NOTES IN FAMILY CODE

1. Nature and importance of marriage.

a. Marriage is one of the basic civil rights of man, fundamental to our very
existence and survival. The freedom to marry has long been recognized as one
of the vital personal rights essential to the orderly pursuit of happiness by free
men.

b. Marriage as a special contract cannot be restricted by discriminatory policies

by private individuals or corporations.

i. PT&T vs. NLRC 272 SCRA 596 – a policy which prohibits a woman
worker to contract marriage was held to be invalid.
ii. Under RA No. 9208 (Anti-Trafficking in Persons Act of 2003) – match-
making of Filipino women to foreigners for marriage, or contracting
marriage for purposes of prostitution, forced labor and the like are
illegal.

c. Marriage creates a social status or relation between the contracting parties in

which not only they but the State as well are interested.

2. Constitutional protection.

a. Sec. 12, Art. II – The State recognizes the sanctity of family life and shall protect
and strengthen the family as a basic social institution.

b. Article 15 of the Constitution devoted to the family.

c. While lawful marriage seeks to create a permanent union between a man and
a woman, it does not shed the spouses’ integrity or their privacy as individuals.

i. Zulueta vs. CA, 253 SCRA 699 – where a wife, to get evidence of
infidelity in a case for legal separation she filed against her
husband, ransacked his office and forcibly took documents and
letters of the husband addressed to his paramour, the SC ruled
that the wife cannot use said documents and letters as evidence
because they were obtained in violation of the husband’s
constitutional right to privacy.
 d. In Duncan vs. Glaxo, 438 SCRA 343, the SC held that an employment
contract requiring employee to disclose to management any existing or
future relationship by consanguinity or affinity with co-employees or
employees of competing drug companies and requiring such employee to
resign should management find such relationship poses possible conflict
of interest was not in violation of equal protection clause as the policy is
considered reasonable aimed against the possibility that a competitor
company will gain access to its secrets and procedures.

e. In Star Paper Corporation vs. Simbol, 487 SCRA 228, the SC held as invalid a
company policy which provides that in case two of their employees decide
to get married to each other, one of them should resign, as it failed to prove
a legitimate business interest.

3. In determining the validity of marriage, it is to be tested by the law in force at

the time of marriage was contracted. (SSS vs. Bailon, 485 SCRA 376)

a. The nature of the marriage already celebrated cannot be changed by a

subsequent amendment to the law.
b. Under the 1950 Civil Code, a marriage between stepbrother and
stepdaughter was void. Such marriage is not anymore prohibited under
the new Family Code.
c. In Balogbog vs. CA, the SC held that, although a particular marriage
should have been proven in accordance with Articles 53 and 54 of the
Spanish Civil Code of 1889, such articles never took effect in the
Philippines because they were suspended by the Spanish Gov. General,
hence, such marriage may be proven in accordance with the 1950 Civil
Code, the law in force at the time the case was filed in 1968.

4. Essential Requisites [LC]—
 1. Legal Capacity of the contracting parties, who

must be a male and a female
 2. Consent (of the parties) freely given in the
presence of a solemnizing officer. (Art. 2 FC)

i. Jones v Hallahan, Court of Appeals of Kentucky (1973): Application for marriage

license was denied since marriage is defined by law as a contract entered into
between a man and a woman.

ii. Silverio v Republic, 537 SCRA 373 (2007): Changing of gender in one’s birth
certificate was denied; otherwise, it would result in confusion and would allow
marriage between persons of the same sex which is in defiance of the law, as
marriage is a union between a man and a woman.
iii. In Republic vs. Cagandahan, 565 SCRA 72 (2008) – where a person is found to
have Congenital Adrenal Hyperplasia (CAH) which is a condition where the
person afflicted has both male and female characteristics and organs and where,
through expert evidence, it was shown that the respondent, though genetically a
female, secreted male hormones and not female hormones, had no breast and did
not have monthly menstrual period, the SC held that person as an “intersex
individual” and granted the preference of the person to be considered as a male
person thereby allowing amendment of the birth certificate of the person from
female to male.

RA No. 10172 provides that a clerical or typographical error as to the sex of a

person may be corrected without judicial order provided that the petition is
accompanied by a certification issued by an accredited government physician
attesting to the fact that the petitioner has not undergone sex change or sex
transplant.

Consent

a. The requirements of consent are that it must be (i) freely given and (ii) the same
must be made in the presence of the solemnizing officer.

b. The free consent must be given in the presence of the solemnizing officer “in
order that it may have due publication, before a third person or persons, for
the sake of notoriety and the certainty of its being made.

c. People v Santiago, (51 Phil 68): A marriage entered into by a person whose real
intent is to avoid prosecution for rape is void for total lack of consent. The
accused did not intend to be married. He merely used such marriage to escape
criminal liability.

d. Republic vs. Albios, Oct. 16, 2013

Facts: Albios contracted Fringer to enter into a marriage to enable her to acquire
American citizenship; that in consideration thereof, she agreed to pay him the
sum of $2,000.00; that after the ceremony, the parties went their separate ways;
that Fringer returned to the United States and never again communicated with
her; and that, in turn, she did not pay him the $2,000.00 because he never
processed her petition for citizenship. The RTC, thus, ruled that when marriage
was entered into for a purpose other than the establishment of a conjugal and
family life, such was a farce and should not be recognized from its inception.
 Issue: Is a marriage, contracted for the sole purpose of acquiring American
citizenship in consideration of $2,000.00, void ab initio on the ground of lack of
consent?

Ruling:

1. Based on the above, consent was not lacking between Albios and Fringer.
In fact, there was real consent because it was not vitiated nor rendered
defective by any vice of consent. Their consent was also conscious and
intelligent as they understood the nature and the beneficial and
inconvenient consequences of their marriage, as nothing impaired their
ability to do so. That their consent was freely given is best evidenced by
their conscious purpose of acquiring American citizenship through
marriage. Such plainly demonstrates that they willingly and deliberately
contracted the marriage. There was a clear intention to enter into a real and
valid marriage so as to fully comply with the requirements of an application
for citizenship. There was a full and complete understanding of the legal tie
that would be created between them, since it was that precise legal tie which
was necessary to accomplish their goal.
2. The respondent’s marriage is not at all analogous to a marriage in jest.
Albios and Fringer had an undeniable intention to be bound in order to
create the very bond necessary to allow the respondent to acquire American
citizenship. Only a genuine consent to be married would allow them to
further their objective, considering that only a valid marriage can properly
support an application for citizenship. There was, thus, an apparent
intention to enter into the actual marriage status and to create a legal tie,
albeit for a limited purpose. Genuine consent was, therefore, clearly
present.
3. Motives for entering into a marriage are varied and complex. The State does
not and cannot dictate on the kind of life that a couple chooses to lead. Any
attempt to regulate their lifestyle would go into the realm of their right to
privacy and would raise serious constitutional questions. The right to
marital privacy allows married couples to structure their marriages in
almost any way they see fit, to live together or live apart, to have children
or no children, to love one another or not, and so on. Thus, marriages
entered into for other purposes, limited or otherwise, such as convenience,
companionship, money, status, and title, provided that they comply with
all the legal requisites,31 are equally valid. Love, though the ideal
consideration in a marriage contract, is not the only valid cause for
marriage. Other considerations, not precluded by law, may validly support
a marriage.

Formal Requisites
 a. Authority of Solemnizing Officer
b. A valid marriage license except in cases provided in Chapter 2 of this title
c. A marriage ceremony which takes place with the appearance of the contracting
parties before the solemnizing officer and their personal declaration that they take
each other as husband and wife in the presence of not less than two witnesses of
legal age.

Who may solemnize marriage: (JC- SPAMM)

a. Incumbent member of the Judiciary 
 within his jurisdiction. (Art 7 FC) 


i. Justices of SC, CA, Sandiganbayan and CTA may marry

nationwide.
ii. Judges must be incumbent and not retired.
iii. A judge who solemnized a marriage outside of his court’s
jurisdiction may be administratively held liable but may not
affect the validity of the marriage is it is merely an irregularity
(Navarro vs. Domagtoy)

b. Priest, Rabbi, Imam or Minister of any 
 Church or Religious Sect. Must be:

i. Duly authorized by his church or 
 religious sect 


ii. Registered with the civil registrar 
 general 

iii. Acting within the limits of the written 
 authority granted to him
by his 
 church or religious sect. 

iv. At least one of the contracting parties belongs to the solemnizing
officer’s church or religious sect. (Art 7 FC) 


c. Ship Captain or Airplane Chief may solemnize a marriage in articulo mortis

between passengers or crew members (Art 7,31 FC) 


i. Articulo mortis – at least one of the parties is at the point of death

ii. Authority does not cover marriage between passenger and crew
member.
iii. The ship must be at sea or the plane must be in flight
iv. May be solemnized during stopovers at ports of call.
v. An assistant pilot has no authority to solemnize marriage
d. A Military commander of a unit may solemnize marriages in articulo mortis
between persons within the zone of military operation. (Art 7,32 FC)

i. The military commander must be a commissioned officer from the rank

of lieutenant, ensign or above.
ii. Chaplain is assigned to the unit but is absent.
iii. Marriage must be in articulo mortis
iv. The contracting parties, whether members of the armed forces or
civilians, must be within the zone of military operations.
v. The phrase “within the zone of military operation” implies a
widespread military activity over an area and does not refer to a
simulated exercise.
vi. A military commander may solemnize a marriage even if the
contracting parties do not belong to his or her unit.

e. Consul-general, consul or vice-consul may solemnize marriages between

Filipino citizens abroad. (Art 7,10 FC)

i. Marriage solemnized by consul-general, consul or vice-consul in the

Philippines is void.
ii. Ambassadors are not authorized by law to solemnize marriage.
iii. They act not only as solemnizing officer but also perform the duties of
the local civil registrar such as the issuance of a marriage license.
iv. Marriage must be between Filipinos abroad.

f. Municipal and City Mayors (LGC sec 444 and 455)

i. Vice mayor or highest sangguniang bayan member may solemnize

marriage in the absence of the mayor who is unable to discharge his
functions under Sec. 445(4) of the LGC.

2. Marriage is void when solemnized by any person not legally authorized to

perform marriages unless either or both parties believed in good faith that the
solemnizing officer had legal authority to do so. (Art 35 (2)) 


3. Valid Marriage License

a. The marriage license has a validity of 120 days from date of issue and is
effective in any part of the Philippines.
b. It is deemed automatically cancelled at the expiration of the 120-day period
if the contracting parties have not made use of it.
 c. The marriage is held valid even if the marriage license was issued in the
place wherein the contracting parties do not reside. (People vs. Janssen, 54
Phil. 176)

4. Marriage ceremony

a. The Family Code does not prescribe any form of marriage ceremony.
However, the minimum requirement imposed by law is that the
contracting parties appear personally before the solemnizing officer and
declare that they each other as husband and wife in the presence of at least
2 witnesses.

b. The personal declaration of consent need not be vocally expressed. It can

be shown by other manifestations or signs of approval and consent.

c. Neither is there merit in the argument that the existence of the marriage
cannot be presumed because there was no evidence showing in particular
that Gavino and Catalina, in the presence of two witnesses, declared that
they were taking each other as husband and wife. An exchange of vows
can be presumed to have been made from the testimonies of the witnesses
who state that a wedding took place, since the very purpose for having a
wedding is to exchange vows of marital commitment. It would indeed be
unusual to have a wedding without an exchange of vows and quite
unnatural for people not to notice its absence.(Balogbog v. Court of
Appeals, G.R. No. 83598, [March 7, 1997], 336 PHIL 252-262)

5. Absence, defect and irregularities in essential and formal requisites

a. The absence of any of the essential or formal requisites of marriage renders

the marriage void.
b. Marriage by way of jest is void as there is absolutely no genuine consent
on the part of both contracting parties
c. Marriage by proxy solemnized here in the Philippines is likewise void
because the absence of the essential requisite that consent freely given
must be made in the presence of each other.
d. Marriages in (i) articulo mortis; (ii) of couple living in remote places without
means of transportation; (c) among Muslims and other ethnic communities; (d)
couples without any impediment to get married living together as husband and
wife for at least 5 year, without marriage license, are valid.
e. Defect in the essential requisites render the marriage voidable or
annullable.
f. Irregularities in the formal requisites do not affect the validity of the
marriage
 g. The following are some of the irregularities which do not affect the validity
of a marriage:
i. Absence of 2 witnesses of legal age
ii. Absence of marriage certificate
iii. Marriage solemnized in a place other than the chambers or open
court, church, chapel or office of the consul-general, consul or
vice consul
iv. Issuance of the marriage license in the city or municipality not
the residence of either contracting parties
v. Unsworn application for marriage license
vi. Failure to present original birth certificate
vii. Failure to exhibit parental consent
viii. Failure to exhibit parental advice
ix. Failure to undergo marriage counselling
x. Failure to post notices of application for marriage
xi. Issuance of license despite absence of publication
xii. Failure to pay fees for marriage license
xiii. Failure of solemnizing officer to send copy of marriage certificate
to the LCR
xiv. Failure of the LCR to enter applications in the record book in the
order in which they were received.

1. Garcia v. Recio – The absence of a certificate of legal capacity from the foreign
spouse does not render the marriage invalid as this is merely an irregularity in
complying with the formal requisites of marriage.

2. If the spouses are stateless persons, they are required to to file an affidavit stating
the circumstances showing such capacity

Chapter 2. Marriages Exempted from License Requirement

1. Niñal v. Bayadog, G.R. No. 133778, March 14, 2000

Facts: Pepito Niñal was married to Teodulfa Bellones. Out of their marriage were
born herein petitioners. Teodulfa was shot by Pepito resulting in her death on April
24, 1985. One year and 8 months thereafter, Pepito and respondent Norma Badayog
got married without any marriage license. On February 19, 1997, Pepito died in a car
accident. After their father's death, petitioners filed a petition for declaration of nullity
of the marriage of Pepito to Norma alleging that the said marriage was void for lack
of a marriage license. The case was filed under the assumption that the validity or
invalidity of the second marriage would affect petitioner's successional rights. Norma
 filed a motion to dismiss on the ground that petitioners have no cause of action since
they are not among the persons who could file an action for "annulment of marriage"
under Article 47 of the Family Code. The lower court ruled that petitioners should
have filed the action to declare null and void their father's marriage to respondent
before his death, applying by analogy Article 47 of the Family Code which enumerates
the time and the persons who could initiate an action for annulment of marriage.
Hence, this petition.

Ruling: The Supreme Court reversed and set aside the assailed decision of the trial
court. The Court ruled that the second marriage involved in this case is not covered
by the exception to the requirement of a marriage license, therefore, it is void ab initio
because of the absence of such element. According to the Court, it can not be said that
Pepito and respondent have lived with each other as husband and wife for at least
five years prior to their wedding day. From the time Pepito's first marriage was
dissolved to the time of his marriage with respondent, only about twenty months had
elapsed. Even assuming that Pepito and his first wife had separated in fact, and
thereafter both Pepito and respondent had started living with each other that has
already lasted for five years, the fact remains that their five-year period cohabitation
was not the cohabitation contemplated by law. It should be in the nature of a perfect
union that is valid under the law but rendered imperfect only by the absence of the
marriage contract. Pepito had a subsisting marriage at the time when he started
cohabiting with respondent. It is immaterial that when they lived with each other,
Pepito had already been separated in fact from his lawful spouse. The subsistence of
the marriage even where there was actual severance of the filial companionship
between the spouses cannot make any cohabitation by either spouse with any third
party as being one as "husband and wife." The Court also ruled that petitioners have
the personality to file a petition to declare their father's marriage void because a void
marriage can be attacked collaterally and can be questioned even after the death of
either party.

2. De Castro vs. De Castro, 545 SCRA 162 (2008)

The nullity of a marriage on the ground of absence of a valid marriage license upon
evidence that there was in fact no cohabitation for five (5) years contrary to the statements
in the falsified affidavit executed by the parties. The falsity of the affidavit cannot be
considered to be a mere irregularity considering that the 5-year period is substantial
requirement of the law to be exempted from obtaining a marriage license.

Chapter 3. Void and Voidable Marriages

1. A void marriage is that which is not valid from its inception.

Void Marriage
Void from the beginning
Not subject to ratification
Can be attacked collaterally
Action does not prescribe
Void marriages have no legal effect, Property regime is either ACP or CPG and
except in cases provided in FC
Voidable Marriage
Valid until annuled
Subject to ratification, either by
cohabitation or prescription
Cannot be assailed collaterally. May be
questioned only during the lifetime of the
parties
Subject to prescription
children conceived before its annulment
are legitimate.

a. Good faith or bad faith of parties are immaterial in determining whether or

not a marriage is null and void.

 There are only two exceptions to this general rule: (i) Art. 35(2) where
either or both parties believe in good faith that the solemnizing
officer has authority to solemnize marriage; (ii) Art. 41 referring to
subsequent bigamous marriage on the good faith belief that the
previous spouse is dead.
 In determining the disposition of properties in a void marriage,
good faith and bad faith of one of the parties at the time of the
marriage ceremony are material. In Arts. 147 and 148, when one of
the parties to a void marriage is in good faith, the share of the party
in bad faith in co-ownership shall be forfeited in favor of their
common children, in their absence or their representatives, the
innocent spouse.

b. The action to declare a marriage void may be filed by either party, even the
psychologically incapacitated. (Ching Ming Tsoi vs. CA, 266 SCRA 324)

c. While a void marriage can be attacked collaterally, there are 3 instances that
a direct attack is required:

i. Under Art. 40, where it provides that “the absolute nullity of a

previous marriage may be invoked for purposes of remarriage on the basis
solely of a final judgment declaring such marriage void.”

ii. For other purposes, such as but not limited to (a) determination of
heirship; (b) filiation of the child; (c) settlement of estate; (d) dissolution of
property regime; (f) criminal case (Ninal vs. Bayadog, 328 SCR 122)
 iii. Under Art. 50 in relation to Art. 43(3) and Art. 86(1) on revocation of
donation propter nuptias.

2. A petition may contain many grounds for nullity of marriage, such as absence of
consent, no marriage license, psychological incapacity of the parties and bigamy, but it
has only one cause of action, which is the nullity of the marriage. (Mallion vs. Alcantara,
GR No. 141528, Oct. 31, 2006)

3. Void Marriages under Art. 35

a. Below 18 years of age – the age is determined at the time of marriage.

b. Non-authority of solemnizing officer

 Any person not listed in Art. 7 or the LGC is not authorized to solemnize
marriage
 Good faith marriage is an exception to this rule.
o Tolentino opined that for good faith marriage to apply, the person
who solemnized the marriage must be among those listed by law,
otherwise, there is ignorance of law and not mistake of fact.

c. No marriage license
d. Bigamous or polygamous marriage

 A bigamous marriage requires a previous valid marriage, thus, if the first

marriage is void, the second marriage is also void.

e. Mistake in the Identity

 Under the Civil Code, mistake in the identity is a ground for annulment,
but in the FC, it is a ground to nullify the marriage.
 Mistake in the identity as as ground for nullity covers only those situations
in which there has been a mistake on the part of the party seeking
nullification of the marriage as to the actual physical identity of the other
party. It does not include mistake in the name, character of the person, his
age, religion, pedigree, social standing or previous habits.

f. Void under Article 53

 For persons whose marriages have been annulled or nullified to be able to

remarry again, they must undertake the liquidation, partition an
distribution of their properties, if any, and only in proper cases, the delivery
 of presumptive legitime and the recording of the decree of annulment or
nullity in the LCR.

ART. 36

1. Santos vs. CA - Psychological incapacity should refer to no less than mental not
physical incapacity that causes a party to be truly incognitive of the basic marital
covenants that concomitantly must be assumed and discharged by the parties to a
marriage as expressed in Art. 68 of the FC. It must be characterized by (a) gravity; (b)
juridical antecedence; and (c) incurability. The incapacity must be grave or serious such
that the party would be incapable of carrying out his ordinary duties. It must be rooted
in the history of the party antedating in marriage, although the overt manifestations may
emerge only after the marriage. It must be incurable or even if it were curable, it would
be beyond the means of the party.

2. Ching Ming Tsoi vs. CA – refusal of one of the parties to engage in sexual act for
procreation is equivalent to psychological incapacity.

3. Republic vs. Molina – Mere showing of “irreconcilable differences” and

“conflicting personalities” do not constitute psychological incapacity.

The following guidelines in the interpretation and application of Art. 36 of the

Family Code are hereby handed down for the guidance of the bench and the bar:

(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 experts and
(d) clearly explained in the decision. Article 36 of the Family Code requires that the
incapacity must be psychological — not physical, although its manifestations and/or
symptoms may be physical. The evidence must convince the court that the parties, or one
of them, was mentally or psychically ill to such an extent that the person could not have
known the obligations he was assuming, or knowing them, could not have given 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 their "I do's." The manifestation of the illness need not be perceivable at such
time, but the illness itself must have attached at such moment, or prior thereto.
 (4) Such incapacity must also be shown to be medically or clinically permanent or
incurable. Such incurability may be absolute or even relative only in regard to the other
spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such
incapacity must be relevant to the assumption of marriage obligations, not necessarily to
those not related to marriage, like the exercise of a profession or employment in a job.
(5) Such illness must be grave enough to bring about the disability of the party to
assume the essential obligations of marriage. Thus, "mild characterological peculiarities,
mood changes, occasional emotional outbursts" cannot be accepted as root causes. The
illness must be shown as downright incapacity or inability, not a refusal, neglect or
difficulty, much less ill will.

(6) The essential marital obligations must be those embraced by Articles 68 up to

71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and
225 of the same Code in regard to parents and their children. Such non-complied marital
obligation(s) must also be stated in the petition, proven by evidence and included in the
text of the decision.

(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.

(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor
General to appear as counsel for the state.

4. Marcos vs. Marcos – The personal medical or psychological examination of the

respondent is not a requirement for the declaration of psychological incapacity and that
is not a condition sine qua non for such declaration. (Republic vs. Tayag San Jose, 517
SCRA 123)

5. Antonio vs. Reyes - Article 36 of the Family Code, in classifying marriages

contracted by a psychologically incapacitated person as a nullity, should be deemed as
an implement of this constitutional protection of marriage. Given the avowed State
interest in promoting marriage as the foundation of the family, which in turn serves as
the foundation of the nation, there is a corresponding interest for the State to defend
against marriages ill-equipped to promote family life. Void ab initio marriages under
Article 36 do not further the initiatives of the State concerning marriage and family, as
they promote wedlock among persons who, for reasons independent of their will, are not
capacitated to understand or comply with the essential obligations of marriage.

6. Kalaw vs. Fernandez (2015)

The findings of the Regional Trial Court (RTC) on the existence or non-existence
of a party's psychological incapacity should be final and binding for as long as such
findings and evaluation of the testimonies of witnesses and other evidence are not shown
to be clearly and manifestly erroneous. In every situation where the findings of the trial
court are sufficiently supported by the facts and evidence presented during trial, the
appellate court should restrain itself from substituting its own judgment. It is not enough
reason to ignore the findings and evaluation by the trial court and substitute our own as
an appellate tribunal only because the Constitution and the Family Code regard marriage
as an inviolable social institution. We have to stress that the fulfilment of the
constitutional mandate for the State to protect marriage as an inviolable social institution
only relates to a valid marriage. No protection can be accorded to a marriage that is null
and void ab initio, because such a marriage has no legal existence.

After a long and hard second look, we consider it improper and unwarranted to
give to such expert opinions a merely generalized consideration and treatment, least of
all to dismiss their value as inadequate basis for the declaration of the nullity of the
marriage. Instead, we hold that said experts sufficiently and competently described the
psychological incapacity of the respondent within the standards of Article 36 of the
Family Code. We uphold the conclusions reached by the two expert witnesses because
they were largely drawn from the case records and affidavits, and should not anymore
be disputed after the RTC itself had accepted the veracity of the petitioner's factual
premises.

7. Ngo-Te vs. Te (2009)

Causes of Personality Disorders Different mental health viewpoints propose a variety

of causes of personality disorders. These include Freudian, genetic factors, neurobiologic
theories and brain wave activity.

Freudian Sigmund Freud believed that fixation at certain stages of development led to
certain personality types. Thus, some disorders as described in the Diagnostic and
Statistical Manual of Mental Disorders (3d ed., rev.) are derived from his oral, anal and
phallic character types. Demanding and dependent behavior (dependent and passive-
aggressive) was thought to derive from fixation at the oral stage. Characteristics of
obsessionality, rigidity and emotional aloofness were thought to derive from fixation at
the anal stage; fixation at the phallic stage was thought to lead to shallowness and an
inability to engage in intimate relationships. However, later researchers have found little
evidence that early childhood events or fixation at certain stages of development lead to
specific personality patterns.

Genetic Factors Researchers have found that there may be a genetic factor involved in the
etiology of antisocial and borderline personality disorders; there is less evidence of
inheritance of other personality disorders. Some family, adoption and twin studies
suggest that schizotypal personality may be related to genetic factors.
Neurobiologic Theories In individuals who have borderline personality, researchers have
found that low cerebrospinal fluid 5-hydroxyindoleacetic acid (5-HIAA) negatively
correlated with measures of aggression and a past history of suicide attempts.
Schizotypal personality has been associated with low platelet monoamine oxidase
(MAO) activity and impaired smooth pursuit eye movement.

Brain Wave Activity Abnormalities in electroencephalograph (EEG) have been reported

in antisocial personality for many years; slow wave is the most widely reported
abnormality. A study of borderline patients reported that 38 percent had at least marginal
EEG abnormalities, compared with 19 percent in a control group.

Types of Disorders According to the American Psychiatric Association's Diagnostic and

Statistical Manual of Mental Disorders (3d ed., rev., 1987), or DSM-III-R, personality
disorders are categorized into three major clusters:

Cluster A: Paranoid, schizoid and schizotypal personality disorders. Individuals who

have these disorders often appear to have odd or eccentric habits and traits.

Cluster B: Antisocial, borderline, histrionic and narcissistic personality disorders.

Individuals who have these disorders often appear overly emotional, erratic and
dramatic.

Cluster C: Avoidant, dependent, obsessive-compulsive and passive-aggressive

personality disorders. Individuals who have these disorders often appear anxious or
fearful.

The DSM-III-R also lists another category, "personality disorder not otherwise specified",
that can be used for other specific personality disorders or for mixed conditions that do
not qualify as any of the specific personality disorders.

Individuals with diagnosable personality disorders usually have long-term concerns, and
thus therapy may be long-term.

Dependent personality disorder is characterized in the following manner —

A personality disorder characterized by a pattern of dependent and submissive behavior.

Such individuals usually lack self-esteem and frequently belittle their capabilities; they
fear criticism and are easily hurt by others' comments. At times they actually bring about
dominance by others through a quest for overprotection.

Dependent personality disorder usually begins in early adulthood. Individuals who have
this disorder may be unable to make everyday decisions without advice or reassurance
from others, may allow others to make most of their important decisions (such as where
to live), tend to agree with people even when they believe they are wrong, have difficulty
starting projects or doing things on their own, volunteer to do things that are demeaning
in order to get approval from other people, feel uncomfortable or helpless when alone
and are often preoccupied with fears of being abandoned. 65 TaISDA

and antisocial personality disorder described, as follows —

Characteristics include a consistent pattern of behavior that is intolerant of the

conventional behavioral limitations imposed by a society, an inability to sustain a job
over a period of years, disregard for the rights of others (either through exploitiveness or
criminal behavior), frequent physical fights and, quite commonly, child or spouse abuse
without remorse and a tendency to blame others. There is often a façade of charm and
even sophistication that masks disregard, lack of remorse for mistreatment of others and
the need to control others.

Although characteristics of this disorder describe criminals, they also may befit some
individuals who are prominent in business or politics whose habits of self-centeredness
and disregard for the rights of others may be hidden prior to a public scandal.

During the 19th century, this type of personality disorder was referred to as moral
insanity. The term described immoral, guiltless behavior that was not accompanied by
impairments in reasoning.

According to the classification system used in the Diagnostic and Statistical

Manual of Mental Disorders (3d ed., rev. 1987), anti-social personality disorder is one of
the four "dramatic" personality disorders, the others being borderline, histrionic and
narcissistic.

8. Buenaventura vs. CA – 454 SCRA 261: No award of damages and attorney’s fees
in a decision declaring the marriage void under Article 36 because of the absence of bad
faith.

INCESTOUS AND VOID MARRIAGES BY REASON OF PUBLIC POLICY

Notes:

1. The incestuous relationship has no limit in the direct line and is limited to the
second degree collaterals, i.e. brothers and sisters, whether of the full or half-blood,
legitimate or illegitimate.

2. The rescission or termination of adoption allows the adopter from marrying the
adopted.
3. Step-parents and step-children as well as parents-in-law and children-in-law are
prohibited from marrying each other.

a. If there are surviving issues (children), the termination of affinity

relationship does not allow marriage between parties.

4. Adoptive relationship

a. The adopter cannot marry the adopted and the surviving spouse of the
adopted.
b. The adopted cannot marry any of the following: (i) the adopter; (ii) the
surviving spouse of the adopter; (iii) the other adopted children of the adopter;
(iv) the legitimate child of the adopter;
c. The adopted child is not prohibited from marrying an illegitimate child of the
adopter because usually the illegitimate child does not live in the same house.
d. An adopted child can marry (i) the parents, (i) illegitimate child, and (iii) other
relatives of the adopter.
e. The adopter can marry (i) legitimate, illegitimate or adopted child of the
adopted; (ii) the natural parents; (iii) the other relatives of the adopted.
f. The adopter or adopted can marry the spouse of the other, if the marriage is
judicially declared void or annulled because the law uses the term “surviving
spouse”.

5. Intentional killing of spouse – no prior criminal conviction by the court for the
killing is required by law.

a. This void marriage also extends to a person who kills the spouse of another to
marry the latter.

6. No prescriptive period to file an action or defense for the declaration of absolute

nullity of marriage.

7. Under AM No. 02-11-10, which took effect on March 15, 2003, only the husband or
the wife can file a court case declaring the marriage void.

8. Under the Civil Code (superseded by the Family Code), there was no need for a
judicial declaration of nullity of a previous marriage for a subsequent marriage to be valid
(People v. Mendoza). However, Article 40 of the FC now requires a final judgment to
declare a previous marriage void for a subsequent marriage to be valid. (Terre v. Terre,
Atienza v. Brillantes)
9. A judicial declaration of nullity of a previous marriage is necessary before a
subsequent one can be legally contracted. One who enters into a subsequent marriage
without first obtaining such judicial declaration is guilty of bigamy. This principle applies
even if the earlier union is characterized by statute as “void”. That he subsequently
obtained a judicial declaration of nullity of the first marriage was immaterial as the crime
had already been consummated. (Mercado vs. Tan, G.R No. 137110, Aug. 1, 2000).

10. Terre vs. Terre, July 3, 1992 - Jordan, as a lawyer, knew that a declaration of nullity
of marriage of his wife Dorothy from his husband must be issued before he could marry
Dorothy, thus his marriage is bigamous.

11. Domingo vs. CA, Sept. 17, 1993 – The marriage here is void from the beginning
as the husband had a prior existing marriage with another woman. The second wife
sought to declare the marriage void, not for purposes of remarriage, but to settle the
property relations. The SC ruled that a declaration of absolute nullity of marriage is now
explicitly required either as a cause of action or ground for defense.

The judicial declaration of nullity can be invoked for purposes other than
remarriage. Article 40 was interpreted as being a requirement for purposes of remarriage
but not limited for that purpose. Separation of property is also a valid purpose for filing
for a judicial declaration of nullity.

12. Ty vs. CA, Nov. 27, 2000 - The first and second marriages were contracted in 1977
and 1979, respectively, and thus governed by the provisions of the Civil Code. The first
marriage being void for lack of licenses and consent, there was no need before he could
contract a second marriage. Thus, the second marriage is valid.

13. Carino vs. Carino, Feb. 2, 2001 - The first marriage to Susan Nicdao without
license is void. However, under Art. 40 of the FC, for purposes of remarriage, there must
be first a prior judicial declaration of nullity of the previous marriage, though void, before
a party can enter into a second marriage.

14. Morigo vs. People, Feb. 6, 2004 – The declaration of nullity of first marriage
retroacts to the date of its marriage, thus, there is no marriage to speak of, hence, the
accused cannot be convicted of bigamy.

Art. 41. A marriage contracted by any person during subsistence of a previous marriage
shall be null and void, unless before the celebration of the subsequent marriage, the
prior spouse had been absent for four consecutive years and the spouse present has a
well-founded belief that the absent spouse was already dead. In case of disappearance
where there is danger of death under the circumstances set forth in the provisions of
Article 391 of the Civil Code, an absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph
the spouse present must institute a summary proceeding as provided in this Code for
the declaration of presumptive death of the absentee, without prejudice to the effect
of reappearance of the absent spouse. (83a)

Notes:

1. General Rule— Marriage contracted by any person during the subsistence of a

previous marriage is void.

2. Exceptions: The following subsequent marriage of the present spouse is valid:

1.1. Subsequent marriage due to ordinary 
 absence where:

a. the prior spouse had been absent for 4 
 consecutive years; 

b. the spouse present had a well-founded 
 belief that absent spouse is
dead; and 

c. judicial declaration of presumptive death was secured (no prejudice to
the effect of the reappearance of the absent 
 spouse). 

i.
1.2. Subsequent marriage due to extraordinary 
 absence where:

a. the prior spouse had been missing for 2 
 consecutive years; 


b. there is danger of death attendant to 
 the disappearance; 

c. the spouse present had a well-founded 
 belief that the missing person
is dead; 
 and 

d. judicial declaration of presumptive 
 death was secured (no prejudice
to the effect of the reappearance of the absent spouse). 


2. Institution of a summary proceeding is not sufficient. There must also be a summary

judgment. (BALANE) 

3. Only the deserted spouse can file or institute an action a summary proceeding for the
declaration of presumptive death of the absentee (Bienvenido case) 

4. There must have been diligent efforts on the part of the deserted spouse to locate the
absent spouse. These diligent efforts correspond to the requirement of the law for a
well-founded belief. 

5. Exception to the exception— 
 When both parties to the subsequent acted in bad faith
(Art. 44) 

6. Although seven years is required for the 
 presumption of death of an absentee in the
Civil Code, Art. 41 of the Family Code makes an exception for the purpose of
remarriage by limiting such requirement to four years. 

7. Art. 41 also limits the required four years in Art. 391 for absence under exceptional
circumstances to only two years. 

7.1. ON BOARD VESSEL lost at sea voyage, airplane 

7.2. ARMED FORCES in war 

7.3. DANGER OF DEATH under other 
 circumstances, existence not known



Good Faith: PERIOD of absence for PRESUMPTIVE DEATH is MANDATORY

thus cannot be shortened by good faith and if be done so will be VOID

Burden of Proof: two successive marriages, presumption on validity of 2nd

marriage and burden on party ATTACKING VALIDITY OF 2ND MARR.
PRESUMPTION in favor of INNOCENCE prevails over PRESUMPTION of
CONTINUANCE OF LIFE OF 1ST SPOUSE & MARITAL RELATIONS.

9. Republic vs. Nolasco, 220 SCRA 20 - where a Filipino seaman wanted to get a
judicial declaration of presumptive death from the court relative to his missing English
spouse, the SC ruled that the Filipino seaman failed go conduct a search for the missing
wife with such diligence to give rise to a “well-founded belief” that she was dead.

10. Republic v. Bermudez-Lorino, (2005) 
 The RTC rendered a decision

declaring the presumptive death of respondent’s absent spouse based on Art. 41, FC. The
Republic appealed the decision to the CA. Applying Art. 247 FC, the SC ruled that the
CA did not have jurisdiction over the appeal because summary proceedings are
immediately final and executory, and therefore unappealable. 


Difference between Absence in the Civil Code and Family Code—

Family Code Civil Code

 As to period 4 years under normal Absent for at least 7 years; 4
circumstances; 2 years years under special
under special circumstances
circumstances
As to remarriage In order to remarry, Declaration of presumptive
summary proceeding is death is not necessary
necessary
As to who can institute the Can be instituted by the The spouses themselves
action present spouse, any
interested party, and the
subsequent spouse
As to effect on subsequent Subsequent marriage is
Upon reappearance,
marriage automatically terminated
judicial proceeding is
by the recording of an
necessary to declare
affidavit of reappearance of
marriage null and void
the absent spouse
As to ground Well founded belief that Generally believed to be
the absent spouse is dead dead

Art. 42. The subsequent marriage referred to in the preceding Article shall be
automatically terminated by the recording of the affidavit of reappearance of the
absent spouse, unless there is a judgment annulling the previous marriage or declaring
it void ab initio.

A sworn statement of the fact and circumstances of reappearance shall be recorded in

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

Notes:

1. SSS vs. Jarque Vda. De Bailon 485 SCRA 376 (2006)

If the absentee reappears, but no step is taken to terminate the subsequent

marriage, either by affidavit or by court action, such absentee‘s mere reappearance, even
if made known to the spouses in the subsequent marriage, will not terminate such
marriage. Since the second marriage has been contracted because of a presumption that
the former spouse is dead, such presumption continues inspite of the spouse‘s physical
reappearance, and by fiction of law, he or she must still be regarded as legally an absentee
until the subsequent marriage is terminated as provided by law.
Effects of Termination of Bigamous Marriage (Art. 43 and 44)— 


a. Children – conceived prior to its termination 
 considered legitimate 


b. Property Regime – dissolved and liquidated 
 (party in bad faith shall forfeit
his/her share in favor of the common children or if there are none, children of the guilty
spouse by a previous marriage, and in case there are none, to the innocent spouse) 


c. Donation propter nuptias – remains valid, (but if the donee contracted marriage
in bad faith, donations will be revoked) 


d. Insurance benefits – innocent spouse may revoke designation of guilty party as

beneficiary, even if such designation is stipulated as irrevocable 


e. Succession Rights – Party in bad faith disqualified to inherit from innocent spouse,
whether testate or intestate 


f. Donations - If both parties of subsequent marriage acted in bad faith, any

donations and testamentary dispositions made by one party to the other by reason of
marriage will be revoked (Art. 44) 


VOIDABLE MARRIAGES

Notes:

I. Grounds for Annulment (Art. 45, FC)

Marriage may be annulled on the ff grounds existing at time of marriage:

1. One of the parties is 18 or above but below 21, and there is no parental
consent.

2. Either party was of unsound mind (insanity).

3. The consent of either party was obtained through fraud (different from
mistake in identity):
 a. through non-disclosure of a 
 previous conviction of a crime

 involving moral turpitude; 

b. through concealment by the wife of the fact at the time of the
marriage that she was pregnant 
 by another man; 

c. through concealment of a 
 sexually-transmitted disease, regardless
of its nature, existing at the time of marriage; 

d. through concealment of drug addiction, habitual alcoholism or
homosexuality/lesbianism.
 (Art.46, FC) 


4. The consent of either party was obtained through force, intimidation, or

undue influence.

5. Either party is physically incapable of consummating the marriage

(impotence; this is different from sterility).

6. Either party has a serious and incurable sexually-transmissible disease,

even if not concealed.

II. Grounds for Annulment explained:

1. Lack of parental consent

a. 18<=x<21 w/o parental consent 


b. Ratified upon free cohabitation upon 
 reaching 21. 


Note: TOLENTINO: parents whose consents 
 were wanting may ratify before 21; this
right can be waived; however, the Code Commission believes that no such ratification
can be made by the parent. 


2. Insanity
a. mental incapacity or insanity is a vice of 
 consent; insanity (1) of varying
degrees, (2) curable being an illness, capable of ratification or convalidation,
(3) has lucid intervals, (4) ground only for annulment in many countries 


b. can be ratified by cohabitation after insane is cured 


 c. mere mental weakness is not a ground for annulment, but if found grave
enough may amount to psychological incapacity. 


d. intoxication, somnambulism where one had no mental capacity to give

consent is equivalent to insanity 


e. must EXIST AT THE TIME of the celebration of the marriage. 


f. law presumes SANITY, burden of proof on party alleging insanity 


3. Fraud 


a. only those enumerated in Art. 46 FC

 non-disclosure of previous CONVICTION by final judgment of a crime
involving MORAL TURPITUDE 

 concealment by wife at the time of marriage, that she was pregnant by
another man 

 concealment of STD regardless of nature existing at time of marriage 

 concealment of drug addiction, habitual alcoholism, homosexuality,
lesbianism existing at time of marriage 


b. No other misrepresentation or deceit of
 CHARACTER, HEALTH,

RANK,
 FORTUNE OR CHASTITY shall
 constitute FRAUD Almelor v. RTC,
(2008)

c. TOLENTINO: fraud must relate to fact material to the marital relation;

PRINCIPLE OF ENUMERATION; no other cases of fraud can be ground for
annulment; INCLUSIO UNIUS EST EXCLUSIO ALTERIUS

d. Conviction of Crime: requisites are
 moral turpitude conviction

e. Concealment of Pregnancy
• fraud against very essence of 
 marriage; importance of procreation of children;
an assault to the integrity of the union by introducing ALIEN BLOOD 

• If husband knew of pregnancy, the
 marriage cannot be annulled on the
 ground
of concealment. Three (3) months after the celebration of the
 marriage, a baby
 was born.
 Annulment was refused because of
 advanced stage of
pregnancy,
 which must be patent to the
 husband (Buccat v Mangonon)
• If there was coitus before marriage & wife was pregnant at time of marriage
although he may not be the father, marriage cannot be annulled because man
knows wife is unchaste. Principle: one cannot go to court with unclean hands. Prof.
Balane: An isolated case and is not doctrinal.

f. Marriage cannot be annulled on ground that wife concealed the fact that she
had been lewd & corrupt and had illegitimate child (Shrady v Logan) 


g. Maybe ratified upon cohabitation after knowledge of fraud 


Buccat v Buccat, 72 Phil. 19
 Wife gave birth 3 months after marriage celebration.
Husband filed for annulment. Ground: concealment of non-virginity. Court held that it
was unbelievable that wife could have concealed 6 months of pregnancy. 


Aquino v Delizo, 109 Phil. 21
 The Supreme Court granted annulment because
the wife concealed the fact that she was 4 months pregnant during the time of the
marriage. It argued that since Delizo was “naturally plump,” Aquino could hardly
be expected to know, by mere looking, whether or not she was pregnant at the
time of the marriage. 


(Almelor vs. RTC, 2008)

It is the concealment of homosexuality, and not homosexuality per se, that vitiates
the consent of the innocent party. Such concealment presupposes bad faith and
intent to defraud the other party in giving consent to the marriage.

(Corpuz v. Ochoterena, (2004)

In a legal separation or annulment case, the prosecuting attorney must first rule
out collusion as a condition sine qua non for further proceedings. A certification
by the prosecutor that he was present during the hearing and even cross-
examined the plaintiff does not suffice to comply with the mandatory requirement.

STD: Art. 45 vs. Art. 46

Art. 45 STD Art. 46 STD

 Ground for annulment The STD is a type of fraud which is a
ground for annulment

Does not have to be concealed Must be concealed

Must be serious and incurable Need not be serious nor incurable
The STD itself is the ground for It is the concealment that gives rise to
annulment the annulment

Effect of Cure to Fraud in Art. 46:

Recovery or rehabilitation from STD, drug addiction, and habitual alcoholism will
NOT BAR ACTION for annulment; defect: not the disease, but the FRAUD which
VITIATED CONSENT

4. Force, intimidation, undue influence

• FORCE must be one as to prevent party from acting as a free agent; will

 destroyed by fear/compulsion 

• INTIMIDATION must be one as to 
 compel the party by reasonable/well-
grounded fear/evil imminent upon person/properties 

• DEGREE OF INTIMIDATION: age, sex, condition of person borne in mind 

• A threat to enforce claim thru competent authority, lawful or not, does not vitiate
consent 

• VIOLENCE or INTIMIDATION annul obligation even if by third person (Art.
1336, CC) 

• UNDUE INFLUENCE when improper advantage of his power over the will of 

another, depriving freedom of choice. (Art. 1337, CC)
 EXAMPLE:
confidentiality, family relations, suffering from mental weakness, in financial
distress
• Threat to FILE A CASE OF immorality on bar candidate where he does not marry
a girl who he has impregnated 
 does not vitiate consent (Ruiz v Atienza) 

• Threat or intimidation as no to act as FREE AGENT; threatened of armed
demonstrations by brother is 
 ANNULLABLE (Tiongco v Matig-a) 

• Man rapes a girl, marries her & has no intention to live with the girl; marriage is

 annullable (People v Santiago) 

• Committee added “undue influence”, maybe compelled to enter out of
REVERENTIAL FEAR e.g., fear of causing distress to parents, 
 grandparents, etc


5. Impotency
• should exist at the time of celebration 
 marriage 

• should continue to the time of trying 
 annulment case 

• should appear incurable 

• should be unknown to the other party 

• physical condition: sexual intercourse 
 with a person of the opposite sex is

 impossible, not mere sterility 

• only potent spouse can file action 
 (principle: one cannot come to court with

 unclean hands) 

• must exist at time of marriage, must be 
 continuous, must be incurable; thus if
removable by operation, NOT ANNULLABLE (Sarao v Guevarra, CA, 40 O.G. 155
Supp. 263) 

• both spouses impotent, marriage cannot be annulled because neither spouse is
aggrieved 

• impotency due to old age, marriage cannot be annulled 

• POTENCY PRESUMED; party who alleges impotency has burden of proof
(Jimenez v Canizares) 

• Although potency is presumed, there is a doctrine in England called TRIENNIAL
COHABITATION that if wife remains virgin after 3 yrs, husband presumed
impotent & has burden to prove otherwise (Tompkins v Tompkins) 

• REFUSAL of wife to be examined DOES NOT PRESUME impotency because
Filipino women are inherently shy & bashful; TC must order physical examination
because w/o proof of impotency, she is presumed potent; to order her to undergo
physical exam does not infringe constitutional rights against self-incriminating
(Jimenez v Canizares)
• Villanueva vs. CA (2006): Absence of cohabitation is not a ground for annulment.
• NOTE: if wife continues to refuse to undergo physical exam, she can be held for
CONTEMPT & ordered to be confined in jail until she does so 

• RELATIVE IMPOTENCY: may now be invoked because there are cases where one
is impotent with respect to his spouse but not with other men or women. 

• EXAMPLE: penile erection to other women possible; unusually large penis can fit
with abnormally large vagina 


6. Sexually-transmissible disease serious and incurable

a. should exist at the time of the marriage 

b. should be found serious 

 c. should appear to be incurable 

d. Should be unknown to other party 

e. reason: danger to the health of spouse 
 & offspring/s 

f. same as incurable impotency 

g. Ratification or Convalidation of Voidable 
 Marriages: by cohabitation or
prescription cannot be ratified or convalidated:
prior subsisting marriage; would 
 result in anomalous relationship 

vitiated by impotency remains as 
 long as afflicted 

vitiated by affliction of STD remains 
 as long as afflicted 

Affliction of STD is unknown to the 
 other spouse (BALANE) 

The other spouse must also be free from a similar STD. (BALANE)
 

h. 2& 3 prescribe w/in 5 yrs by Art. 47(5)



Who may File, Prescription, Ratification

Ground (Art. 45) Who can file (Art. 47) Prescription (Art. 47) Ratification (Art. 45)

Lack of parental 1. 5 years after Free cohabitation

consent attaining 21. after attaining age of
1. Underage party
2. Before child reaches 21.
2. Parent or guardian
21.

Insanity 1. Any time before Free cohabitation of

1. Sane spouse with the death of either insane party after
no knowledge of the party insane party comes to
other’s insanity
 2. reason
Legal guardian of 2. During lucid
insane party interval or after
2. Insane party regaining sanity, and
before death
Fraud Injured party Five years after Free cohabitation
(defrauded party) discovery of fraud after having full
knowledge of fraud

Force, intimidation, Injured party Five years after Free cohabitation

undue influence disappearance of after the force has
force or intimidation ceased or
disappeared
 Impotence Healthy party Five years after Deemed ratified
marriage when action
prescribes

STD Healthy party Five years after Deemed ratified

marriage when action
prescribes

Effects of Pending (Art. 49, FC) Actions/Decree

1. The court shall provide for the support of the spouses,

2. The custody and support of the common children, giving paramount consideration to
their moral and material welfare, their choice of parent with whom they wish to remain.
3. The court shall also provide for visitation rights of other parent.

Effects of Other Void Marriages—


1. The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and by
Article 44 shall also apply in the proper cases to marriages which are declared ab initio
or annulled by final judgment under Articles 40 and 45 [Art. 50(1)]

2. Final judgment in such cases shall provide for the liquidation, partition, and
distribution of the:

a. properties of the spouses
b. custody and support of the common children
c. delivery of their presumptive legitimes
 unless such matters had been
adjudicated in previous judicial proceedings [Art. 50(2)]
 all creditors (of
the spouses/property regime) shall be notified of the proceedings for
liquidation [Art. 50(2 and 3)]

3. In the partition, the conjugal dwelling and lot shall be adjudicated to the spouse
with whom majority of the common children remain (Art. 102 and 129) [Art. 50(4)]

4. Presumptive legitimes, computed as of the date of the final judgment, shall be

delivered in cash, property or sound securities
• unless the parties, by mutual agreement judicially approved, had already
provided for such [Art. 51(1)] 

 • the children/guardian/trustee may ask for the enforcement of the judgment [Art.
51(2)] 

• the delivery of the presumptive legitimes shall not prejudice the ultimate
successional rights, but the value of the properties already received shall be
considered as advances on their legitime [Art. 51(3)] 


5. Either of the former spouses may marry again AFTER compliance with the
requirements of Article 52, otherwise, the subsequent marriage is void (Art. 53)


 LEGAL SEPARATION

1. The grounds for legal separation are exclusive.

a. Repeated physical violence or grossly abusive conduct

 The frequency of the act and not the severity of the same is the
determinative factor to grant legal separation.
 Even if the act is not repeated or does not involve physical violence, such
act may constitute grossly abusive conduct.
 Grossly abusive conduct has no exact definition, and is determined on
a case-to-case basis. Thus, a singular but serious act of “squeezing of
neck, pulling of hair and the like without the intent to kill, may be
included in the phrase.
 Use of offensive language toward the other spouse, continually calling
him or her vile and opprobrious names causing unhappiness is
considered a cruel and abusive conduct.

b. physical violence or moral pressure to compel petitioner to change or political

affiliations

 one attempt of physical violence of moral pressure is enough as ground

for legal separation.

c. attempt to corrupt or induce the petitioner, common child or child of the

petitioner, to engage in prostitution or connivance or inducement

 The immoral and corrupt act referred to is prostitution only. The

inducement likewise refers to prostitution only.
 Mere attempt is enough as ground for legal separation.
 This does not cover corruption or inducement of the child of the guilty
spouse
 d. final judgment sentencing imprisonment of more than 6 years

e. drug addition or habitual alcoholism

f. lesbianism or homosexuality

g. bigamous marriage

h. sexual infidelity or perversion

 Gandioco v Peñaranda, 155 SCRA 725 (1989)—

In sexual infidelity as a ground for legal separation, there is no need for
prior conviction for concubinage, because legal separation only requires a
preponderance of evidence, as opposed to proof beyond reasonable doubt
required in concubinage.

i. attempt against the life of the petitioner

j. abandonment without just cause for more than 1 year

 The abandonment or desertion must be willful – a design to forsake the

other spouse intentionally.
 Physical separation alone is not the full meaning of the term
“abandonment”, if the husband or the wife, despite his or her voluntary
departure, neither neglects the management of the conjugal partnership
nor ceases to give support to his wife or her husband. (Dela Cruz vs.
Dela Cruz, 22 SCRA 333)
 There must be absolute cessation of marital relations, duties and right,
with the intention of perpetual separation. (Partosa-Jo vs. CA, 216
SCRA 692)
 The abandonment must be for more than 1 year to warrant a decree of
legal separation

2. Legal separation may be denied in any of the following grounds:

a. Condonation – see Ocampo vs. Florenciano where SC held that that the failure
of the husband to look actively for his adulterous wife after she left the conjugal
home does not constitute condonation.
  Bugayong v. Ginez, 100 Phil. 616 (1956) — Continued cohabitation despite
full knowledge of the spouse’s infidelity constitutes implied
condonation.

b. Consent – made before the commission of the offense. There is consent when
either of the spouses agreed to or did not object, despite full knowledge, to the
act giving rise to a ground for legal separation, before such act was in fact
committed.
c. Connivance – this is called “corrupt consenting”. Employment of means or
other persons to induce the commission of the offense.
d. Recrimination or equal guilt – pari delicto; he who comes to court must come
with clean hands.

 In Ong vs. Ong, 505 SCRA 76 (2006), where the husband subjected the
wife to physical beatings sought the dismissal of the case for legal
separation filed against him by the wife on the ground of equal guilt
contending that the wife abandoned him, the SC rejected the contention
because the abandonment was not “unjustified”.

e. Collusion – corrupt agreement between husband and wife for one of them to
commit, or to appear to commit, or to be represented in court as having
committed, a matrimonial offense, or to suppress evidence of a valid defense.

f. Prescription – 5 years

3. Procedure

a. cannot be tried before 6 months shall have elapsed. See Pacete vs. Carriaga, 231
SCRA 321, where the SC voided a decision as the trial court failed to observe
the cooling-off period.

b. Reconciliation must be exerted

c. No decree of legal separation may be issued based on stipulation of facts or

confession of judgment.

d. After the filing of the petition, the spouses shall be entitled to live separately.

e. In the absence of a written agreement, the court shall designate the spouse who
shall administer the ACP or CPG.
  In Sabalones vs.CA (1994), the SC held while spouses and joint
administrators of the ACP or CPG, Art. 61 provides that the court may
appoint an administrator upon the filing of the petition for legal
separation in the absence of a written agreement of the parties.

f. Support

 The court shall provide for the support of the spouses.

 The custody and support of the common children, giving paramount
consideration to their moral and material welfare, their choice of parent
with whom they wish to remain.
 The court shall also provide for visitation rights of other parent.

4. Death of either party during petition for legal separation terminates the action.
(Lapuz vs. Eufemio, 43 SCRA 177)

5. Effects of legal separation

 Spouses shall live separately but the marital bond remains.

 ACP or CPG shall be dissolved and liquidated.
 Guilty spouse has no right to the share in the net profits, which shall be
forfeited in favor of the common children, or in their absence, the
children of the guilty spouse, or the innocent spouse.
 The custody of the minor children shall be awarded to the innocent
spouse subject to Article 213.
 The offending spouse shall be disqualified from inheriting from the
innocent spouse by intestate succession.
 Designation of the offending spouse in the will of the innocent spouse
is revoked by operation of law.
 After finality of the decree, the innocent spouse may revoke donation
made by him/her in favor of the guilty spouse, as well as the
designation as beneficiary in insurance policies, effective upon
notification of the insurer. The action to revoke donation must be
brought within 5 years from the finality of the decree of legal separation.

6. Reconciliation of spouses –effects

 Reconcilation is effected by filing a joint manifestation with the court

where the petition for legal separation is filed.
 The legal separation proceedings, if pending, shall be terminated.
  The final decree shall be set aside, with the forfeiture of the net profits
shall remain valid unless the parties agree to revive their former
property regime.
 If the parties agree to revive their former property regime, they shall file
under oath such agreement, with corresponding motion, providing:
o On the properties to be contributed anew
o Those to be retained as their separate properties
o Names of all of their creditors
o The order and the agreement shall be recorded in the proper civil
registry so as not to prejudiced the creditors.

RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE

1. Obligations of the Spouses

a. Live together (cohabitation – Art. 68)

Exemption: One spouse living abroad or there are valid and compelling 

reasons (Art. 69, Par 2) 

Exemption to Exemption: Incompatibility 
 with the solidarity of the family
(Art. 69, Par. 2)


Nota Bene:

o Except for support, a court cannot validly issue a decision

compelling the spouse to live together, observe mutual love, respect
and fidelity as these are moral obligations. (Potenciano vs. CA, 2001)
o The wife’s domestic assistance and conjugal companionship are
purely personal and voluntary acts which neither the spouses may
be compelled to render. (Arroyo vs. Arroyo, 42 Phil. 54)
o There can be no action for damages merely because of a breach of
marital obligations. (Ty vs. CA, 2000)

b. Observe mutual love, respect, and fidelity Render mutual help and support
(Art. 68)


c. Fix the family domicile.
 In case of disagreement, the court shall 
 decide.
(Art. 69, Par. 1)
 d. Jointly support the family. (Art. 70) 
 From the conjugal property/income
of 
 the fruits of their separate properties 
 In case of
absence/insufficiency, from their separate properties (liable in

 proportion to their properties)

e. Manage the household. (Art. 71)

2. Rights of the Spouses

a. In case the other spouse neglects his or her duties or commit acts which
tend to bring danger, dishonor or injury to the family, the aggrieved party
may apply the court for relief. (Art. 72) 
 Injury contemplated is physical,
moral, emotional, or psychological, not financial. 


b. Either spouse may exercise any legitimate profession, without need for
consent of the other.

 The other spouse may only object on 
 valid, serious, and moral
grounds. 


 In case of disagreement, the Court shall 
 decide whether 


o the objection is proper, and


o benefit has accrued to the family before OR after the objection.

o If BEFORE, enforce resulting obligation against the community
property. If AFTER, obligation against the separate property of
the spouse who has not obtained consent.



TITLE IV
 PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE


 


Notes:

1. Order to be followed (Arts. 74, 75, FC)—

• Marriage settlements before marriage – spouses can agree to whatever regime
they want (ACP, CPG, complete separation or any other property regime to be
agreed upon prior to the celebration of the 
 marriage). 

 • Family Code – If there are no marriage 
 settlements, or if the regime agreed upon
is void, the Absolute Community of Property will be followed 

• Local Customs 


2. General Rule (Art. 80, FC)—

Property relations between Filipino spouses are governed by Philippine laws, regardless
of the place of marriage and their residence (Nationality Rule- Art 15, NCC).
Hence—
The rule that ACP is the default mode of property relations absent any marriage
settlement applies to all Filipinos, regardless of the place of the marriage and their
residence.

Exceptions—
1. Where both spouses are aliens

2. As to the extrinsic validity of contracts
3. Contrary stipulation

3. Requirements for Marriage Settlements (Art. 77, FC) (WiSER)—


a. Must be in writing (public or private)


b. Signed by the parties
c. Executed before the celebration of the marriage
d. Must be registered in local civil registry – to affect third persons (If not
registered, will not prejudice third persons, ACP will apply)
e. If party needs parental consent (age 18-21), parent/guardian must be a
party to the settlement (Art. 78)
f. If party is under civil interdiction or other disability (not including
insanity), court appointed guardian must be a party (Art. 79)

4. General Rule: All modifications to the marriage settlement must be made before
the marriage is celebrated. (Art. 76)

Exceptions:
• Legal Separation (Art. 63 (2), FC) 

o The property regime is dissolved. 

• Revival of the former property regime upon reconciliation if the spouses agree
(Art. 66 (2)) 

• A spouse may petition the court for: 

 o Receivership
 o Judicial separation of property,
o The authority to be the sole administrator of the conjugal partnership
 If the
other spouse abandons the other without just cause or fails to comply with his or
her obligations to the family. (Art. 128)
 Judicial Dissolution (Arts. 135 and 136)
 Note Pana vs. Heirs of Juanite, Dec. 10, 2012, where the SC held that modification
can be made after the marriage ceremony, but such post-marriage modification shall
need judicial approval and should only refer to the instances provided in Arts. 66,67,
135 and 136.

Furthermore: Marriage settlements are considered ACCESSORY to the

marriage
 Stipulations in consideration of future marriage and donations will be void if
the marriage does NOT take place. (Art. 81, FC)

Donations by Reason of Marriage

Notes:

1. Requisites of donations propter nuptias: (Art. 82, FC)—

a) Made before the celebration of marriage. 

b) Made in consideration of the marriage. 

c) In favor of one or both spouses. 

d) The donor must be one of the betrothed or 
 any third person 


2. Donations excluded—
• Ordinary wedding gifts given after the celebration of the marriage 

• Donations in favor of future spouses made before marriage but not in
consideration thereof 

• Donations made in favor of persons other than the spouses even if founded on the
intended marriage 


3. Who may donate—

Spouses to each other 

Parents of one or both spouses 

3rd persons to either or both spouses 

 Moreover, in donations propter nuptias, the marriage is really a consideration but
not in the sense of giving birth to the obligation. There can be a valid donation even if the
marriage never took place. However, the absence of marriage is a ground for the
revocation of the donation. (Solis v. Barroso, (1928))

Donations
 propter nuptias are without onerous consideration, marriage being

merely the occasion or motive for the donation, not its cause. Being liberalities, they
remain subject to reduction for inofficiousness upon the donor’s death, if they should
infringe the legitime of a forced heir. (Mateo v. Lagua, (1969))

4. Rules to Follow in Donation Propter Nuptias—

1. Family Code provisions (Arts. 82-87) 


2. Ordinary Donation provisions (Art. 83, FC; 
 Title III of Book III of the NCC) 

3. Provisions on testamentary succession and 
 the formalities of wills for donations
on future property (Art. 84, par. 2) 


5. Rules

Before Marriage General Rule:

Future spouses cannot donate to each other more than 1/5 of their present property
(excess shall be considered void) (Art. 84, FC)

Exception:

If they are governed by ACP

During Marriage General Rule:

Spouses cannot donate to each other, directly or indirectly (donations made by spouses
to each other during the marriage are void) (Art. 87, FC)

Exception:
Moderate gifts on the occasion of any family rejoicing.

Matabuena v Cervantes, (1971)

The donation between common-law spouses falls within the provision prohibiting
between spouses during Grounds for revocation - In Art. 86

Harding vs. Commecial Union (1918)

The prohibition on donations can only be assailed by persons who bear such relation to
the parties or the property itself, that their rights are being interfered with. Here, the
insurance company of the donated car cannot assail the validity of the donation. In
addition, the codal exception of “moderate gifts” depends on the income class of the
spouses and a car could be considered a “moderate gift” that does not infringe the
prohibition of donation between spouses.

Sumbad v. CA, (1999)

The donation made by a man to a woman was held valid because no proof was shown
that they were still living in a common-law relationship at the time of the donation.

6. Donation subject to encumbrance

• Are considered valid. 


• In case of foreclosure
if property value < obligation, donee shall not be liable 

if property value > obligation, donee shall be entitled to the excess (Art. 85, FC) 


7. Grounds for Revocation of Donation Propter Nuptias (Art. 86, FC)

(CAVaLRI)—

• If the marriage is not celebrated or judicially 
 declared void ab initio, except

donations 
 made in settlements. 


 If the marriage is declared void pursuant to Art. 40 in relation to Art.

52 and 53, the donation is revoked by operation of law.
 Marriage declared void because the declaration of presumptive
death is irregular because the parties are both in bad faith, donations
are revoked by operation of law.
 In all other cases where the marriage is judicially declared void on
grounds other than Art. 40 in relation to Arts. 52 and 53, the donor
may or may not revoke the donation.
 Donations in adulterous or bigamous marriages are void.

• When the marriage takes place without the 
 consent of the parents or guardians,
as 
 required by law. 

• When the marriage is annulled, and the 
 donee acted in bad faith. 

• Upon legal separation, if the donee is the 
 guilty spouse. 

 • If there is a resolutory condition, and it is not 
 complied with. 

• When donee has committed an act of 
 ingratitude: (Art. 765, CC) (PCS)

o An offense against person or property of 
 donor, or his wife or

children under 
 parental authority. 

o An imputation to the donor of any 
 criminal offense, or any act
involving moral turpitude, even if proven, unless the crime is
committed against the donee, his wife or children under his
authority. 

o Refusing to support the donor, if he/she is legally required to do
so. 


*The action for filing for revocation of donation prescribes.

System of Absolute Community

Notes:

1. All properties owned by the contracting parties before the marriage ceremony and
those which they may acquire thereafter shall comprise the absolute community
of property.

Also, in partial separation of property regime, the property not agreed upon as
separate shall pertain to the ACP.

2. The spouses become co-owners of all the properties in an ACP regime. However,
no waiver of rights, interests, shares and effects of the ACP can be made except
upon judicial separation of property.

3. The ACP shall commence that the precise moment of the celebration of the
marriage.

4. The following are excluded from the ACP:

a. Property acquired during the marriage by gratuitous title by either

spouse, and the fruits and income thereof, unless otherwise expressly
provided by the donor, grantor or testator.
b. Property for personal and exclusive use of either spouse. However,
jewelry shall form part of the ACP.
 c. Property acquired before the marriage by either spouse who has
legitimate descendants by a former marriage, and the fruits as well as the
income of such property.

4.1. Only those stated under Article 92 of the FC are excluded from the ACP. There is
a presumption that all properties are part of ACP.

5. Charges upon and obligations of the ACP:

a. Support of spouse, common children

b. All debts and obligations contracted by both spouses, or one spouse with
the consent f the other, or by the spouse-administrator.
c. Debts and obligations contracted by one spouse without the consent of the
other but to the extent that redounded to the benefit of the family.
d. Taxes, liens and charges and expenses, including major repairs, upon the
community property.
e. Taxes and liens upon the separate property used by the family.
f. Expenses to enable either spouse to commence or complete professional or
vocational course, or for self-improvement.
g. Ante-nuptial debts of either spouse insofar as they have redounded to the
benefit of the family.
h. Value of what was donated or promised to the common children to
commence or complete professional or vocational course or for self-
improvement.
i. Ante-nuptial debts that did not redound to the family, support of
illegitimate children, liabilities for crimes and quasi-delict.
j. Expenses of litigation between spouses unless the suit is groundless.

6. Gains in games of chance are part of the ACP; losses, however, shall be separate
liability of the loser-spouse.

7. The administration and enjoyment of the absolute community shall belong to the
spouses jointly. In case of disagreement, husband’s decision shall prevail, subject
to recourse by the wife to the court for property remedy which shall be availed
within 5 years.

a. If one spouse is incapacitated or unable to participate in the administration

of properties, the other able spouse shall assume sole powers, but these do
not include disposition or encumbrance. Disposition or encumbrance
without the consent of the other spouse or court authority shall be void,
however, the transaction shall be considered as a continuing offer on the
part of the consenting spouse and the third person, and may be perfected
 as binding contract upon acceptance of the other spouse or authorization of
the court before offer is withdrawn.

8. Either spouse may dispose by will his or her interest in the ACP.
9. Neither spouse can donate any community property without the consent of the
other; however, moderate donations are allowed in times of family rejoicing or
family distress.

10. Dissolution of ACP:

a. Death of either spouse

b. Legal separation
c. Marriage is annulled or declared void
d. Judicial separation of property in cases provided under Arts. 134-138

11. Effects in ACP of separation in fact of spouses:

a. Spouse who leaves the family abode without just cause shall not be
supported.
b. In case consent is necessary in any transaction required by law, judicial
authorization shall be obtained.
c. Spouse present may petition the court for authority to administer or
encumber specific separate property of the absent spouse, and use fruits
or proceeds thereof to satisfy latter’s share.

12. If a spouse abandons the other without just cause or fails to comply with marital,
parental or property obligation, the aggrieved party may petition the court for: a)
receivership; b) judicial separation of property; c) authority to be the sole
administrator of the ACP.

Presumption: spouse who leaves the dwelling for a period of 3 months, or fails to
provide whereabouts for the same period, is presumed to have no intention of returning
the conjugal dwelling.

13. Procedure for the Liquidation of ACP

a. Inventory of properties, both community and separate properties.

b. Payment of debts and obligations out of the ACP; in case of insufficiency,
separate properties shall be solidarily liable.
c. Whatever remains of the separate property shall be delivered to either
spouse.
 d. Net remainder of the ACP shall constitute net assets, which shall be
divided between spouses either equally or pursuant to the sharing in the
marriage settlement.

Net profits for purpose of forfeiture shall mean the increase in value between the market
value of the ACP at the time of the celebration of the marriage and its present value at
the time of dissolution.

e. Delivery of presumptive legitimes

f. Conjugal dwelling shall be awarded to the spouse with whom majority of
the children choose to remain, in case of non-majority, court shall decide.
Children below 7 years of age are deemed to choose the mother.

14. Upon death of either spouse, ACP shall be liquidated in the settlement
proceedings. If no judicial settlement proceedings are instituted, the surviving
spouse shall liquidate the ACP either judicially or extrajudicially within 1 year
from death of the deceased spouse. After lapse of the said period, and no
liquidation is made, any disposition or encumbrance is void. In case of
remarriage and no settlement or liquidation, complete separation of property
shall govern the subsequent marriage.

15. ACP of marriages contracted before effectivity of FC shall be liquidated

simultaneously. The respective capital, fruits and income shall be determined
upon such proof pursuant to the rules on evidence. In case of doubt, the same
shall be divided in proportion to the capital and duration of each.

Conjugal Partnership of Gains

Notes:

1. Under CPG, the husband and wife place in a common fund the proceeds, products,
fruits and income from their separate properties and those acquired by either or
both during the marriage through their efforts or by chance, and in the event of
dissolution of CPG, the net gains or benefits shall be divided between the spouses.

2. CPG shall commence the precise moment of marriage celebration; and no waiver
of interests shall be valid, except in case of judicial separation of property.

3. CPG is a special form of partnership. Hence, a partner is a co-owner with his other
partner of specific partnership property. Every partner must account to the
 partnership every benefit derived by him without the consent of the other from
any transaction.

4. Exclusive property of each spouse:

a. That which is brought to the marriage as his or her own.

b. That which each acquires during the marriage by gratuitous title.
c. That which is acquired by right of redemption, by barter or by exchange
with property belonging to only one of the spouses.
d. That which is purchased with exclusive money of the wife or the husband.

5. Either spouse retains right of ownership and administration to his or her separate
property. The administration of separate property may be transferred to the other
spouse through a public instrument which shall be recorded in the register of
deeds. Alienation of separate property terminates administration of the other
spouse. Each spouse may mortgage, encumber or alienate separate property,
without the consent of the other.

6. Property donated or left by will to the spouses jointly and with designation of
shares, shall pertain to him or her as exclusive property, and in case of no
designation of shares, share and share alike, without prejudice to right of accretion.

7. In donations which are onerous, the amount of the charges shall be borne by the
exclusive property, whenever they may have been advanced by the CPG.

8. Rules in case of retirement benefits, pensions and annuities, etc.

a. Gratuity is an act of pure liberality, and therefore, exclusive property.

However, if it is given as a matter of right, it is conjugal.
b. Pensions which are in the nature of compensation of services rendered are
part of CPG.

9. All properties acquired during the marriage, whether the acquisition appears to
have been made, contracted or registered in the name of one or both spouses, is
presumed to be conjugal unless the contrary appears. Proof of acquisition during
the marriage is a condition sine qua non for the operation of the presumption.
(Jocson vs. CA, 170 SCRA 333)

10. Conjugal properties

a. Those acquired by onerous title during the marriage at the expense of the
common fund.
 b. Those obtained from labor, industry, work or profession of either or both
of the spouses.
c. The fruits, natural, industrial or civil, due or received during the marriage
from the common property as well as net fruits from the exclusive property
of each spouse.
d. Share of either spouse in the hidden treasure which the law awards to the
finder or owner of the property where the treasure is found.
e. Those acquired through occupation such as fishing or hunting.
f. Livestock existing upon dissolution of marriage in excess of the number of
each kind brought to the marriage by either spouse.
g. Those acquired by chance, such as winnings from gambling or betting;
losses, however, shall be exclusively borne by the loser-spouse.

11. Installment purchases

Article 118 contemplates a situation where installment was initiated prior to the marriage
and ended after the marriage. When property is bought on installment basis partly by
exclusive funds of either or both spouses and partly by conjugal funds, the ownership of
the property is determined by the time when the title is vested. If vested before marriage,
it is exclusive property; if during the marriage, conjugal, in each case, reimbursement
shall take place.

In Jovellanos vs. CA, 210 SCRA 126, the SC held that a property whose last installment
was made during the second marriage by the conjugal funds of said marriage and partly
by conjugal funds of the first marriage, it is considered conjugal property.

12. In a situation where one of the spouses has in his or her favor a credit payable in
installments or, in any case, a credit which will be fully paid during the marriage,
all payment made on the principal during that marriage are considered exclusive
property but interest on principal falling due during marriage shall belong to the
CPG.

13. Rules on introduction of improvements on separate property

a. If cost of improvement made on separate property is more than the value

of the property, the entire property shall pertain to CPG, with the owner
being reimbursed during the liquidation of the CPG.
b. If cost of improvement is equal to or less than the value of the property, it
remains exclusive property, subject to reimbursement.
c. Ownership of entire property is vested upon reimbursement.

14. Charges upon and obligations of the CPG are the same as those in the ACP.
 a. Rule in case of debts or obligations incurred by the husband alone which
are chargeable to CPG

- If the husband himself is the principal obligor in the contract, and

he directly received the money or services to be used in or for his
own business or for his own profession, the obligation is conjugal.
No actual benefit to the family may be proved. It is enough that the
benefit to the family is apparent at the time of the signing of the
contract.
- If the money or services are given to a third person, and the
husband acted only as a surety or guarantor, the resulting
obligation shall not chargeable to the CPG. (Ayala Investment &
Development Corp. vs. CA, Feb. 12, 1998).

b. Personal debts and fines and pecuniary liability of one spouse incurred
prior to the marriage are, as a rule, not chargeable to CPG. However, after
satisfaction of the charges enumerated in Article 121 have been satisfied,
and the concerned spouse has no separate property or is insufficient, the
CPG may advance the payment. This is different from ACP.

15. The rules on administration and enjoyment of conjugal property are the same as
those stated in ACP.

16. Grounds for dissolution of CPG similar to that of ACP.

17. Rules in separation of fact in CPG similar to ACP.

18. Rules in case of abandonment of one spouse are similar to ACP.

19. Liquidation of CPG

a. Inventory of all properties, conjugal and separate.

b. Amounts advanced by CPG in payment of personal debts and obligations
of either spouse shall be credited to the CPG as an asset thereof.
c. Reimbursement for the use of exclusive property or funds in the acquisition
of conjugal property, or the value of the exclusive property whose
ownership is vested in CPG.
d. Payment of debts and obligations by CPG; in case of insufficiency, the
separate properties will be liable.
e. Remainder of the exclusive properties shall be delivered to the spouses.
f. Loss or deterioration of the exclusive property used for the benefit of the
family shall be paid out of the conjugal funds, even if the cause for loss or
 deterioration is due to fortuitous event, except the owner will be
indemnified from whatever source.
g. Net remainder of the CPG shall constitute the profits, which shall be
divided equally or in accordance with the marriage settlement. Forfeiture
of share of guilty spouse will operate.
h. Delivery of presumptive legitimes.
i. Conjugal dwelling to be awarded to the spouse with whom majority of
children choose to remain; in case no majority, court shall decide.

20. Rule in termination of marriage by death of one spouse concerning CPG similar to
ACP.
21. Rule in simultaneous liquidation of two or more marriages contracted prior to FC
in CPG similar to ACP.

Separation of Property of the Spouses and Administration of Common Property by

One Spouse During the Marriage

Notes:

1. If the husband and the wife, prior to the marriage, did not execute any written
marital agreement providing that the separation of property regime will govern
their property relation, they cannot, after the marriage ceremony, alter their
property relations without judicial approval.

2. Grounds for judicial separation of property:

a. Civil interdiction
b. Judicial declaration of absence
c. Loss of parental authority decreed by the court
d. Abandonment or failure to comply with marital or parental obligations
e. Abuse of power of administration
f. Reconciliation is highly improbable and separation in fact lasted for at least
1 year.

For (a), (b) and (c), mere presentation of final judgment sufficient to grant separation of
property.

3. Spouses are allowed to voluntarily dissolve their property regime provided

creditors are to be notified.
 a. Once separation of property is decreed, property regime should be
liquidated.
b. During the pendency of the case, support shall be borne by the ACP/CPG
c. The petition as well as the final judgment of separation of property must be
recorded in the local civil registry and the register of deeds.
d. Separation of property does not prejudice vested rights of the creditors.
e. Spouses, after separation of property, may revive former property regime
in the following instances:
i. Civil interdiction terminates
ii. Absentee spouse reappears
iii. Court is satisfied that administrator will no longer abuse the power
iv. Spouse who abandons family resumes common life with the family
v. Reconciliation and resumption of family life after separation in fact
vi. Spouses agree to revive property regime voluntarily but they will no
longer be allowed to have voluntary separation of property.

4. Administration of the exclusive property of one spouse by the other is allowed in

the following instances:

a. When one spouse becomes the guardian of the other

b. When one spouse is judicially declared an absentee
c. When there is civil interdiction
d. Spouse becomes fugitive from justice or is hiding as an accused in a criminal
case.

If the other spouse is not qualified or there is conflict of interest, court may appoint
someone else.

COMPLETE SEPARATION OF PROPERTY

1. Separation of property may refer to present or future property or both. It may be

total or partial. In the latter case, the property not agreed upon as separate shall
pertain to the ACP.

2. Each spouse shall own, dispose of, possess, administer and enjoy his or her own
property without need of consent from the other. They shall also respectively own
the earnings and income of their separate property.

3. Both spouses shall bear the family expenses in proportion to their income, or in
case of insufficiency or default thereof, to the current market value of their
separate properties.
 4. Liability to creditors for family expenses shall be solidary.

Property Regime of Unions Without Marriage

Notes:

ARTICLE 147

1. This applies to common-law relationship who are capacitated to marry each other,
and to marriages that are void including those marriages where there is absence
of consent, authority of the solemnizing officer, a valid marriage license, a
marriage ceremony as provided for in Article 4 of the FC.

2. Structure of the property relationship is as follows:

a. Salaries and wages shall be owned by them in equal share

b. Property acquired by either of the parties exclusively by his or her own
funds belongs to such party provided that there is proof that he or she
acquired it by exclusive funds.
c. Property acquired by both of them through their work or industry shall be
governed by the rules on co-ownership. Consequently, either spouse may
alienate in favor of the other his or her share in the property.
d. Property acquired while they live together shall be presumed to have been
obtained by their joint efforts, work or industry and shall be owned by them
in equal shares. If the contribution by the other party consisted in the care
and maintenance of the family and household, it is deemed a contribution
to the acquisition.
e. The fruits of the couple’s separate property are not included in the co-
ownership.
f. Property acquired by any of the parties after separation shall be exclusively
owned by the party who acquired it.
g. Neither party can encumber or dispose by acts inter vivos of his or her share
in the property acquired during the cohabitation and owned in common,
without the consent of the other, until after the termination of their
cohabitation. However, either spouse may alienate in favor of the other his
or her share in the property co-owned.
h. When only one of the parties to a void marriage is in good faith, the share
of the party in bad faith shall be forfeited in favor of their common children.
In case of default or of waiver by any or all of the children, each vacant
share shall be given to their respective surviving descendant. In the absence
 of descendants, such share shall belong to the innocent party. The forfeiture
shall take place upon termination of the cohabitation.

ARTICLE 148

1. This article applies to the following relationships:

a. Common-law marriages of parties who are not capacitated to marry

b. Adulterous relationships
c. Bigamous or polygamous marriages
d. Incestuous void marriages under Article 37
e. Void marriages by reason of public policy.

2. Structure of the property regime is as follows:

a. The salaries and wages are separately owned by the parties and if any of
the spouses is married, his or her salary is the property of the ACP or CPG
of such legitimate marriage.
b. Property solely acquired by funds of any of the parties belong to such party.
c. Only the properties acquired by both of the parties through their actual joint
contribution of money, property or industry shall be owned by them in
common in proportion to their respective contributions.
d. The respective shares of the parties over properties owned in common are
presumed to be equal. However, proofs may be shown to show that their
contribution and respective shares are not equal.
e. The rule and presumption mentioned above shall apply to joint deposits of
money and evidences of credit.
f. If one of the parties is validly married to another, his or her share in the co-
ownership shall accrue to the ACP or CPG existing in such valid marriage.
If the party who acted in bad faith is not validly married to another, his or
her share shall be forfeited in the manner provided in the last paragraph of
Article 147. The foregoing rules on forfeiture shall likewise apply even if
both parties are in bad faith.

I. FAMILY

I. Family (asked in ’91 bar exam)

Basic social institution which public policy cherishes and protects hence, no suit between
members of the family shall prosper unless compromise between parties has failed.

A. Family relations include:

• Between husband and wife 

 • Between parents and children 

• Among other ascendants and descendants 

• Among brothers and sisters, full or half 
 blood. 


B. General Rule

For a suit between members of the same family to prosper, the following are required:
• Earnest efforts towards a compromise have 
 been made 

• Such efforts have failed 

• Such earnest efforts and the fact of failure 
 must be alleged 


Note: The case will be dismissed if it is shown

that no such efforts were made.

C. Exceptions to the general rule (VJLAFF)

Civil status of persons, 

Validity of marriage or a legal separation, 

Any ground for legal separation, 

Future support, 

Jurisdiction of courts, 

Future legitime 


Hontiveros v. RTC, (1999)
 Whenever a stranger is a party in a case involving family members,
the requisite showing of earnest efforts to compromise is no longer mandatory, as such
inclusion of a stranger takes the case out of the ambit of FC 151.

Art. 332 of the RPC provides for absolutory causes or exemption from criminal responsibility in
crimes against property, such as theft, swindling or malicious mischief committed by the
following persons:

1. Spouses, ascendants and descendants, or relatives by affinity in the same line.

2. The widowed spouse with respect to the property which belonged to the deceased
spouse before the same shall have passed into the possession of another; and
3. Brothers and sisters and brothers-in-law and sisters-in-law, if living together.

Note: In Intestate Estate of Manolita vda. De Carungcong vs. People, Feb. 11, 2010, the SC held
that Art. 332 applies to parents-in-law, stepparents and adopted children.
Art. 1109 – Prescription does not run between husband and wife, even if there is separation of
property, either in marriage settlement or by judicial decree. Neither does prescription run
between parents and children, during minority or insanity of the latter, and between guardian
and ward during the continuance of the guardianship.

V.FAMILY HOME

II. Family Home

Dwelling place of a person and his family

Guidelines—
1. It is deemed constituted from time of actual occupation as a family residence
2. It must be owned by person constituting it

3. It must be permanent

4. Rule applies to valid and voidable and even to common-law marriages under Arts.147 and
148

5. It continues despite death of one or more spouses or unmarried head of family for 10 years
or as long as there is a minor beneficiary (Art.159)
6. Can only constitute one family home (Art. 161)
7. Family home must be part of ACP or CPG, or the exclusive property of either spouse, with
his/her consent, and may be constituted by an unmarried head of the family on his or her own
property.
8. Property on conditional sale on installment may be constituted as family home.
9. The value of family home at the time of its constitution must be P300,000 in urban areas and
P200,000 in rural areas.

A. General Rule

The family home is exempt from (EFA):

1. Execution

2. Forced sale

3. Attachment

B. Exceptions in the exemption of the family home from execution (Art. 155)
1. Nonpayment of taxes.

2. Debts incurred prior to the constitution of the family home.

3. Debts secured by mortgages on the premises before or after such constitution.

4. Debts due to laborers, mechanics, architects, builders, materialmen and others who have
rendered service or furnished material for the construction of the building.

Olivia-De Mesa vs. Acero, Jan. 16, 2012, summarized the rules of exemption of family home
from execution:

a. Family residences constructed before the effectivity of FC must be constituted a family

home either judicially or extrajudicially in order to be exempt from execution.
b. Family residences constructed after the effectivity of FC are automatically deemed to be
family home and therefore exempt from execution.
c. Family residences which were not judicially or extrajudicially constituted as a family
home prior to the effectivity of FC, but were existing thereafter, are considered family
home by operation of law.

Note: Benefits of family home from execution under FC may be waived as this is a personal
right.

C. Beneficiaries of the family home (Art. 154)

1. Husband and wife, or an unmarried person who is the head of the family
2. Parents (may include parent-in-laws), ascendants, descendants, brothers and sisters
(legitimate/illegitimate), who are living in the family home and who depend on the head of the
family for support
Requisites to be a beneficiary (RLD)—
1. The relationship is within those enumerated
2. They live in the family home
3. They are dependent for legal support on the head of the family

Requirements for the sale, alienation, donation, assignment, or encumbrance of the family
home—

1. the written consent of the person constituting it, 


2. his/her spouse, and 

3. majority of the beneficiaries of legal age 


Note: If there is a conflict, the Court will decide.

In case of death (ART. 159)—

1. The family home shall continue despite the death of one or both spouses or of the
unmarried head of the family for a period of ten years, or as long as there is a minor
beneficiary. 

2. The heirs cannot partition the home unless the court finds compelling reasons therefor.


D. Requisites for creditor to avail of the right under Article 160
Requisites—
1. He must be a judgment creditor; 

2. His claim is not among those excepted 
 under Article155, and 

3. He has reasonable grounds to believe that 
 the family home is worth more than the
maximum amount fixed in Article 157 


Procedure to avail of right under Article 160—

4. The creditor must file a motion in the court 
 proceeding where he obtained a
favorable for a writ of execution against the family home. 

5. There will be a hearing on the motion where the creditor must prove that the actual
value of the family home exceeds the maximum amount fixed by the FC either at the
time of its constitution or as a result of improvements introduced thereafter its
constitution. 

6. If the creditor proves that the actual value exceeds the maximum amount the court will
order its sale in execution. 

7. If the family home is sold for more than the value allowed, the proceeds shall be applied
as follows:
First, the obligation enumerated in 
 Article 155 must be paid 

Then the judgment in favor of the 
 creditor will be paid, plus all the costs of 
 execution 

The excess, if any, shall be delivered 


Versola v. Mandolaria, (2006)
 The proof that the house is the family home must be alleged
against creditors; Applied the rule in Art. 160, FC.

Patricio v. Dario III, (2006)
 WON the grandson of the deceased is a beneficiary according to
Art. 154 FC. The beneficiary should satisfy all requisites; he must be dependent on the head of
the family.

Arriola v. Arriola, (2008)
 This case involves half brothers and a second wife; the family home
includes the land it is built on. The rule in Art. 159 of the FC regarding the 10 year period is
applied, the parties involved must wait before it can be the subject of partition.

II. PATERNITY AND FILIATION

1. Filiation is the relationship that exists between the child and his parents.
2. Paternity refers to the relationship between the father and the child
3. Maternity refers to the relationship between the mother and the child.
4. Children born or conceived during marriage are legitimate.
5. Liyao v. Liyao, (2002): A child conceived or born during a valid marriage is presumed
to belong to that marriage, regardless of the existence of extramarital relationships.


6. Concepcion vs. CA (2005): A child born of a bigamous marriage, which was declared
void, is considered born of the first marriage and the father of the child is the first
husband of the wife. Presumption of law prevails over the presumption of fact
arising from the statement of filiation in the birth certificate.
7. Children born out of AI are legitimate, provided consent or ratification made before
birth, and duly registered with the LCR.
8. Illegitimate children are conceived or born out of wedlock, except those under
Article 36, Article 54.
9. Woman in artificial insemination not liable for adultery because there is no sexual
intercourse.
10. Only husband or his heirs in proper case can impugn legitimacy.
11. Grounds for impugning legitimacy:

a. physical impossibility to sex within first 120 days of 300 days after birth
because of (i) impotence; (ii) physical separation of husband and wife; (3)
serious illness of the husband.
b. Biological or scientific reasons.
c. Written authorization or either parent was obtained through mistake, fraud,
violence, intimidation or undue influence.

12. Child is legitimate even if the mother declares against its legitimacy or is sentenced
as an adulteress.
13. In Macadangdang vs. CA, 100 SCRA 73, the SC ruled that the following:

a. In order to overthrow the presumption of legitimacy, it must be shown

beyond reasonable doubt that there was no access by the husband to the
wife during the period of conception.
b. The separation between the spouses must be such as to make sexual access
impossible, as when they each reside in different places.
c. The illness of the husband must be of such a nature as to exclude the
possibility of sexual intercourse.
d. A mother is not permitted to assert the illegitimacy of a child born in wedlock
in order to obtain some benefits for herself.
e. Adultery on the part of the wife, in itself, cannot destroy the presumption of
legitimacy of her child, because it is still possible that the child is that of the
husband.
 f. In the case of a child born or conceived in wedlock, evidence of the infidelity
or adultery of the wife and mother is not admissible to show illegitimacy, if
there is no proof of the husband’s impotency or non-access to his wife.

14. Non-observance of procedure for artificial insemination:

a. if the sperm of the husband was used by the wife without the consent of the
former, the former may impugn legitimacy.
b. If husband acceded to the request using the sperm of the another man and
he fails to comply with the procedure, and let prescriptive action to set it,
child is legitimate.

15. Woman marrying 2nd time within 300 days after termination of the first marriage:

a. child born before 180 days after the marriage celebration is considered
conceived during the first marriage provided born within 300 days after the
termination of the 1st marriage.
b. Child born after 180 days following marriage celebration is considered born
on the second marriage.

16. Legitimacy or illegitimacy of the child born after 300 days following the termination
of the marriage shall be proved by whoever alleges such legitimacy or illegitimacy.

17. Prescriptive periods in impugning legitimacy:

a. 1 year from knowledge of the birth or recording if impugner resides in the

city or municipality where the birth took place.
b. 2 years if impugner resides in the Philippines other than the place of birth.
c. 3 years if impugner resides abroad.

18. Proof of filiation:

a. record of birth or final judgment

b. admission of legitimate filiation in a public instrument or in a private
handwritten instrument.
c. In the absence thereof,

i. open and continuous possession of the status of legitimate child; or

ii. other means allowed by the Rules of Court (baptismal certificate, judicial admission,
family bible, common reputation respecting his pedigree, admission by silence, the testimony
of witnesses and such other kinds of proof admissible under Rule 130.

19. For birth certificate to be admitted as proof of filiation, it must be established that
the father has a hand in its preparation or signed the same.
Cases:

Mendoza v. Melia, 17 SCRA 788

Baptismal certificates are given probative value only for births before 1930. Birth certificates
must be signed by the parents and sworn for it to be admitted as evidence.

Baluyut v. Baluyut, (1990)

Unsigned birth certificates are not evidence of recognized filiation.

Acebedo v. Arquero, (2003)
 Baptismal certificates are only conclusive of the sacrament
administered, and cannot be used as proof of filiation.

Lim v. CA, (1975)

Marriage certificates cannot be used as proof of filiation.

Jison v. CA, (1998)

Rule 130, Sec. 40 is limited to objects commonly known as family possessions reflective of a
family's reputation or tradition regarding pedigree like inscriptions on tombstones,
monuments, or coffin plates.

Eceta v. Eceta (2004)
 Signature of the father on the birth certificate is considered as an
acknowledgement of paternity and mere presentation of a duly authenticated copy of such
certificate will successfully establish filiations.

Heirs of Rodolfo Bañas v. Heirs of Bibiano Bañas, (1985)

"Su padre [Your father]" ending in a letter is only proof of paternal solicitude and not of actual
paternity. Signature on a report card under the entry of "Parent/Guardian" is likewise
inconclusive of open admission.

De Jesus v. Syquia, (1933)

By "open and continuous possession of the status of a legitimate child" is meant the enjoyment
by the child of the position and privileges usually attached to the status of a legitimate child,
like bearing the paternal surname, treatment by the parents and family of the child as
legitimate, constant attendance to the child's support and education, and giving the child the
reputation of being a child of his parents.

Agustin v. CA, (2005)

DNA evidence can be used as proof of paternity.

De Jesus v. Estate of Decedent Juan Gamboa Dizon (2001)

The due recognition of an illegitimate child in a record of birth, a will, a statement before a
court of record, or in any authentic writing, is in itself a consummated act of acknowledgement
of the child, and no further court action is required.

Gono-Javier vs. Court of Appeals, (1994)

Mere possession of status as an illegitimate child does not make a recognized illegitimate child
but is only a ground for bringing an action to compel judicial recognition by the assumed
parent.

Herrera v. Alba, (2005)

In assessing the probative value of DNA evidence, therefore, courts should consider, among
other things, the following data:
1. How the samples were collected, 

2. How they were handled, 

3. The possibility of contamination of the 
 samples, 

4. The procedure followed in analyzing the 
 samples, 

5. Whether the proper standards and 
 procedures were followed in conducting the

 tests, 

6. and the qualification of the analyst who 
 conducted the tests. 


Estate of Rogelio Ong v. Diaz, (2007)

DNA evidence can still be used even after the death of the parent.

20. Action to claim legitimacy may be brought during the lifetime of the child. Heirs of
the deceased child have 5 years to institute action.
21. Rights of legitimate children:

a. To bear the surname of the father and mother

b. To receive support
c. To be entitled to legitime and successional rights.

22. Filiation of illegitimate children is established same as that of the legitimate children.
23. Action to claim illegitimacy is brought during the lifetime of the illegitimate child or
within 5 years in case of the heirs of the deceased illegitimate child, or during the
lifetime of the putative parent if the proof is open and continuous possession or
other means allowed by the Rules of Court.

24. Article 176 has been amended by RA 9255, which now reads:
Illegitimate children shall use the surname and shall be under the parental authority of their
mother, and shall be entitled o support in conformity with this Code. However, illegitimate
children may use the surname of their father if their filiation has been expressly recognized by
the father through the record of birth appearing in the civil register, or when an admission in a
public instrument or private handwritten instrument is made by the father, Provided, the father
has the right to institute an action before the regular courts to prove non-filiation during his
lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of the
legitimate child.

25. Children conceived and born outside of wedlock of parents who, at the time of
conception of the former, were not disqualified by any impediment to marry each
other, or were so disqualified only because either or both of them were below 18
years of age, may be legitimated.
26. Legitimation shall take place by a subsequent valid marriage between parents. The
annulment of a voidable marriage shall not affect the legitimation.
27. Legitimated children shall enjoy the same rights as legitimate children.
28. The effects of legitimation shall retroact to the time of the child’s birth.

NOTES IN ADOPTION

1. Nature of Adoption

a. Adoption is the juridical act that creates between two persons certain relations, purely
civil, of paternity and filiation. The adopted becomes a legitimate child of the adopter
with reciprocal rights and obligations arising from that relationship. Consequently, the
adopted has the right to bear the surname of the adopter, receive support and to inherit
(Teotico vs. Del Val, 13 SCRA 406).

b. The relationship established by the adoption is limited to the adopting parents and does
not extend to their other relatives, except as expressly provided by law. Thus, the
adopted child cannot be considered as a relative of the ascendants and collaterals of the
adopting parents, nor of the legitimate children which they may have after the
adoption, except that the law imposes certain impediments to marriage by reason of
adoption. Neither are the children of the adopted considered as descendants of the
adopter (Santos, Jr. vs. Republic, 21 SCRA 379). Hence, no relationship is created
between the adopted and the collaterals of the adopting parent. As a consequence, the
adopted is an heir of the adopter’s but not of the relative of the adopter.

c. The rights of a legitimate child given to an adopted child do not include the acquisition
of the citizenship of the adopter (Cheng Ling vs. Galang, L-11931, Oct. 27, 1958). The
citizenship of the adopter is a political matter, and not civil in nature.
 d. The policy of the State as stated in RA 8552 is to ensure that every child remains under
the care and custody of his natural parents. Only when such efforts prove to be
insufficient and no appropriate placement or adoption within the child’s extended
family is available shall adoption by an unrelated person be considered.

2. Who may adopt

a. Sec. 7 (RA 8552) — The following may adopt:

(a) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good
moral character, has not been convicted of any crime involving moral turpitude, emotionally
and psychologically capable of caring for children, at least sixteen (16) years older than the
adoptee, and who is in a position to support and care for his/her children in keeping with the
means of the family. The requirement of sixteen (16) year difference between the age of the
adopter and adoptee may be waived when the adopter is the biological parent of the adoptee,
or is the spouse of the adoptee's parent;
(b) Any alien possessing the same qualifications as above stated for Filipino nationals: Provided,
That his/her country has diplomatic relations with the Republic of the Philippines, that he/she
has been living in the Philippines for at least three (3) continuous years prior to the filing of the
application for adoption and maintains such residence until the adoption decree is entered,
that he/she has been certified by his/her diplomatic or consular office or any appropriate
government agency that he/she has the legal capacity to adopt in his/her country, and that
his/her government allows the adoptee to enter his/her country as his/her adopted
son/daughter: Provided, Further, That the requirements on residency and certification of the
alien's qualification to adopt in his/her country may be waived for the following:

(i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of
consanguinity or affinity; or
(ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or
(iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a
relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse; or
(c) The guardian with respect to the ward after the termination of the guardianship and
clearance of his/her financial accountabilities.

Husband and wife shall jointly adopt, except in the following cases:

(i) if one spouse seeks to adopt the legitimate son/daughter of the other; or
(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, However, that
the other spouse has signified his/her consent thereto; or
(iii) if the spouses are legally separated from each other.chan robles virtual law library
In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of
the other, joint parental authority shall be exercised by the spouses.

b. For as long as the statutory qualifications, exclusions and requirements for adoption are
met, relatives by blood and affinity are not excluded from adopting one another. An individual
who has already adopted a child or who has legitimate or illegitimate children may still adopt
(Hofilena vs. Republic, 34 SCRA 545). An elder sister can adopt a younger brother (Tavera vs.
Cacdac, 167 SCRA 636) and a stepfather can adopt his step-child (Malkinson vs. Agrava, 54 SCRA
66).

c. The adopter must be emotionally and psychologically capable of caring for children. He
or she must likewise be financially capable of supporting the child to be adopted. The law
provides that he or she must be in a position to support and care for his/her children in keeping
with the means of the family.

d. The age of the prospective parents is an important but not the sole or controlling
consideration in determining what is best for the child.

e. Aliens are now allowed to adopt Filipino children for as long as they have all the
qualifications. In addition to the basic qualifications, aliens must show that their countries have
diplomatic relations with the Philippines and must be living in the Philippines for at least 3 years
prior to the filing of the petition for adoption, and that he or she is certified by the diplomatic
or consular office to have legal capacity to adopt and that his or her government allows the
adopted to enter his or her country.

f. Under the law, joint adoption of husband and wife is mandated for the maintenance of
harmony within the family, except in cases provided in RA 8552.

3. Who may be adopted

a. Sec. 8 (RA 8552) - The following may be adopted:

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

a. After being properly counseled and informed of his/her right to give or withhold his/her
approval of the adoption, the written consent of the following to the adoption is hereby
required:

(a) The adoptee, if ten (10) years of age or over;

(b) The biological parent(s) of the child, if known, or the legal guardian, or the proper
government instrumentality which has legal custody of the child;
(c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the adopter(s)
and adoptee, if any;
(d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter if living with
said adopter and the latter's spouse, if any; and
(e) The spouse, if any, of the person adopting or to be adopted
b. No binding commitment to an adoption plan shall be permitted before the birth of
his/her child. A period of six (6) months shall be allowed for the biological parent(s) to
reconsider any decision to relinquish his/her child for adoption before the decision becomes
irrevocable. Counseling and rehabilitation services shall also be offered to the biological
parent(s) after he/she has relinquished his/her child for adoption.

4. Procedure of Adoption

a. Pre-adoption service

1. Counseling Service. — The DSWD shall provide the services of licensed social workers to
the following:
(a) Biological Parent(s) — Counseling shall be provided to the parent(s) before and after the
birth of his/her child. No binding commitment to an adoption plan shall be permitted before
the birth of his/her child. A period of six (6) months shall be allowed for the biological parent(s)
to reconsider any decision to relinquish his/her child for adoption before the decision becomes
irrevocable. Counseling and rehabilitation services shall also be offered to the biological
parent(s) after he/she has relinquished his/her child for adoption.
Steps shall be taken by the Department to ensure that no hurried decisions are made and all
alternatives for the child's future and the implications of each alternative have been provided.
(b) Prospective Adoptive Parent(s) — Counseling sessions, adoption fora and seminars, among
others, shall be provided to prospective adoptive parent(s) to resolve possible adoption issues
and to prepare him/her for effective parenting.
(c) Prospective Adoptee — Counseling sessions shall be provided to ensure that he/she
understands the nature and effects of adoption and is able to express his/her views on
adoption in accordance with his/her age and level of maturity.

2. Location of Unknown Parent(s). — It shall be the duty of the DSWD or the child-
placing or child-caring agency which has custody of the child to exert all efforts to locate his/her
unknown biological parent(s). If such efforts fail, the child shall be registered as a foundling and
subsequently be the subject of legal proceedings where he/she shall be declared abandoned.

b. Hurried decision - In all proceedings for adoption, the court shall require proof that the
biological parent(s) has been properly counseled to prevent him/her from making hurried
decisions caused by strain or anxiety to give up the child, and to sustain that all measures to
strengthen the family have been exhausted and that any prolonged stay of the child in his/her
own home will be inimical to his/her welfare and interest.
c. Case Study - No petition for adoption shall be set for hearing unless a licensed social
worker of the Department, the social service office of the local government unit, or any child-
placing or child-caring agency has made a case study of the adoptee, his/her biological
parent(s), as well as the adopter(s), and has submitted the report and recommendations on the
matter to the court hearing such petition.
At the time of preparation of the adoptee's case study, the concerned social worker shall
confirm with the Civil Registry the real identity and registered name of the adoptee. If the birth
of the adoptee was not registered with the Civil Registry, it shall be the responsibility of the
concerned social worker to ensure that the adoptee is registered.
The case study on the adoptee shall establish that he/she is legally available for adoption and
that the documents to support this fact are valid and authentic. Further, the case study of the
adopter(s) shall ascertain his/her genuine intentions and that the adoption is in the best
interest of the child.

The Department shall intervene on behalf of the adoptee if it finds, after the conduct of the
case studies, that the petition should be denied. The case studies and other relevant
documents and records pertaining to the adoptee and the adoption shall be preserved by the
Department.
d. Supervised Trial Custody - No petition for adoption shall be finally granted until the
adopter(s) has been given by the court a supervised trial custody period for at least six (6)
months within which the parties are expected to adjust psychologically and emotionally to each
other and establish a bonding relationship. During said period, temporary parental authority
shall be vested in the adopter(s).
The court may motu proprio or upon motion of any party reduce the trial period if it finds the
same to be in the best interest of the adoptee, stating the reasons for the reduction of the
period. However, for alien adopter(s), he/she must complete the six (6)-month trial custody
except for those enumerated in Sec. 7 (b) (i) (ii) (iii).
If the child is below seven (7) years of age and is placed with the prospective adopter(s) through
a pre-adoption placement authority issued by the Department, the prospective adopter(s) shall
enjoy all the benefits to which biological parent(s) is entitled from the date the adoptee is
placed with the prospective adopter(s).
e. Decree of Adoption - If, after the publication of the order of hearing has been complied
with, and no opposition has been interposed to the petition, and after consideration of the case
studies, the qualifications of the adopter(s), trial custody report and the evidence submitted,
the court is convinced that the petitioners are qualified to adopt, and that the adoption would
redound to the best interest of the adoptee, a decree of adoption shall be entered which shall
be effective as of the date the original petition was filed. This provision shall also apply in case
the petitioner(s) dies before the issuance of the decree of adoption to protect the interest of
the adoptee. The decree shall state the name by which the child is to be known.

f. Civil Registry Record. — An amended certificate of birth shall be issued by the Civil
Registry, as required by the Rules of Court, attesting to the fact that the adoptee is the child of
the adopter(s) by being registered with his/her surname. The original certificate of birth shall be
stamped "cancelled" with the annotation of the issuance of an amended birth certificate in its
place and shall be sealed in the civil registry records. The new birth certificate to be issued to
the adoptee shall not bear any notation that it is an amended issue.

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

a. Parental Authority. — Except in cases where the biological parent is the spouse of the
adopter, all legal ties between the biological parent(s) and the adoptee shall be severed and the
same shall then be vested on the adopter(s).

b. Legitimacy. — The adoptee shall be considered the legitimate son/daughter of the

adopter(s) for all intents and purposes and as such is entitled to all the rights and obligations
provided by law to legitimate sons/daughters born to them without discrimination of any kind.
To this end, the adoptee is entitled to love, guidance, and support in keeping with the means of
the family.

c. Succession. — In legal and intestate succession, the adopter(s) and the adoptee shall
have reciprocal rights of succession without distinction from legitimate filiation. However, if the
adoptee and his/her biological parent(s) had left a will, the law on testamentary succession
shall govern.

6. Rescission of Adoption

a. Only the adoptee is given the legal standing to rescind the adoption decree. If the
adoptee is a minor, he or she shall be assisted by the DSWD. If the adoptee is incapacitated, he
or she shall be assisted by the DSWD.

b. Grounds for rescission

(i) repeated physical and verbal maltreatment by the adopter(s) despite having undergone
counseling;
(ii) attempt on the life of the adoptee;
(iii) sexual assault or violence; or
(iv) abandonment and failure to comply with parental obligations
 c. Adoption, being in the best interest of the child, shall not be subject to rescission
by the adopter(s). However, the adopter(s) may disinherit the adoptee for causes provided in
Article 919 of the Civil Code.

Grounds for Disinheritance

a. An attempt against the life of the testator, his or her spouse, descendants or
ascendants.
b. The person disinherited has accused the testator of a crime for which the law prescribes
the penalty of imprisonment of 6 years or more if the accusation has been found groundless or
false.
c. The person disinherited causes the testator to make a will or to change one already
made by fraud, violence, intimidation or undue influence.
d. Refusal without just cause to support the testator, the children or descendants.
e. Conviction of adultery or concubinage with the spouse of the testator.
f. Maltreatment of testator by word or by deed.
g. Leading dishonorable or disgraceful life.
h. Civil interdiction. Final conviction is required. Civil interdiction is imposed with the
principal penalties of death, reclusion perpetua or reclusion temporal.

d. Effects of rescission

If the petition is granted, the parental authority of the adoptee's biological parent(s), if known,
or the legal custody of the Department shall be restored if the adoptee is still a minor or
incapacitated. The reciprocal rights and obligations of the adopter(s) and the adoptee to each
other shall be extinguished.
The court shall order the Civil Registrar to cancel the amended certificate of birth of the
adoptee and restore his/her original birth certificate.
Succession rights shall revert to its status prior to adoption, but only as of the date of judgment
of judicial rescission. Vested rights acquired prior to judicial rescission shall be respected.
All the foregoing effects of rescission of adoption shall be without prejudice to the penalties
imposable under the Penal Code if the criminal acts are properly proven.

7. Non-liability for Simulating Births

A person who has, prior to the effectivity of RA 8552 simulated the birth of a child shall not be
punished for such act: Provided, That the simulation of birth was made for the best interest of
the child and that he/she has been consistently considered and treated by that person as
his/her own son/daughter: Provided, further, That the application for correction of the birth
registration and petition for adoption shall be filed within five (5) years from the effectivity of
RA 8552 and completed thereafter: Provided, finally, That such person complies with the
procedure as specified in Article IV of this Act and other requirements as determined by the
DSWD.
Inter-Country Adoption

1. Policy of the State - It is hereby declared the policy of the State to provide every
neglected and abandoned child with a family that will provide such child with love and care as
well as opportunities for growth and development. Towards this end, efforts shall be exerted to
place the child with an adoptive family in the Philippines. However, recognizing that inter-
country adoption may be considered as allowing aliens not presently allowed by law to adopt
Filipino children if such children cannot be adopted by qualified Filipino citizens or aliens, the
State shall take measures to ensure that inter-country adoptions are allowed when the same
shall prove beneficial to the child's best interests, and shall serve and protect his/her
fundamental rights.

2. Inter-Country Adoption as the Last Resort. — The Board shall ensure that all
possibilities for adoption of the child under the Family Code have been exhausted and that
inter-country adoption is in the best interest of the child. Towards this end, the Board shall set
up the guidelines to ensure that steps will be taken to place the child in the Philippines before
the child is placed for inter-country adoption: Provided, however, That the maximum number
that may be allowed for foreign adoption shall not exceed six hundred (600) a year for the first
five (5) years.

3. Who May be Adopted. — Only a legally free child may be the subject of inter-country
adoption. Legally-free child means a child who has been voluntarily or involuntarily committed
to the Department, in accordance with the Child and Youth Welfare Code. In order that such
child may be considered for placement, the following documents must be submitted to the
Board:
(a) Child study;

(b) Birth certificate/foundling certificate;

(c) Deed of voluntary commitment/decree of abandonment/death certificate of parents;
(d) Medical evaluation /history;
(e) Psychological evaluation, as necessary; and
(f) Recent photo of the child.

4. Who May Adopt. — An alien or a Filipino citizen permanently residing abroad may file
an application for inter-country adoption of a Filipino child if he/she:
(a) is at least twenty-seven (27) years of age and at least sixteen (16) years older than the
child to be adopted, at the time of application unless the adopter is the parent by nature of the
child to be adopted or the spouse of such parent:
(b) if married, his/her spouse must jointly file for the adoption;
(c) has the capacity to act and assume all rights and responsibilities of parental authority
under his national laws, and has undergone the appropriate counseling from an accredited
counselor in his/her country;
(d) has not been convicted of a crime involving moral turpitude;
(e) is eligible to adopt under his/her national law;
(f) is in a position to provide the proper care and support and to give the necessary moral
values and example to all his children, including the child to be adopted;
(g) agrees to uphold the basic rights of the child as embodied under Philippine laws, the
U.N. Convention on the Rights of the Child, and to abide by the rules and regulations issued to
implement the provisions of this Act;
(h) comes from a country with whom the Philippines has diplomatic relations and whose
government maintains a similarly authorized and accredited agency and that adoption is
allowed under his/her national laws; and
(i) possesses all the qualifications and none of the disqualifications provided herein and in
other applicable Philippine laws

5. Procedure - An application to adopt a Filipino child shall be filed either with the
Philippine Regional Trial Court having jurisdiction over the child, or with the Board, through an
intermediate agency, whether governmental or an authorized and accredited agency, in the
country of the prospective adoptive parents, which application shall be in accordance with the
requirements as set forth in the implementing rules and regulations to be promulgated by the
Board.
The application shall be supported by the following documents written and officially translated
in English.

(a) Birth certificate of applicant(s);

(b) Marriage contract, if married, and divorce decree, if applicable;
(c) Written consent of their biological or adoptive children above ten (10) years of age, in
the form of sworn statement;
(d) Physical, medical and psychological evaluation by a duly licensed physician and
psychologist;
(e) Income tax returns or any document showing the financial capability of the applicant(s);
(f) Police clearance of applicant(s);
(g) Character reference from the local church/minister, the applicant's employer and a
member of the immediate community who have known the applicant(s) for at least five (5)
years; and
(h) Recent postcard-size pictures of the applicant(s) and his immediate family;
The Rules of Court shall apply in case of adoption by judicial proceedings

6. Family Selection/Matching. — No child shall be matched to a foreign adoptive family

unless it is satisfactorily shown that the child cannot be adopted locally. The clearance, as
issued by the Board, with the copy of the minutes of the meetings, shall form part of the
records of the child to be adopted. When the Board is ready to transmit the Placement
Authority to the authorized and accredited inter-country adoption agency and all the travel
documents of the child are ready, the adoptive parents, or any one of them, shall personally
fetch the child in the Philippines.
7. Supervision of Trial Custody. — The governmental agency or the authorized and
accredited agency in the country of the adoptive parents which filed the application for inter-
country adoption shall be responsible for the trial custody and the care of the child. It shall also
provide family counseling and other related services. The trial custody shall be for a period of
six (6) months from the time of placement. Only after the lapse of the period of trial custody
shall a decree of adoption be issued in the said country a copy of which shall be sent to the
Board to form part of the records of the child.

During the trial custody, the adopting parent(s) shall submit to the governmental agency
or the authorized and accredited agency, which shall in turn transmit a copy to the Board, a
progress report of the child's adjustment. The progress report shall be taken into consideration
in deciding whether or not to issue the decree of adoption.

The Department of Foreign Affairs shall set up a system by which Filipino children sent
abroad for trial custody are monitored and checked as reported by the authorized and
accredited inter-country adoption agency as well as the repatriation to the Philippines of a
Filipino child whose adoption has not been approved.

SUPPORT

1. Support consists of everything indispensable for sustenance, dwelling, clothing, medical

attendance, education and transportation in keeping with the financial capacity of the family.
The support for education includes schooling or training for some profession even beyond the
age of majority. Transportation shall include expenses in going to and from school and work.

2. The following shall be obliged to support each other:

a. spouses
b. legitimate ascendants and descendants
c. parents and their legitimate children and the legitimate and illegitimate children of
the latter; and
d. legitimate brothers and sisters, whether of full or half-blood.

3. Support between spouses:

a. Spouse who leaves the conjugal dwelling without just cause is not entitled to
support.
b. Spouse is the who cause of separation is not entitled to support, innocent spouse
entitled to support.
c. Wife committing adultery is not entitled to support.
d. Support pendente lite
4. Illegitimate children of the legitimate children of the parents are entitled to be
supported by the latter because they are related by blood.

5. Illegitimate brothers and sisters are also entitled to support each other, except when
the need for support is due to the fault or negligence of such brother or sister.

6. Support of illegitimate children, parents and brothers and sisters shall come from the
separate property, if not sufficient from the ACP or CPG, considered as an advance.

7. Support pendente lite

8. Order of priority in giving support

a. spouse
b. descendants in the nearest degree
c. ascendants in the nearest degree
d. brothers and sisters

9. In case obligation to support falls upon two or more persons, payment shall be divided.
In case of urgency, one may pay, subject to reimbursement from the others obligated to give
support.

10. If two or more persons are entitled to be supported by one and the same person, the
order of priority shall be observed in case of insufficiency of properties to satisfy all claims,
except as between the spouse and the child, the child must be preferred to be supported.

11. Support shall be in proportion to the resources or means of the giver and the necessities
of the recipient. It may be reduced or increased proportionately according to the reduction or
increase in the necessity and the means.

12. Obligation to give support demandable from the time it is needed, but can only be paid
upon demand. Payment shall be made within first 5 days of each month.

13. Persons obliged to support shall have the option of (1) paying the allowance fixed, or (2)
by receiving and maintaining in the family dwelling the person who has the right to receive
support. The latter alternative cannot be availed in case there is a moral or legal obstacle
thereof.

14. Support cannot be levied upon on attachment or execution.

15. Support given by a stranger

a. stranger may claim reimbursement, unless it is pure liberality.

 b. Person obliged to support refuses to give it, stranger may give with right of
reimbursement.

16. contractual support in a will, excess amount may be attached or levied on execution.

PARENTAL AUTHORITY

1. Parental authority is a natural right. It includes caring and rearing of children for civic
consciousness and efficiency and the development of their moral, mental and physical
character and well-being.

2. Parental authority cannot be renounced or transferred except in cases provided by law.

3. In Santos vs. CA, 242 SCRA 407, even if the father took away his child from the custody
of grandparents through deceit or false pretenses, the SC ruled that father has a custody since
he is not unfit.

4. Joint parental authority even to illegitimate children. In case of disagreement, father’s

decision shall prevail subject to judicial recourse by the mother.

Parental authority of the mother over the illegitimate child is proper when (1) paternity
is unknown or in doubt; (2) father is not living with the mother and the child.

5. In case of death of either parent, the present parent shall exercise parental authority.
Marriage of the surviving parent will not affect parental authority over the children

6. In case of legal separation, parental authority shall be exercised by the one appointed by
the court.

Maternal Preference Rule: Children below 7 years old shall not be separated from the mother.
Will only apply as a “tie-breaker” when parental qualities are even or balanced.

In Espiritu vs. CA, 242 SCRA 362, the SC reversed the CA when the latter awarded the
custody of children who are 7 years old to the mother who has been unfaithful to the father or
is a prostitute, and despite the choice of the children to go the father. The SC ruled that the sole
and foremost consideration is the physical, educational, social and moral welfare of the child.

In David vs. CA, 250 SCRA 82, where it was shown that the father was well-off compared
to the mother but the latter can decently support the children, the SC awarded the custody to
her.

Child’s welfare is the cardinal principle in determining right between the parents.
 In all custody proceedings, case study of DSWD is required. Habeas corpus may be
availed also to regain custody.

7. In case of death, absence or unsuitability of the parents, substitute parental authority

shall be exercised by the surviving grandparent. In case there are several, one appointed by the
court.

8. Doctrine of filial privilege – no descendant shall be compelled in a criminal case to

testify against his parents and grandparents, except if it is indispensable in the crime against
the descendant or by one parent against the other.

9. Marital privilege – the husband or the wife, during or after the marriage, can not be
examined without the consent of the other as to any communication received in confidence by
one from the other during the marriage, except in civil case by one against the other, or in a
criminal case for the crime committed by one against the other or the latter’s direct
descendants or ascendants.

Substitute and Special Parental Authority

1. In default of parents or guardian, PA shall be exercised by:

a. surviving grandparent
b. oldest brother or sister over 21 years old, unless unfit
c. child’s actual custodian, over 21 years old unless unfit or disqualified

2. In case of abandoned or neglected or abused children, head of the orphanages,

children’s home shall be given PA.

3. Special parental authority given to the school, administrators and teachers, or the
individual, entity or institution engaged in child care over the minor child while under their
supervision, instruction or custody. SPA shall apply to all authorized activities whether inside or
outside the premises of the school, entity or institution.

a. They shall be principally and solidarily liable for damages caused by the minor,
while the parents have subsidiary liability.

b. defense of a good father of the family; diligence.

c. Article 2180 is amended by Art. 218.

d. In Exconde vs. Capuno, 101 Phil. 843, an elementary student and boy scout
attended a Rizal Day parade on instructions of the city school supervisor. After the parade, the
boy boarded a jeep, took its wheel and drove it recklessly that it turned turle resulting in the
death of two of the passengers. The boy was convicted for double homicide. The SC exculpated
the school on the ground that it was not a school of arts and trades under Art. 2180.

e. In Mercado vs. CA, 108 Phils. 414, a student cut a classmate with a razor blade
during the recess time, and the parents of the victim sued the culprit’s parents for damages.
The SC likewise exculpated the school.

f. In Palisoc vs. Brillantes, 41 SCRA 548, a 16-year old student was killed by a
classmate with its fist blows in the laboratory of a school. Although the wrongdoer, who was
already of age, was not boarding in the school, the head thereof and the teacher in charge were
held solidarily liable with him by declaring that for as long as the students are in attendance in
school including recess time, the school has custody.

g. In Amadora vs. CA, 160 SCRA 315, Amadora went to school to submit his physics
experiment as a prerequisite for graduation. While at the auditorium, he was shot to death by a
classmate. The school claimed that it is not liable because Amadora was no longer in its custody
because the semester had already ended. Although the SC found the school not liable, it ruled
that as long as it can be shown that the student is in the school premises in pursuance of a
legitimate student objective, in the exercise of a legitimate student right, and even in the
enjoyment of a legitimate student privilege, the responsibility of the school authorities over the
student continues.

4. Liability of parents and others for damages caused by children

a. parents and other persons exercising PA shall be civilly liable for the injuries and
damages caused by the acts or omissions of their unemancipated children provided (a) said
children are living in their company; and (b) they are under their parental authority.