PERSONS AND FAMILY RELATIONS

COMPLETE REVIEWER

standard
conduct.

Background on the Philosophy of the Civil

Code:

- Roman law was typically, a law without ethics.

The Philosophy of the Civil Code

Tasks of the investigator of the Philosophy of
Law:
1. Trace the origin of law to its sources in
human nature;
2. Connect the law with the society that
evolved and the circumstances of the time
in which it originated;
3. Relate the importance of the law under
the influence of economic, social and
other conditions;
4. Point out the basic elements of the law;
5. Distinguish law from ethics.
Our Civil Code was founded on the laws of
Spain which was based largely on Roman Law
(Institutes of Justinian).
Corpus Juris Civilis- accumulation of old Roman
Laws as modified by early Christians.

Ancient Roman Law was the combination

of tribal customs, royal edicts, and priestly
commands.
Ancient Romans fashioned their laws
according to their lifestyle, which at that
time
was
greatly
influenced
by
religion.

Lex Jus- Command and Justice

Relationship was not only between men

but between God and men. Crimes, at that
time, were considered a disturbance of
this relation.
Laws were designed to maintain and
restore the peace of the gods (pax
decorum), peace between men and peace
between god and men.

Theory of Injury and Liability- Injuring ones

neighbor was discouraged because such act
would prompt gods to strike back at the evil doer
thereby causing the imperil of the entire
community.
It is only when law becomes distinguishable
from religion that its philosophy becomes
discernible.
Philosophy of Private Roman Law
Bonus Pater Familias- Literally meaning good
father of the family, this was considered a

by

which

one

should

pattern

his

Law of Contracts and Bailments- Someone who

broke his oath is considered a danger to society
and is in danger of mortal peril.
-Roman laws of property were extremely
individualistic.
-Romans only recognized two forms of association
societas and corporation.
Two Principles to Moderate
Individualism of Roman Law

the

Extreme

HumanitasConsiders
kindness,
goodness,
sympathy, consideration for others.
In contrast to pater familias where heads
of the family are allowed to kill his children
and wife.
Spanish Precedents of Philippine Law
Visigoths- Early settlers in Spain that were
overrun by Moors who converted the former into
Christianity.
Moors- Promulgated non-barbaric laws
Alaric, Leader of the Goths- Promulgated Code of
Alaric which introduced barbaric tribal customs
to Roman Law.
Fuerzo Juzgo- First great code of Spain combining
Roman, Germanic and Religious edicts.
Siete Partidas- Written by Fernando III and Alfonso
X, it contained laws based on Spanish Visigoths
but patterned after Institutes of Justinian.
Contained 7 codes pertaining to different
aspects of law.
First book contained natural laws, usages
and custom and administrative laws.
Second book contained administrative
laws.
Third book contained court rules, land
ownership and possession laws and
servitude laws.
Fourth book contained laws on persons
and family relations.
Fifth book contained laws on obligations
and contracts.
Sixth book contains laws on succession,
intestacy, heirship and guardianship.
Seventh book contained penal laws.
Medieval Philosophy and its Influence
St. Augustine- The state is a kingdom of the
Impious

St. Thomas Aquinas- Wrote the Summa

Theologica
Lex Externa- laws based on divine reason
which governs the world.
Lex Naturalis- Natural laws which are
made known through reason.
Lex Humana- Positive laws which are manmade applications of natural laws.
Penal Principles
Justicia Generalis- obligation of restitution
Justicia Particularis
o Justicia commutative- obligation of
restitution
o Justicia distribution- distributive
justice
applying
justice
in
geometric proportions.
Ordenamiento Alcala- spiritual aspects of
contracts
Leyes de Toro- Written by the Spanish Cortes in
1502
Nueva Recopilacion- compilation of all Spanish
Laws made in 1567
Novisisima Recopilacion- another compilation of
Spanish Laws.
1805- Civil Code became a model
-Four-book compilation of the Civil Code was
promulgated.
Book One: Persons and Family Relations
Book Two: Property, Ownership and
Modification
Book Three: Modes of Acquiring Ownership
Book Four: Obligations and Contracts
American Influence on the Civil Code
INDIVIDUALISM became a pervading
theme during the forging of the new Civil
Code.
- Bill of Rights
- Seeking redress for grievances
Intersection
of
Modern
Constitutional
Developments and Traditional Family Law
Constitutional Provisions
Article II, Section 12: The State recognizes the
sanctity of family life and shall protect and
strengthen the family as a basic autonomous
social institution. It shall equally protect the life of
the mother and the life of the unborn from
conception. The natural and primary right and
duty of parents in the rearing of the youth for
civic efficiency and the development of moral
character
shall
receive
support
of
the
government.

Article II, Section 14: The State recognizes the

role of women in nation building and shall ensure
the fundamental equality before the law of
women and men.
Article III, Section 1: No person shall be deprived
of life, liberty or property without due process of
law, nor shall any person be denied the equal
protection of the laws.
Article XV, Section 1: The State recognizes the
Filipino family as the foundation of the
nation. Accordingly, it shall strengthen its
solidarity and actively promote its total
development.
Article XV, Section 2: Marriage, as an inviolable
social institution, is the foundation of the
family and shall be protected by the state.

Griswold vs. Connecticut

Facts: Griswold was executive director of the
Planned Parenthood League while Buxton, his coplaintiff was a licensed physician who served as
director of the said league. Both were convicted
as accessories by virtue of a Connecticut birth
control law which bars them from giving
information, instruction and medical advice for
contraception, to married persons. A married
woman
was
examined
in
the
leagues
headquarters along with her husband and was
given a prescription for contraception.
Held: The Connecticut Statute which forbids
contraceptives abridges the right to marital
privacy without due process of the law. The state
interest protected by the statute, which is to
prevent extra-marital relations is carried out is a
manner so sweeping as to penalize the inherent
intimacies of couples who have the right to plan
their family.
Eisenstadt vs. Baird
Facts: William Baird was tried for exhibiting
contraceptives while delivering a lecture and for
giving a young woman contraceptives. A
Massachusetts law only allows the sale of
contraceptives with prescription from a physician
or a pharmacist for married couples.
Held: The statute violates the equal protection
clause of the 14th amendment in that it
discriminates between married and unmarried
couples. The means by which the State Interest is
protected is not rationally adequate whether the
interest be prevention of pre-marital sex or health
protection. For one thing, the measure does not
prevent extra-marital relations for another, not all
contraceptives are considered dangerous. Lastly,
the discrimination makes it seem as though pre-

marital conception and sexually transmitted

disease is punishment for pre-marital sex. This
punishment is then handed out without due
process of the law.
Civil Personality
Concepts and Classes of Persons
Person- any being that can be subject of legal
relations.
Classes of Persons:
Natural Persons- Human beings
Juridical Persons- entities formed by the
association of men.
Personality- aptitude of becoming subject of,
active or passive, juridical relations
Status of Persons- Legal condition or class which
one belongs in society
- It is the legal or the juridical position of the
individual in society, or with regard to the
rest of the community
- It is determined by a series of personal
qualities, which respectively carry with
them certain rights and obligations.
- A persons status serves to determine the
nature and number of rights and
obligations.
Kinds of Status
- Political or Civil, depending on whether he
is considered in the light of public law or
private law.
- Rights and obligations in connection with
suffrage refer to Political status while
those arising from family relations refer to
Civil status.
Civil Status
- Status as a member of society (i.e.
resident or non-resident)
- Status as a member of a family
- Status with respect to the person himself
(i.e. age, mental condition, sex)
- Profession cannot be considered status
because the qualities which create a
status should be inherent in the person
himself.
Characteristics of Status- the status of a person is
outside the commerce of man hence:
- It is inalienable in that it cannot be
transferred to another;
- It is imprescriptible in that it cannot be
imposed on a person;
- It cannot be the subject of compromise;

It cannot be renounced;
It cannot be exercised by creditors

CC Article 37: Juridical Capacity is the fitness to

be the subject of legal relations. It is inherent in
every natural person and is lost only through
death.
Capacity to act which is the power to do acts that
have legal effect, is acquired and may be lost.
Juridical Capacity- legal capacity
Capacity to Act- aptitude for the exercise of rights
which is conditional and variable, requiring
intelligence and will.
CC Article 40: Birth determines personality.
The conceived shall be considered born for all
purposes that are favorable to it provided that it
be born later.
Birth- removal of the fetus from the mothers
womb
Conceived Child- can be given inheritance by will
or donations
CC Article 41: The fetus is considered born if it
is alive at the time it is completely delivered from
the mothers womb.
For premature birth of less than seven months, it
is considered born if it survives for at least 24
hours after its delivery.
Separation- cutting of the umbilical cord
Test of life- complete respiration or in the case of
a deceased child, the lungs should float in water.
Viability- the childs ability to live which is
presumed if it survives separation from the
mother
Geluz vs. Court of Appeals
Facts: Nita Villanueva has gone through abortion
thrice. Oscar Lazo sued Geluz the abortionist for
pecuniary damages which was granted by the
Court of Appeals and then appealed by Geluz in
the Supreme Court.
Held: An unborn child has no juridical capacity
and as such, the parents cannot sue for pecuniary
damages on its behalf. The child not having been
born, the parents are not in the position to sue
on its behalf because they cannot be considered
parents if there is no child to speak of. Moral
damages cannot be granted because of the
indifference of the father.
CC: Article 42: Civil personality is extinguished
by death. The effect of death upon the rights and
obligations of the deceased shall be determined
by law, by contract or by will.

-For certain purposes, the personality is deemed

to continue in the estate of the deceased which
has a legal personality independent of the heirs.
People vs. Tirol
Facts: Ciriaco Baldesco and Bonifacio Tirol were
among the fourteen who murdered 7 members of
the family of Manibpol Kosain. They were
convicted of 7 murders and 2 frustrated murders
as Manibpol, the father and his daughter,
Undang, survived. In the course of the appeal,
while awaiting the final sentence, Baldesco died
in prison.
Held: Baldescos civil and criminal liabilities are
extinguished by his death however, indemnities
shall be paid for through his estate.
CC Article 43: If there is doubt between two or
more persons called to succeed each other, as to
which of them died first, the one who alleges the
death of one prior to another shall have the
burden of proof.
If no proof is available then it shall be presumed
that they died at the same time.
Note: There is an issue of succession and not just
survivorship.
-Rule 123, section 69, paragraph ii:
If two or more persons die in a calamity
and it cannot be shown who died first and there
are no circumstances by which it can be inferred,
survivorship is presumed from the probabilities
resulting from the strength and age of sexes.
1. <15 years, the older is presumed to have
survived
2. > 60 years, the younger is presumed to
have survived
3. <15 and >60, the younger is presumed to
have survived
4. >15, <60 for both; male is presumed to
have survived if sexes are the same, then
the older one.
5. <15 or > 60 and >15 ,<60, the younger is
presumed to have survived
Joaquin vs. Navarro
Facts: During the Liberation of Manila, Joaquin
Navarro Sr., his wife Angela Joaquin, his three
daughters, Pilar, Conception and Natividad and
Joaquin Navarro Jr together with his wife Adela
Conde and friend Francisco Lopez, sought refuge
inside German Club. The three daughters were
instantly killed. Joaquin Sr., Joaquin Jr., with his
wife and friend, fled the place leaving Angela
Joaquin in the German Club. Immediately after
leaving the place, as attested by Francisco Lopez,
Joaquin Jr. was shot in the head. Minutes later,
German Club collapsed presumably killing Angela

Joaquin inside. Days later, Joaquin Sr. died in a

confrontation.
The victims were survived by Ramon Joaquin,
natural child of Angela Joaquin by her first
marriage and Antonio C. Navarro, and son of
Joaquin Navarro by his first marriage.
The Court of Appeals invoked the statutory
provision on the presumption of survivorship.
Held: The statutory provision cannot be invoked
because there are evidences as attested to by
Francisco Lopez, from which it can be inferred
that Angela Joaquin survived Joaquin Navarro Jr.
before having died herself.
CC Article 44: The following are juridical
persons:
1. The State and its Political Subdivisions
2. Public
corporations,
institutions
and
entities which are created by law
3. Private corporations, partnerships and
associations to which the law grants
juridicalpersonality.
-Corporation is an artificial being created by law
and as such, enjoys certain rights and privileges
that can be afforded to it.
CC Article 45: Juridical Persons such as the state
and public corporations are governed by laws
recognizing them.
Private corporations are governed by laws of
general application on the subject.
-Corporations are governed by its charter and the
Corporation Law
-Private Partnerships are governed by its articles
of association and their contract.
CC Article 46: Juridical Persons may acquire and
possess property, incur obligations and liability or
criminal actions in conformity with laws and
regulations of the organization.
- Juridical capacity is extinguished upon
dissolution of the corporation, association
or partnership.
CC Article 47: Properties and assets of dissolved
corporations or other entities shall be disposed of
in pursuance to the law or the charter creating
them. If nothing is specifically written, then it
shall be applied for the benefit of the region,
province or municipality which it derived principal
benefits from.
Capacity to Act and Restrictions Thereon
Presumption of Capacity
Standard Oil Co. vs. Arenas

Facts: Juan Codina Arenas, Francisco Lara del Pino

(principals) and Alipio Lacso, Vincente Sixto and
Siy Ho (sureties) assumed obligations to pay
jointly and severally to Standard Oil Co. the sum
of P3,305.76 three months from the execution of
the bond, with 1% interest per month.
Arenas and Lara del Pino failed to pay the bond
and, as sureties, Vincente Sixto along with Siy Ho
and Alipio Lacso are compelled to pay the said
amount. The court declared Vincente Sixto in
default for having failed to show up at the trial
concerning the said bond and was ordered to pay
the defendants the amoun. Elisa Torres de
Villanueva appeared in court alleging that her
husband, Sixto Villanueva, had been declared
permanentlyinsane by the Court of First Instance
of Manila and wishes for the exemption of the
husband from paying the said bond as he is said
to be suffering from monomania of wealth.
Held: Burden of proof for insanity lies on the
person who alleges it. There were no evidence to
prove insanity, save from the declaration of the
Court of First Instance. There were, in fact, a
preponderance of evidence stating otherwise,
among these are the lack of restriction on the
husband (the husband is not habitually
insane), the apparent sound mind of Villanueva
during the execution of the contract (he
understood the nature of the bond), and he
has made contracts prior to that (the husband
had not been insane prior to the execution
of the bond).
Restrictions
CC Article 6: Rights may be waived unless it is
contrary to law, public order, public policy, morals
or good customs or prejudicial to a third persons
rights.
-Kinds of Rights:
1. Rights of Personality-rights which protect the
human personality.
2. Family Rights-rights of a person as a member
of a family.
3. Patrimonial Rights- Rights referring to
ownership, etc.
CC Article 38: Minority, imbecility, the state of
being deaf mute, prodigality and civil interdiction
are mere restrictions on capacity to act, and do
not exempt the incapacitated person from certain
obligations.
Minority- by virtue of RA 6809, the age of majority
has been lowered to 18 from 21.
Insanity or Imbecility- includes various forms of
mental diseases. Some may sometimes only be
mentally deficient.

Deaf-mute- No longer to be presumed an idiot

and is now considered capable of entering into
contracts if is shown to have sufficient mental
capacity.
Prodigality- characterized by excessive drinking,
gambling, idleness or debauchery
CC Article 39: The following circumstances limit
a persons capacity to act: Insanity, imbecility,
being deaf-mute, civil interdiction, prodigality,
family relations, alienage, absence, insolvency
and trusteeship.
Capacity to act is not limited on account of
religious belief or political opinion.
A married woman, eighteen years of age are
qualified for all aspects of civil life except if
specified otherwise.
Note: We always presume what is normal.
Otherwise, our daily lives will be greatly affected.
A. Minority
CC Article 1327: Unemancipated minors, insane
or demented persons and deaf-mutes incapable
of writing, cannot give consent to a contract.
CC Article 1390 (1): In cases where one of the
parties is incapable of giving consent to a
contract, the contract becomes voidable* or
annullable even though there was no damage to
the contracting party.
CC Article 1403 (3): A contract where both
parties are incapable of giving consent is
unenforceable** unless ratified.
*A voidable contract is one whose validity can be
disputed in court as opposed to
**an unenforceable contract which is valid or
binding only between the two parties but is
likewise unenforceable in court.
CC Article 1397: Persons who are capable
cannot allege the incapacity of those with whom
they contracted.
CC Article 1399: An incapacitated is not obliged
to make restitution except in so far as he has
benefited from the contract.
CC Article 1426: There is no right to demand a
thing or price from a minor who, because of lack
of consent from the parent or guardian, upon the
annulment of the contract, returns the thing or
price he received.
CC Article 1427: When a minor pays according
to a contract, without the consent of his parent or
guardian, the sum of money delivered cannot be

returned to the minor because the other party is

expected to have spent it in good faith.

Effect on Contracts

Mercado vs. EspirituFacts: The annulment of a deed of sale was

sought on the ground that two of the four parties
in the deed were minors when the deed was
executed. In the deed of sale the minors stated
they were of legal age when they made the
manifestation in front of the notary public and
then signed it.
Held: Contracts signed by minors who allege they
are of legal age and in fact, appear to be so, is
valid and binding. They are therefore estopped*
from alleging otherwise.
*barred from disputing the genuineness of the
deed of sale, as in the case of Mercado vs.
Espiritu.
Bambalan vs. Maramba and Muerong
Facts: Isidro Bambalan was the heir of a piece of
land owned by Vicente Lagera, deceased.
Bambalan was forced by Maramba and Muerong
to whom the mother owed P150, to sign a deed of
sale as his mother will otherwise be put in prison.
Bambalan signed the contract and both Muerong
and Maramba knew of his age as they were the
ones who procured the cedula necessary to
certify the contract.
Held: Plaintiffs age was known to the contracting
parties as such, the contract is not valid and the
right of Bambalan as a minor can be enforced.
CC Article 1489: All persons authorized by the
Code can enter into a contract of sale. When
necessaries* are sold and delivered to a minor or
a person without capacity, he must pay a
reasonable price therefore.
*Those which are indispensable for sustenance.
Braganza vs. Villa Abrille
Facts: Rosario Braganza and her sons, Guillermo
and Rodolfo, signed a promissory note indicating
that they will pay a loan given by a certain
Fernando Villa Abrille. The loan amounted to
P70,000 in Japanese currencies and, according to
the promissory note, Braganza will pay P10,000
in legal currencies. The two sons were minors at
the time the contract was signed.
Held: The contract, insofar as the minors were
concerned was not valid. However, they must
make restitution insofar as they benefit. As such,
they not pay 2/3 of the amount stipulated in the
contract but merely the amount that was loaned
to them which was P1,166.00 in legal currencies.

Shields vs. Gross

Facts: In 1975, when Brooke Shields was 10, a
consent was given by her mother on her behalf,
indicating that the pictures taken by Gary Gross
may be used for whatever purposes. Plaintiff
requested the court to prevent defendant from
using her pictures. Non-jury court prevented the
defendant from using the pictures for advertising
or trade on the grounds that court approval for a
minor was necessary to validate the consent, as
stated in Section 3-105 of the General Obligations
Law.
Held: By virtue of Section 50 and 51 of the Civil
Rights Law, a persons pictures, name, etc., can
be used if written consent is given. If the person
is a minor, his or her parents can give the
consent. As such, the consent was valid. Section
3-105 cannot be invoked as Shields did not fall
under the categories stipulated under the said
statutory provision.

Effect on Marriage of Minors

FC Article 5: Any male or female aged 18 and

above, may contract marriage.
FC Article 35: The following are void marriages
from the beginning:
1. Those contracted by any party below 18
years, even with the consent of a parent
or guardian
2. Those solemnized by a person not legally
authorized to perform a marriage unless
the married couple believed in good faith
that the person was authorized
3. Those solemnized without a license
4. Those bigamous or polygamous
5. Those contracted through a mistaken
identity
Moe vs. Dinkins
Facts: Maria Moe and Raul Roe alleged that the
New York Domestic law 15.2 which states that
males between 16-18 and females between 1418 must obtain parental consent to be granted
marriage, is unconstitutional. They stated that
they have a child born out of wedlock and they do
not wish for their child to grow up with the stigma
of illegitimacy. Cristina Coe and Pedro Doe filed a
motion to interfere as they had a stake at the
outcome of the trial. Cristina Coes mother, like
Marias also refused to give her consent to the
wedding but unlike Maria, Cristinas child was yet
to come.
Held: The States interest as parens patriae
(guardians of the country) in protecting minor
from making immature decisions is legitimate
and the manner by which this interest is
protected is proportionate to the interest.

Effects on Crime

RPC Article 12: The circumstances which

exempt from criminal liability are:
1. An imbecile or insane person (unless he
acted during a lucid interval),
2. A person under 9 years of age*,
3. A person over 9 years of age but under 15,
unless it can be proven that he acted in
discernment, in which case, he will be sent
to an institution servicing such children
with criminal liabilities.
4. Any person who causes an injury while
performing a lawful act,
5. Any person who acts under a compulsion
of irresistible force.
RPC Article 18: Accomplices are those who
cooperate in the execution of an offense by
previous or simultaneous acts.
RPC Article 68: When the offender is a minor
under 18 years of age, if he is
1. Over 9 years and under 15 and it has been
proven that he acted with discernment
then a discretionary penalty shall be
imposed which must always be lower by
two degrees than that which the law
prescribes for such crime.
2. Over 15 years and under 18 years of age,
the penalty being the next lower penalty
prescribed by law for that crime but
always in the proper period.
B. INSANITY

Effects on Contracts

CC Article 1327: (Page 5)

CC Article 1399: (Page 6)
CC Article 1328: Contracts entered into during a
lucid interval are valid while those entered into in
a state of drunkenness is voidable.
Carillo vs. Jaojoco and Jaojoco
Facts: Adriana Carillo executed a deed of sale to
Justiniano Jaojoco. Nine days later, Carillo was
declared to be mentally incapacitated and then
died still later. Miguela Carillo appealed for the
annulment of the said contract stating that
Adriana Carillo could not have executed the deed
in a lucid state owing to the fact that the land of
over 300,000 hectares was sold for only P4,000.
Held: The contract is valid. Burden of proof of
mental incapacity lies on the person who alleges
it. No such proof exists and prior to the
confinement of the deceased in Hospicio de San
Lorenzo, she was able to manage her estate,

which had been left to her by her husband. Her

doctor and the one who executed the notarial
instrument also noted that the deceased was
responsive at the time they had been with her.

Effect on Crimes

RPC Article 12
US vs. Vaquilar
Facts: Evaristo Vaquilar killed his wife and
daughter and as such, he was convicted of
parricide for which he appealed. Witnesses do not
know of any prior disagreement between the
deceased and the defendant which may have
caused a sudden outrage. They witnessed
however, that the defendant looked like a
madman, going after everyone in sight. His eyes
were red and penetrating and he had complained
of stomach and head ache before the event
occurred.
Held: An extremely angry man often acts like a
madman. Although no prior disagreement was
witnessed, that is not sufficient as to say that the
defendant was in sane. Any person who allows his
or her anger to go so far as to make them
reckless does not excuse him from criminal
liability.
Dumaguin vs. AI Reynolds, EJ Harrison and
Big Wedge Company
Facts: Paulo Dumaguin was admitted to Hospicio
de San Felipe as he was suffering from paranoia.
His wife had filed for guardianship which was
granted. Dumaguin later acquired a job as a
prospector who relocates mining claims to
ANACONDA group owned by AI Reynolds and EJ
Harrison. Ten mining claims were located and as
prospector, the claims were filed under
Dumaguins name in the Office of the Mining
Recorder, until a deed of transfer was executed.
Dumaguin then asked the court that the deed of
transfer executed by him be considered null and
void because he did not possess the mental
capacity to execute such transfers.
Held: A person under guardianship could still
enter into a contract provided that he or she was
not in mental defect during the execution of the
contract. Also, having been employees of
ANACONDA group, it was within the confines of
their job to execute such transfers. Nevertheless,
if he did own the mining claims, it would have
been aptly named deed of transfer.

Effect on Marriage

FC Article 45: A marriage may be annulled for

any of these causes:
1. If the party was over 18 and under 21 and
the marriage was solemnized without the

2.
3.
4.
5.

consent of parents or guardian, unless

after reaching the age of 21 the couple
has continued to cohabit,
Either party was of unsound mind unless
the party has come to reason and freely
cohabit,
Consent by either party was obtained by
fraud or force,
Either party was physically incapable of
consummating the marriage and the
incapacity is incurable,
Either party was afflicted with STD which
is incurable.

FC Article 47: The persons who can file for an

action for annulment are:
1. By the party whose parent or guardian did
not give consent, within 5 years after
attaining the age of 21, or by the parent or
guardian before the minor reaches 21,
2. By the sane spouse who did not know of
the other persons insanity or by the
guardian of the insane or by the insane
spouse during a lucid interval.
3. By the injured party, within years of the
discovery of fraud or force,
4. For the injured party, in relation to STD
and Impotence, after 5 years of marriage.
C. State of Being Deaf-Mute
CC Article 1327: (Page 5)
CC Article 807: If the testator* is deaf or a deafmute, he must be able to personally read the will
or designate two persons to read it and
communicate with him in a practicable manner.
*A person whose property is transmitted through
a will.
CC Article 820: Any person of sound mind and
legal age, not blind, deaf or dumb and able to
read and write, may be a witness to the execution
of a will.
People vs. Sasota
Facts: Fidel Sasota was found guilty of raping
Rufina Barbuco, a deaf and dumb girl. The crime
was witnessed by Severa Barbuco, a seven-year
old girl who testified along with Rufina. The
defendant alleged that neither Rufina nor Severa
can testify as one was deaf and dumb and the
other too young.
Held: The theory that deaf and dumb persons
cannot testify as a competent witness has been
dispelled (People vs. de Leon) because it is not
sufficient. For as long as the requisite intelligence
required to understand the nature of the oath can
be proven then a deaf-mute can testify. In relation
to the seven year old, the court has held that a

child can testify as long as he or she can

understand the nature of the oath.
Director of Lands vs. Abelardo
Facts: Director of land claims that the failure of
Fulgencia and Jose Dino to register any claim to
lots nos. 773 and 810 which was previously
owned by their grandmother, is due to their being
deaf and dumb. As such, they were unable to act
within the prescriptive period within which they
can register their claim.
Held: The state of being a deaf-mute is not
considered an incapacity that will prevent a
person from running of a prescriptive period.
D. Prodigality
RC Article 92 (2): Persons suffering the penalty
of
civil
interdiction,
hospitalized
lepers,
prodigals, deaf and dumb who are unable to
read and write, those of unsound mind and other
similar cases, cannot, without aid, take care of
themselves and manage their property.
Martinez vs. Martinez
Facts: Pedro Martinez appealed to the Supreme
Court to declare his father, Francisco Martinez, a
prodigal. Pedro Martinez alleged that since his
fathers marriage to Anastacia Ilustre, his fathers
second wife, the wide and her parents have been
given properties amounting to $200,000. He
added that the administration has also been
turned over to his fathers wife. Defendant stated
that the son had, prior to the marriage, managed
the estate by power of attorney but it was
revoked because the son has mismanaged and
misappropriated the property. The estate was
said to have flourished since it was managed by
Francisco Martinez wife and one half has also
been in the ownership of Pedro Martinez, him
being the sole heir of the first wife.
Held: Acts of prodigality must show a morbid
state of mind and a disposition to spend, waste
and lessen the estate to such an extent as to
expose the family to poverty.
E. Civil Interdiction
RPC Article 34: Civil interdiction shall deprive
the offender of the rights of parental authority or
guardianship, either as to person or property.
RPC Article 11.2: Relatives that can be
defended (without criminal liability): spouses,
ascendants, descendants, legitimate, natural or
adopted brothers and sisters, relatives by affinity
in the same degree or relatives by consanguinity
of the 4th civil degree.

RPC Article 13.5: Acts which are committed in

immediate vindication of a grave offense to the
one committing the felony (are mitigating
circumstances).
CC Article 54: Males 16 years upwards may
contract marriage while females 14 years
upwards may contract marriage.
CC Article 123: A person under civil interdiction
may contract marriage provided that there is a
court designated guardian available to witness
the said marriage.
F. Family Relations
FC Article 37: Marriages between ascendants
and descendants of any degree or between
brothers or sisters full or half-blood, are
considered incestuous and void.
FC Article 87: Donations or grants given directly
or indirectly between spouses during marriage
are void with the exception of moderate gifts. The
same is true for persons living together as
husband and wife.
-

This is dictated by the principle of unity of

personality of spouses.
Any person prejudiced by the donation or
grant may question its validity.

CC Article 1109: Prescription* does not run

between husband and wife even though there is a
separation of property agreed upon in the
marriage settlements. The same is true between
parents and children that are still minors or those
considered insane and between guardian and
ward.
CC Article 1490: Husband and wife cannot sell
property to one another when separation of
property has been agreed upon and there has
been judicial separation.
G. Alienage
PC Article 12Section 2: All natural resources, with the
exception of agricultural lands, are owned by the
state. As such, exploration, development and
utilization are under its full control and
supervision. The State may undertake such
activities directly, in co-production, joint venture
or production sharing with Filipino citizens or
corporations or associations where 60% of the
capital is owned by Filipinos. The same is true for
agreements with foreign-owned corporations.
Only small-scale utilization of marine life is
allowed.

Section 7: No private lands shall be transferred to

individuals, corporations or associations qualified
to acquire land, except in cases of hereditary
succession.
Section 8: Natural-born citizens of the Philippines
who has lost citizenship maybe a transferee of
private lands subject to limitations provided by
law.
Section 11: Franchise, certificate or any form of
authorization for operation of public utility may
be granted to citizens of the Philippines or
corporations, associations or organizations where
at least 60% of the capital is owned by Filipinos.
All executive and managing officers of public
utilities must be citizens of the Philippines.
PC Article XIVSection 4: Educational institutions, apart from
those owned by religious groups or mission
boards must be owned solely by citizens of the
Philippines or corporations or associations at
wherein 60% of the capital is owned by citizens.
Congress may legislate to increase Filipino equity
participation.
No educational institution shall be established
exclusively for aliens. No group of aliens shall
comprise more than one third. These provisions
do not apply to schools established for foreign
diplomatic personnel and their dependents.
Revenues, grants and endowments shall be
exempt from taxes.
PC Article XVISection 11: Ownership and management of mass
media shall be limited to citizens of the
Philippines
or
corporations,
cooperatives,
associations wholly owned and managed by such
citizens.
Congress shall prohibit monopolies in commercial
mass media for the sake of public interest.
Filipino
citizens
or
corporations
and
or
associations wherein seventy percent of capital is
owned by citizens of the Philippines shall be
allowed to engage in the advertising industry. All
executive and managing officers must be citizens
of the Philippines.
H. Absence
CC Article 390: An absentee shall be presumed
dead for all purposes, after an absence of seven
years.
For purposes of succession, absentee shall be
presumed dead after 10 years or 5 years for
those 75 and above.
CC Article 391: The following are presumed
dead for all purposes:
1. Person on board a lost sea vessel or
aeroplane,

2. Person missing for 4 years after taking

part in a war,
3. Person who after being in danger of death
has not been heard from for four years.
FC Article 124: Conjugal partnership property
belongs to spouses, jointly. In case of
disagreement, the decision of the husband shall
prevail and the wife may appeal for remedy in
court within 5 years since the implementation of
the contract.
Spouse may assume sole powers in case the
other is incapacitated.
Encumbrance or disposal of property shall be with
the authority of the court or with the written
consent of the spouse.
A contract with the authorization of the spouse is
binding.
I. Marriage
CC Article 2259: The capacity of a woman to
enter into contract is governed by the civil code
even if the marriage occurred prior to the
enactment of the said code.
RC Rule 3, Section 4: A married woman cannot
be sued alone without joining her husband
except:
1. When they are judicially separated,
2. If they have been separated for at least 1
year,
3. When there is a separation of property
agreed upon in marriage settlements,
4. If the administration of all the property has
been transferred to her,
5. When the litigation is between husband
and wife,
6. When the suit involves her paraphernal
property,
7. When the action is a civil liability arising
from a criminal liability,
8. If the litigation is based on the profession,
occupation or a business in which she is
engaged,

-A
status
involving
duties
or
responsibilities which are no longer matter for
private regulations but the concern of the state.
-Civil or social institution which is the
foundation of a family and origin of domestic
relations.
Purposes of Marriage
1. Reproduction
2. Education of the offspring
3. Mutual help
Immediate purpose: constitute a complete and
perfect community between two individuals of
different sexes.
Remote purpose: preservation of human race.
FC Article 1: Marriage is a special contract of
permanent union between a man and a woman
entered into in accordance with law for the
establishment of conjugal and family life. It is the
foundation of the family and an inviolable social
institution whose nature consequences and
incidents are governed by law and not subject to
stipulation, except that marriage settlements
may fix the property relations during the
marriage within the limits provided by this code.
Ordinary Contracts vs. Marriage Contracts:
- Ordinary contracts may be entered into by
any number of persons of whatever sex
while marriage can be entered into only by
one man and one woman.
- In ordinary contracts the agreement of the
parties have the force of law between
them while in marriage, the law fixes the
duties and rights of the parties.
- Ordinary contracts can be terminated by
mutual agreement of the parties while
marriage cannot be so terminated. Neither
can it be terminated even though one of
the
parties
subsequently
becomes
incapable of performing his part.
- Breach of ordinary contracts gives rise to
an action for damages while breach of the
obligations of a husband or a wife does
not give rise to such an action..
- The States role is to protect the family as the
foundation of the nation.

Marriage
Nature of Marriage
-Procedure by which a man and a woman
become husband in wife, uniting for life.

PC Article XV*The states role is to protect the family as the

foundation of society.
Section 1: State recognizes the Filipino family as
the foundation of the nation.
Section 2: Marriage is an inviolable social
institution.
Section 3: State shall defend-

10

1. The right of spouses to found a family in

accordance with their religion and the
demands of responsible parenthood.
2. The right of children to assistance, and
special protection.
3. The right of family to a family living wage
income.
4. The right of families to participate in the
planning and implementation of policies
and programs that affect them.
Section 4: The family has the duty to care for its
elderly members.
Breach of Promise
CC Article 19: Everyone must act with justice,
give everyone his due and observe honesty and
good faith.
-The exercise of a right ends where the right
disappears and it disappears when it is abused, to
the prejudice of others.
Good Faith- abstaining from taking advantage of
others.
-A bride or groom who breaks an engagement
without reason causing moral and material injury
to the other party is liable for damages especially
if the decision is made just before the wedding
and after a long engagement.
CC Article 20: Every person who willfully or
negligently causes damage to another shall be
liable for indemnity.
-A person is required to act with prudence and
diligence.
CC Article 21: Any person who willfully causes
loss or injury to another in a manner contrary to
morals, good customs or public policy is liable for
damages.
-Acts which are not unlawful but are likewise
contrary to morals or good customs, public order
or policy shall fall under this provision. This article
was created to provide adequate legal remedy.
Willful Act- an act done with knowledge of the
effect
- Seduction, wherein a woman who was
promised with marriage gives herself to a
man but was later left by the man qualifies
as deceit and may be used as basis for
indemnity.
- So long as there is a wrongful act and a
resulting injury, there should be civil
liability.

-The injury must be the proximate cause of an

act.
-No person shall unjustly enrich himself at the
expense of another.
CC Article 2176- Whoever by act or omission
causes damage to another, there being fault or
negligence, is obliged to pay for the damage
done. Such fault or negligence is considered a
quasi-delict and is governed by law.
Wassamer vs. Velez
Francisco Velez and Beatrice Wassmer decided to
get married on Septemeber4, 1954. On Sept. 2,
Velez left a note saying that the said marriage
has to be postponed. The following day, another
note arrived saying the marriage was still going
to push through. After that, plaintiff has never
heard from him.
When plaintiff filed for evidence before the clerk
of court, the defendant was held in default and as
such, plaintiff was awarded P2,000 actual
damages, P25,000 moral damages and P2,500 for
attorneys fees. Defendant filed a motion for relief
and court gave both parties enough time to settle
outside of court. No such settlement happened
and several times, the defendant asked for
extension.
Held: The manner by which the defendant left the
plaintiff, only a few days before the wedding, was
contrary to good customs. At that time, the
wedding has been aptly prepared and the visitors
had been notified and so, that the plaintiff was
affected is no longer in question. Civil indemnity
is due in this case.
Tanjanco vs. CA
Facts: Apolinario Tanjanco and Arceli Santos are
both of adult age. Santos consented to have
sexual intercourse with Tanjanco with the promise
of marriage. After almost a year of such
relationship, Santos conceived of a child and due
to humiliation she left her job at IBM Philippines
where she received P230/ month. Tanjanco, then
refused to marry Santos who was no longer able
to support herself and the child. She was then
prompted to sue for moral damages and to
compel the defendant to support herself and the
child.
Held: Article 21 cannot be invoked in this case as
it was already evident to the woman that
Tanjanco no longer had any intention of marrying
her even before she conceived of a child.
Seduction, an example given by the code
commission under Article 21 connotes deceit,
enticement, and abuse of confidence. Such
features are not present in the case wherein
there where several instances of sexual
intercourse for a period of almost one year.

11

De Jesus vs. Syquia

Cesar Syquia had sexual relations with Antonia
Loanco. Through a letter to a priest, he had made
it apparent that he wanted the child carried by
Antonia to be recognized as his. In several other
letters, he referred to the child as junior. For a
while the two partners lived under one roof with
Antonias mother, after the birth of the child.
Another child was conceived, upon which, Syquia
left, never to be heard from again. At the
christening of the child, Antonia named the child
Ismael Loanco.
Antonia then filed a suit against Syquia, to
recover P30,000 for damages for breach of
promise to marry and to pay for her maintenance
along with the two children. Trial court ordered
that the first child be recognized and for Syquia
to pay a monthly maintenance of P50.
Held: Supreme Court affirmed the judgment on
the grounds that the breach of promise was not
satisfactorily proven, owing to the fact that the
sexual relations continued even after the birth of
the first child and even though there was still no
marriage. In relation to the second child being
recognized, there was no proof to compel such
action.
Marriage Models
Economics and the Public Purpose
By John Kenneth Galbraith
-Industrialization eliminated the need for women
to work.
-Rising standards of popular consumptions saw
the need for household managersmarried
women.
-The lady of the house is the chief menial to the
household.
-Diversity and consumption increase made
household
management
complex
thereby
requiring management skills.
-Women were converted into crypto servants
contributing of the Gross National Product by
way of efficient consumerism.
Household- the disguise for the exercise of male
authority
Neoclassical
Consumer
Equilibriumthe
distribution of income to various uses so that
satisfactions are roughly equal to the margin
-Decisions depend on who earns a living.
-Women had only the power to implement
decisions and not make them.
-The service of women to the economy is based
on her sense of duty and capacity to affection.
Graham vs. Graham
Facts: On September 17, 1940, Sydney Graham
contracted with Margarethe Graham to the effect
that Margarethe shall pay Sydney the amount of
$300 per month until such time that the parties

no longer desire to continue with such an

arrangement. On July 11, 1933, the married
couple divorced. The plaintiff then filed a suit
against his former wife in order to claim the
remaining amount of money that he should be
accorded by virtue of the contract. Plaintiff
alleged the contract was done so that he can
accompany his wife on her travels.
The total amount claimed until November 7, 1939
was $25,000 with 3% interest per annum. The
defendant on the other hand alleged that the
contract was not within the powers of a married
woman under a Michigan law and that the divorce
should have effected the termination of the said
contract.
Held: Under the Michigan law invoked by the
defendant, women have no general power to
enter into a contract except in separation of
properties. Also, private contracts between
married individuals which are contrary to public
policy are unenforceable by virtue of Sec. 587
entitled Bargain to Change Essential Obligations
of Marriage. The court held that if contracts
which are contrary to the essential obligations of
marriage wee permitted, it would invite an
endless field of controversy and litigation and
would destroy the element of flexibility needed in
making adjustments to the new conditions of
marital life.
Challenges to the Traditional Marriage
Models
Looking Backward in Order to Look Forward
By William H. Chafe
-In the 1970s, the status of women had already
transformed because of social and economic
forces.
-After the baby boom of the 1950s, there was a
downturn in the birthrate such that by 1970s, the
birthrate had reached a level of zero population
growth.
-There was a trend in later marriages and of
young women of child bearing age joining the
labor force.
-Women also begun entering professions that
have almost exclusively been for men.
-By 1970s, the traditional norm of stay-at-homemothers had already changed.
Multiplier Effect- shifting values interacted with
changing economic conditions to create a new
pattern of family and work life.
The Changing Status of Women
Dunn vs. Palermo
Facts: Rosary Palermo who is married to Denty
Cheatham has continued to use her maiden name
since her marriage. Because of a state-wide
compulsory registration law, Palermo lodged

12

information of her change of address listing her

name as Palermo. The registrar was prompted to
purge the name of Palermo from the registration
list because Palermo refused to change her name,
citing Sec. 2-206 which states that registration of
a person shall be purged 90 days after he
changes his name or otherwise.
Palermo went to court seeking that the
interpretation of the said rule be declared
erroneous
or
the
statute
be
declared
unconstitutional, it being in violation of the 14 th
amendment due process and equal protection
clause.
Held: The use of a husbands name is customary
and as such, the common law does not compel
women to use their husbands name. In the past,
the husbands name was used to indicate the
marital status of a woman. A person has a
common right to adopt any name he or she wants
to be known with. The use of husbands name
was mainly for indicating marital status. It was
more by practice rather than by law.
Private Contracts: When Valid, When
Void?
In Re: Santiago
Facts: This is an administrative case concerning
Atty. Roque Santiago who executed a document
wherein it was stipulated that Ernesto Baniquit
and his wife Soledad Colores were from then on,
separated, allowing either parties to marry again
without danger of becoming subject to any legal
action from either of the two parties. With this,
Baniquit got married to Trinidad Aurelio.
Santiagos mistake, according to him, was due
mainly to his idea that a seven-year separation
will allow for such action. In finding out his
mistake, he called on Baniquit who at that time,
was already married to someone else.
Held: The advice given and the document tended
to subvert the vital foundation of the family.
Marriage, as stated in Article 1 of the Family
Code, is not subject to the stipulation.
Selanova vs. Mendoza
Facts: Judge Alejandro Mendoza prepared and
ratified a document extrajudicially liquidating the
conjugal partnership of Saturnino Selanova and
Avelina Ceriza. It was stipulated in the document
that the spouses should withdraw the adultery
and concubinage cases each had filed against
another. The defendant ratified the document
with the assurance that the spouses would ask
the Court of First Instance to approve the
agreement. According to the respondent, the
basis of the decision was Part 4 of Article 191 of
the Civil Code which stated that husband and
wife may agree upon the dissolution of marriage
subject to judicial approval.

Held: Respondents action was void as it violated

Article 221 of the Civil Code which states that
contracts and any extrajudicial agreements are
void.
Judicial sanction for annulment of marriage
should have been secured before hand.
Requisites of Marriage
Essential Requisites of Marriage
FC Article 2: Essential Requisites of marriage
are
1. Legal capacity of contracting parties who
must be male or female.
2. Consent that is freely given in the
presence
of
a
solemnizing
officer
authorized by the state to conduct such
marriage.
Legal Capacity of Male and Female
Jones vs. Hallahan
Facts: Two women appealed the decision of the
Circuit Court which held that both of them cannot
marry one another. Plaintiffs claim that the
decision abridges the Equal Protection clause and
Due
Process
clause
of
the
fourteenth
amendment.
Held: Marriage, in many widely circulated
dictionaries, are defined as a union between
man and woman, and there is no authority to
the contrary.
The plaintiffs were not being prevented by the
statutory provision to marry. Rather, they were
being prevented by themselves.
Goodridge vs. Department of Public health
Facts: In March and April of 2001, each of the
plaintiff couples attempted to obtain the marriage
license from their respective city or town clerks
office. After their requirements had been
completed, the clerk in each case refused to
accept the notice of intention to marry or denied
a marriage license on the ground that
Massachusetts does not recognize same-sex
marriages. Plaintiffs filed a suit alleging that
exclusion of same-sex couples from access to
marriage license and civil marriage and its
benefits is in violation of Massachusetts law.
Held: Without the right to marry or the right to
choose to marry, one is excluded from the full
range of human experience and denied full
protection of the laws for ones commitment to
lasting human relationships.
Held: Defense of procreation is not sufficient
because same-sex couples are still capable of
procreation although their methods may not be
traditional. Likewise, these couples are capable of
rearing children in such a setting, affirmed by the

13

Massachusetts law which allows adoption for

same-sex couples. Same-sex couples should be
afforded the same benefits as opposite-sex
couples by virtue of the Equal Protection and Due
Process clause of the 14th amendment.
Baker vs. State
Facts: Same-sex couples brought action against
the State, city and town seeking declaratory
judgment that the refusal to issue them marriage
licenses violated the common benefits clause of
the Vermont constitution. Plaintiffs claim that
denial of marriage license was tantamount to
denial of legal benefits and protections of marital
relations.
Held: Government is established for the common
benefit of the people and community as a whole.
The state interests in preventing the marriage of
same-sex couples which are: Procreation and
uniformity with other states, while valid, should
not be employed through a means that would
prevent same-sex couples from acquiring the
benefits inherent to married life.
Defense of Marriage Act- Defense of marriage as
an institution, as upheld by 37 states in the
United States
- 4 States have explicitly banned same-sex
marriages.
- Vermont and Massachusetts have come up
with legislation that would allow same-sex
couples to enjoy the benefits that
opposite-sex married couples enjoy. In
Vermont, it is done through a civil union, in
Massachusetts, same-sex marriage is now
allowed.
Consent Freely Given
FC Article 4: Marriage is rendered void in the
absence of any of the essential requisites (stated
in Article 2 of FC). If there is any irregularity in the
formal requisites, the validity shall not be affect
validity but either or both parties are civilly,
criminally and administratively liable.
FC Article 45: (page 8)
People vs. Felipe Santiago
Facts: Felipe Santiago raped Felicita Masilang, 18
years old, a few paces from Manila North Road.
After the deed was done, defendant brought the
girl to the house of Agaton Santiago, the
defendants uncle, who later found a protestant
minister who administered the marriage of
Santiago to Masilang. After the marriage, the
victim was given a few pesos and was told to
leave.
Held: The marriage is void first, because the
victim did not have his fathers consent to marry

and second, because the victim was under duress

and was thereby incapable of giving her consent
freely. Also, Felipe Santiago did not really intend
to marry Felicita Masilang. He only did so to
escape criminal liability. As such, the marriage is
void because the consent of Santiago is not freely
given. The consent referred to here is not the
consent of Felicita but that of Felipe who had no
intention of marrying Felicita.
Buccat vs. Mangonon de Buccat
Eigenmann vs. Guerra
Facts: Petition was instituted by Eduardo
Eigenmann to annul his marriage to Maryden
Guerra on the grounds that he was a minor who
needed consent from his parents when he
married (16-20 years old) and such consent was
not given. He alleged that he was threatened and
coerced into the marriage and that the
solemnizing officer who administered the
marriage license was not authorized thereby
rendering the said license void ab initio.
Held: The marriage license confirmed that
plaintiff misrepresented himself to be of legal age
there for he is subject to an estoppel preventing
himself to invoke minority. (this is as to the
needed consent and not the lack of minimum
age) The said threat was not sufficient to hold
that he was coerced into consenting to the
marriage because it was not really threatening.
Lastly, marriages solemnized by a license
obtained wrongfully, merely renders the marriage
to be irregular and is not null, void or voidable.
Formal Requisites
- External to the parties
Formal Requisites of Marriage
FC Article 3: Formal Requisites of Marriage
1. Authority of the solemnizing officer,
2. Valid marriage license except in cases
provided,
3. Marriage ceremony with the appearance
of contracting parties before a solemnizing
officer,
4. Two witnesses that are of legal age,
5. Declaration that they take each other as
husband and wife.
Authority of the Solemnizing Officer
FC Article 7: Marriage may be solemnized by:
1. Any incumbent member of the judiciary
within the courts jurisdiction;
2. Any priest, rabbi, imam or minister of any
church or religious sect duly authorized by
his church or religious sect and registered
with the civil registrar general, acting
within the limits of the written authority

14

granted him by his church or religious sect

and provided that at least one of the
contracting parties belongs to the
solemnizing officers church or religious
sect;
3. Any ship captain or airplane chief only in
the cases mentioned in Article 31;
4. Any military commander of a unit to which
a chaplain is assigned, in the absence of
the latter, during a military operation,
likewise only in cases mentioned in Article
32;
5. Any consul-general, consul or vice-consul
in the case provided in Article 10.
-

Without registration of the solemnizing

officer with the office of the Civil Registrar
the marriage is void. The same is true if
the solemnizing priest s not authorized by
his church.
- A resulting irregularity that will not affect
the validity of the marriage is one where
there is mistake of fact and not mistake of
law.
- Ignorantia legis non excusat
FC Article 10: Marriages between Filipino
citizens abroad may be solemnized by a consul or
vice-consul of the Republic of the Philippines. The
issuance of the marriage license and the duties of
the local civil registrar and of the solemnizing
officer with regard to the celebration of marriage
shall be performed by the consular official.
FC Article 31: A marriage in articulo mortis*
between passengers or crew members may also
be solemnized by a ship captain or by an airplane
pilot not only while the ship is at sea or the plane
is in flight but also during stopovers at ports of
call.
*At the point of death
FC Article 32: A military commander of a unit,
who is a commissioned officer, shall likewise have
authority to solemnize marriages in articulo
mortis between persons within the zone of
military operation, whether members of the
armed forces or civilians.
FC Article 4: The absence of any of the essential
or formal requisites shall render the marriage
void ab initio, except as stated in article 35 a.
A defect in any of the essential requisites
shall render the marriage voidable as provided in
article 45.
An irregularity in the formal requisites
shall not affect the validity of the marriage but
the party or the parties responsible for the
irregularity shall be civilly, criminally or
administratively liable.

FC Article 35 (2): The following marriages shall

be void from the beginning:
(2) Those solemnized by any person not legally
authorized to perform marriages unless such
marriages were contracted with either or both
parties believing in god faith that the solemnizing
officer had legal authority to do so.
CC Article 3: Ignorance of the law excuses no
one from compliance therewith.
Navarro vs. Domagtoy
Facts: This is an administrative case filed by
Rodolfo G. Navarro against Hernando C.
Domagtoy
who
allegedly
solemnized
the
marriage between Gaspar A. Tagadan and Arlyn
Borja despite knowledge that the groom was only
separated with his former wife who was already
absent for seven years. Also, the respondent
judge also solemnized the marriage of Floriano
Sumaylo and Gemma del Rosario outside the
jurisdiction of the respondent.
Held: On the second marriage, there is a resulting
irregularity because marriage may only be
conducted elsewhere only if there is a written
request coming from both parties. In the case at
hand, the request only came from one party.
Judges may only officiate weddings within their
jurisdiction otherwise there will be an irregularity
with the formal requisites. Article 8 states that
marriages may be conducted elsewhere provided
that there is written request coming from both
parties to the marriage.
Aranes vs. Occiano
Mercidita Aranes charged presiding judge
Salvador Occiano of gross ignorance of the law
for solemnizing her marriage with her husband
without a license and outside his jurisdiction.
Respondent judge claims that he agreed to
solemnizing the marriage provided that the
license will be delivered to him on the same day
however, no such license ever came. No record of
the application for a marriage license because it
was denied when the husband failed to present
the death certificate of his first wife.
Held: Respondent judge is liable for failure to
ascertain the existence of a marriage license.
Presenting a marriage license after the
solemnization of the wedding does not, in any
way validate the marriage. Also, under BP 129,
the authority of the judges of inferior courts to
solemnize marriage is confined to their territorial
jurisdiction. The authority of the judge to
solemnize a marriage is derived from the
marriage license.
Marriage License

15

FC Article 9: A marriage license shall be issued

by the local registrar of the city or municipality
where either contracting party habitually resides,
except in marriages where no license is required
in accordance with chapter 2 of this Title.
FC Article 34: No marriage shall be necessary
for the marriage of a man and a woman who have
lived together as husband and wife for at least
five years and without any legal impediment to
marry each other. The contracting parties shall
state the foregoing facts in an affidavit before
any person authorized by law to administer
oaths. The solemnizing officer shall also state
under oath that he ascertained the qualifications
of the contracting parties and found no legal
impediment to the marriage.
PD965: A decree requiring applicants for
marriage licenses to receive instructions on
family planning and responsible parenthood.
Republic of the Philippines vs. CA and
Castro
Facts: Angelina M. Castro filed a petition for a
judicial declaration of nullity of her marriage to
Edwin F. Cardinas which was granted by the Court
of Appeals. Then petitioner Castro was separated
after four months of marriage with Cardinas. As
such, Castro sought for the nullity of her marriage
before she left for the US. Plaintiff Republic of the
Philippines challenged the decision of the
appellate court because Castros claim that there
was no marriage license was only supported by a
due search and inability to find certification
issued by the local civil registrar of Pasig and
Caustros own testimony.
Held: No marriage shall be solemnized without a
marriage license otherwise it will be rendered
void ab initio. The certification of due search and
inability to find is sufficient to hold that no proof
of license exists and the testimony is sufficient
because the marriage was a secret marriage and
under the circumstances it is understandable that
there can be no other witness.
Moreno vs. Bernabe
Facts: Marilou Nama Moreno filed the complaint
against Judge Jose C. Bernabe for grave
misconduct and gross ignorance of the law.
According to the complainant, respondent judge
solemnized her marriage with Marcelo Moreno,
assured that the contract will be released after 10
days. Respondent judge claims that the failure to
produce the contract was due to the failure of the
Local Registrar of Pasig to release the marriage
license. He was assured, when he solemnized the
marriage, that the license was forthcoming as
such, he agreed to conduct the ceremony but
reminded the plaintiff and her husband of the

consequences of conducting the ceremony

without a marriage license.
Held: Marriage ceremonies, absent of a marriage
license, are void ab initio.
People vs. Borromeo
Facts: Defendant Elias Borromeo appealed his
conviction of parricide and his sentence of
reclusion perpetua. On July 3, 1981, defendant
killed his wife, Susana Borromeo. He claimed that
Susana Borromeo was not his wife because no
marriage contract was executed during their
marriage.
Held: Defendant testified that he was indeed,
married to Susana Borromeo. Nevertheless, had
there been an actual absence of a marriage
contract, persons living together in apparent
matrimony are presumed to be married unless
evidence is presented to show otherwise. Such is
the common order of society. If parties were not
what they hold themselves to be, they will be
living in constant violation of the law.
Seguisabal vs. Cabrera
Facts: Andon Seguisabal charged Judge Jose
Cabrera of gross misconduct and grave ignorance
of the law for solemnizing the marriage of Jaime
Sayson and Marlyn Jagonoy without the requisite
marriage license. The respondent was also said to
have failed to transmit a copy of the marriage
contract he signed to the Office of the Civil
Registrar of Toledo City within the required 15
days. The Respondent judge contended that he
agreed to solemnize the marriage of the two
parties with the agreement that the marriage
license will be given in the afternoon, which the
couple failed to do. Years later when Marlyn
Jagonoy returned asking for the marriage contract
so that she can claim the pension of her
deceased husband, respondent judge issued a
marriage contract despite of the knowledge that
there is still no marriage license as the deceased
and his widow failed to attend a family planning
session.
Held: Cabrera was expected to follow the dictates
of his profession. His decision to commit an act
outside the boundaries of the law cannot be
justified by good faith. Marriages solemnized
without a marriage license is void ab initio.
Ceremony
FC Article 6: No prescribed form or religious rite
for the solemnization of the marriage is required.
It shall be necessary however, for the contracting
parties to appear personally before the
solemnizing officer and declare in the presence of
not less than two witnesses of legal age that they
take each other as husband and wife. This
declaration shall be contained in the marriage

16

certificate which shall be signed by the

contracting parties and their witnesses and
attested by the solemnizing officer.
In case of marriage in articulo mortis,
when the party at the point of death is unable to
sign the marriage certificate, it shall be sufficient
for one of the witnesses to the marriage to write
the name of said party, which fat shall be
attested by the solemnizing officer.
Requisites of Marriage Ceremony:
- For both parties to appear personally
before the solemnizing officer;
- That there is presence of not less than two
witnesses of legal age;
- That both party take each other as
husband and wife
FC Article 8: The marriage shall be solemnized
publicly in the chambers of the judge or in open
court, in the church, chapel or temple, or in the
office of the consul-general, consul or vice-consul,
as the case may be, and not elsewhere, except in
cases of marriages contracted on the point of
death or in remote places in accordance with
Article 29 of this Code, or where both of the
parties request the solemnizing officer in writing
in which case, the marriage may be solemnized
at a house or place designated by them in a
sworn statement to that effect.
- Whatever venue is chosen, it must be within the
jurisdiction of the solemnizing officer.
FC Article 28: If the residence of either party is
so located that there is no means of
transportation to enable such party to appear
personally before the local civil registrar, the
marriage may be solemnized without the
necessity of a marriage license.
- Applicable when one of the parties is
handicapped
FC Article 29: The solemnizing officer shall state
in an affidavit the executed before the local civil
registrar or any other person legally authorized to
administer oaths that the marriage was
performed in articulo mortis or that the residence
of either party, specifying the barrio or barangay,
is so located that there is no means of
transportation to enable such party to appear
personally before the local civil registrar and that
officer took the necessary steps to ascertain the
ages and relationship of the contracting parties
and the absence of legal impediment to marriage.
FC Article22: The marriage certificate shall
state:
1. Full name, sec and age;
2. Citizenship,
religion
and
habitual
residence;

3. the date and precise time of the

celebration;
4. That the proper marriage license has been
issued according to law;
5. That either or both of the contracting
parties have secured the parental consent
(if it applies);
6. That either or both of the contracting
parties have complied with the legal
requirement regarding parental advice
(where it applies);
7. That the parties have entered into a
marriage settlement, if any, attaching a
copy thereof.
FC Article 23: It is the duty of the solemnizing
officer to furnish either of the contracting parties
the original of the marriage certificate and to
send the duplicate and triplicate copies not later
that fifteen days after the marriage, to the local
civil registrar of the place where the marriage
was solemnized. Proper receipts shall be issued
by the local civil registrar to the solemnizing
officer transmitting the copies of the marriage
certificate. The solemnizing officer shall retain in
his file the quadruplicate copy of the marriage
certificate, the original of the marriage license,
and the affidavit of the contracting party
regarding the solemnization of the marriage in
another place.
FC Article 24: It shall be the duty of the local
civil registrar to prepare the documents required
and to administer oaths to all interested parties
without any charge in both cases. The documents
and affidavits filed in connection with applications
for marriage licenses shall be exempt from
documentary stamp tax.
Requisites of a Marriage Ceremony
Martinez vs. Tan
Facts: Rosalia Martinez and Angel Tan signed a
petition directed to the Justice of Peace stating
therein their agreement to contract marriage. The
document was signed by the defendant and
plaintiff and the Justice of Peace and two
witnesses namely Zacharias Esmero and Pacita
Ballori. A certificate of marriage was likewise
signed by the Justice and the witnesses attesting
that a marriage did ensue. Plaintiff alleged that
she did not attend the ceremony and that she
only signed it. Rosario Bayot attested that on the
day of the marriage, the plaintiff never left her
company. Pacita Ballori attested otherwise. Apart
from that, several letters from the plaintiff for the
defendant prove that plaintiff indeed intended to
marry the defendant.
Held: The documents signed were sufficient to
prove that what took place before the Justice of

17

Peace was legal and the ceremony amounted to a

wedding.
Melecio Madridejo vs. Gonzalo de Leon
Facts: Eulogio de Leon and Flaviana Perez had
one childDomingo de Leon. In the year 1915,
Eulogio died leaving Flaviana with Domingo.
Flaviana later lived with Pedro Madridejo and bore
a childMelecio. On June 8, 1920, Flaviana,
knowing that she will die soon, married Pedro.
She died the following day. Melecio Madridejo
claimed that he is the next of kin of Domingo de
Leon who died as well. Defendant claimed that
the wedding of Pedro and Flaviana was not valid
because the solemnizing officer failed to send a
copy of the marriage certificate to the Municipal
Secretary. Also, Melecio Madridejo was allegedly
not a legitimate child.
Held: Forwarding of the marriage certificate is not
an essential requisite of the marriage. Failure to
do so does not invalidate the marriage. For a
subsequent marriage to effectively legitimate a
child born out of wedlock, the child must be
acknowledged by the parents in some public
document or be in the uninterrupted possession
of the status of a natural child. In the case at
hand, Melecio Madridejo was not legitimated. No
public document to that effect exists and he was
not able to prove that he has been in an
uninterrupted status of the natural child.
Presumption of Marriage
CC Article 220: In case of doubt, all
presumptions favor the solidarity of the family.
Thus, every intendment of law or facts leans
toward the validity of marriage, the indissolubility
of the marriage bonds, the legitimacy of children,
the community of property during marriage, the
authority of parents over their children, and the
validity of defense for any member of the family
in case of unlawful aggression.
RC Section 3 Rule 131: That persons acting as
copartners have entered into a contract of
copartneship;
1. That a man and woman deporting themselves
as husband and wife have entered into a lawful
contract of marriage;
2. That property acquired by a man and a woman
who is capacitated to marry each other and who
live exclusively with each other as husband and
wife without the benefit of marriage or under void
marriage, has been obtained by their joint efforts,
work or industry.
3. That in cases of cohabitation by a man and a
woman who are not capacitated to marry each
other and who have acquire properly through

their actual joint contribution of money, property

or industry, such contributions and their
corresponding shares including joint deposits of
money and evidences of credit are equal.
Trinidad vs. CA, Trinidad and Trinidad
Facts: Arturio Trinidad, was the son of Inocentes
Trinidad and nephew of Lourdes and Felix
Trinidad. The three siblings, Inocentes, Lourdes
and Felix, inherited a piece of land from their
father, Patricio Trinidad. Defendants claimed that
the land in question has been in their possession
since the death of their father and that Inocentes
died in 1941 and not in 1944 as alleged by
Arturio. They also contend that Inocentes never
fathered a child nor was he ever married. Arturio
on the other hand alleged that his father was
married to Felicidad Molato, his mother. Several
witnesses living within the neighborhood testified
to the marriage and the birth of Arturio and that
Arturio contrary to the claims of Lourdes and Felix
had lived in their house for some time. Relevant
public documents valuable as evidence were
destroyed during the war.
Held: Marriage may be proven by relevant
evidences such as: testimony of a witness to the
matrimony, public and open cohabitation, birth
and baptismal certificate signed by the couple or
a mention of the marriage in other public
documents. Two witnesses attested that the
couple cohabited and that Arturio was their son.
As proof of filiation with Felix and Lourdes, two
family pictures were shown where Arturio was in
the company of Lourdes and Felix and the
witnesses likewise attested that Arturio had lived
with his aunt and uncle. The preponderance of
evidence supported the claims of Arturio.
Vda. De Jacob vs. CA and Pilapil
Facts: Plaintiff claimed to be the surviving spouse
of Dr. Alfredo E. Jacob and appointed special
administratix for his estates by virtue of a
reconstructed marriage contract recognized by
their solemnizing officer who admitted that he
lost the marriage contract earlier on. The court of
appeals ruled against the plaintiff on the grounds
that no copy of the contract was sent and no
record of the marriage existed and that Dr.
Alfredo signed the contract with his thumbmark
and not with his own name. Lastly, court of
appeals stated that the reconstructed marriage
contract was signed by Benjamin Molina and not
by Jose Centera who the plaintiff said allegedly
lost the marriage contract.
Held: Dr. Alfredo and Plaintiff Tomasa had lived
together for over five years and the deceased
signed an affidavit to that effect. According to
Article 76 of the Civil Code, no marriage license
shall be necessary when a man and a woman

18

who have reached the age of majority have lived

together as husband and wife for at least five
years. Also, failure to send a copy of the marriage
certificate for record purposes does not invalidate
the marriage. It was not the petitioners duty to
ensure that the copy reached the civil registrars
office. Secondary evidence proved that there was
a ceremony. The solemnizing officer and Adela
Pilapil attested to that effect. Also the name of
the couple was recorded in the Book of
marriages.
- In the absence of a marriage contract, there
should be proof of due execution which can be
given by witnesses and proof of loss of marriage
certificate before the reconstructed certificate
may be admitted

FC Article 4: The absence of any of the essential

or formal requisites shall render the marriage
void ab initio, except as stated in Article 35.
A defect in any of the essential requisites shall
render the marriage voidable as provided in
Article 45.
An irregularity in the formal requisites of shall not
affect the validity of the marriage but the party or
parties responsible for the irregularity shall be
civilly, criminally and administratively liable.
FC Article 35: The following marriages shall be
void from the beginning:
1. Those contracted by any party below
eighteen years of age, even with the
consent of parents or guardians;
2. Those solemnized by any person not
legally authorized to perform marriages
unless such marriages were contracted
with either or both parties believing in
good faith that the solemnizing officer had
the legal authority to do so;
3. Those solemnized without a license,
except those covered by the preceding
chapter;
4. Those bigamous or polygamous marriages
not falling under Article 41;
5. Those contracted through mistake of one
contracting party as to the identity of the
other;
6. Those subsequent marriages that are void
under Article 53.
-

In ordinary contracts (1) the child will not

be emancipated from parental authority. In
marriage, the child will be emancipated.
If it is a mistake of fact, the marriage is
valid. If it is a mistake of law, the marriage
is void.
Paragraph 5 refers to physical mistake in
identity.
Other
fraudulent
misrepresentation would not apply.

FC Article 36: A marriage contracted by any

party who, at the time of the celebration was
psychologically incapacitated to comply with the
essential marital obligations of marriage, shall
likewise be void even if such incapacity becomes
manifest only after solemnization.
-Psychological incapacity to comply is different
from inability to understand because the latter is
a vice of consent, without which, an essential
requisite of marriage is lacking.

Void Marriages

Reasons for adopting psychological incapacity as

a ground for declaration of nullity:
- Substitute for divorce
- Solution of church-annulled marriages
- To give remedy to the parties imprisoned
by marriage.

19

Psychological incapacity vs. Vice of consent

- a person may fully agree but may not
understand the obligations of marriage.
- Psychological incapacity is not a vice of
consent but there is a lack of legal
capacity,
an
essential
requisite
of
marriage.
Psychological Incapacity vs. Insanity
- Insanity has varying degree;
- Insanity is curable
- There are lucid intervals in insanity
- Insanity is a ground for annulment in other
countries
Note: Psychological incapacity was not defined
using examples to avoid ejusdem generis
(exclusive enumeration) which might limit the
applicability of the provision.
It is therefore
judged according to the facts of the case.
-

Psychological incapacity should exist at

the time of the marriage.
Psychological incapacity is restricted to
disorders demonstrative of the utter
sensitivity or inability to give meaning and
significance to the marriage.

Examples of psychological incapacity:

1. Homosexuality;
2. Satryiasis or Nymphomania;
3. Epilepsy with permanently
maladaptive manifestationsl
4. Extremely low intelligencel
5. Habitual Alcoholism;
6. Criminality

recurring

Manifestations of psychological incapacity:

- Refusal of wife to dwell with the husband
after marriage;
- Affliction which makes common life
unbearable;
- Sociopathic anomalies on husbands part
Santos vs. Bedia-Santos
Facts: Louel Santos who was married to Julia
Bedia-Santos wishes to annul his marriage based
on Article 36 of the Family Code. Respondent has,
for the last seven years since filing for the
annulment, resided in the United States and has
contacted the petitioner only twice.
Held: Psychological incapacity refers to the
mental, not physical incapacity. It must be
characterized
by
gravity,
juridical
antecedence and incurability for it to be
considered
a
psychological
incapacity.
Psychological incapacity is not a vice of consent.
A person may have given his or her consent
freely without understanding the obligations of

the contract. Without consent, a marriage is void

ab initio. Without the ability to understand the
nature of the contract, the marriage is merely
voidable.
Republic of the Philippines vs. Molina
Facts: Respondent alleged that her husband
Reynaldo
Molina
was
psychologically
incapacitated because he showed signs of
immaturity, irresponsibility and dependence. She
also averred that her husband was never honest.
The Court of Appeals and Regional Trial Court
upheld that the marriage was indeed, void.
Held: Psychological incapacity should refer to a
mental and not physical incapacity. It is confined
to the most serious personality disorders clearly
demonstrative of an utter insensitivity or inability
to give meaning and significance to the marriage.
It is not enough that the parties failed to meet
their responsibilities. It is essential that they must
be shown as incapable of doing so.
Molina Guidelines in Applying Article 36
1. The burden of proof to show the nullity of
the marriage belongs to the plaintiff. Any
doubt should be resolved in favor of the
existence
and
continuation
of
the
marriage and against its dissolution and
nullity.
2. The root cause of the psychological
incapacity must be (a) medically or
clinically identified, (b) alleged in the
complaint, (c) sufficiently proven by the
experts and (d) clearly explained in the
decision. The person alleged to be
incapacitated must be psychologically ill
to the extent that the person could not
have known the obligations he was
assuming or knowing them could not have
given a valid assumption thereof.
3. The incapacity must be proven to be
existing at the time of the celebration of
the marriage. The evidence must show
that the illness was existing when the
parties exchanged vows.
4. Such incapacity must also be shown to be
medically or clinically permanent or
incurable. Such incurability may be
absolute or relative only in regard to the
other spouse. Such incapacity must also
be relevant to the assumption of marriage
obligations.
5. Such illness must be grave enough to
bring about the disability of the party to
assume the essential obligations of
marriage. The illness must be shown as
downright inability or incapacity.
6. The essential marital obligations are:
a. The
husband
and
wife
are
obligated to live together, observe

20

mutual love, respect and fidelity,

and render mutual help and
support (FC Article 68).
b. The husband and wife shall fix the
family
domicile.
In
case
of
disagreement, the court shall
decide. The court may exempt one
spouse from living with the other if
the latter should live abroad or
there
are
other
valid
and
compelling
reasons
for
the
exemption.
However,
such
exemption shall not apply if the
same is not compatible with the
solidarity of the family (FC Article
69).
c. The spouses are jointly responsible
for the support of the family. The
expenses for such support and
other conjugal obligations shall be
paid from the community property
and in the absence thereof, from
the income or fruits of their
separate properties. In case of
insufficiency or absence of said
income or fruits, such obligations
shall be satisfied from their
separate properties (FC Article 70).
d. The management of the household
shall be the right and duty of both
spouses. The expenses for such
management shall be paid in
accordance with the provisions of
Article 70 (FC Article 71).
7. Interpretations given by the National
Appellate Matrimonial Tribunal of the
Catholic Church in the Philippines, while
not controlling or decisive, should be given
great respect by our courts.
Apiag vs. Cantero
Facts: Maria Apiag filed an administrative case
against
her
husband,
respondent
judge,
Esmeraldo G. Cantero. The Court of Appeals
decided that the respondent acted in grave
misconduct. The plaintiff and respondent were
married and petitioner bore 2 children by that
marriage. After the second child was born,
respondent judge left for no reason. Plaintiffs,
through their counsel asked respondent for
support and for the children to be declared legal
heirs. Complainants subsequently learned that
respondent has contracted another marriage with
whom
he
had
5
children.
Respondent
misrepresented himself in his declaration of
assets and liabilities by putting the name of the
second wife on the said statement. He contended
that the first marriage was void ab initio because
he and his first wife never cohabited and he was

forced into the marriage. He added that he and

the petitioners have settled amicably and he has
agreed to give the children of his retirement
benefits.
Held: While he did not act in grave misconduct,
he acted in impropriety when he failed and
refused to attend to the needs of his children.
Although it is undisputed that the judge did not
obtain a judicial declaration of nullity of his first
marriage,
pursuant
to
the
jurisprudence
prevailing at the time of the second marriage, it
has been established that no such declaration
was necessary.
Choa vs. Choa
Facts: Respondent Alfonso Choa filed a complaint
for the annulment of his marriage to petitioner
Leni Choa on the grounds of psychological
incapacity. Petitioner filed a demurrer of evidence
(an objection or exception by one of the parties in
an action at law to the effect that the evidence
which the adversary produced is insufficient in
point of law to make out a case and sustain the
issue). The demurrer of evidence was dismissed
by the appellate court which upheld that the
claims of Alfonso Choathat her wife had filed
several
lawsuits
against
him
indicating
psychological incapacity and that his wife was
immature, carefree and had no intentions of
procreative sexualityas sufficient evidence.
Held:
Psychological
incapacity
must
be
characterized by gravity, juridical antecedence
and incurability. The testimony of the expert
doctor and the respondent only showed that the
two cannot get along with each other.
Tsoi vs. CA
Facts: Respondent Gina Lao Tsoi filed for
annulment of her marriage to petitioner Chi Ming
Tsoi on the ground of psychological incapacity.
Respondent alleged that since their marriage in
May 22, 1988 until March 15, 1989, the couple
has not consummated their marriage. Defendant
contended that it was the wifes fault that their
marriage was not consummated. A physician
examined both plaintiff and defendant and
attested that neither of them had any physical
problem. Defendant alleged that the wife was
afraid to consummate the marriage and afraid
that she would have to return the jewelry given to
her.
Held: Whether or not it was the husband who
refused to consummate the marriage is
immaterial. The fact still stands that it has not
been consummated. There may be physical and
not psychological reasons as to why the marriage
should not be annulled but the evidence to that
effect was not presented. Catholic marriage
tribunals attribute the causes to psychological

21

incapacity than stubborn refusal. The natural

order between spouses is sexual intimacy.
Antonio vs. Reyes
Facts: Petitioner filed a petition for the declaration
of his marriage to respondent as null and void on
the grounds of psychological incapacity as
manifested by several instances of lying and
concealment of an illegitimate child by
Respondent Ivonne Reyes. Petitioner alleged that
respondent fabricated stories which bordered on
the ridiculous.
Held: Marriage was void by virtue of the Molina
guidelines, fulfilled by the Petitioner.
FC Article 37: Marriages between the following
are incestuous and void from the beginning,
whether the relationship between the parties is
legitimate or illegitimate.
1. Between ascendants and descendants of
any degree and
2. Between brothers and sisters, whether of
full or half blood.
FC Article 38: The following marriages shall be
void from the beginning for reasons of public
policy:
1. Between
collateral
blood
relatives,
whether legitimate or illegitimate, up to
the fourth civil degree;
2. Between step-parents and step-children;
3. Between parents-in-law and children-inlaw;
4. Between the adopting parent and the
adopted child;
5. Between the surviving spouse of the
adopting parent and the adopted child;
6. Between the surviving spouse of the
adopted child and the adopter;
7. Between an adopted child and a
legitimate child of the adopter;
8. Between adopted children of the same
adopter; and
9. Between parties where one, with the
intention to marry the other, killed that
other persons spouse or his or her own
spouse.
FC Article 39: The action or defense for the
declaration of absolute nullity of a marriage shall
not prescribe. However, in the case of marriages
celebrated before the effectivity of this code and
falling under Article 36, such action or defense
shall prescribe in ten years after this code shall
have taken effect.
FC Article 40: The absolute nullity of a previous
marriage may be invoked for purposes of

remarriage on the basis solely of a final judgment

declaring such previous marriage void.
- Final judgment is needed to avoid confusion
because one of the parties may contract another
marriage which would be bigamous and therefore
void during the pendency of the trial for the other
marriage.
FC Article 41: A marriage contracted by any
person during the subsistence of a previous
marriage shall be null and void, unless before the
celebration of the subsequent marriage, the prior
spouse had been absent for four* consecutive
years and the spouse present had a well-founded
belief that the absent spouse was already dead.
In case of disappearance where there is danger of
death under the circumstances set forth in the
provisions of Article 391 of the Civil Code, an
absence of only two years shall be sufficient.
For the purpose of contracting the subsequent
marriage under the preceding paragraph, the
spouse present must institute a summary
proceeding as provided in this Code for the
declaration of presumptive death of the
absentee, without prejudice to the effect of
reappearance of the absent spouse.
FC Article 44: If both spouses of the subsequent
marriage acted in bad faith, said marriage shall
be void ab initio and all donations by reason of
marriage and testamentary dispositions made by
one in favor of the other are revoked by operation
of law.
RA 8533
CC Article 390: After an absence of seven years,
it being unknown whether or not the absentee
still lives, he shall be presumed dead for all
purposes, except for those of succession. The
absentee shall not be presumed dead for the
purposes of opening his succession till after an
absence of ten years. If he disappeared after the
age of seventy-five years, an absence of five
years shall be sufficient in order that his
succession may be open.
CC Article 391: The following shall be presumed
dead for all purposes, including the division of the
estate among the heirs;
1. A person on board a vessel lost during sea
voyage, or an airplane which is missing,
who has not been heard of for four years
since the loss of the vessel or airplane;
2. A person in the armed forces who has
taken part in war, and has been missing
for four years;
3. A person who has been in danger of death
under other circumstances and his

22

existence has not been known for four

years.
People vs. Mendoza
Facts: Appellant was married to Jovita de Asis on
August 5, 1936. On May 14, 1941, appellant
married Olga Lema. On February 2, 1943, the first
wife of appellant died. On August 19, 1949,
appellant married one Carmencita Panlilio.
Appellant was then charged with bigamy but he
contended that his marriage to Olga Lema was
void ab initio and therefore non-existent. In that
light, he claimed, that his marriage to Carmencita
was not bigamous.
Held: The marriage law in effect at the time the
appellant contracted with his second wife, Olga
Lema, states that his marriage to Lema was void
ab initio. No judicial decree was necessary to
establish its invalidity.
Tolentino vs. Paras
Facts: Serafia Tolentino was the wife of the
deceased, Amado Tolentino. Petitioner requested
the correction of an entry on the death certificate
of the deceased which states that the name of his
surviving spouse was Maria Clemente. Amado
Tolentino married his second wife, Maria
Clemente while his first marriage was still in
effect. When the deceased was charged with
bigamy, he pleaded guilty and served the
corresponding
sentene.
The
petition
was
dismissed by Hon. Edgardo Paras on grounds that
the issue was a marital relationship, and that the
court has no jurisdiction.
Held: The petition was meritorious. The court had
jurisdiction because the wife was, initially,
seeking a judicial declaration that she was the
lawful spouse of the deceased. The plea of guilt
of the deceased effectively established that the
second marriage was in fact, void ab initio and
that the petitioner was the lawful spouse.
Wiegel vs. Sempio-Diy
Lilia Wiegel appealed for the reversal of the
decision of respondent judge, Sempio-Diy
because, in the petition for the declaration of
nullity of marriage filed by Karl Heinz Wiegel
against petitioner, respondent judge ruled against
the presentation of evidence. When petitioner
was married to the plaintiff, she had a previous
existing marriage. Petitioner claimed that the first
marriage was void ab initio because she was
forced into marrying her first husband.
Held: There was no need to present evidence
because if there had been, in fact, intimidation
during the first marriage, the said marriage would
have been rendered voidable and not void. Had
the marriage been void, a judicial declaration
would still be necessary.

Terre vs. Terre

Facts: Petitioner charged Atty Jordan Terre with
gross immoral conduct for contracting a second
marriage while he has a subsisting marriage. The
petitioner alleged that while she was still in her
previous marriage with her first cousin, she was
courted by defendant and was advised that she
was free to contract a second marriage because
her first marriage was void. Petitioner took the
advise and married herein respondent but, after a
few years, the respondent took off. Later the
petitioner found out that respondent had
contracted another marriage.
Held: A judicial declaration is necessary to
determine whether a person is legally free to
contract a second marriage. Without such
declaration, the subsequently existing marriage is
sustained.
Atienza vs. Brillantes
Facts: Complainant charged respondent Judge
Fransisco Brillantes with gross immoral conduct
after having found said respondent sleeping in his
own bed, apparently cohabiting with his wife.
Complainant left his wife and kids. Complainant
alleged that the said judge was, at that time,
married to one Zenaida Ongkiko with whom he
had 5 children. Respondent denied the allegation
saying that his marriage with Ongkiko was void
ab initio because it was solemnized without a
marriage license. Respondent likewise argued
that Article 40 of the family code was not in effect
when his first marriage took place.
Held: Judicial declaration of nullity of a previous
marriage is needed for purposes of remarriage.
The Family Code can be applied retroactively so
long as vested rights will not be impaired by its
application.
Borja-Manzano vs. Sanchez
Facts: Complainant avers that she is the lawful
wife of the late David Manzano. Her husband
contracted another marriage while the first one
was still in effect, solemnized by herein
respondent judge. Respondent contends that he
did not know that the two were only legally
separated and that all he knew was the two had
been cohabiting for seven years. He cited Article
34 which states that no license shall be necessary
for the marriage of a man and a woman who have
lived together as husband and wife for at least 5
years.
Held: The requisite of Article 34 is that there is no
legal impediment between the parties. The said
article is merely a ground for exemption for
marriage license. The judge knew of the
subsisting marriage as it was stated in the
marriage certificate and in the affidavit signed by
the parties.

23

Domingo vs. Court of Appeals

Facts: Delia Soledad Domingo sought the judicial
declaration of nullity of marriage and separation
of property against petitioner Roberto Domingo
on the grounds that the petitioner had a valid and
existing marriage with one Emerlinda dela Paz.
The first wife sued petitioner for bigamy.
Respondent claimed that the petitioner has been
dependent on her and since she left to work in
Saudi, she has amassed some P350,000 worth of
properties which were under the possession and
administration
of
herein
petitioner
until
respondent found out about the first marriage.
Petitioner alleged that there was no cause for
action because the marriage was void ab initio
and judicial declaration of nullity of marriage is
only sought for purposes of remarrying and no
such intention has been expressed.
Held: Although it is stated in the Family Code that
judicial declaration is needed for purposes of
remarrying, it does not expressly state that it is
exclusive for that purpose alone. The Family Code
provides that among the effects of the judicial
declaration is the immediate separation of
property.
Effects of Nullity
FC Article 50: The effects provided for by
paragraphs 2, 3, 4, and 5 of Article 43 and Article
44 shall also apply in the proper cases to
marriages which are declared void ab initio or
annulled by final judgment under Article 40 and
45.
The final judgment in such cases shall provide for
the liquidation, partition and distribution of the
properties of the spouses and the custody and
support of the common children, and the delivery
of the presumptive legitimes, unless such matters
had been adjudicated in previous judicial
proceedings.
All creditors of the spouses as well as of the
absolute community or the conjugal partnership
shall be notified for the proceedings for
liquidation.
In the partition, the conjugal dwelling and the log
on which it is situated shall be adjudicated in
accordance with the provisions of Articles 102
and 129.
FC Article 51: In said partition, the value of the
presumptive legitimes of all common children,
computed as of the date of final judgment of the
trial court, shall be delivered in cash, property or
sound securities, unless the parties, by mutual
agreement judicially approved, had already
provided for such matters.

The children or their guardian or the trustee of

their property may ask for the enforcement of the
judgment.
The delivery of the presumptive legitimes herein
prescribed shall in no way prejudice the ultimate
successional rights of the children accruing upon
the death of either or both of the parents but the
value of the properties already received under
the decree of annulment or absolute nullity shall
be considered as advances on their legitimes.
FC Article 52: The judgment of annulment or of
absolute nullity of the marriage, the partition and
distribution of the properties of the spouses, and
the delivery of the childrens presumptive
legitimes shall be recoded in the appropriate civil
registry and registries of property; otherwise, the
same shall not affect the third persons.
FC Article 53: Either of the former spouses may
marry
again
after
compliance
with
the
requirements of the immediately preceding
Article; otherwise, the subsequent marriage shall
be null and void.
FC Article 54: Children conceived or born before
the judgment of annulment or absolute nullity of
the marriage under Article 36 has become final
and executory shall be consicered legitimate.
Children conceived or born of the subsequent
marriage under Article 53 shall likewise be
legitimate.
Ninal vs. Bayadog
Facts: Petitioners request the annulment of the
marriage of their father to Norma Bayadog. On
September 26, 1974, Pepito married Teodulfa.
Teodulfa died on April 24, 2985 and, on December
11, 1986, Pepito married Norma Bayadog. The
marriage was contracted without a license.
Instead, the couple signed an affidavit stating
that they had been cohabiting as husband and
wife for 5 years. The code in effect during the
time of the marriage was the Civil Code.
According to Article 76 of the said code, marriage
between a man and a woman who have been
living together for more than 5 years no longer
requires a marriage license. Pepito died in
February of 1997.
Held: Marriage of Pepito Ninal Sr. and Norma
Bayadog is null and void. It is evident that only 20
months elapsed between the time of the death of
the first wife and the marriage with the second
wife. Had the two been cohabiting for five years,
such cohabitation, and the marriage, was not
within the capacity of the deceased. The children
do not have standing to cause action but,
because the marriage was null and void, it is
likewise non-existent.

24

- For marriages of exceptional character, there

should be no legal impediment on the part of
either party. The one contracting a marriage
should have legal capacity to do so.

3. That the consent of either party was

obtained by fraud, unless such party
afterwards, with full knowledge of the
facts constituting the fraud, freely
cohabited with the other as husband and
wife;
4. That the consent of either party was
obtained by force, intimidation or undue
influence, unless the same having
disappeared or ceased, such party
thereafter freely cohabited with the other
as husband and wife;
5. That either party was physically incapable
of consummating the marriage with the
other, and such incapacity continues and
appears to be incurable;
6. That either party was afflicted with a
sexually-transmitted disease found to be
serious and appears to be incurable.
Annulment and Legal Separation:
- Annulment
is
caused
by
some
circumstance existing at the time of the
marriage while legal separation arises
after the celebration of the marriage;
- Annulment of marriage terminates the
marital bond between the parties while
legal separation does not;
- Annulment of marriage once final, cannot
be set aside so as to restore the marital
relation while legal separation may be
terminated and marital relations resumed
by the reconciliation of the parties.

Voidable Marriages
Grounds for Annulment
FC Article 45: A marriage may be annulled for
any of the following causes, existing at the time
of the marriage:
1. That the party in whose behalf it is sought
to have marriage annulled was eighteen
years of age or over but below twentyone, and the marriage was solemnized
without the consent of the parents,
guardian or person having substitute
parental authority over the party, in that
order, unless after attaining the age of
twenty-one, such party freely cohabited
with the other and both lived together as
husband and wife;
2. That either party was of unsound mind,
unless such party after coming to reason,
freely cohabited with the other as husband
and wife;

The presumption of the law is generally in

favor of sanity and he who alleges the
insanity of another has the burden of proving
it. Once general insanity is proved to exist, it
is presumed to continue; and if a recovery or
a lucid interval is alleged, the burden to prove
such is on the person making it.
A marriage may be annulled where one of the
parties was so intoxicated he or she had no
mental capacity to give valid assent.
For physical incapacity, impotence or sexually
transmitted disease to be a ground for
annulment the following must concur:
1. That it exists at the time of the celebration
of the marriage;
2. That it continues to the time when the
case for annulment is being tried;
3. That it appears to be incurable,
4. That the other contracting party is aware
of it.
- In impotence, the person cannot have sex. In
sterility, the person cannot procreate.

25

- Impotence is not a ground for declaration of

nullity because the injured spouse may accept
the impotence of his or her spouse.
FC Article 46: The following shall constitute
fraud:
1. Non-disclosure of a previous conviction by
final judgment of the other party of a
crime involving moral turpitude;
2. Concealment by the wife of the fact that
at the time of the marriage, she was
pregnant by a man other than her
husband;
3. Concealment of sexually transmissible
disease, regardless of its nature, existing
at the time of the marriage;
4. Concealment of drug addiction, habitual
alcoholism or homosexuality or lesbianism
existing at the time of the marriage.
No other misrepresentation or deceit as to
character, health, rank, fortune or chastity shall
constitute such fraud as will give grounds for
action for the annulment of marriage.
-A marriage cannot be annulled simply on the
ground that the wife concealed the fact that she
had been lewd and corrupt and had an
illegitimate child prior to the marriage.
FC Article 48: In all cases of annulment or
declaration of absolute nullity of marriage, the
court shall order the prosecution attorney or fiscal
assigned to it to appear on behalf of the State to
take steps to prevent collusion between the
parties and to take care that evidence is not
fabricated or suppressed.
RPC Article 344: The crimes of adultery and
concubinage shall not be prosecuted except upon
a complaint filed by the offended spouse.
The offended party cannot institute criminal
prosecution without including both the guilty
parties, if they are both alive, nor in any case, if
he shall have consented or pardoned the
offenders.
Force- Physical injury, violence, irresistible
intimidation or threat
Undue influence- a person who takes improper
use of his power
-

The person who can ratify is the injured

party;
The injured party can file for annulment
within five years
If the injured party freely cohabited after
the cessation of the ground for annulment
(except in impotence and sexually
transmitted diseases), he is estopped from
annulling the marriage.

RATIFICATION cures the defect of the marriage

and it retroacts to the day of the marriage or
the day of giving consent.
Katipunan vs. Tenorio
Facts: Plaintiff Marcos Katipunan brought action
against Rita Tenorio seeking the annulment of
their marriage. He alleged that the defendant was
not of sound mind at the time they contracted
marriage. According to the guardian of the
defendant, Tenorio only suffered ailment after
giving birth to her 4th child.
Held: The couple cohabited for seven years and
plaintiff admitted that there had been lucid
intervals therefore, the marriage cannot be
annulled. Insanity has to be a permanent
condition. If at the time of the celebration of the
marriage there was nothing wrong with the
mental health of the other spouse, marriage
cannot be annulled.
Aquino vs. Delizo
Facts: Petitioner requests the annulment of her
marriage on the ground of fraud, claiming that his
wife was 4 months pregnant at the time that they
were married and the child was that of another
man. The appellate court dismissed the petition
on the grounds that it was unbelievable that the
petitioner was unable to tell if his wife was
pregnant.
Held: Petition must be granted because
pregnancy is hardly noticeable at five months and
the wife was plump.
Anaya vs. Palaroan
Facts: Defendant Fernando filed an action for
annulment on grounds that his consent to the
marriage was obtained through force and
intimidation. The complaint was dismissed.
Herein petitioner then sought the annulment of
her marriage to Fernando on the grounds of
fraud, saying that her husband concealed the fact
that he had marital relations with another woman
prior to the marriage.
Held: Concealment of premarital relations was
not among the kinds of fraud stated in the Civil
Code (Family Code). The pertinent provision is not
subject to interpretation as it was also expressly
stated that no other misrepresentation or deceit
shall constitute fraud.
Ruiz vs. Atienzs
Acts: Plaintiff requests the annulment of her
marriage on the ground that his consent was
given under duress. His wife, whom he had
premarital relations, bore a child. When the child
was born, the father of his wife allegedly
approached him with a knife and in the company
of a lawyer. The lawyer threatened his entrance
to the bar.

26

Held: Petition cannot be granted because the

petitioner had several chances of escape before
the marriage and because his wife bore his own
child. Where a man marries under threat of or
constrain from lawful prosecution for seduction or
bastardy, he cannot avoid marriage on the
ground of duress. Proof of bodily harm must be
sufficiently shown. Threat to obstruct admission
to the bar does not constitute duress. Only if the
threat is so grave that the person is not acting in
his own freewill that a marriage becomes void.
RELUCTANCE vs. VITIATION
- In reluctance, the person consents to the
marriage but gives it anyway.
- In vitiation, there is an actual, external
force
Jimenez vs. Canizares
Facts: Petitioner filed an action to annul his
marriage to respondent on the ground that the
orifice of the vagina of his wife was too small to
allow penetration. For that reason, petitioner has
left the conjugal abode. The defendant failed to
comply with the order of medical examination
and so, the lower court granted the annulment.
Held: Presumption will always be in favor of
potency. It is understandable that a woman would
refuse to subject herself to physical examination.
The testimony of one party is not sufficient to
annul the marriage because to do so will open the
court to cases of collusion between the spouses
for the annulment of their marriage.
Sarao vs. Guevara
Facts: On the day of the marriage of the plaintiff
and the defendant, the marriage was not
consummated because the defendant complained
of pains. The defendant was operated on and her
uterus and ovaries were surgically removed. The
removal rendered the defendant incapable of
procreation as such, plaintiff wants his marriage
with the respondent annulled.
Held: Impotency is not inability to procreate but
inability to copulate. Inability to copulate cannot
be a ground for annulment and a temporary or
occasional incapacity cannot be used as a ground
to nullify a marriage.
People vs. Santiago
Suntay vs. Cojuangc-Suntay
Facts: Petitioner opposed the petition filed by
respondent for the issuance of letters of
administration (of the estate of her paternal
grandmother) in her favor on the grounds that he
was the surviving spouse of the deceased, and
that the petitioner and the deceased have been
alienated from the family of the respondent. He
likewise alleged that respondent was not a

legitimate child because the marriage of her

parents, Emilio Aguinaldo Suntan (son of
petitioner) and Isabenl Cojuangco-Suntay was
declared null and void because Emilio was found
to be schizophrenic at the time of his marriage.
Held: A child born out of a voidable marriage
before the decree of annulment is considered a
legitimate child.
-

Void marriages are deemed never to have

taken place at all but the children born of
that marriage who are called natural
children by legal fiction have the same
status,
rights
and
obligations
as
acknowledged children.
Voidable marriages are considered valid
and produces all it civil effects until it is
set aside by final judgment of a competent
court in an action for annulment. The
annulment fo the marriage dissolves the
special contract but the effects of the
marriage will not be wiped out completely.
Children born of voidable marriages shall
be considered legitimate.
To annul means to reduce to nothing. Null
and void means something does not exist
from the beginning.

Marriage when one spouse is absent

CC Article 83: A marriage subsequently
contracted by any person during the lifetime of
the first spouse of such person with any person
other than such first spouse shall be illegal and
void from its performance unless:
1. The first marriage was annulled or
dissolved;
2. The first spouse had been absent for
seven consecutive years at the time of the
second marriage without the spouse
present having news of the absentee
being alive, or if the absentee though he
has been absent for less than seven years,
is generally considered as dead and
believed to be so by the spouse present at
the time of contracting such subsequent
marriage, or if the absentee is presumed
dead according to articles 390 and 391.
The marriage so contracted shall be valid
in any of the three cases until declared
null and void by a competent court.
CC Article 85: A marriage may be annulled for
any of the following causes, existing at the time
of the marriage:
(2) In a subsequent marriage under article 83,
number 2, that the former husband or wife is
believed to be dead was in fact living and the
marriage with such former husband or wife was
then still in force.

27

Jones vs. Hortiguela

Facts: Petitioner requests that she be declared
the sole heir of the intestate estate of Marciana
Escano, her mother. Prior to the motion, at the
time when petitioner was still a minor,
respondent was awarded a fixed rate of P10,000
for the administration of the estate of the
deceased. Petitioner alleged that when her
mother remarried in May 1927, the judicial
declaration of the absence of her father was not
yet effective. As such, the marriage of the
deceased and the respondent was null and void.
Held: Petition denied. Absence of one spouse
shall be counted from the last day of
communication or from the reception of the last
news regarding the absent spouse. In this case,
the first spouse was absent for 9 years.
Effects of pending action or decree
FC Article 49: During the pendency of the action
and in the absence of adequate provisions in a
written agreement between the spouses, the
Court shall provide for the support of the spouses
and the custody and support of their common
children. The Court shall give paramount
consideration to the moral and material welfare
of said children and their choice of parent with
whom they wish to remain as provided for in Title
IX. It shall also provide for appropriate visitation
rights for the other parent.
FC Article 50: The effects provided for by
paragraphs (2), (3), (4), (5) of the Article 43 and
by Article 44 shall also apply in the proper cases
to marriages which are declared void ab initio or
annulled by final judgment under Articles 40 and
45.
The final judgment in such cases shall provide for
the liquidation, partition and distribution of the
properties of the spouses, the custody and
support of the common children and the delivery
of their presumptive legitimes unless such
matters had been adjudicated in previous judicial
proceedings.
All creditors of the spouses as well as of the
absolute community or the conjugal partnership
shall be notified of the proceedings for
liquidation.
In the partition, the conjugal dwelling and the lot
on which it is situated shall be adjudicated in
accordance with Articles 102 and 129.
FC Article 51: In said partition, the value of the
presumptive legitimes of all common children,
computed as of the date of the final judgment of
the trial court shall be delivered in cash, property
or sound securities, unless the parties, by mutual
agreement judicially approved, had already
provided for such matters.

The children or their guardian or the trustee of

their property may ask for the enforcement of the
judgment.
The delivery of the presumptive legitimes herein
prescribed shall in no way prejudice the ultimate
successional rights of the children accruing upon
the death of either or both of the parents; but the
value of the properties already received under
the decree of annulment or absolute nullity shall
be considered as advances on their legitimes.
FC Article 52: The judgment of annulment or of
absolute nullity of the marriage, the partition and
distribution of the properties of the spouses, and
the delivery of the childrens presumptive
legitimes shall be recorded in the appropriate civil
registry and registries of property; otherwise, the
same shall not affect third persons.
FC Article 53: Either of the former spouses may
marry
again
after
compliance
with
the
requirements. Subsequent marriage shall be null
and void.
FC Article 54: Children conceived or born before
the judgment of annulment or absolute nullity of
the marriage under Article 36 has become final
and executory shall be considered legitimate.
Children conceived or born of the subsequent
marriage under Article 53 shall likewise be
legitimate.
CC Article 371: In case of annulment of
marriage, and the wife is the guilty party, she
shall resume her maiden name and surname. If
she is the innocent spouse, she may resume her
maiden name and surname. However, she may
continue employing her former husbands
surname, unless:
1. The court decrees otherwise;
2. She or the former husband is married
again to another person.
CC Article 369: Children conceived before the
decree annulling a voidable marriage shall
principally use the surname of the father.
Jurisdiction
Estrellita J. Tamano vs. Hon. Rodolfo Ortiz
Facts: Petitioner assailed the decision of a lower
court which rejected the motion to dismiss she
filed against the motion for declaration of nullity
filed by private respondent. Private respondent
alleged that the marriage of the Petitioner to her
husband must be declared null and void on the
ground of bigamy. At the time of the marriage of
petitioner and her deceased husband, private
respondent was still also married with him.
Petitioner contended that the Regional Trial Court

28

had no jurisdiction because both the petitioner

and the deceased were Muslims.
Held: Under the Judiciary Reorganization Act of
1980, Regional Trial Courts have jurisdiction over
all actions involving the contract of marriage and
marital relations. In this case, both the petitioner
and the deceased were married through a civil
wedding and whether or not they were likewise
married in a Muslim wedding, sharia courts are
still not vested with original and exclusive
jurisdiction over marriages married under civil
and Muslim laws.

2. Physical violence or moral pressure to

compel the petitioner to change religious
or political affiliation;
3. Attempt of respondent to corrupt or
induce petitioner, a common child, or a
child of the petitioner to engage in
prostitution, or connivance in such
corruption or inducement;
4. Final judgment sentencing the respondent
to imprisonment of more than six years,
even if pardoned;
5. Drug addiction or habitual alcoholism of
the respondent;
6. Lesbianism or homosexuality of the
respondent;
7. Contracting of respondent of a subsequent
bigamous marriage, whether in the
Philippines or abroad;
8. Sexual infidelity or perversion;
9. Attempt of the respondent on the life of
the petitioner;
10. Abandonment of petitioner by respondent
without justifiable cause for more than one
year.
For purposes of this Article, the term child
shall include a child by nature or by adoption.
Violence- must be of a serious degree but
does not have to amount to an attempt
against the life of the defendant
The violence must be repeated, to
the extent that common life with
defendant
becomes
extremely
difficult for the plaintiff.
-

Physical violence or moral pressure

to compel the plaintiff to change
religious or political affiliation need
not be repeated. There must be
some element of coercion present,
whether physical or moral.

The guilt for the corruption or

inducement to prostitution must be
on only one spouse.

The crime for which a spouse may

have been convicted may have no
bearing at all on the relationship of
the husband and wife.

If
drug
addiction,
habitual
alcoholism,
lesbianism
or
homosexuality existed at the time of
marriage but were unknown to the
other party, they would constitute a
ground for annulment of marriage as
fraud. If they come to exist after the
celebration of the marriage, they
become grounds for legal separation.

LEGAL SEPARATION
Grounds
FC Article 55: A petition for legal separation
may be filed on any of the following grounds:
1. Repeated physical violence or grossly
abusive conduct directed against the
petitioner, a common child, or a child of
the petitioner;

29

Every subsequent marriage, where

there is a subsisting prior marriage,
should give the other spouse the
right to ask for legal separation. This
is so because the spouse who has
remarried
has
cohabited
with
another person.

Under the Family Code, every act of

sexual infidelity by either husband or
wife is a ground for legal separation.

Sexual perversion as a ground for

legal separation includes all unusual
or abnormal sexual practices which
may be offensive to the feelings or
sense of decency of either husband
or wife. There must also be an
element of coercion exercised by the
defendant to make the plaintiff
submit to the act.

There is abandonment when one

spouse leaves the other without
intent to return.

Attempt on the life must imply that

there is intent to kill

Under Article 101 of the Family Code,

the spouse who has left the
conjugal dwelling for a period of
three months or has failed within the
same period to give any information
as to his or her whereabouts, shall be
prima facie presumed to have no
intention of returning to the conjugal
dwelling.

CC Article 97: A petition for legal separation

may be filed:
1. For adultery on the part of the wife and for
concubinage on the part of the husband as
defined in the Penal Code; or
2. An attempt by one spouse against the life
of the other.
Adultery- The act of a wife having sexual
intercourse with any other man not her husband
will constitute adultery.
Concubinage- The act of the husband having
sexual intercourse with his wife shall constitute
concubinage if:
1. He maintains a mistress in the conjugal
dwelling;
2. there is sexual intercourse with the other
woman under scandalous circumstances;

3. the husband cohabits with another woman

other than his wife in any other place.
Cohabit- to dwell or live together in the same
house as husband and wife.
Legal Separation vs. Separation of Property
In legal separation, there is a
suspension of the common marital
life, both as to person and property.
In separation of property, only the
property relation is affected and the
spouses
may
continue
living
together.
Separation of property can be
effected by agreement of the
spouses, subject to judicial approval;
but a decree of legal separation
cannot be rendered upon agreement
of the parties.
Legal Separation vs. Separation of Spouses
Legal separation can be effected only
by decree of the court; but the
spouses may be separated in fact
without any judgment of the court.
People vs. Zapata and Bondoc
Facts: Petitioner husband Andres Bondoc filed a
complaint of adultery against his wife, Guadalupe
Zapata and her paramour, Dalmacio Bondoc. The
two respondents cohabited and had repeated
sexual intercourse from 1946 to March 1947. The
defendant wife entered a plea of guilty and was
sentenced to suffer four months in prison.
Respondent Dalmacio Bondoc on the other hand,
claimed that he did not know that Guadalupe
Zapata was married. On September 1948,
petitioner once again filed a complaint of adultery
for acts committed from March 1947 to
September 1948. Defendant then filed a motion
to quash on the ground that they will be twice put
in jeopardy. The motion was granted by the lower
court on the ground that adulterous acts must be
considered as a continuing offense.
Held: The court held that adultery as a crime of
result and not of tendency, is consummated at
the moment of carnal union. Continuous crimes
exist if there is a plurality of acts performed
separately during a period of rime, unity of penal
provisions violated and unity of criminal intent or
purpose. In short, continuous crimes are aimed at
committing a single offense. In adultery, each
instance of sexual intercourse is a separate
crime. Also, the court held that there is no legal
provision which bars the filing of as many
complaints for adultery as there were adulterous
acts committed.
Munoz vs. Del Barrio

30

Facts: Felicidad Munoz and Jose del Barrio

quarreled frequently and on those occasions,
petitioner
complained
that
the
husband
maltreated her. In 1947, they separated but on
December 1950 and September 1951, the
husband once again maltreated petitioner,
prompting her to institute an action for legal
separation on the ground of attempt to life.
Petitioner requested that she be given custody of
her children, that whatever will remain of the
conjugal property be divided, and the conjugal
partnership be dissolved.
Held: The Supreme Court affirmed the decision of
the lower court. It held that the alleged
maltreatment cannot constitute an attempt to life
because such has to be characterized by intent to
kill which was not sufficiently proven especially
since the respondent only used his bare hands.
Intent to kill, the court said, must be established
with clear and convincing evidence.
Gandionco vs. Penaranda
Facts: Respondent judge Hon. Senen C.
Penaranda ordered petitioner to pay for the
support of private respondent Teresita Gandionco
and his child. Private respondent filed a complaint
for legal separation against petitioner on the
ground of concubinage. Private respondent
likewise requested for support and payment of
damages. Petitioner Froilan Gandionco claims that
the civil action for legal separation and the
application for support should be suspended
because of the pending criminal case for
concubinage filed against him. His contention was
based on Article 111 Section 3 of the 1985 Rules
on Criminal Procedure which states that a
pending civil action instituted for civil liabilities
should be suspended until the criminal action
arising from the same offense is over.
Held: The court held that a civil action for legal
separation
may
proceed
ahead
of
or
simultaneously with a criminal action for
concubinage because the said civil action is not
one to enforce civil liability but rather to obtain
the right to live separately. Petitioners argument
that conviction for concubinage must be secured
before an action on legal separation can prosper
lacks merit because unlike in criminal procedures,
proof of concubinage in a civil procedure is based
on preponderance of evidence and not proof
beyond reasonable doubt.
US vs. McMann
Facts: Defendant Robert McMann and one McKay
were
employed
at
the
Quartermasters
Department of the Army. While at the place of a
certain Moro, Amay Pindolonan asking for
matches to light a cigarette, McMann suddenly
fired at McKay. McKay was struck in the back of
the head and killed instantly. Amay Pindolonan

tried to run but McMann also shot him. Defendant

claimed that he had no intention to shoot McKay
as they were good friends and that the shooting
was merely an accident. The defendant also
claimed that he was drunk at the time of the
incident.
Held: To convict a man of the offense being a
common drunkard it is necessary to show that he
is a habitual drunkard to the point that he has a
fixed habit of drunkenness.
Lapus Sy vs. Sy Uy
Facts:A case for legal separation was filed by
Carmel Lapuz Sy against Eufemio Sy Uy on the
ground of abandonment. She prayed for the
issuance of a decree of legal separation and that
her partner be deprived of their conjugal
partnership profits. Petitioner also claimed that
respondent was cohabiting with a certain Go
Hiok. Respondent then filed a counter-dlaim for
the declaration of nullity ab initio of his marriage
with petitioner on the ground that he had a
subsisting marriage with Go Hiok. During the
course of the trial, petitioner died and her father,
Macario Lapuz, moved to substitute. Eufemio
moved to dismiss the substitution because the
death of the petitioner should, as he alleged,
abate the action for legal separation.
Held: The death of one of the parties to the action
abates the action itself because action for legal
separation is purely personal hence, when one of
the parties is dead, there is no longer a need for
the decree. Conjugal property are likewise not
assignable or transmissible therefore, it doesn not
warrant a continuation of the action through
substitution.
Dela Cruz vs. Dela Cruz
Facts: Estrella dela Cruz filed a complaint against
her husband alleging that the latter has
abandoned their family and has not slept or
visited the conjugal dwelling since 1955; that
defendant was mismanaging their conjugal
partnership properties and as such has abused
his powers of administration and that defendant
had a concubine named Nenita Hernandez.
Petitioner then asked for the separation of their
property, a monthly support of P2,500 during the
pendency of the action and payment of P20,000
in attorneys fees.
Defendant contended that he did not abandon his
family and has not failed to give them a monthly
allowance of around P1,500. He stated that he is
merely separated from his wife because he
cannot concentrate on their business but he
never failed to visit his family. Petitioner allegedly
played
mahjong
often
while
respondent
consistently applied his industry so that their
business will grow.

31

Held: The court held that abandonment must be

real abandonment and not mere separation. It
must not only be physical estrangement.
Abandon in ordinary sense means to forsake
completely with intent never again to resume or
claim ones rights or interests. There must
therefore be absolute cessation of marital
relations, duties and rights with the intention of
perpetual separation.
Defenses
FC Article 56: The petition for legal separation
shall be denied on any of the following grounds:
1. Where the aggrieved party has condoned
the offense or act complained of;
2. Where the aggrieved party has consented
to the commission of the offense or act
complained of;
3. Where there is connivance between the
parties in the commission of the offense or
act constituting the ground for legal
separation;
4. Where both parties have given ground for
legal separation;
5. Where there is collusion between the
parties to obtain the decree of legal
separation; or
6. Where the action is barred by prescription.
-

Condonation is the forgiveness of a

marital offense constituting a ground
for legal separation, and bars the
right to legal separation. It may be
expressed, in the sense that it is in
writing or implied as inferred from
the action of the injured party.
Where a party has clear and
convincing knowledge of the offense
and then deliberately and willfully
cohabits or has sexual intercourse
with the offender, he or she thereby
impliedly pardoned the offenders
act.
Consent is agreement or conformity
in advance of the commission of the
act which would be a ground for legal
separation.
Connivance
implies
agreement,
express or implied, by both spouses.
A husband who actively connives in
the adultery of his wife by procuring
her to be lured into the commission
of the act will very generally be
presumed to have consented to the
adultery and will be denied legal
separation on that ground.
A husband must not actively
participate in preparations for the

suspected misconduct by providing

opportunity for the wrongdoing.
Collusion is the agreement between
husband and wife for one of them to
commit or to appear to commit or
presented in court as having
committed, a matrimonial offense, or
to suppress evidence of a valid
defense, for the purpose of enabling
the other to obtain legal separation.

People vs. Sensano and Ramos

Facts: After the birth of the first child of
complainant Mariano Ventura and respondent
Ursula Sensano, complainant left for Cagayan de
Oro. Complainant did not write, call or send
anything in form of support for three years.
Respondent then cohabited with Marcelo Ramos
with the belief that her husband will not return
again. Complainant returned and filed a
complaint of adultery against respondents. The
court held in favor of the plaintiff but opined that
the plaintiff treated his family with cruelty in
abandoning them. After sentence, accused wife
left her paramour and begged for the forgiveness
of plaintiff but she was turned away. She then
went back to Marcelo Ramos. Plaintiff then left for
Hawaii and upon his return after seven years, he
once again filed a charge of adultery.
Held: The court held that under Article 34 of the
RPC, the offended party cannot file a complaint of
adultery if he consented to it. The court was of
the belief that complainants action of turning
away the defendant constituted a consent and as
such he estopped from filing a case.
-Constructive Abandonment- The injured party
leaves the wife or the spouse refuses the re-entry
of the offending spouse.
De Ocampo vs. Florenciano
Facts: Petitioner Jose de Ocampo filed a complaint
of adultery against his wife but was denied by the
Court of First Instance. Through several
testimonies, it was found that in March 1951,
defendant maintained illicit relations with one
Jose Arcalas. After plaintiff found out, defendant
was sent to Manila to study wherein she had
several illicit relations with other men. On June
1955, plaintiff found his wife in the act of sexual
intercourse with one Nelson Orzame. Plaintiff
then and there told his wife of his intention of
filing for legal separation. The Court of Appeals
held that the time for filing a charge of adultery
on the first case had prescribed. Also, on the
second case, CA held that they cannot render a
decree of separation on the ground of confession
of judgment.
Held: The court held that the confession of
judgment--which happens when a defendant

32

confesses in court the right of plaintiff to his

demand, did not occur because such confession
happened outside of court. Had there been a
confession of judgment, the decree should still be
granted since there was a preponderance of
evidence as provided by the plaintiff. If the court
will not allow separation despite of the evidence,
any defendant who opposes separation will
merely confess in court.
Sargent vs. Sargent
Facts: Petitioner Donald Sargent charged his wife,
respondent Frances L. Sargent with adultery
alleging that defendant wife had illicit relations
with Charles Simmons, a black man and the
couples driver. Petitioner alleged that defendant
wife contracted gonorrhea from the illicit
relations. Petitioner then hired detectives to
prove the said illicit relations, and said detectives
testified along with other servants, all of whom
were employed by petitioner. The detectives in
one instance shut the door of the room of
respondent wife while respondent Charles
Simmons was inside to make it appear as though
they were having illicit relations.
Held: The court held in favor of the defendant.
The detectives surveilled Mrs. Sargent for over
seven weeks but no solid evidence of the alleged
adultery was procured. Mr. Sargent also appeared
to have connived with the detectives to show that
his wife was indeed having sexual relations.
Where the husband employs detectives to get
evidence of his wifes adultery, but the adultery is
brought about by the detective himself, legal
separation can be denied on the ground of
connivance.
Brown vs. Yambao
Facts: William H. Brown filed an action to obtain
legal separation against his wife, Juanita Yambao.
He found out that his wife has adulterous
relations with one Carlos Feld at the time when
petitioner was interred by the Japanese invaders.
He discovered the said relation when in 1945, his
wife begot a child. A document was executed for
the liquidation of their conjugal partnership
property and as such, complainant wants
confirmation of liquidation, custody of children
and the disqualification of defendant from
succession. In the cross examination of petitioner
it was found that he was also cohabiting with
another woman and had a child with that woman.
Held: The court held that the misconduct of
petitioner barred him from obtaining legal
separation and in this case, the misconduct and
failure of the wife to institute action against
petitioners misconduct constituted circumstantial
evidence of collusion.
Willan vs. Willan

Facts: Husband appeals the decision by court to

deny his petition for the dissolution of his
marriage on the ground that he condoned the
cruelty of his wife. Petitioner alleged that his wife
repeatedly assaulted him, was habitually
offensive and frequently demanded to have
sexual
intercourse
with
him.
Respondent
allegedly resorted to violence and pestering,
forcing complainant to agree to sexual
intercourse. Solicitors have allegedly written the
wife regarding the matter but to no avail. The
night before leaving the conjugal dwelling,
petitioner and respondent once again had sexual
intercourse.
Held: The court held in favor of the defendant as
they found it impossible that a man may have
sexual relations and not condone the said
relations. Unwillingness, the court said, is not the
same as involuntariness.
Bugayong vs. Ginez
Facts: After their marriage, petitioner Benjamin
Bugayong and Defendant Leonila Ginez agreed
that defendant would stay with petitioners
sisters while petitioner worked in the United
States as a serviceman. For some time,
defendant lived with petitioners sisters but she
eventually left to live with her mother and then
moved to Dagupan to study. Petitioner received
letters from his sister-in-law that defendant was
having adulterous relations and petitioner alleged
that defendant herself wrote him that she was
kissed by another man. When petitioner returned,
they lived together for two nights and one day.
On the second day, when petitioner asked the
defendant if there was any truth to the
allegations of adultery, defendant did not answer
but instead, left. The petition was dismissed by
the lower court on the ground that petitioner had
condoned the said illicit relations of his wife.
Held: The petitioner, having slept with the
defendant for two nights, has condoned the
adulterous relations. Any cohabitation with the
guilty party, after the commission of the offense,
and with knowledge or belief is considered
conclusive evidence of condonation.
Matubis vs. Praxedes
Facts: Soccoro Matubis filed a complaint for legal
separation alleging that Zoilo Praxedes had
abandoned her and was guilty of concubinage.
According to her testimony, barely a year after
their marriage, plaintiff and defendant agreed to
live separately after failing to agree on where
they should live as husband and wife. They
entered into an agreement which stipulated the
conditions and provisions for their de facto
separation. In 1955, defendant began cohabiting
with another woman and had another child by
her.

33

Held: The time for instituting action has

prescribed. The stipulations in the agreement
which stated that both spouses relinquished their
rights as husband and wife, and was free to get
any mate and live with him or her as husband
and wife, constituted consent and condonation.
When to File/ Try Actions
FC Article 57: An action for legal separation
shall be filed within five years from the time of
the occurrence of the cause.
FC Article 58: An action for legal separation
shall in no case be tried before six months shall
have elapsed since the filing of the petition.
- If the ground for legal separation is violence
against women, there should be no effort to
compromise.
FC Article 59: No legal separation may be
decreed unless the Court has taken steps towards
the reconciliation of the spouses and is fully
satisfied, despite such effort, that reconciliation is
highly improbable.
FC Article 60: No decree of legal separation
shall be based upon a stipulation of facts or a
confession of judgment. In any case, the Court
shall order the prosecuting attorney or fiscal
assigned to take steps to prevent collusion
between the parties and to take care that the
evidence is not fabricated or suppressed.
Contreras vs. Macaraig
Facts: Elena Contreras appealed the decision of
the Juvenile and Domestic Relations court of
Manila which dismissed her complaint of adultery
against Cesar J. Macaraig on the ground that the
time for filing an action has prescribed. In 1961,
defendant met Lily Ann Alacala and had started
to come home late and be away often. In
September 1962, Avelino Lubos, the family driver,
told Elena that her husband was living with
Alcala. When defendant came home in October,
plaintiff did not verify the report so that
defendant will not get angry. In April 1963,
plaintiff once again heard rumors of the alleged
misconduct of her husband. It was only upon
hearing reports that Lily Ann Alcala had given
birth did plaintiff sent Mrs. Felicisima Antioquo to
investigate. The latter confirmed on October 1963
that a child had been born by Alcala, bearing the
surname of defendant. Plaintiff, through her
father and sister-in-law, tried to convince the
defendant to come back but defendant told her
that he can no longer leave Lily Ann. The lower
court held that the word cognizant does not
connote the date when proof was sufficient
because the time indicated by the code would

have been rendered meaningless as all one would

need to do is fix the date.
Held: The court held that plaintiff had reason not
to file an action because she had hoped that
defendant would return. The only time that
defendant therefore that plaintiff became
cognizant of the alleged infidelity of the
defendant was when the husband stated that he
was living with, and no longer be leaving, Lily Ann
Alcala.
Somosa Ramos vs. Vamenta Jr. and
Clemente Ramos
Facts: Petitioner Lucy Somosa Ramos filed a civil
case for legal separation against Clemente
Ramos on the ground of concubinage and
attempt to life. She also sought the issuance of a
writ of preliminary mandatory injunction for the
return of her paraphernal and exclusive property
then in the administration of the defendant. An
opposition to the hearing of the motion was filed
based on Article 103 of the Civil Code which
states that an action for legal separation shall not
be tried before six months had elapsed since the
filing of the petition. Respondent judge held in
favor of the defendant who claimed that any
prospect for reconciliation will be lost if the
motion was tried.
Held: The court held that Art. 103 of the Civil
Code is not an absolute bar to the hearing of a
motion for preliminary injunction prior to the
expiration of the six-month period. Art. 104 states
that the court may appoint another person to
manage the property should it deem it proper.
The six-month bar should not have the effect of
overriding the provisions such as determination of
the custody of the children, alimony and support
pendent lite.
Effects of Filing a Petition
FC Article 61: After the filing of the petition for
legal separation, the spouses shall be entitled to
live separately from each other.
The court, in the absence of a written
agreement between the spouses, shall designate
either of them or a third person to administer the
absolute community or conjugal partnership
property. The administrator appointed by the
court shall have the same powers and duties as
those of guardian under the Rules of Court.
FC Article 62: During the pendency of the action
for legal separation, the provisions of Article 49
shall likewise apply to the support of the spouse
and the custody and support of the common
children.
-

The spouses can live separately from

each other;

34

The administration of the common

property,
whether
in
absolute
community or conjugal partnership
gains, shall be given by the court to
either of the spouses or to a third
person, as is best for the interest of
the community;
The court shall provide for the
support between the spouses and
the custody and support of the
common children;
When the consent of one spouse to
any transaction of the other is
required by law, judicial authorization
shall be necessary unless such
spouse voluntarily gives consent.

Alimony pendent elite- During the pendency of

the suit for legal separation, it is the duty of the
court to grant alimony to the wife and to make
provisions for the support of the children not in
the possession of the father.
An action for legal separation is
based on the assumption that there
is a valid, subsisting marriage thus, if
defendant
contends
that
the
marriage is not valid, alimony
pendente elite shal be denied.
Custody of the children may be determined by:
1. Agreement of the spouses which shall not
be disturbed unless prejudicial to the
children;
2. Court order which shall be based on the
sound discretion of the judge, taking into
account the welfare of the children.
Dela Vina vs. Villa Real
Facts: Respondent Narcisa Geopano filed a
complaint against Diego delaVina alleging that he
committed acts of adultery with one Ana Calog.
Respondent likewise alleged that she had been
rejected from their conjugal home and had no
means of support. She requested for the decree
of divorce, partition of conjugal property and
alimony. After filing the complaint, respondent
also found that petitioner was trying to alienate
the conjugal property to the prejudice of the
plaintiff. Thus, plaintiff asked that a preliminary
injunction be issued against defendant. The lower
court ruled in favor of plaintiff-respondent as
such, herein petitioner contended that the court
had no jurisdiction over the case because the
domicile residence of the wife was not Iloilo and
that as administrator of the conjugal property, he
had a right to alienate his wife.
Held: The court held that a wife may acquire
another and separate domicile from that of her
husband when the theoretical unity of husband
and wife is dissolved or if husband has given

cause for divorce or where there is separation of

the parties by agreement or a permanent
separation due to desertion or cruel treatment or
where there has been a forfeiture of the benefit of
domicile. Also, petitioners claim that he had a
right to alienate responded lacked merit. Court
held that when the harmonious relationship
between husband and wife ceases, it is but right
that the husbands powers of administration be
curtailed in light of the pendency of the action for
separation.
Reyes vs. Ines-Luciano and Reyes
Facts: Celia Ilustre Reyes filed a complaint for
legals separation against her husband, Manuel J.
C. Reyes on the ground that the latter had
attempted to kill the plaintiff. Plaintiff and herein
respondent asked for support pendent elite for
her and her three children which was granted by
the lower court and respondent judge awarded
plaintiff with P5,000 in monthly support.
Petitioner opposed the ruling of the lower court
on the ground that his wife committed adultery.
Held: The court held that while adultery is a good
defense, it should be established by competent
evidence. In the case at hand, petitioner did not
present evidence to that effect. Also, the plaintiffrespondent was not asking for mere support but
for her share of the conjugal property or alimony.
Complainant has also proven the grounds of legal
separation through competent evidence.
Property relations of unmarried couples is that of
co-ownership based on actual contribution and
not the presumed half and half as it is in conjugal
partnership.
Pendente Lite: Pending Litigation
Effects of Decree
Banez vs. Banez
Facts: On Sept. 23, 1996, Aida P. Banez was
legally separated from Gabriel Banez on the
ground of the latters sexual infidelity. Included in
the decision is the dissolution of their conjugal
property relations, division of their net conjugal
assets, forfeiture of respondents share in favor of
the common children and the urgent ex parte
motion to modify the decision and oblige
petitioner to pay as attorneys fees 5% of the
total value of respondents ideal share. On the
motion for execution, respondent Gabriel
opposed. Trial court denied Aidas motion for
moral and exemplary damages and litigation fees
but granted the motion for execution. Petitioner
was thereby ordered to post a P1.5 M bond which
she did. The Court of Appeals set aside the writ
for execution.
Held: The court denied the motion of execution n
the ground that execution pending appeal is

35

allowed when superior circumstances demanding

urgency outweigh the damages that may result
from the issuance of the writ. Otherwise, the writ
will be a tool for oppression and inequity. Such
urgency is not manifested by the case at bar.
Legal separation is not one where multiple
appeals are allowed. The issues involved in the
case are of the same marital relationship
between the parties. In this case, dissolution is a
mere incident of legal separation. As such, no
separate action may be taken.
FC Article 63: The decree of legal separation
shall have the following effects:
1. The spouses shall be entitled to live
separately from each other, but the
marriage bonds shall not be severed;
2. The absolute community or the conjugal
partnership shall be dissolved and
liquidated but the offending spouse shall
have no right to any share of the net
profits earned by the absolute community
or the conjugal partnership which shall be
forfeited in accordance with the provisions
of Article 43(2);
3. The custody of the minor children shall be
awarded to the innocent spouse, subject
to the provisions of Article 213 of this
code; and
4. The offending spouse shall be disqualified
from inheriting from the innocent spouse
by
intestate
succession.
Moreover,
provisions in favor of the offending spouse
made in the will of the innocent spouse
shall be revoked by operation of law.
-

The obligation of mutual fidelity remains.

The only sanction in case of adultery or
concubinage shall be penal.
After the decree, the obligation of mutual
support between the spouses ceases;
however the court may order that the
guilty spouse shall give support to the
innocent spouse.
A parent shall still have a right to access
his child under court regulation, unless he
forfeited the privilege or if it would
injuriously affect the child.
The guilty spouse shall not be entitled to
the legitime.
A decree of separation which does not
include an order of division of properties is
not an incomplete judgment. The rules on
dissolution and liquidation of property
regime shall be applied when the decree
of legal separation becomes final.

FC Article 64: After the finality of the decree of

legal separation, the innocent spouse may revoke
the donations made by him or by her in favor of

the offending spouse, as well as the designation

of the latter as beneficiary in any insurance
policy, even if such designation be stipulated as
irrevocable. The revocation of the donations shall
be recorded in the registries of property in the
places where the properties are located.
Alienations, liens and encumbrances registered in
good faith before the recording of the complaint
for revocation in the registries of property shall
be respected. The revocation of or change in the
designation of the insurance beneficiary shall
take effect upon written notification thereof to the
insured.
The action to revoke the donation under this
Article must be brought within five years from the
time the decree of legal separation has become
final.
-

The donations subsist if action is not taken

before the death of the spouse.

PD 612 (Insurance Code) Sec. 11: The insured

shall have the right to change the beneficiary he
designated in the policy, unless he has expressly
waived this right in said policy.
Dissolution and Liquidation of ACP or CPG
La Rue vs. La Rue
Facts: Upon the divorce of Walter F. La Rue from
Betty J. La Rue in March 1980, the trial court held
that the wife, having been a homemaker, was not
entitled to her claim to the equitable distribution
of marital assets. Petitioner Betty La Rue worked
in the early part of their marriage until Mr. La
Rue, herein respondent, convinced her to stop
working and become a homemaker. The couple
had two children. The divorce only awarded Mrs.
La Rue with alimony and allowance for
healthcare. Their home which was once under the
name of Mrs. La Rue was transferred under Mr. La
Rue prior to the decree of divorce.
Held: Where the spouse has foregone career
opportunities at the behest of the primary wage
earning spouse, and throughout the long
marriage has remained in the home to rear
children and provide suitable environment for the
family, the homemaker spouse shall have an
equitable interest in real property acquired by the
wage earning spouse during their marriage.
Doctrine of Equitable Distribution
- Permits a spouse who has made material
economic
contributions
toward
the
acquisition of property which is titled in
the name or under the control of the other
spouse, to claim an equitable interest in
such property in proceeding to seek a
divorce.

36

The concept of homemaker services is not

to be measured by some mechanical
formula but instead rests on showing that
the homemaker has contributed to the
economic well-being of the family unit.

Custody

Determining the Best Interest of the

Child:

1. Gender and Tender Years Presumption:

When dealing with children of tender
years, the natural mother is presumed in
absence of evidence to the contrary, to be
the proper person vested with custody of
such children.
PD 603 Article XVII: In case of separation of
his parents, no child under five years of age shall
be separated from his mother unless the court
finds compelling reasons to do so.
Ex Parte Devine
Facts: Petitioner Christopher P. Devine and
respondent Alice Beth Clark Devine were
separated on March 29, 1979. The couple had
two children considered to be of tender years
based on the Tender Years Presumption. Both Mrs.
Devine and Mr. Devine were found to be fit to
care for the children but on account of the Tender
Years Presumption, custody was awarded to
respondent. Petitioner contended that the Tender
Years Presumption deprived him of the
constitutionally
mandated
right
of
equal
protection of the law.
Held: Petition is granted. Case remanded to the
lower court.
In common law, the Tender Years Presumption
was in favor of the husband who was the master
of the family. While Alabama recognize the
factual presumption that mothers are inherently
suitable to care for and nurture young children,
the presumption is weakening in other states.
With this presumption, it becomes the fathers
burden to prove that the mother is unfit to care
for their common child. The constitutionality of
this presumption, the court held, may not be
lawfully mandated solely on the basis of sex.
Cervantes vs. Fajardo
Fact: This is a petition for a writ of habeas corpus
of minor Angeline Anne C. Cervantes filed by
Nelson L. Cervantes and Zenaida C. Cervantes
against Gina Carreon Fajardo and Conrado
Fajardo. After the birth of Angeline Anne,
respondents offered the child for adoption to
Zenaida, Ginas sister, and Nelson, her brother-inlaw. The petitioners have taken care of the child
since she was two weeks old and an Affidavit of

Consent to Adoption was executed. On Aug. 20,

1987, the petition for adoption was granted and
the childs surname was changed to Fajardo. She
was, from that decision, freed from parental
authority and legal obligation of her natural
parents. On April 1987, petitioners received a
letter from respondents demanding P150,000 for
the return of their adopted child who was taken
by respondent Gina Carreon.
Held: The court reaffirmed the decision of the
lower court. The provision that no mother shall be
separated from a child under five years of age
will not apply where the court finds compelling
reasons to rule otherwise. Because the adoptive
parents are legally married and the respondents
relationship with her husband is that of common
law and that respondent has given birth to a child
by another man, the court held that it will be in
the childs best interest to stay with her adoptive
parents.
Espiritu v. Court of Appeals
Facts:
Petitioner
Reynaldo
Espiritu
and
respondent Teresita Masauding met in 1976. In
1977, respondent left for Los Angeles, California
to work as a nurse. In 1984, National Steel
Corporation
sent
petitioner
to
Pittsburgh
Pennsylvania as a liason officer and from then on,
petitioner and respondent maintained a common
law relationship. On August 16, 1986, their first
child was born. The couple was married in
October 1987 in the Philippines. After that, they
had another child who was born in 1988. While in
the US, respondent left her children with
Petitioner to continue working in California while
the latter was in Pittsburgh. Petitioner returned to
the Philippines but upon being sent to Pittsburgh
decided to leave his children with his sister
Guillerma Layug. Teresita claimed that she did not
immediately follow her children because she was
afraid that Reynaldo has filed a case of bigamy
against her. In December 1992, respondent filed
a writ for habeas corpus. The trial court dismissed
the petition but the decision was reversed by the
CA.
Held: The presumption that children under seven
years of age can best be taken care of by the
mother is rebuttable. The task of appointing
custody cannot be solely based on the child alone
but several other considerations. The seven year
age is not based on the date petition was filed
but the date decision is rendered. As such, the
preference of the children should be taken into
consideration in deciding the matter of their
custody.
Celis vs. Cafuir
Facts: Respondents Soledad Cafuir and her
husband Jose Simeon appealed the decision of
the lower court granting the writ of habeas

37

corpus to Ileana Celis and ordering the delivery of

the child to petitioner. Petitioner, after giving
birth to Joel (John) Cafuir turned over custody to
Soledad, fearing the extreme displeasure and
anger of her father. Soledad provided for all the
needs and comforts of the child, including a nurse
hired to care for the child. After marrying Agustin
C. Rivera, petitioner filed the suit for habeas
corpus. Respondents argued that petitioner
executed documents to the effect that she has
renounced the custody of her children. The first
stated that the child was entrusted to
respondents while the second stated that Soledad
is the real guardian of the child and no one may
adopt the child except for Soledad.
Held: The document cannot be taken to imply
that petitioner has renounced the custody of her
child. The child was, as the first document stated,
merely entrusted and such arrangement was
not permanent. Having been emancipated from
her father, Ileana was in the position to care for
her child and as such, has a right to do so.
FC Article 210: Parental authority and
responsibility may not be renounced or
transferred except in the cases authorized by law.

2. Parental unfitness:
Feldman vs. Feldman
Facts: In a habeas corpus proceeding, the lower
court transferred from the mother to the
unmarried father the custody of their two infant
children who previously had continuously resided
with the mother. The couple was divorced in July
1970 on the ground of cruel and inhuman
treatment on the part of the husband who was
involved in extramarital relations prior to the
dissolution of their marriage. The wife on the
other hand, had a relationship to another man
subsequent to the decree of divorce. Petitioner
Philip Feldman alleged that he observed a copy of
Screw Magazine (which possesses dubious
redeeming social values) and that he found
letters (some with explicit photographs attached)
which were responses to an advertisement for
another couples or groups for fun and games,
in the house of respondent Mady Feldman.
Respondent wife alleged that the advertisement
was done for fun and that the evidence showed
that her private sex life in no way affected the
children and that the children were provided for.
Held: Court held that amorality, immorality,
sexual deviation and aberrant sexual practices do
not, on its face, constitute unfitness for custody.
The trial courts ruling that parents who
participate in a culture of free sex were unfit to
care for children was a dangerous conclusion.
Also, the right of women to engage in private

sexual activities which do not affect her

relationship with her children is protected by her
right to privacy. If courts recognized the rights of
unmarried men to engage in extramarital
relations, there is no reason to impose stricter
standards on women. The evidence of the
obscene materials was likewise out of reach of
the children. As such, they are not, on its face,
detrimental to the childrens welfare.
Santos Sr. vs. Court of Appeals
Facts: Court of appeals granted custody of 6 year
old Leouel Santos Jr., son f petitioner Leouel
Santos Sr. and Julia Bedia-Santos to the latters
parents, Leopoldo and Ofelia Bedia. Leouel
Santos Sr. is an army lieutenant while Julia Bedia
was a nurse working in the US. Since release from
the hospital, Leouel Jr. had been in the custody of
respondents. Julia has reportedly sent financial
support while Leouel Santos had done no such
thing. On Sept. 2, 1990, Leouel took his son from
respondents prompting respondents to file a
Petition for Care, Custody and Control of Minor
ward Leouel Santos Jr. Petitioner argued that
private respondents have failed to show that
petitioner was an unfit and unsuitable father and
as such, Article 214 of the Family Code cannot be
applied. Private respondents contended that they
can provide a comfortable life to the child and
that petitioner, being a soldier, will not be able to
care for the child.
Held: Custody granted to petitioner. When a
parent entrusts the child to another, what is given
is merely temporary custody and not a perpetual
renunciation of parental authority. A waiver of
parental authority can only be executed in cases
of adoption, guardianship and surrender to
childrens home or an orphan institution.
Petitioners previous inattention cannot be
immediately construed as abandonment. His
effort to keep custody of the child is a sign that
he is willing to rectify his mistakes.

Role of the Childs Preference

FC Article 49: The court shall give paramount

consideration to the moral and material welfare
of said children and their choice of the parent
with whom they wish to remain as provided for in
Title IX.
FC Article 213: In case of separation of the
parents, parental authority shall be exercised by
the parent designated by the court. The court
shall
take
into
account
all
relevant
considerations, especially the choice of the child
over seven years of age, unless the parent is
unfit.

38

No child shall be separated from the mother

unless the court finds compelling reasons to order
otherwise.
David v. CA
Facts: Petitioner Daisie T. David worked as
secretary of private respondent Ramon R. Villar
who was then married and had a family. They had
intimate relations which produced three children,
Christopher,
Christine
and
Cathy.
Private
respondents wife was aware of the existence of
the illegitimate children. Christopher was taken
by respondent on a trip to Boracay. Upon their
return, respondent refused to return the child
prompting petitioner to file for a write of habeas
corpus. The trial court granted the petition but
the Court of Appeals reversed the decision on the
ground that the trial court had no jurisdiction over
the case as the children were borne out of
adulterous relations. Temporary custody was
awarded to respondent until such time that the
issue on custody and support was determined in
a proper case. Petitioner contended that the writ
of habeas corpus applied to all cases of illegal
confinement or detention or by which the rightful
custody og any person is withheld.
Held: Article 213 of the FC states that custody of
a child under six will be given to the mother
unless the court deems it proper to rule
otherwise. Absent any showing that petitioner is
unfit (although admittedly, she is not as well-off
as respondent), custody shall be given to her. As
the child is over the presumed tender years,
custody must still remain with the mother as the
child has categorically expressed preference to
live with his mother.
Pizarro vs. Vasquez
Facts: This suit for obtaining support from
defendant was instituted by Maria Pizarro and her
minor children, Gloria, Julita and Lorenzo. Plaintiff
and defendant separated on the ground that the
latter committed acts of infidelity and cruelty.
Defendant denied the claim and alleged that
there is no contract of separation and that Maria
Pizarro committed acts of adultery. The evidence
of said adulterous relations was the birth of
Lorenzo 11 months after the couple separated.
Petitioner explained that they had sexual
intercourse sometime in November 1933 during
the town fiesta in the belief that defendant had
changed.
Held: Claims of plaintiff that defendant had kept a
mistress and had maltreated her were not
contradicted. Also, absent any evidence that
plaintiff
indeed
committed
adultery
and
considering the prima facie presumption of
innocence, plaintiff should be given support by
the defendant.

Laxamana vs. Laxamana

Facts: Petitioner Reymond Laxamana was a
graduate of Bachelor of Laws while respondent
Ma. Lourdes Laxamana held a degree in Banking
and Finance. Upon marriage, respondent quit her
job and became a full time housewife while
petitioner managed buy and sell, fishpond and
restaurant businesses. The couple had three
children. In October 1991, petitioner was confined
in Estrellas Home Care Clinic for being a drug
dependent. He was again confined in 1996 for
rehab. In 1997, petitioner was declared drug free
but respondent alleged otherwise stating that
petitioner has become irritable since his return
and had even maltreated her at one point.
Respondent abandoned petitioner in June 1999
taking the children with her. Petitioner filed a writ
for habeas corpus for visitation rights which the
court granted. The parties were ordered to
undergo psychological evaluation which they
passed except for the psychologists opinion that
petitioner, in his belief, was not completely drug
free.
Held: Case was remanded. It is the duty of the
court to hold a trial notwithstanding the
agreement of the parties to submit the case for
resolution on the basis of a psychiatric report.
While petitioner had a history of drug
dependence, records were inadequate to show
his moral, financial and social well-being. There is
therefore no proof that he is unfit to care for his
children. The court also failed to consider the
preference the choice of the children who were
then 14 and 15 years old.

Presumption of Primary Care Taker

Garska vs. McCoy

Facts: Appelant Gwendolyn McCoy was pregnant
with her first child, Jonathan Conway, at 15 years
old. During pregnancy, Michael Garska, herein
petitioner, did not give any support. When the
child was born, petitioner sent food and diapers.
The baby developed a chronic respiratory
infection and to be able to use the United Mine
Workers medical insurance of her grandfather,
appellant agreed to the adoption of Jonathan by
her grandparents. The petition was dismissed on
the ground that the child had not lived with the
grandparents for the requisite six months. Upon
learning the action for adoption, petitioner filed
for a writ of habeas corpus which was granted by
the lower court.
Held: While the tender years presumption in favor
of the mother is no longer in effect, custody
should still be granted to appellant on the basis
that she has been the primary caretaker of the
child in question. Logically, the primary caretaker
parent is not in superior financial position as
such, the material welfare of the child depends

39

on the award of support. Court therefore held that

the presumption is in favor of the primary
caretaker parent if he or she meets the minimum
objective standard for being a parent. The
presumption shall only apply to children of tender
years. Custody was granted to Gwendolyn McCoy.
Court held that manipulation of the welfare
system to provide for the childs healthcare shall
not be construed as an attempt to abandon the
child.

Other Effects

CC Article 372: When legal separation has been

granted, the wife shall continue using her name
and surname employed before the legal
separation.
-

This is so because her married status is

not affected by the separation.
After legal separation, the marriage bonds
are not severed.

CC Article 370: A married woman may use:

(1) Her maiden first name and surname
and add her husband's surname, or
(2) Her maiden first name and her
husband's surname or
(3) Her husband's full name, but prefixing
a word indicating that she is his wife, such
as "Mrs."

Matute vs. Macadalo

Facts: Petitioner Rosario Matute and private
respondent
Armando
Medel
were
legally
separated on the ground of adultery committed
by petitioner with her brother-in-law. Custody of
the four minor children was thereby awarded to
Armando.
With
permission
from
private
respondent, petitioner brought her children to
Manila to attend her fathers wake. Thereafter,
she filed a civil suit, praying for custody of her
children whom she alleged has expressed
preference to stay with her. Three of the said
children were no longer of tender years.
Armando moved to have Rosario charged with
contempt of court for disobeying the courts
decision to grant custody to Armando but the
court did not accede owing to the fact that
Armando consented. However, the court did not
grant custody to petitioner. Petitioner argued that
the act of adultery she was charged with does not
constitute moral depravity. Armando was found to

be living with a different woman and such

relations were likewise adulterous.
Held: Alleged errors by respondent were merely
errors of judgment and not errors of jurisdiction.
Laperal vs. Republic of the Philippines
Facts: Elisea Laperal has been legally separated
from her husband Enrique Santamaria. During
their marriage, petitioner used the latters
surname. She prayed that she be allowed to use
her maiden name considering that she and her
husband had not lived together for a long time.
Petition was opposed b y the City Attorney of
Bagiuo but in a motion for reconsideration, the
petition was granted on the basis that the use of
the married name will give rise to confusion in
finances and the eventual liquidation of the
conjugal assets.
Held: The language of the statute is mandatory
and a woman shall continue using her married
name because her married status is unaffected
by her legal separation. The fact of legal
separation alone is not a sufficient ground to
justify a change of name.
Reconciliation
FC Article 65: If the spouses reconcile, a
corresponding joint manifestation under oath duly
signed by them shall be filed with the court in the
same proceeding for legal separation.
FC Article 66: The reconciliation referred to in
the preceding article shall have the following
consequences:
1. The legal separation proceedings, if still
pending, shall thereby be terminated at
whatever stage; and
2. The final decree of legal separation shall
be set aside but the separation of
property and any forfeiture of the share of
the guilty spouse already effected shall
subsist, unless the spouses agree to
revive their former property regime.
The courts order containing the foregoing shall
be recorded in the proper civil registries.
FC Article 67: The agreement to revive the
former property regime referred to in the
preceding Article shall be executed under oath
and shall specify:
1. The properties to be contributed anew to
the restored regime;
2. Those to be retained as separate
properties of each spouse; and
3. The names of all their known creditors,
their addresses and the amounts owing to
each.
The agreement of revival and the motion for
its approval shall be filed with the court in the

40

same proceeding for legal separation, with

copies of both furnished to the creditors
named therein. After due hearing, the court
shall, in its order, take measures to protect
the interest of creditors and such order shall
be recorded in the proper registries of
properties.
The recording of the order in the registries of
property shall not prejudice any creditor not
listed or not notified unless the debtor-spouse
has sufficient separate properties to satisfy.
- The word revive implies that the conjugal
property regime prior to the decree of legal
separation would be restored however, parties
are still allowed to stipulate what would be
brought into the revived property regime.
-

Reconciliation must be a voluntary mutual

agreement to live together as husband
and wife. Filing of manifestation is only
needed to terminate the case in court and
for purposes of future property relations of
the spouses.
If the reconciliation takes place after the
decree of legal separation has been
handed down by the court, the decree is
set aside, and all the orders in that decree
will have no effect, except as to the
property relations of the spouses. The
community of property or conjugal
partnership of gains is not automatically
revived.
After the spouses have reconciled, a new
action for legal separation can be based
only on the subsequent or other causes,
but not on the causes already pardoned.

Divorces
Foreign Divorces
The Nationality Principle
CC Article 15: Laws relating to family rights
and duties, or to the status, condition and
legal capacity of persons are binding upon
citizens of the Philippines even though living
abroad.
FC Article 26: All marriages solemnized
outside the Philippines in accordance with the
laws in force in the country where they were
solemnized, and valid there as such, shall also
be valid in this country, except in those
prohibited under Articles 35 (1), (4), (5), and
(6), 36, 37 and 38.
Where a marriage between a Filipino citizen
and a foreigner is validly celebrated and a
divorce is thereafter validly obtained abroad
by the alien spouse capacitating him or her to

remarry, the Filipino spouse shall have the

capacity to remarry under Philippine laws.
-

General rule is a marriage valid where it

was celebrated is valid everywhere.
Exceptions to the general rule:
o Marriages which are contrary to the
law of nature and good morals as
generally recognized in Christian
countries (ex. polygamous and
incestuous marriages).
o Marriages which the local lawmaking power has declared shall
not be allowed any validity.
Foreign marriages under Articles 35 (those
contracted below 18, those polygamous
and bigamous, those contracted through
mistake in identity and those void under
Article 53), 36 (Psychological incapacity),
37
(Incestuous
Marriages)
and
38
(Marriages void by reason of public policy).
Laws on legal capacity to marry are
binding to Filipinos in all countries.
While the forms of entering into the
contract of marriage are to be regulated
by the law where it is celebrated, the
essentials of the contract depend upon the
law of the domicile for the parties.

FC Article 26 vs. CC Article 15

- Article 26 corrects the riduculous situation
wherein a Filipino who married a foreigner
remains married inspite of a divorce
decree issued in a different country.
- Article 26 is more restrictive in that it
requires that the divorce be secured by
the foreign spouse and that Filipinos
naturalized as citizens of other countries
are exmept from the application of the
law.
Van Dorn vs. Romillo
Facts: Petitioner Alicia Reyes Van Dorn is a citizen
of the Philippines while private respondent
Richard Upton is a citizen of the US. The couple
was married in Hong Kong and had two children.
They lived together in the Philippines until their
divorce in 1982. They were divorced in Nevada.
After the divorce, petitioner married Theodore
Van Dorn. Private respondent filed a suit claiming
that the Galleon shop, petitioners business is
conjugal property. Petitioners motion to dismiss
was not granted by respondent judge, Hon.
Manuel V. Romillo Jr. According to petitioner,
respondent is estopped from claiming the alleged
conjugal property because of the representation
he made in the divorce proceedings that they had
no community of property.
Held: There is no question as to the validity of
that Nevada divorce or divorce in any state in the

41

United States. The decree is binding on private

respondent as an American Citizen. Aliens may
obtain divorces abroad, which may be recognized
in the Philippines provided that they are valid
according to their national law. As such,
respondent is no longer the legal husband of
herein petitioner.
Quita vs. CA and Dandan
Facts: Fe Quita married Arturo Padian in the
Philippines in 1941. The couple agreed to live
separately until 1950 when petitioner sued Arturo
for divorce. After the decree of divorce Fe married
a certain Felix Tupaz whom she divorced and then
a certain Wernimont. Arturo died in 1972 without
a will. Lino Javier Inciong filed a petition for the
right to administer the estate of Arturo. Blandina
Dandan, claiming to be the surviving spouse of
Arturo, along with her six children filed their
opposition
to
Javier,
praying
that
the
administration of the estate be granted instead to
their lawyer. In 1987, petitioner moved for
immediate declaration of the heirs of respondent
and distribution of his estate. The Dandan family
did not appear in court. Arturos brother, Ruperto
and Fe Quita were declared the only heirs of
Arturo. The trial court held that a foreign divorce
sought by Filipinos after the effectivity of the Civil
Code is not recognized in this jurisdiction. As
such, Blandina was not a legitimate spouse. As
proof of filiation of the children was presented,
partial reconsideration was granted by the court
in favor of Arturos illegitimate children.
Held: The mere fact that petitioner declared
Arturo was Filipino and thus remained legally
married to her in spite of the divorce implies that
Quita was no longer a Filipino citizen at that time.
As such, the trial court should have conducted a
hearing to establish the citizenship. Quita has
apparently testified that she has been a US
citizen since 1954.
Llorente vs. Court of Appeals
Facts: Lorenzo Llorente was an enlisted
serviceman of the US Navy from 1927 to 1957. In
1937, he and Paula were married. Before the war,
Lorenzo Llorente went to the United States
leaving Paula in the Philippines. In 1943, Lorenzo
acquired US Citizenship. Upon his return after the
war, he discovered that his wife was pregnant
and was cohabiting with his brother Ceferino. She
later gave birth to a son by the adulterous
relation. Lorenzo refused to forgive Paula and the
couple drew an agreement which stated that
family allowances would be suspended, marital
union will be dissolved and a separate agreement
on the conjugal property was to be made. The
agreement was duly signed and notarized. In
1951, Lorenzo filed for a divorce and which was
decreed one year later. Upon his return he

married Alicia who had no knowledge of his prior

marriage. In 1981, a will was executed to the
effect that all his property will be given to Alicia
and his kids by her. In 1983, Lorenzo petitioned
for Alicia to be the administrator of their conjugal
property which was denied as he was still alive.
Lorenzo died on June 1985 and a few months
after his death, Paula filed a petition for letters of
administration as the surviving spouse of
Lorenzo. The lower court held that Lorenzos
marriage with Alicia was void and that Paula
should get 1/3 of the properties.
Held: Divorce obtained in a foreign country is
recognized in this jurisdiction. Lorenzo was no
longer a Filipino Citizen when he obtained
divorce.
Garcia a.k.a. Recio vs. Recio
Facts: Rederick Recio, a Filipino, was married to
an Australian, Editha Samson, in Malabon on
1987. The couple lived together as husband and
wife in Australia but on 1989 they divorced. In
1992, Recio became an Australian citizen. He
married Grace Garcia two years later and in their
marriage license, he declared that he was a
Filipino. A year after their marriage, Garcia and
Recio started living separately and their assets
were divided in 1996. Grace filed a petition for
nullity on the ground of bigamy alleging that she
learned of Recios prior marriage to Samson only
in November of 1997. Recio argued that he
revealed his prior marriage in 1993. In 1998, a
divorce from Garcia was secured as such,
respondent moved to dismiss petition of Garcia
on the ground that there was no longer a cause of
action.
Held: The Case was remanded to the trial court
for the purpose of obtaining evidence to show
respondents legal capacity to marry. The best
evidence of divorce is the decision itself as
authenticated by the consular officer. Proof of the
existence of provision on divorce and the alleged
divorce decree are likewise necessary to show
capacity to remarry. It was found that no decree
of absolute divorce has been given but divorce in
the sense of legal separation.
- There is no judicial cognizance of foreign laws
there is therefore an additional requirement now,
to show the effects of the divorce decree.
Intrinsic vs. Extrinsic
- In intrinsic there is absence of the
essential requisites (Article 15 applies).
- In extrinsic, lex law psy celebrationis or
valid in the country, valid everywhere.
- Extrinsic pertains to the formalities or
formal requisites which ay be dictated by
the country decreeing the divorce (Article
26 applies).
- The same is true for rules of succession.

42

Muslim Divorces
Yasin vs. Sharia District Court
Facts: Hatima Yasin, a Muslim Filipino of legal age,
was married to Hadji Idris Yasin until their divorce
in May 13, 1984. After their divorce, Hadji Idris
Yasin contracted another marriage and as sch,
petitioner asked that she be allowed to resume
use of her maiden name and surname, Hatima
Centi y Saul. The Sharia court stated that she did
not file the petition in sufficient form and
substance provided for in Rule 103 of the Rules of
Court. Petitioner filed a motion for reconsideration
stating that the petition she filed is not covered
by the rules of court but is merely a petition to
resume the use of her maiden name and surname
after the dissolution of her marriage by divorce.
Held: The true and real name of a person is that
given to him and entered into the civil register.
While it is true that under Article 376 of the Civil
Code, no person can change his name or
surname without judicial authority, nonetheless,
the only name that may be changed is the true
and official name. Petitioner is not seeking to
change her registered name but for her to be
allowed to resume the use of it. The procedures
for change of name under the Rules of Court shall
not be applied to judicial confirmation of the right
of a divorced woman to resume her maiden name
and surname.
Code of Muslim Personal Laws
Art. 46. Divorce by talaq. (1) A divorce by
talaq may be effected by the husband in a single
repudiation of his wife during her non-menstrual
period (tuhr) within which he has totally
abstained from carnal relation with her. Any
number of repudiation made during one tuhr shall
constitute only one repudiation and shall become
irrevocable after the expiration of the prescribed
'idda.
(2) A husband who repudiates his wife, either for
the first or second time, shall have the right to
take her back (ruju) within the prescribed 'idda by
resumption of cohabitation without need of a new
contract of marriage. Should he fail to do so, the
repudiation shall become irrevocable (Talaq bain
sugra).
Art. 47. Divorce by Ila. Where a husband
makes a vow to abstain from any carnal relations
(ila) with his wife and keeps such ila for a period
of not less than four months, she may be granted
a decree of divorce by the court after due notice
and hearing.

Art. 48. Divorce by zihar. Where the husband

has injuriously assimilated (zihar) his wife to any
of his relatives within the prohibited degrees of
marriage, they shall mutually refrain from having
carnal relation until he shall have performed the
prescribed expiation. The wife may ask the court
to require her husband to perform the expiation
or to pronounce the a regular talaq should he fail
or refuse to do so, without prejudice to her right
of seeking other appropriate remedies.
Art. 49. Divorce by li'an. Where the husband
accuses his wife in court of adultery, a decree of
perpetual divorce may be granted by the court
after due hearing and after the parties shall have
performed the prescribed acts of imprecation
(li'an).
Art. 50. Divorce by khul'. The wife may, after
having offered to return or renounce her dower or
to pay any other lawful consideration for her
release (khul') from the marriage bond, petition
the court for divorce. The court shall, in
meritorious
cases
and
after
fixing
the
consideration, issue the corresponding decree.
Art. 51. Divorce by tafwid. If the husband has
delegated (tafwid) to the wife the right to effect a
talaq at the time of the celebration of the
marriage or thereafter, she may repudiate the
marriage and the repudiation would have the
same effect as if it were pronounced by the
husband himself.
Art. 52. Divorce by faskh. The court may, upon
petition of the wife, decree a divorce by faskh on
any of the following grounds :
(a) Neglect or failure of the husband to provide
support for the family for at least six consecutive
months;
(b) Conviction of the husband by final judgment
sentencing him to imprisonment for at least one
year; .chan robles virtual law library
(c) Failure of the husband to perform for six
months without reasonable cause his marital
obligation in accordance with this code;
(d) Impotency of the husband;
(e) Insanity or affliction of the husband with an
incurable disease which would make the
continuance of the marriage relationship injurious
to the family;
(f)Unusual cruelty of the husband as defined
under the next succeeding article; or

43

(g) Any other cause recognized under Muslim law

for the dissolution of marriage by faskh either at
the instance of the wife or the proper wali..chan
robles virtual law library

compliance with the requirements of the Islamic

law relative to such divorces.

Art. 53. Faskh on the ground of unusual cruelty.

A decree offaskh on the ground of unusual
cruelty may be granted by the court upon petition
of the wife if the husband:

Art. 56. 'Idda defined. 'Idda is the period of

waiting prescribed for a woman whose marriage
has been dissolved by death or by divorce the
completion of which shall enable her to contract a
new marriage.

(a) Habitually assaults her or makes her life

miserable by cruel conduct even if this does not
result in physical injury;

Section 2. 'Idda.

Art. 57. Period. (1) Every wife shall be obliged

to observe 'idda as follows:

(b) Associates with persons of ill-repute or leads

an infamous life or attempts to force the wife to
live an immoral life;

(a) In case of dissolution of marriage by death,

four months and ten days counted from the death
of her husband;

(c) Compels her to dispose of her exclusive

property or prevents her from exercising her legal
rights over it;

(b) In case of termination of marriage by divorce,

for three monthly courses; or

(d) Obstructs her in the observance of her

religious practices; or
(e) Does not treat her justly and equitably as
enjoined by Islamic law.
Art. 54. Effects of irrevocable talaq or faskh. A
talaq or faskh, as soon as it becomes irrevocable,
shall have the following effects:
(a) The marriage bond shall be severed and the
spouses may contract another marriage in
accordance with this Code;
(b) The spouses shall lose their mutual rights of
inheritance;
(c) The custody of children shall be determined in
accordance with Article 78 of this code;
(d)The wife shall be entitled to recover from the
husband her whole dower in case the talaq has
been affected after the consummation of the
marriage, or one-half thereof if effected before its
consummation; .chan robles virtual law library
(e) The husband shall not be discharged from his
obligation to give support in accordance with
Article 67; and
(f) The conjugal partnership, if stipulated in the
marriage settlements, shall be dissolved and
liquidated.
Art. 55.Effects of other kinds of divorce. The
provisions of the article immediately preceding
shall apply to the dissolution, of marriage by ila,
zihar, li'an and khul', subject to the effects of

(c) In case of a pregnant women, for a period

extending until her delivery.
(2) Should the husband die while the wife is
observing 'idda for divorce, another 'idda for
death shall be observed in accordance with
paragraph 1(a).
.chan robles virtual law library
FC Article 100: The separation in fact between
husband and wife shall not affect the regime of
absolute community except that:
1. The spouse who leaves the conjugal home
or refuses to live therein, without just
cause, shall not have the right to be
supported;
2. When the consent of one spouse to any
transaction of the other is required by law,
judicial authorization shall be obtained in a
summary proceeding;
3. In the absence of sufficient community
property, the separate property of both
spouses shall be solidarily liable for the
support of the family. The spouse present
shall, upon proper petition in a summary
proceeding, be given judicial authority to
administer or encumber any specific
separate property of the other spouse and
use the fruits of proceeds thereof to
satisfy the latters share.
-

Separation of fact refers to the actual

definite separation of the persons of
husband and wife, thereby terminating
cohabitation or common life under the
same roof without judicial order. There is
no separation of fact if business affairs
only require that they occupy separate

44

residences but their relations continue to

be intimate and friendly.
The spouse who leaves the conjugal home
without justification loses the right to be
supported by the other spouse but his
obligation to support the latter is not
extinguished.
Judicial authorization is necessary when
the consent of one spouse is necessary for
a transaction but cannot be obtained.

FC Article 127: The separation in fact between

the husband and wife shall not affect the regime
of conjugal partnership, except that:
1. The spouse who leaves the conjugal home
or refuses to live therein, without just
cause, shall not have the right to be
supported;
2. When the consent of one spouse to any
transaction of the other is required by law,
judicial authorization shall be obtained in a
summary proceeding;
3. In the absence of sufficient conjugal
partnership
property,
the
separate
property of both spouses shall be solidarily
liable for the support of the family. The
spouse present shall upon petition in
summary proceeding, be given judicial
authority to administer or encumber any
specific separate property of the other
spouse and use the fruits or proceeds
thereof to satisfy the latters share.
FC Article 239: When a husband and wife are
separated in fact, or one has abandoned the
other and one of them seeks judicial
authorization for a transaction where the consent
of the other spouse is required by law but such
consent is withheld or cannot be obtained, a
verified petition may be filed in court alleging the
foregoing facts. The petition shall attach the
proposed deed, if any, embodying the transaction
and, if none, shall describe in detail the said
transaction and state the reason why the required
consent thereto cannot be secured. In any case,
the final deed duly executed by the parties shall
be submitted and approved by the court.
FC Article 242: Upon the filing of the petition,
the court shall notify the other spouse, whose
consent to the transaction is required, of said
petition, ordering said spouse to show cause why
the petition should not be granted, on or before
the date set in said notice for the initial
conference. The notice shall be accompanied by a

copy of the petition and shall be served at the

last known address of the spouse concerned.
FC Article 246: If the petition is not resolved at
the initial conference, said petition shall be
decided in a summary hearing on the basis of
affidavits,
documentary
evidence
or
oral
testimonies at the sound discretion of the court. If
testimony is needed, the court shall specify the
witnesses to be heard and the subject-matter of
their testimonies, directing the parties to present
said witnesses.
FC Article 247: The judgment of the court shall
be immediately final and executory.
Perez vs. Court of Appeals
Facts: Rey Perez, a doctor of medicine practicing
in Cebu and his wife, Nerissa a registered nurse
and herein petitioner were married in December
1986. Their marriage produced one child born in
July 1992. Petitioner began working in the US on
October 1988 and became a resident alien in
1992. She was able to construct a house in
Mandaue using her earnings. Respondent stayed
with her in the US twice while she was pregnant
and when she gave birth to Rey Perez II. Unlike
his wife, he had only a tourist visa and was
unemployed in the US. The family went back to
Cebu in 1993 but after a few weeks, Nerissa went
back to the US because the husband preferred to
stay behind to take care of his sick mother.
Nerissa filed a petition for a writ of habeas corpus
asking respondent Rey Perez to surrender custody
of their son to her. Lower court granted the
custody to the mother based on Article 213 of the
Family Code. CA reversed the decision and
granted the custody to the father instead.
Held: Article 213 of the FC provides that in case
of separation of parents, no child under 7 years of
age shall be separated from the mother unless
Since the code did not qualify the word
separation to mean legal separation couples
separated in fact are still covered by its terms.
The provision likewise mandates that the child
under seven years of age shall be in the custody
of the mother absent any showing that the
mother is unfit to care for the child. In the case
herein, the Petitioner alleged that the mother will
not be able to take care of the child as she works
as a nurse. The Court however held that such a
supposition is unfounded especially as there are
means by which the mother could take care of
the child despite the demands of her profession.

45