered as
pertaining exclusively to its creator
Business property like trade-marks, trade
names, service marks, business goodwill, and
similar kinds of property are, however, merely
accessories
to
some
commercial
establishment or product, so that if such
establishment or product is separate property
of one spouse, then the business property is
separate property, the same being an
accessory that follows the principal; but all
benefits or earnings derived from these
different kinds of property during the
marriage should belong to the conjugal
property (Tolentino, id., citing the same
authority).

BAROPS

2008

Page 21 of 325

PERSONS & FAMILY RELATIONS

CIVIL LAW

CHARGES UPON CPG (ART. 121) [cf.

Charges to ACP]:
(3 debts, 2 taxes, 2 expenses, support,
donation)

partnership by allowing it to be given

gratuitously as in cases of donation of
conjugal partnership property, which is
prohibited.

1. Support of the spouse, their common

children, and the legitimate children of
either spouse
2. All debts and obligations contracted during
the
marriage
by
the
designated
administrator-spouse for the benefit of the
CPG, or by both spouses or by one of them
with the consent of the other
3. Debts and obligations contracted by either
spouse without the consent of the other to
the extent that the family may have
benefited
4. All taxes, liens, charges, and expenses
upon conjugal property
5. All taxes and expenses for mere
preservation made during the marriage
upon the separate property of either
spouse
6. Expenses to enable either spouse to
commence or complete a professional,
vocational, or other activity for selfimprovement
7. Ante-nuptial debts of either spouse insofar
as they have redounded to the benefit of
the family
8. The value of what is donated or promised
by both spouses in favor of their common
legitimate children for the exclusive
purpose of commencing or completing a
professional or vocational course or other
activity for self-improvement
9. Expenses of litigation between the spouses
unless the suit is found to groundless

DISSOLUTION OF CPG (ART. 128):

If the conjugal partnership is insufficient to

cover the foregoing liabilities, the spouses
shall be solidarily liable for the unpaid balance
with their separate properties.
Disposition or encumbrance of conjugal
property requires:
A. The consent or approval by both
spouses; OR
B. Judicial authority secured in court
Mere awareness of a transaction is NOT
consent
Ayala Investment v. Ching
286 SCRA272
The Supreme Court ruled that indirect benefits
that might accrue to a husband in signing as a
surety or guarantee agreement not in favor of
the family but in favor of his employer
corporation are not benefits that can be
considered as giving a direct advantage
accruing to the family. Hence, the creditors
cannot go against the conjugal partnership
property of the husband in satisfying the
obligation subject of the surety agreement. A
contrary view would put in peril the conjugal
100% UP LAW

UP

1. Prepare an inventory of all properties

2. Amounts advanced by the conjugal
partnership in payment of personal debts
and obligations of either spouse shall be
credited to the conjugal partnership.
3. Each spouse shall be reimbursed for
the use of his or her exclusive funds in the
acquisition of property or for the value of
his or her exclusive property, the
ownership of which has been vested by
law in the conjugal partnership.
4. Debts and obligations of the conjugal
partnership shall be paid out of the
conjugal assets.
5. Whatever remains of the exclusive
properties of the spouses shall be
delivered
6. Indemnify loss or deterioration of
movables belonging to either spouse, even
due to fortuitous event, used for the
benefit of the family
7. The net remainder of the conjugal
partnership properties, or the profits,
which shall be divided equally between
husband and wife
EXCEPTIONS:
a. A different proportion or division was
agreed
upon
in
the
marriage
settlements
b. There has been a voluntary waiver or
forfeiture of such share as provided in
this Code.
[NOTE: Dissolution of the conjugal property
must be recorded in the registry of property in
order to affect third persons dealing with
registered property.]
De Ansaldo v. Sheriff of Manila
G.R. No. L-43257 (1937)
The Supreme Court ruled that the spouses are
not co-owners of the conjugal properties
during the marriage and cannot alienate the
supposed interest of each in the said
properties. The interest of the spouses in the
conjugal properties is only inchoate or a mere
expectancy and does not ripen into title until
it appears after the dissolution and liquidation
of the partnership that there are net assets
ACP/CPG TERMINATES UPON (ART. 99
AND 126):
5. Death of either spouse follow rules in
Art. 103
6. Legal Separation follow rules in Arts.
63 and 64

BAROPS

2008

Page 22 of 325

PERSONS & FAMILY RELATIONS

CIVIL LAW

7. Annulment or judicial declaration of

nullity follow rules in Arts. 50 to 52
8. Judicial separation of property during
marriage follow rules in Arts. 134 to
138
CPG vs. ACP:

1.
Property
acquired
before
marriage
.

2.
Property
acquired
during
marriage

3. Upon
dissolution of
marriage

4. Basis

5.
Liquidation

100% UP LAW

CPG
Each
spouse
retains
his/her
property;
only fruits
part
of
conjugal
property

ACP
Properties
become part
community
property

Part
of
conjugal
property

Becomes conjugal
property.

CPG
Separate
properties
are
returned;
net profits
divided
equally
between
spouses or
heirs.
Capital and
properties
of spouses
kept
separate
and
distinct
from
benefits;
insurmoun
table
obstacle to
presumption of
solidarity
Exclusive
properties
will have
to be
identified
and
returned,
and
sometimes
, identifycation is
difficult.

ACP
Net remainder of
ACP divided
equally between
spouses or heirs.

of

E. SEPARATION OF PROPERTIES
DURING MARRIAGE
In the absence of an express declaration in
the marriage settlements, the separation of
property between the spouses during the
marriage shall not take place except by
judicial order. (Art. 134)
Judicial separation of property may either be
voluntary or for sufficient cause.
SUFFICIENT
CAUSES
FOR
JUDICIAL
SEPARATION OF PROPERTIES (CALASA)
(ART. 135):

Mutual trust and

confidence
between spouses;
fosters oneness of
spouses

1. Spouse of the petitioner has been

sentenced to a penalty which carries
with it civil interdiction.
2. Spouse of the petitioner has been
judicially declared an absentee.
3. Loss of parental authority of the
spouse of petitioner has been decreed
by the court.
4. Spouse
of
the
petitioner
has
abandoned the latter or failed to
comply with his or her obligations to
the family.
5. The spouse granted the power of
administration
in
the
marriage
settlements has abused that power.
6. At the time of the petition, the spouses
have been separated in fact for at
least one year and reconciliation is
highly improbable.
Each spouse shall contribute to the family
expenses, in proportion to their income. In
case of insufficiency, the market value of their
separate properties. (Art. 146)
Liability of spouses to the creditors of the
family shall be SOLIDARY. (Art. 146, par. 2)
EFFECTS OF SEPARATION OF PROPERTY
BETWEEN SPOUSES:

Easier to liquidate
because net
remainder of
community
properties are
simply divided
between spouses
or heirs.

UP

1. ACP or CPG is dissolved and liquidated

2. The liability of the spouses to creditors
shall be solidary with their separate
properties
3. mutual obligation to support each
continues except when there is legal
separation
4. rights previously acquired by creditors
are not prejudiced
REVIVAL OF PROPERTY REGIME IN THE
FF. INSTANCES (ART. 141):

BAROPS

1.When
the
civil
interdiction
terminates.
2.When
the
absentee
spouse
reappears.
3.When the court, being satisfied that the
spouse
granted
the
power
of
2008

Page 23 of 325

PERSONS & FAMILY RELATIONS

CIVIL LAW

administration in the marriage settlements

will not again abuse that power,
authorizes
the
resumption
of
said
administration.
4.When the spouse who has left the
conjugal home without a decree of legal
separation resumes common life with
the other;
5.When parental authority is judicially
restored to the spouse previously
deprived thereof;
6.When the spouses who have separated
in fact for at least one year, reconcile
and resume common life.
7.When after voluntary dissolution of the
absolute community of property or
conjugal partnership has been judicially
decreed upon the joint petition of the
spouses, they agree to the revival of
the former property regime. No voluntary
separation of property may thereafter be
granted.
TRANSFER OF ADMINISTRATION TO THE
OTHER SPOUSE WHEN (GACA) (ART.
142):
1. When one spouse becomes the
guardian of the other.
2. When one spouse is judicially declared
an absentee.
3. When one spouse is sentenced to a
penalty which carries with it civil
interdiction.
4. When one spouse becomes a fugitive
from justice or is in hiding as an
accused in a criminal case.

not Art.
olygamous
37
marriage
(incestuo
(Art.35(4))
us
void 6. incestuous
marriage)
marriages
not Art.
under
38 (void
Art.37
marriage
7. Void
by reason
marriages
of public
by reason of
policy)
public policy
not
under
bigamous
Art.38
4. other void
marriages
due
to
absence of
formal
requisite
Salaries
and
wages

Art.147
Properties
acquired
through
exclusive
funds
Properties
acquired
by
both
through
work or
industry

F. PROPERTY REGIME OF
UNIONS WITHOUT MARRIAGE

Applicability

100% UP LAW

Art.148
1. man
and
woman
2. living
together as
husband
and wife
3. NOT
capacitated
to
marry
(Art.35(1)
under
18
years old)
4. adulterous
relationship
(e.g.
concubinage
)
5. bigamous/p
UP

BAROPS

Separately
owned
parties

by

Art.148

Remains
exclusive
provided
there is proof

Remains
exclusive

Governed by
rules on coownership

Owned
in
common
in
proportion
to
respective
contribution

If the other spouse is not qualified by reason

of incompetence, conflict of interest, or any
other just cause, the court shall appoint a
suitable person to be the administrator.

Art.147
1. man
and
woman
2. living
together
as
husband
and wife
3. with
capacity to
marry
(Art.5
without
any
legal
impedimen
t)
at
least
18 years
old

Owned
in
equal shares

Properties
acquired
while
living
together

Forfeiture
2008

Owned in
equal
shares
since it is
presumed
to
have
been
acquired
through
joint
efforts
if
one
party did
not
participate
in
acquisitio
n,
presumed
to
have
contribute
d through
care and
maintenan
ce
of
family and
household
When
only
one of the

No
presumption of
joint
acquisition.
When there is
evidence
of
joint
acquisition but
none as to the
extent of actual
contribution,
there
is
a
presumption of
equal sharing

If one party is
validly married
Page 24 of 325

PERSONS & FAMILY RELATIONS

parties is in
good
faith,
the share of
the party in
bad faith shall
be forfeited:
1. In favor of
their
common
children
2. In case of
default of
or waiver
by any or
all of the
common
children
or
their
descendan
ts,
each
vacant
share
shall
belong to
the
respective
surviving
descendan
ts
3. In
the
absence
of
such
descendan
ts,
such
share
belongs to
the
innocent
party

CIVIL LAW

to another:
- his/her share
in
the
coowned
properties will
accrue to the
ACP/CPG
of
his/her existing
valid marriage
If the party
who acted in
bad faith is not
validly married
to
another,
his/her
share
shall
be
forfeited in the
same manner
as
that
provided in Art
147
The same rules
on
forfeiture
shall apply if
both
parties
are in bad faith

IX. THE FAMILY

FAMILY basic social institution which public
policy cherishes and protects hence, no suit
between members of the family shall prosper
unless compromise between parties has
failed.
FAMILY RELATIONS INCLUDE:
1. Between husband and wife
2. Between parents and children
3. Among
other
ascendants
and
descendants
4. Among brothers and sisters, full or half
blood.
General Rule:
For a suit between members of the same
family to prosper, the following are required:
1. Earnest efforts towards a compromise
have been made
2. Such efforts have failed
100% UP LAW

UP

3. Such earnest efforts and the fact of

failure must be alleged
[NOTE: The case will be dismissed if it is
shown that no such efforts were made.]
Exceptions to the general rule (VJLAFF):
a. Civil status of persons,
b. Validity of marriage or a legal
separation,
c. Any ground for legal separation,
d. Future support,
e. Jurisdiction of courts,
f. Future legitime
Hontiveros v. RTC
309 SCRA 340 (1999)
Whenever a stranger is a party in a case
involving family members, the requisite
showing of earnest efforts to compromise is
no longer mandatory, as such inclusion of a
stranger takes the case out of the ambit of FC
151.
FAMILY HOME - dwelling place of a person
and his family
Guidelines:
1. It is deemed constituted from time of
actual occupation as a family residence
2. It
must
be
owned
by
person
constituting it
3. It must be permanent
4. Rule applies to valid and voidable and
even to common-law marriages under
Arts.147 and 148
5. It continues despite death of one or
more spouses or unmarried head of
family for 10 years or as long as there
is a minor beneficiary (Art.159)
6. Can only constitute one family home
GENERAL RULE:
The family home is exempt from:
1. Execution
2. Forced sale
3. Attachment
Exceptions in the exemption of the family
home from execution (Art. 156):
1. Nonpayment of taxes.
2. Debts incurred prior to the constitution
of the family home.
3. Debts secured by mortgages on the
premises
before
or
after
such
constitution.
4. Debts due to laborers, mechanics,
architects, builders, materialmen and
others who have rendered service or
furnished material for the construction
of the building.

BAROPS

2008

Page 25 of 325

PERSONS & FAMILY RELATIONS

CIVIL LAW

Beneficiaries of the family home

(Art. 154):
1. Husband and wife, or an unmarried
person who is the head of the family
2. Parents (may include parent-in-laws),
ascendants, descendants, brothers and
sisters (legitimate/illegitimate), who
are living in the family home and who
depend on the head of the family for
support
Requisites to be a beneficiary:
1. The relationship is within those
enumerated
2. They live in the family home
3. They are dependent for legal support
on the head of the family
Requirements for the sale, alienation,
donation, assignment, or encumbrance of
the family home:
1. the written consent of the person
constituting it,
2. his/her spouse, and
3. majority of the beneficiaries of legal
age
[NOTE: If there is a conflict, the Court will
decide.]
In case of death (ART. 159):
- The family home shall continue despite
the death of one or both spouses or of
the unmarried head of the family for a
period of ten years, or as long as there
is a minor beneficiary.
- The heirs cannot partition the home
unless the court finds compelling
reasons therefor.
Requisites for creditor to avail of the
right under article 160:
1. He must be a judgment creditor;
2. His claim is not among those excepted
under Article155, and
3. He has reasonable grounds to believe that
the family home is worth more than the
maximum amount fixed in Article 157
Procedure to avail of right under Article
160:
1. The creditor must file a motion in the
court proceeding where he obtained a
favorable for a writ of execution against
the family home.
2. There will be a hearing on the motion
where the creditor must prove that the
actual value of the family home exceeds
the maximum amount fixed by the FC
either at the time of its constitution or as
a result of improvements introduced
thereafter its constitution.
3. If the creditor proves that the actual
value exceeds the maximum amount the
court will order its sale in execution.

100% UP LAW

UP

4. If the family home is sold for more than

the value allowed, the proceeds shall be
applied as follows:
a.
First, the obligation enumerated in
Article 155 must be paid
b.
Then the judgment in favor of the
creditor will be paid, plus all the costs
of execution
c.
The excess, if any, shall be delivered

X. PATERNITY AND FILIATION

PATERNITY - the relationship or status of a
person with respect to his or her child
(paternity includes maternity).
FILIATION - the status of a person with
respect to his or her parents.
TYPES OF FILIATION:
1. Natural
a. Legitimate (Art. 164)
b. Illegitimate (Arts.165, 175, 176)
c. Legitimated (Arts. 167-172)
2. By Adoption (R.A. No. 8552 (Domestic
Adoption Act) and R.A. No. 8043 (Intercountry Adoption Act)
3 TYPES OF LEGITIMATE CHILDREN:
1. Legitimate proper
2. Legitimated
3. Adopted
2 TYPES OF ILLEGITIMATE CHILDREN:
1. Children of parents disqualified to marry
each other at conception and marriage.
2. Children of parents qualified to marry each
other
A. LEGITIMATE CHILDREN
GENERAL RULE:
Those who are conceived OR born during a
valid marriage
EXCEPTIONS to the general rule are
those children who are:
1. Conceived as a result of artificial
insemination
2. Born of a voidable marriage before decree
of annulment
3. Conceived or born before judgment of
annulment or absolute nullity under Art.
36 (psychological incapacity) becomes
final & executory
4. Conceived or born of a subsequent
marriage under Art. 53 (failure to record
the judgment, partition and distribution of
properties, and delivery of childrens
presumptive legitime)
5. Of mothers who may have declared
against their legitimacy or was sentenced
as an adulteress
6. Legally adopted
7. Legitimated, conceived and born outside of
wedlock of parents without impediment at

BAROPS

2008

Page 26 of 325

PERSONS & FAMILY RELATIONS

the
time
of
conception
subsequently married

and

CIVIL LAW

who

d. Vasectomy [NOTE: SEMPIO-DIY:

A double vasectomy, together
with other pieces of evidence, can
show the impossibility of the
alleged father siring his supposed
child; STA. MARIA: The fact that
the husband has undergone
vasectomy is not enough proof to
rebut
the
presumption
of
legitimacy
(Cocharan
v.
Cocharan).]
3. Written authorization or ratification of
either parent of children conceived
through artificial insemination, when
the was obtained through mistake,
fraud, violence, intimidation, or undue
influence

For children by artificial insemination to

be considered legitimate:
1. The artificial insemination is made on the
wife, not on another woman AND
2. The artificial insemination on the wife is
done with the sperm of the husband, or of
a donor, or both the husband and a donor
AND
3. The artificial insemination has been
authorized or ratified by both spouses on a
written instrument executed and signed by
them before the birth of the child, AND
4. The written instrument is recorded in civil
registry together with the birth certificate
of the child

Who can impugn the legitimacy of a child

IMPUGNING LEGITIMACY:
Liyao v. Liyao
378 SCRA 563 (2002)
A child born within a valid marriage is
presumed legitimate even though the mother
may have declared against its legitimacy or
may have been sentenced as an adulteress.
The child himself cannot choose his own
filiation.
If the husband, presumed to be the father,
does not impugn the legitimacy of the child,
then the status of the child is fixed, and the
latter cannot choose to be the child of his
mothers alleged paramour.
Grounds to impugn the legitimacy of the
child:
1. Physically impossibility for the husband
to have sexual intercourse with his wife
within the first 120 days of the 300
days which immediately preceded the
birth of the child because of:
a. Physical
incapacity
of
the
husband
to
have
sexual
intercourse with his wife
b. The fact that the husband and
wife were living separately in
such
a
way
that
sexual
intercourse was not possible, or
c. Serious illness of the husband
which
absolutely
prevented
intercourse
2. Biological or other scientific grounds
that the child could not have been that
of the husband, except in the case of
children conceived through artificial
insemination
a. Blood grouping tests can
determine non-paternity but not
paternity (ex. A-B-O test).
b. Human Leukocyte Antigen Test
(HLA) can prove identity
between child and father with a
probability exceeding 98%.
c. DNA test
100% UP LAW

UP

General Rule:
Only the husband can impugn the legitimacy
of a child
Exceptions:
The heirs of the husband may impugn the
childs filiation in the following cases:
a. If the husband dies before the
expiration of period for filing the action
b. If the husband dies after filing without
desisting
If the child was born after the death of the
husband
When to impugn the legitimacy of a child:
1. Within 1 year from knowledge of the
birth or its recording in the civil register, if
the impugner resides in the city or
municipality where the birth took place or
was recorded;
2. Within 2 years from knowledge of the
birth or its recording in the civil register, if
the impugner resides in the Philippines
other than in the city or municipality
where the birth took place or was
recorded;
3. Within 3 years from knowledge of the
birth or its recording in the civil register, if
the impugner resides abroad
NOTE: Legitimacy cannot be collaterally
attacked. It can only be impugned in a direct
action.

BAROPS

Termination
of 1st Celebration
marriage
of 2nd
marriage

180 days
after
celebration
of 2nd
marriage

Child of
the 1st
marriage

2008

300 days
after
termination
of 1st
marriage

Child of
the 2nd
marriage

Page 27 of 325

PERSONS & FAMILY RELATIONS

CIVIL LAW

If the birth of the child has been

concealed or was unknown to the husband or
his heirs, the above periods shall be counted:
1. From the discovery or knowledge of
the birth of the child
2. From the discovery or knowledge of
the fact of registration of the birth,
whichever is earlier.

consider the child as his, by continuous and

clear manifestations of parental affection and
care, which cannot be attributed to pure
charity.

IN CASE OF TWO MARRIAGES OF THE

MOTHER:

Cabatania v.CA
G.R. No. 124814 (2004)
A certificate of live birth purportedly
identifying the putative father is not
competent evidence of paternity when there is
no showing that the putative father had a
hand in the preparation of said certificate. The
local civil registrar has no authority to record
the paternity of an illegitimate child on the
information of a third person.

For the child to be considered the child of

the 1st husband, the following requisites
must concur:
1. The mother must have married again
within 300 days from the termination
of her first marriage
2. The child was born within the same
300 days after the termination of the
former marriage of its mother
3. The child was born before 180 days
after the solemnization of its
mother's 2nd marriage
For the child to be considered the child of
the 2nd husband, the following requisites
must concur:
1. The mother must have married again
within 300 days from the termination
of the marriage
2. The child was born within the same
300 days after the termination of its
mother's first marriage
3. The child was born after 180 days
following the solemnization of its
mother's second marriage
NOTE: The first marriage must be terminated
either by death or annulment.

There is no presumptive rule on the status

of a child born after 300 days following the
termination of the marriage. (Art. 169)
[Reason: 300 days is the longest period of
gestation.]
B. PROOF OF FILIATION
1. The record of birth appearing in the civil
register or a final judgment.
2. An admission of legitimate filiation in a
public document or a private handwritten
instrument and signed by the parent
concerned.
Or, in their Absence:
1. The open and continuous possession of the
status of a legitimate or illegitimate child;
or
2. Any other means allowed by the Rules of
Court and special laws.
Jison v. CA
286 SCRA 495 (1998)
To prove open and continuous possession of
the status of an illegitimate child, there must
be evidence of the manifestation
of the
permanent intention of the supposed father to
100% UP LAW

UP

Continuous
means
uninterrupted
and
consistent, but does not require any particular
length of time.

While a baptismal certificate may be

considered a public document, it can only
serve as evidence of the administration of the
sacrament on the date specified but not the
veracity of the entries with respect to the
childs paternity. Thus, certificates issued by
the local civil registrar and baptismal
certificates are per se inadmissible in evidence
as proof of filiation and they cannot be
admitted indirectly as circumstantial evidence
to prove the same.
Herrera v. Alba
G.R No. 148220 (2005)
To be effective, the claim of filiation must be
made by the putative father himself and the
writing must be the writing of the putative
father. A notarial agreement to support a child
whose filiation is admitted by the putative
father was considered acceptable evidence.
Letters to the mother vowing to be a good
father to the child and pictures of the putative
father cuddling the child on various occasions,
together with the certificate of live birth,
proved
filiation.
However,
a
student
permanent record, a written consent to a
fathers operation, or a marriage contract
where the putative father gave consent,
cannot be taken as authentic writing.
Standing alone, neither a certificate of
baptism nor family pictures are sufficient to
establish filiation.
ACTION TO CLAIM LEGITIMACY
1. The child can bring the action during his
lifetime
2. If the child dies after reaching majority
without filing an action, his heirs can
longer file the action after death
3. If the child dies during minority in the
state of insanity, his heirs can file the
action for him within 5 years form the
childs death
4. If the child dies after commencing the
action, the action will survive and his heirs
will substitute for him

BAROPS

2008

Page 28 of 325

PERSONS & FAMILY RELATIONS

CIVIL LAW

5. If the child is a minor, incapacitated or

insane, his guardian can bring the action
in his behalf
C. ILLEGITIMATE FILIATION
GENERAL RULE:
Those who are conceived and born outside a
valid marriage are illegitimate. [NOTE: Proof
of filiation is the same as that for legitimate
children]
RIGHTS OF LEGITIMATE AND
ILLEGITIMATE CHILDREN:
LEGITIMATE
To
bear
the
surnames of the
father
and
the
mother

To receive support
from their parents,
their ascendants,
and
in
proper
cases,
their
brothers
and
sisters,
in
conformity
with
the provisions of
this
Code
on
Support
Entitled
to
the
legitime and other
successional rights
granted to them
by the New Civil
Code

ILLEGITIMATE
To bear the surname
of their mother [may
also use the surname
of the father if their
filiation
has
been
expressly recognized
by the father (R.A.
9255)]
To receive support in
conformity with the
Family Code

[i.e. children of those who are not

disqualified by any impediment to marry
each other]
CHILDREN OF FOLLOWING CANNOT BE
LEGITIMATED (BECAUSE OF
IMPEDIMENT) (VIBA):
1. Adulterous relationships
2. Incestuous relationships
3. Bigamous relationships
4. Void marriages by reasons of public policy
under Art. 38
RIGHTS: Legitimated children shall
enjoy the same rights as legitimate
children (Art. 179)
RETROACTIVITY:
The
effects
of
legitimation shall retroact from the time
of the childs birth. (Art. 180)
DEATH OF CHILD: When the child dies
before the celebration of the marriage,
their legitimation shall benefit their
descendants. (Art. 181)
IMPUGNING: Only those who are
prejudiced by their rights, within five
years from the time of the cause of
action accrues. (Art. 182)

XI. ADOPTION

The legitime of each

illegitimate child shall
consist of one-half of
the legitime of a
legitimate child.

LEGITIMATION
The law merely
makes
legal
what exists by
nature

Persons
affected

Only
natural
children

D. LEGITIMATED CHILDREN

Procedure

Legitimation takes place by the subsequent

marriage of the childs parents. It confers on
the child the rights of legitimate children, and
retroacts to the time of the childs birth.

Extrajudicial
acts of parents

Who
applies

Only by
parents

Effect

Same
status
and rights as a
legitimated
child not only
in relation to
the legitimizing
parents
but
also to other
relatives

REQUISITES FOR LEGITIMATION:

1. The child was conceived and born outside
of wedlock;
2. The parents, at the time of childs
conception, were not disqualified by any
impediment to marry each other
3. There is a valid marriage subsequent to
the childs birth.

both

ADOPTION
The
law
merely
creates by
fiction
a
relation
which
did
not in fact
exist
Generally
applies
to
strangers
Always by
judicial
decree
By
one
parent
alone
Creates
a
rel.
only
between
the
child
and
the
adopting
parent

WHO CAN BE LEGITIMATED:

1. Child who is conceived and born outside of
wedlock; and
2. At the time of conception, the parents
were not disqualified by any impediment
to marry each other.

100% UP LAW

UP

BAROPS

2008

Page 29 of 325

PERSONS & FAMILY RELATIONS

CIVIL LAW

R.A 8552: Domestic Adoption Act of 1998

WHO MAY ADOPT:

PRE-ADOPTION SERVICES:

A. Filipino Citizens
1. Of legal age
2. In possession of full civil capacity and legal
rights
3. Of good moral character
4. Has not been convicted of any crime
involving moral turpitude
5. Emotionally and psychologically capable of
caring for children
6. At least sixteen (16) years older than
adoptee, except when adopter is biological
parent of the adoptee or is the spouse of
the adoptees parent
7. In a position to support and care for
his/her children in keeping with the means
of the family
B. Aliens
1. Possession
of
the
same
as
the
qualifications for Filipinos
2. His/her country has diplomatic relations
with the Philippines
3. Has been living continuously for 3 years
(provided that absences not exceeding 60
days per 1 year for professional, business,
or emergency reasons are allowed) in RP
prior to filing of decree is entered except
this may be waived under the following:
(i) A former Filipino Citizen who seeks to
adopt a relative within the 4th degree
of consanguinity or affinity
(ii) One who seeks to adopt the legitimate
or illegitimate child of his/her Filipino
spouse
(iii)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
4. 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
5. His/her government allows the adoptee to
enter his/her country as his/her adoptee
6. Has submitted all the necessary clearances
and such certifications as may be required
C. Guardians
With respect to theirs ward after the
termination of the guardianship and
clearance of his/her accountabilities
Husband and wife shall adopt jointly
except:
a. if one spouse seeks to adopt the
legitimate child of the other
b. if one of the spouse seeks to adopt
his/her illegitimate child provided that
other spouse has signified his/her
consent

100% UP LAW

c. if spouses are legally separated from

each other

UP

The DSWD shall provide for the following

services:
1. Counseling services for the biological
parents,
prospective
parents,
and
prospective adoptee
2. Exhaust all efforts to locate the biological
parents, if unknown
WHO MAY BE ADOPTED:
1. Any person below 18 years old who has
been administratively or judicially declared
available for adoption
2. The legitimate child of one spouse by the
other spouse
3. An illegitimate child by a qualified adopter
to improve the childs status to that of
legitimacy
4. 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 child since minority
5. A child whose previous adoption has been
rescinded
6. A child whose biological or adoptive
parent(s) has died, provided that no
proceedings shall be initiated within 6
months from the time of death of said
parent(s)
CONSENT NECESSARY FOR ADOPTION:
1. The prospective adoptee if 10 years or
older
2. The
prospective
adoptees
biological
parents or legal guardian
3. The prospective adopters legitimate and
adopted children who are ten years or
over and, if any, illegitimate children living
with them
4. The prospective adopters spouse in
appropriate cases
[NOTE: A decree of adoption shall be effective
as of the date the original petition was filed. It
also applies in case the petitioner dies before
the issuance of the decree of adoption to
protect the interest of the adoptee.]
Tamargo v. CA
G.R. No. 85044 (1992)
Where the petition for adoption was granted
after the child had shot and killed a girl, the
Supreme Court did not consider that
retroactive effect may be given to the decree
of adoption so as to impose a liability upon
the adopting parents accruing at a time when
adopting parents had no actual or physically
custody over the adopted child. Retroactive
affect may perhaps be given to the granting of
the petition for adoption where such is

BAROPS

2008

Page 30 of 325

PERSONS & FAMILY RELATIONS

CIVIL LAW

essential to permit the accrual of some benefit

or advantage in favor of the adopted child. In
the instant case, however, to hold that
parental authority had been retroactively
lodged in the adopting parents so as to
burden them with liability for a tortious act
that they could not have foreseen and which
they could not have prevented would be unfair
and unconscionable.
EFFECTS OF ADOPTION:
1. Parental Authority:
All legal ties between biological parents
and adoptee are severed, and the same
shall be vested on the adopter, except if
the biological parent is the spouse of the
adopter.
2. Legitimacy:
The adoptee shall be considered legitimate
son/daughter of the adopter for all intents
and purposes.
3. Succession:
Adopter and adoptee shall have reciprocal
rights of succession without distinction
from legitimate filiation, in legal and
intestate succession. If adoptee and
his/her biological parents had left a will,
the law on testamentary succession shall
govern.

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.
R.A. 8043: Inter-Country Adoption
Act of 1995
INTER-COUNTRY ADOPTION refers to the
socio-legal process of adopting a Filipino child
by a foreigner or a Filipino citizen permanently
residing abroad where the petition is filed, the
supervised trial custody is undertaken, and
the decree of adoption is issued outside the
Philippines.
WHO MAY BE ADOPTED:
Only a legally-free child may be the subject
of inter-country adoption.
A legally-free child is one who has been
voluntarily or involuntarily committed to the
DSWD of the Philippines, in accordance with
the Child and Youth Welfare Code.
No child shall be matched to a foreign
adoptive family unless it is satisfactorily
shown that the child cannot be adopted
locally.
WHO MAY ADOPT:

RESCISSION OF ADOPTION:
Adoption, being in the best interest of the
child, shall not be subject to rescission by the
adopter(s).
Adopted may request for rescission based on
the ff grounds:
1. repeated
physical
and
verbal
maltreatment
2. attempt on life of adoptee
3. sexual assault or violence
4. abandonment and failure to comply
with parental obligations

Any foreign national or a Filipino citizen

permanently residing abroad who has the
qualifications and none of the disqualifications
under the Act may file an application if
he/she:

However, the adopter(s) may disinherit the

adopted based on causes ias enumerated in
Art. 919 of the NCC.
EFFECTS OF RESCISSION:
1. The parental authority of the adoptee's
biological parents, if known, OR the legal
custody of the DSWD shall be restored if
the
adoptee
is
still
a
minor
or
incapacitated.
2. The reciprocal rights and obligations of the
adopters and the adoptee to each other
shall be extinguished.
3. The court shall order the Civil Registrar to
cancel the amended certificate of birth of
the adoptee and restore his/her original
birth certificate.
100% UP LAW

UP

BAROPS

1. Is least 27 years of age and at least 16

years older than the child to be
adopted, at the time of application
unless the adopter is the parent by
nature of the child to be adopted or the
spouse of such parent
2. If married, his/her spouse must jointly
file for the adoption
3. Has the capacity to act and assume all
rights and responsibilities of parental
authority under his national laws, and
has
undergone
the
appropriate
counseling
from
an
accredited
counselor in his/her country
4. Has not been convicted of a crime
involving moral turpitude
5. Is eligible to adopt under his/her
national law
6. Is in a position to provide the proper
care and support and to give the
necessary moral values and example to
all his children, including the child to
be adopted
7. Agrees to uphold the basic rights of the
child as embodied under Philippine
laws, the U.N. Convention on the
2008

Page 31 of 325

PERSONS & FAMILY RELATIONS

CIVIL LAW

Rights of the Child, and to abide by the

rules and regulations issued to
implement the provisions of this Act
8. 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
INTER-COUNTRY ADOPTION BOARD:

Acts as the central authority in matters

relating to inter-country adoption
Ensures that all possibilities for adoption of
the child under the Family Code have been
exhausted and that inter-country adoption
is in the best interest of the child.

WHO ARE OBLIGED TO SUPPORT

EACH OTHER:
1. The spouses;
2. Legitimate ascendants and descendants;
3. Parents and their legitimate children and
the legitimate and illegitimate children of
the latter;
4. Parents and their illegitimate children and
the legitimate and illegitimate children of
the latter; and
5. Legitimate brothers and sisters, whether
of full or half-blood.
ORDER OF SUPPORT
(IF 2 OR MORE ARE TO GIVE SUPPORT):
1. Spouses
2. Descendants, nearest in degree
3. Ascendants, nearest in degree
4. Brothers and Sisters

TRIAL CUSTODY:

The trial custody shall be for a period of 6

months from the time of placement.
It starts upon actual physical transfer of
the child to the applicant who, as actual
custodian,
shall
exercise
substitute
parental authority over the person of the
child
The adopting parents shall submit to the
governmental agency or the authorized
and accredited agency, which shall in turn
transmit a copy to the Board, a progress
report of the child's adjustment. The
progress report shall be taken into
consideration in deciding whether or not to
issue the decree of adoption.

XII. SUPPORT
SUPPORT
consists
of
everything
indispensable
for
sustenance,
dwelling,
clothing, medical attendance, education and
transportation, in keeping with the financial
capacity of the family.
KINDS OF SUPPORT:
1. Legal that which is required to be given
by law
2. Judicial that which is required to be
given by court order whether pendent elite
or in a final judgment
3. Voluntary or Conventional by
agreement
CHARACTERISTICS OF SUPPORT
(PREVIW):
1. Personal
2. Intransmissible
3. Not subject to waiver or compensation
with regard to future support
4. Exempt from attachment or execution
5. Reciprocal on the part of those who are by
law bound to support each other
6. Variable
100% UP LAW

UP

[NOTE: When two or more are obliged to give

support, the payment shall be divided
between them in proportion to their
resources.]

XIII. PARENTAL AUTHORITY

PARENTAL AUTHORITY
(PATRIA POTESTAS):
The mass of rights and obligations which
parents have in relation to the person and
property
of
their
children
until
their
emancipation, and even after this under
certain circumstances (Manresa).
PARENTAL AUTHORITY INCLUDES:
1. The caring for and rearing of children for
civic consciousness and efficiency;
2. The development of the moral, mental and
physical character and well-being of said
children
RULES
AS
TO
THE
EXERCISE
OF
PARENTAL AUTHORITY:
1. The father and the mother shall jointly
exercise parental authority over the
persons of their common children. In
case of disagreement, the father's
decision shall prevail, unless there is a
judicial order to the contrary (Art.211)
2. If the child is illegitimate, parental
authority is with the mother.
CHARACTERISTICS
OF
PARENTAL
AUTHORITY:
1. It is a natural right and duty of the
parents (Art. 209)
2. It cannot be renounced, transferred or
waived, except in cases authorized by
law (Art 210)
3. It is jointly exercised by the father and
the mother (Art. 211)
4. It is purely personal and cannot be
exercised through agents
5. It is temporary

BAROPS

2008

Page 32 of 325

PERSONS & FAMILY RELATIONS

CIVIL LAW
minor are subsidiarily liable for said
acts and omissions of the minor.

PARENTAL PREFERENCE RULE:

The natural parents, who are of good
character and who can reasonably provide for
the child, are ordinarily entitled to custody as
against all persons.
WHO EXERCISES AUTHORITY IN CASES
OF DEATH, ABSENCE, REMARRIAGE, OR
SEPARATION OF PARENTS:

In case one parent is absent or already

dead, the present or surviving parent
Remarriage shall not affect the
parental authority over the children
In case of separation of parents, the
parent designated by the court.
Innocent spouse gets custody of minor
children.
The court shall take into account all
relevant considerations, especially the
choice of the child over seven years of
age, unless the parent chosen is unfit.

TENDER YEARS PRESUMPTION:

NO child under 7 years of age shall be
separated from the mother, unless the court
finds compelling reasons to order otherwise.
Examples of compelling reasons are:
o When the mother is insane;
o with a communicable disease that
might endanger the life or health of the
child;
o or is maltreating the child.
[NOTE: Prostitution or infidelity to husband
does not make a mother unfit as parent.]
SUBSTITUTE
PARENTAL
AUTHORITY
EXERCISED BY (IN ORDER):
1. The surviving grandparent
2. Oldest brother or sister, over 21 years
old, unless unfit or unqualified.
3. Childs actual custodian, over 21 years
old, unless unfit or unqualified
SPECIAL PARENTAL AUTHORITY
EXERCISED BY:
1. School,
its
administrators
and
teachers, or
2. The individual, entity or institution
engaged in child care.
LIABILITY
OF
THOSE
EXERCISING
SPECIAL PARENTAL AUTHORITY OVER
THE CHILD:
1. They are principally and solidarily liable
for damages caused by the acts or
missions of the child while under their
supervision, instruction or custody.
HOWEVER, this liability is subject to
the defense that the person exercising
parental authority exercised proper
diligence.
2. The parents and judicial guardians of
the
minor
or
those
exercising
substitute parental authority over the
100% UP LAW

UP

Substitute
Parental
Authority

Special Parental Authority

It
is
exercised in
case
of
death,
absence, or
in case of
unsuitability
of parents.

It is exercised concurrently
with the parental authority
of the parents and rests on
the theory that while the
child is in the custody of the
person exercising special
parental
authority,
the
parents
temporarily
relinquish parental authority
over the child to the latter.

St. Marys Academy v. Carpitanos

376 SCRA 473 (2002)
The
special
parental
authority
and
responsibility applies to all
authorized
activities, whether inside or outside the
premises of the school, entity or institution.
EFFECTS OF PARENTAL AUTHORITY UPON
THE PROPERTY OF THE CHILD:
The Father and Mother shall jointly
exercise legal guardianship over the
property of the minor child without court
appointment
In case of disagreement, the fathers
decision shall prevail, unless there is
judicial order to the contrary
If the market value of the property or the
annual income of the child exceeds
P50,000, the parent is required to furnish
a bond of not less than 10% of the value
of the childs property or income
GROUNDS FOR SUSPENSION OF
PARENTAL AUTHORITY (CLEBC):
1. Conviction of parent for crime without civil
interdiction
2. Treats child with excessive harassment
and cruelty
3. Gives corrupting orders, counsel or
example
4. Compels child to beg
5. Subjects or allows acts of lasciviousness
PARENTAL AUTHORITY TERMINATES:
1. Upon death of parents
2. Upon death of child
3. Upon emancipation of child
4. If the parents exercising parental authority
has subjected the child or allowed him to
be subjected to sexual abuse

RIGHTS OF PARENTS UPON

CHILDREN:
To have them in their custody

BAROPS

2008

THEIR

Page 33 of 325

PERSONS & FAMILY RELATIONS

CIVIL LAW

To represent them in all matters

affecting their interests
Demand respect and obedience and
impose discipline on them
Administer their property and income
to support the child and the family
To give or withhold consent on
marriage, pre-nuptial, donation propter
nuptias, adoption, and employment
To disinherit them for just cause

DUTIES OF PARENTS UPON THEIR

CHILDREN:
Support and upbringing in accordance
to their means
Educate, instruct, and provide them
with moral and spiritual guidance, and
love and understanding
Defend
them
against
unlawful
aggression
Answer for damages caused by their
fault or negligence, and for civil liability
for crimes committed by them
Give their lawful inheritance
RIGHTS OF CHILDREN:
[ART. 356, NCC]
parental care
receive at least elementary education
be given moral and civil training by
parents or guardian
live in an atmosphere conducive to his
physical,
moral,
and
intellectual
development
[ART.3, PD603]
to be born well
right to a wholesome family life
right to a well-rounded development
right to a balanced diet, adequate
clothing,
shelter,
proper
medical
attention, and all basic physical
requirements of a healthy life
raised in an atmosphere of morality
and rectitude
education
commensurate
to
his
abilities
full opportunities for a safe and
wholesome recreation
protection against exploitation and
other bad influences
right to the care, assistance and
protection of the State
right to an efficient and honest
government
right to grow up as a free individual

cooperate with the family in matters

for his own good

[ART.4, PD603]
strive to live an upright and virtuous
life
love, obey, respect his parents and
cooperate with them in strengthening
the family
extend his love to his brothers and
sisters
exert his utmost to develop his
potentials

XIV. FUNERALS
GENERAL GUIDELINES:
1. Duty and right to make arrangement in
funerals in accordance with Art. 199 of FC:
a. Spouse
b. Descendants in nearest degree
c. Ascendants in nearest degree
d. Brothers and sisters
2. The funeral shall be in keeping with the
social position of the deceased
3. The funeral shall be in accordance with the
expressed wishes of the deceased
a. in the absence of expressed wishes,
his religious beliefs or affiliation
shall determine
b. in case of doubt, the persons in Art.
199 of FC shall decide
4. Any person who disrespects the dead or
allows the same shall be liable for
damages
***

DUTIES OF CHILDREN:
[ART.357, NCC]
obey and honor his parents or guardian
respect old relatives and persons
holding substitute parental authority
exert his utmost for his education and
training
100% UP LAW

UP

BAROPS

2008

Page 34 of 325