FAMILY CODE

(as amended)

ATTY. ALBINO (ALVIN) V.

GONZALES
Dean, College of Law
Chairman, People’ Law Enforcement Board
President, Trial Lawyer’s Association of the
Philippines (Pangasinan Chapter)
IF YOU FAIL TO PREPARE
PREPARE TO FAIL
MARRIAGE
marriage-

- special contract
- Permanent union
- Between man and woman
- Entered into an accordance with law
- For the establishment of conjugal and
family life
Aspects : -- 1. as a contract :
- only man and woman can enter
- permanent- only death can extinguish
- rights and obligations not subject to
stipulations but fixed by law
except- marriage settlement on
property regime.
- breach results in penal and civil sanctions.
 As a status-
- inviolable social institution
- foundation of family
- institution of public order or policy
- implication in two fields-
personal rights
property relations
Requisites :
-essential-

1. Legal capacity of parties, 18 age,

male and female
no impidements in 37 or 38

2. consent freely given

in the presence of solemnizing officer.
-formal-

3. Authority of solemnizing officer

4. Marriage ceremony ( no form or rites
required)
appearance of parties before solemnizing officer
personal declaration that they take each other as
husband or wife
in presence of two witnesses of legal age.
If there was no marriage ceremony, as
when the parties merely signed a marriage
contract without the presence of the
solemnizing officer, there is no marriage to
speak of, since there is no actual marriage
ceremony performed between the parties
by the solemnizing officer, hence, there is
no need to file a summary proceding to
declare the marriage void. (Morigo vs
People, 476 SCRA 562 (2005).
The mere private signing of a
marriage contract bears no
semblance of a valid marriage, and
thus, need no judicial declaration
of nullity. (Morigo, supra)
5. Valid marriage license, except ;
a- marriage in articulo mortis (either or both, even if
survived )
b- residence of either is so located that no means of
transportation to appear before local civil registrar
c- marriage among muslims or members of ethnic
cultural communities, accdg. to customs rites and
practices.
d- Marriage between man and woman who have
cohabited for five years without legal impediment to
marry.
E- Celebrated in country where no marriage license is
required.?
In Sevilla vs Cardenas, 497 SCRA 428,
the certification issued by the Civil
Registry of San Juan to the effect that
“no marriage license No. 2770792 was
ever issued by this office” was
presented as evidence to prove the
absence of marriage license for the
purpose of declaring the marriage void.
Is the certification sufficient?
No. The certification to be issued by the
local civil registrar must categorically
state that the document does not exist
in his office or the particular entry
could not be found in the register
despite diligent search. Such
certification shall be sufficient proof of
lack or absence of record stated in
Section 28, Rule 132 of the Rules of
Court.
If the parties falsified their affidavit stating
therein that they had lived as husband and
wife for at least five years prior to the
marriage to exempt themselves from the
requirement of a marriage license, when in
truth and in fact, they have fallen short of
the minimum five year requirement, will
they be estopped from questioning the
validity of their marriage or may the
marriage be still declared void on ground of
lack of a valid marriage license?
The Court held that the falsity of an affidavit of marital
cohabitation, where the parties have in truth fallen short
of the minimum five-year requirement, effectively
renders the marriage void ab initio for lack of marriage
license. The falsity of the allegation in the affidavit, which
would have qualified their marriage as an exception to
the requirement of a marriage license, cannot be a mere
irregularity, for it refers to the quintessential fact that the
law precisely required to be deposed and attested by the
parties under oath.

If the essential matter in the sworn affidavit is a lie, then

it is a mere scrap of paper, without force and effect.
Hence, it is as if there was no affidavit at all.
“Lastly, to settle all doubts, jurisprudence has laid
down the rule that the five-year common-law
cohabitation period under Article 76 means a five-year
period computed back from the date of celebration of
marriage, and refers to a period of legal union had it
not been for the absence of a marriage. It covers the
years immediately preceding the day of the marriage,
characterized by exclusivity- meaning no third party
was involved at anytime within the five years- and
continuity that is unbroken” (Republic vs Jose A. Dayot,
GR No. 175581, March 28, 2008.)
Persons authorize to solemnize marriage :

1. incumbent members of the judiciary (within jurisdiction)

2. priests, etc., authorized by church, registered In the civil
registrar general, acting within limits of written authority
granted by church, one or both contracting parties belongs
to the officer’s church
3. ship captain or airplane chief ( at sea, in flight, for entire
voyage) in articulo mortis between passengers or crew
members
4. military commander of a unit (battalion commissioned
officer in articulo mortis within zone of military operation in
the absence of Chaplain
5. consul-general, consul or vice consul in case of marriage
between Filipino citizens abroad
Marriage Contract , signed by both and
attested by solemnizing officer)

In case of marriage in articulo mortis, if

party unable to sign marriage
certificate, one of the witness can write
the name of the party, attested by the
solemnizing officer
Place of solemnization- public
Except- articulo mortis
Remote place

Request of both parties in writing,

in a place or house designated by
them in sworn statement
Absence of Essential
Formal req.- marriage void

Except- belief in good faith of

parties that party solemnizing is
duly authorized
Examples- absence of essential req-

-lack of age- below 18

-parties of same sex
-prohibited by law to marry each other
-Absence of consent- marriage in jest
Examples of absence of formal req.-

-Person solemnizing has no authority

except believed to be duly authorized
-No marriage license, unless excepted
-Expired marriage license
-Absence of marriage ceremony
Defect in essential req. - marriage
voidable

Ex:
-lack of parental consent
-consent obtained by fraud
-consent obtained by force
Irregularity in formal req. – marriage valid, but party
responsible shall be civilly, criminally and
administratively liable.

Examples-
- marriage license not applied for in place specified
- marriage license signed by mere employee of LCR
with his authority, if without void
- 10 day posting not complied with
- no requirements on parental advice, marriage
counseling or family planning seminar
- no witness to marriage.
Validity of marriage license- 120
days from issuance, can be used
anywhere in the country –
- automatically cancelled if not
used upon the expiration of
expiry date stamped on face of
marriage license.
Marriage certificate- not an essential
or formal req. but best proof of
marriage
Copies to be given as follows :
-original to the parties
-duplicate and triplicate to the LCR of
place of marriage within 15 days after
marriage
-quadruplicate- retained by the officer
2. In December 2000, Michael and Anna, after obtaining a valid
marriage license, went to the Office of the Mayor of Dagupan
City to get married. The Mayor was not there, but the Mayor’s
secretary asked Michael and Anna and their witnesses to fill up
and sign the required marriage contract forms. The secretary
then told them to wait, and went out to look for the Mayor who
was attending a wedding in a neighboring municipality. When
the secretary cannot find the Mayor, he requested the Vice-
Mayor to celebrate the marriage. Thereafter, Michael and Anna
had three sons.

[a] Is the marriage of Michael and Anna valid, voidable, or

void? Explain your answer.

[b] What is the status of the three children of Michael and Anna?
Explain your answer.
Marriages solemnized outside country- valid
there as such shall also be valid in this country,
except :
article 35 (1) no legal capacity to get married
(4) bigamous or polygamous
(5) consent lacking because of mistake
in identity of the other
Article 36- party psychologically incapacitated
Article 37- incestuous marriage
Article 38- marriage void by reason of public
policy
Divorce obtained by a foreigner-
spouse, the Filipino spouse shall
likewise have the capacity to
remarry under Philippine law.
(E.O. No. 227, july 17,1987)
In the case of Republic vs Orbecido III, (472 SCRA 114),
the Court held that in applying the provision of the 2nd
par. of Article 26 FC, the reckoning point is not the
citizenship of the divorcing parties at birth or at the
time of marriage, but their citizenship at the time a
valid divorce is obtained abroad by the alien spouse
capacitating him or her to remarry.

Thus, where both parties were Filipino citizens at the

time of the celebration of the marriage, but later on,
one of them becomes naturalized as foreign citizen and
thereafter obtains a valid divorce decree, Article 26
applies.
Art. 35 – void marriages

1. lack of age
2. no authority to solemnize- except either or
both believed
3. No marriage license, except provided by law
4. bigamous/polygamous marriages
except contracted in case spouse had been absent
for four years or two years, and present spouse
has a well-founded belief that absent spouse was
already dead.
4. contracted through mistake of
one party as to the identity of the
other

5. subsequent marriages void under

Art. 53 (subsequent marriage
without delivering the presumptive
legitimes of compulsory heirs.
 Subsequent bigamous
marriage-
Valid if contracted after the absence of
four (4) years, if the spouse has a well-
founded belief that the absent spouse
is already dead.
But, two (2) years absence sufficient in
case of disappearance under
circumstances indicating danger of
death :
a- lost during sea voyage or airplane
missing
b- missing in action in war
c- under danger of death under
other circumstances
For purposes of contracting the subsequent
marriage, the present spouse must institute
a summary proceeding for declaration of
presumptive death of the absentee. (41)

This does not apply to subsequent marriage

contracted before the effectivity of the
Family Code, because the New Civil Code
does not require said declaration. Absence
of 7 years ipso jure grants the present
spouse capacity to remarry.
Since the second marriage took place
during the effectivity of the New Civil
Code, the presumption of death is
established by law and no court
declaration is needed for the presumption
to arise, since death is presumed to have
taken place by the seventh year of absence
pursuant to Art. 390 of the Civil Code.
(Valdez vs Republic, 597 SCRA 13).
If the subsequent marriage (by reason of presumptive
death of the absentee spouse) took place prior to
August 3, 1988, the subsequent marriage is valid even if
there was no judicial declaration of presumptive death
so long as the prescribed period of absence is met.
(Armas vs Calisterio, 330 SCRA 2001).

But, if such subsequent marriage is celebrated during

the effectivity of the Family Code, the requirement of
judicial declaration of presumptive death is absolute
and indispensable. In the absence thereof, the sub-
subsequent marriage is void and the spouse present
shall be liable for bigamy. Article 41 FC was enacted to
harmonize civil law and Art. 349 of the RPC. (Manuel vs
Manuel, 476 SCRA 461)
In Republic vs Bermudez-Lorino, 449 SCRA 57, it
was held that the order of the trial court
granting the petition for judicial declaration of
presumptive death is immediately final and
executory. Hence, the right to appeal was not
granted to any of the parties therein. It was
therefore erroneous for the OSG to file a notice
of appeal, and for the RTC to give due course
thereto.

The ruling was reiterated in Republic vs Tango,

594 SCRA 560)
While there is no appeal, an aggrieved
party may file a petition for certiorari to
question abuse of discretion amounting to
lack of jurisdiction and such petition shall
be filed in the Court of Appeals in
accordance with the Doctrine of Hierarchy
of Courts. (Republic vs Tango, supra)
Art. 36- Psychological incapacity to perform marital obligations-

Reasons for Art. 36-

1. New Code on Canon Law provides the same ground for

Declaration of nullity of marriage.
2. Parties who have church annulled marriage are given cause
of action to have their marriages declared void by civil law.
3. Parties to marriages that exists in name only since they have
long been separated from each other because of the inability
or failure of one of the parties to perform the essential
obligations of marriage.
What in issue is - not whether the consent to the marriage is defective or
not, but whether there can be fulfillment of the valid consent.

Examples of psychological incapacity:

1. Husband/wife refuses to dwell with and subsequently leave the

Spouse without fault of the other;
2. Husband/wife leaves the spouse without justifiable cause;
3. Husband/wife refuses to have sex with the other spouse;
4. Wife refuses to have children;
5. There is unbearable jealousy on the part of either party, hence,
Making life of the parties unbearable;
6. Immaturity or where is there is lack of rational judgment and
Responsibility as when the husband refuses to support the family;
7. Husband or wife cannot shoulder the heavy responsibility of being
A parent;
Mere showing of “irreconcilable
differences” and “conflicting
personalities” does not constitute
psychological incapacity. (Republic vs.
Court of Appeals, and Roridel Molina,
268 SCRA 198).
Molina case laid down for guidance of bar and bench, the
interpretation of Art. 36-
1. Burden of proof to show nullity belongs to plaintiff;
2. Root cause of psychological incapacity must be:
A- medically or clinically identified
B- alleged in the complaint
C- sufficiently proven by experts
D- clearly explained in the decision
3. The incapacity must be proven to be existing at the time of
Celebration of marriage;
4. Incapacity must be shown to be medically or clinically
Permanent or incurable;
5. Illness must be grave enough to bring about the disability
to assume the essential obligations of marriage;
6. Non-complied marital obligations must be stated in the
Petition and proven by evidence and included in the text
of the decision;
7. The court must order the fiscal and solicitor general to appear
as counsel for the State.
 In the case of Santos vs. CA, 240 SCRA 20,
the Supreme Court held that being of
unsound mind, drug addiction, habitual
alcholism, lesbianism, or homosexuality
may be indicia of psychological incapacity,
depending on the degree of severity of the
disorder.
In Marcos vs Marcos, 343 SCRA 755, the SC
clarified that there is no requirement that
the defendant spouse should be personally
examined by a physician or psychologist as
a condition sine qua non for the declaration
of nullity of marriage based on
psychological incapacity.

Such psychological incapacity, however,

must be established by the totality of the
evidence presented during trial.
But, in Bier vs Bier, 547 SCRA 123, the
clinical psyschologist relied only on the
information fed by the petitioner. Thus,
the Court considers the testimony of
the clinical psychologist hearsay
evidence since she had no personal
knowledge of the alleged facts she was
testifying on.
Lately, in Ngo Te vs Yu-Te, 579 SCRA 193, and
Azcueta vs Republic, 588 SCRA 196, the court
relaxed the Molina guidelines by relying heavily
on the findings of the expert witness (clinical
pyschologist) in declaring the marriage void on
ground of psychological incapacity.

The Court said- “By the very nature of Art. 36,

courts, despite having the primary task and
burden of decision-making, must not discount
but, instead, must consider as decisive evidence
the expert opinion on the psychological and
mental temperaments of the parties”.
In psychological incapacity, the spouse declared
to be psychologically incapacitated has innate
incapacity or inability to comply with the
essential obligations of marriage because of an
utter insensitivity or inability to understand
such obligations (Santos vs CA 240 20)
As such, he or she cannot be held liable to pay
moral damages to the other spouse based on
Article 2217 and 21 of the NCC which connotes
willfulness of the acts complained of.
 If the same acts constitutive of the
psychological incapacity were made the
basis of the award of moral damages, it is
contradictory to characterize acts as
product of pyschological incapacity, hence
beyond the control of the party because of
innate inability, while at the same time
considering the same set acts as willfull.
(Buenaventura vs CA, 454 SCRA 261).
In Antonio vs Reyes, 484 SCRA 353, the
respondent was a pathological liar and
which lies were held to be indicative of her
failure to distinguish truth from fiction, or
at least abide by the truth. In declaring her
psychologically incapacitated, the Court
held that a person unable to distinguish
between fantasy and reality would similarly
be unable to comprehend the legal nature
of the marital bond, much less its psychic
meaning, and the corresponding obligation
attached to marriage.
The Court may not refuse to apply the guidelines
in the Molina case simply because the marriage
is a mixed one and that the respondent is a
foreign citizen. The SC held in Republic vs
Quintero-Hermano (428 SCRA 735) that such
guidelines may not be relaxed just because the
spouse alleged to be psychologically
incapacitated happens to be a foreign national.
The norms used for determining psychological
incapacity should apply to any person regardless
of nationality because the rules were formulated
on the basis of studies of human behavior in
general.
Art. 37 Incestous marriages-

- between ascendants and descendants

of any degree

-between brothers and sisters, whether

of full or half blood.
 Art. 38 Marriages void by reason of public
policy-
1. between collateral blood relatives, whether
legitimate or illegitimate, up to the fourth
civil degree.
2. between step-parents and step-children
3. between parents-in-law and children-in-law
4. between adopting parent and adopted child
5. between surviving spouse of the adopting
parent and the adopted child
6. between surviving spouse of the
adopted child and the adopter
7. between an adopted child and
legitimate child of the adopter
8. between adopted children of the same
adopter
9. between parties where one, with the
intention to marry the other, killed that
other’s spouse, or his own spouse.
Nota bene: marriage between the
adopted child and the illegitimate
child of the adopter is not included
in Article 38.
Who may file petition for declaration of nullity of
marriage?
A- In Ninal vs Bayadog, 328 SCRA 122, the Supreme
Court allowed the compulsory/legal heirs to file
petition for declaration of nullity of their father’s
marriage against respondent after the death of their
father.
B- Subsequently thereafter, the SC promulgated the
Rule on Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable Marriages (AM
No. 02-11-10-C), which took effect on March 15, 2003,
and Section 2 thereof, makes it the sole right of the
husband or the wife to file a petition for declaration of
absolute nullity of void marriage.
In Enrico vs Heirs of Sps. Medinaceli, 534 SCRA
418, the Court clarified that the coverage of the
AM No. 02-11-10-SC extends only to those
marriages entered during the effectivity of the
Family Code, and its application is prospective.

In Carlos vs Sandoval, 574 SCRA 116, the Court

further clarified that AM No. 02-11-10-SC, does
not apply to cases already commenced before
March 15, 2003, although the marriage involved
was celebrated during the effectivity of the
Family Code.
What rule will apply for marriages celebrated
under the Civil Code?

The absence of a provision in the Civil Code

cannot be construed as a license for any person
to institute a nullity of marriage case. Such
person must appear to be a party who stands to
be benefited or injured by the judgment in the
suit, or the party entitled to the avails of the
suit. Hence, only the compulsory or legal heirs
of the deceased spouse can file the petition.
One who is not the real party in interest in a
complaint for declaration of nullity of marriage
cannot ask for the setting aside of the decision
therein- his invocation of the State’s interest in
protecting the sanctity of marriage does not
give him the standing to question the decision.
By law, it is the prosecuting attorney of fiscal or
the Solicitor General who represents the
interest of the State in proceeding for the
annulment or declaration of nullity of marriage.
(Salamingo vs Rubica, 527 SCRA 1)
Period to file petition for declaration of
nullity of marriage-

- For marriages the prior to the

effectivity of the Family Code (Aug 3,
1988), the petition may be filed by the
real party-in-interest even after the
death of the spouses. (Ninal vs
Bayadog, 328 SCRA 122)
- If the marriage was celebrated
during the effectivity of the Family
Code but the petition was filed
before March 15, 2003, the petition
may be filed by the real party-in-
interest even after the death of the
spouses. (Carlos vs Sandoval, supra).
Note: AM No. 02-11-10-SC does not
apply.
If the marriage was celebrated during the effectivity
of the Family Code, and the petition was filed on
March 15, 2003 or thereafter, the petition can be filed
only by either spouse and during their lifetime. No
such petition can be filed after death of either
spouses, and in case a party dies at any stage of the
proceedings before entry of judgment, the court shall
order the case closed and terminated. (AM 02-11-10-
SC) , but without prejudice to a collateral attack that
may be done by the compulsory/legal heirs of the
spouses upon death of a spouse in a proceeding for
settlement of the estate of the deceased spouse.
(Enrico vs Heirs of Medinaceli and Carlos Sandoval,
supra)
 Action or defense for the declaration of
absolute nullity of marriage shall not
prescribe. (39)(as amended by RA 8533,
Feb. 23, 1998)

Absolute nullity of a previous

marriage may be invoked for purposes
of remarriage on the basis solely of a
final judgment declaring such previous
marriage void.(40)
What step must be undertaken by
the present spouse before entering
into s subsequent marriage?

What is the effect of failure to take

such step?
One must first secure a final judicial declaration of
nullity of his previous marriage before he can validly
contract another marriage and failure to do so shall
make him liable for the crime of bigamy if he
contracts a subsequent marriage. (Marbella-Bobis vs
Bobis, supra, Abunado vs People, 426 SCRA 562) (41)

Even if the prior marriage is void but a party thereto

fails to secure a judicial declaration of its nullity
before contracting another marriage, the subsequent
marriage is also void. (Art. 50 FC, Carino vs Carino,
351 SCRA 127) and the party is liable for the crime of
bigamy.
To contract a subsequent marriage,
the other spouse must be absent
for 4 years or 2 years, and the
present spouse has well-founded
belief that the absent spouse was
already dead. (41)
When may the subsequent bigamous
marriage be terminated?

The subsequent marriage shall be

terminated automatically by the
recording of the Affidavit of
Reappearance of the absent spouse,
unless there is a judgment annulling or
declaring the previous marriage void.
(42)
The sworn statement of reappearance
shall be recorded in the civil registry of
the residence of the parties of the
subsequent marriage at the instance of
any interested person, with due notice
to the parties of the subsequent
marriage and without prejudice to the
fact of reappearance being judicially
determined in case such fact is
disputed. (42)
If the absentee reappears, but no step is taken to
terminate the subsequent marriage, either by affidavit
or 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
appearance, 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. (SSS vs
Jarque Vda. De Ballon, 485 SCRA 376)
Wife left the home, husband inquired from
friends, no news about her, sent letter to former
place of work, but were returned. Is this sufficient
to declare wife presumptively dead?

No. Spouse should not be allowed, by the

simple expedient that one of them left the
conjugal home and never to return again, to
circumvent the laws on marriage which is not an
ordinary but special contract of permanent union.
(Republic vs. Nolasco, 220 SCRA 20, March 17,
1993).
EFFECTSOF TERMINATION OF SECOND MARRIAGE: (43)

1. Children of the second marriage conceived prior to

termination shall be legitimate.
2. custody and support to be decided by the court in
proper proceedings.
3. community property shall be dissolved and liquidated,
but share of spouse in bad faith in the net profits shall
be forfeited in favor of common children, or children of
guilty spouse, or innocent spouse.
 4. donations by reason of marriage shall remain
valid, but those in favor of spouse in bad faith,
shall be revoke by operation of law.

5. innocent spouse may revoke the designation

of spouse in bad faith as beneficiary in any
insurance policy, even if designation is irrevocable.

6. spouse in bad faith shall be disqualified to

inherit from the innocent spouse, whether by
testate or intestate succession.
IF BOTH IN BAD FAITH- (44)

1. marriage shall be void

2. donations by reason of marriage
revoked by operation of law
3. testamentary disposition revoked by
operation of law
GROUNDS FOR ANNULMENT OF MARRIAGE (45)

1. LACK OF PARENTAL CONSENT, unless cohabited

freely after 21 years of age.

2.INSANITY, unless after coming to reason

cohabited freely with each other.

3. CONSENT OBTAINED BY FRAUD, unless with full

knowledge, cohabited freely
4. CONSENT OBTAINED BY FORCE, INTIMIDATION,
UNDUE INFLUENCE, unless cause disappeared,
cohabited freely

5. IMPOTENCY, continuing and appears to be

incurable

6. PARTY AFFLICTED WITH SEXUALLY

TRANSMISSIBLE DISEASE, found to be serious and
incurable

CONSENT- parental, fraud, force,

INSANITY
IMPOTENCY
STD
A & B were sweethearts. B. became
pregnant. Knowing that A was about to
take bar exam, B threatened A with
complaint for immorality in the Supreme
Court. As a consequence of the threat, A
married B. Is the marriage annullable on
ground of intimidation?
 No, the threat to enforce one’s claim
which is just and legal, through
competent authority, is not the threat
contemplated by law to annul a
marriage. The threat must be unjust or
illegal. (Ruiz vs. Atienza, CA 40 Off Gaz.
1093).
FRAUD TO ANNUL A MARRIAGE (46)

CONCEALMENT OF CONVICTION by final judgment of a

crime involving moral turpitude.
CONCEALMENT OF PREGNANCY BY WIFE by another
man at the time of marriage
CONCEALMENT OF SEXUALLY TRANSMISSIBLE DISEASE,
at the time of marriage
CONCEALMENT OF DRUG ADDICTION,
HABITUAL ALCOHOLISM,
HOMOSEXUALITY OR
LESBIANISM
At the time of marriage
NO other misrepresentation or deceit as
to character, health, rank, fortune or
chastity shall constitute fraud for
annulment of marriage.
Plaintiff, a first year law student, met the
defendant in March 1968. After several
meetings, became engaged and were
married. After 88 days, defendant gave
birth to child. Plaintiff abandoned
defendant and filed suit for annulment on
the ground of fraud, as the defendant
assured that she was a virgin. Will suit the
prosper?
The marriage cannot be annulled. The law is explicit, no
other misrepresentation or deceit as to character, health,
rank, fortune, or CHASTITY shall constitute fraud for
annulment of marriage.

On the ground that she was pregnant by another man,

the law is explicit. There must be concealment. Here is
there is no possibility of concealment. Defendant was
already about 6 months pregnant. At such advance stage
of pregnancy, concealment would be impossible. (Buccat
vs. Buccat, 72 Phil 19).

Accdg to medical authorities, when a woman is already

6 months pregnant, the enlargement of her abdomen is
above, and no longer below, the umbilicus. (Aquino vs.
Delizo, 109 Phil 21).
IMPOTENCY-

Test on Impotency- the test is not the capacity to

reproduce but the capacity to copulate. (Sarao vs.
Guevarra, CA Off. Gaz. 263).

Physical incapacity as ground for annulment of

marriage refers to inability to perform the sexual act,
and not sterility or inability to procreate. (Menciano
vs. San Jose, 89 Phil 63; Jimenez vs. Canizares, 109 Phil
273).
If the spouse knew that the other
party is impotent, can she ask for
annulment of her marriage?
How about if the man is already 80
years old, can she ask for
annulment?
 No. 1. To be entitled, party must be unaware of the
impotency because the law requires that the party that can
bring the action must be the injured party. If she knew, she
is not an Injured party.

2. Estoppel. She is renouncing copulation, which is a

purely personal right.

3. Sexual intercourse is not the only end or purpose of

marriage.

If the man is 80 years old, the wife should know that he

should be already impotent, and is under estoppel to annul
her marriage.
Doctrine of triennial cohabitation- the presumption
that the husband is impotent should the wife still
remain a virgin after living together with the husband
for 3 years.

Can relative impotency be invoked to annul

marriage? Yes. In view of the physical incapability
of one party to consummate said marriage with the
other.
Can a woman be compelled to undergo physical
examination to determine her physical capacity for
copulation? (private part of the woman to small
to allow penetration).
 Yes. A physical examination in this case is not self-
incrimination. She is not charged with any offense.
She is not being compelled to be a witness against
herself. Impotency, being an abnormal condition,
should not be presumed The presumption is in favor
of potency. (Jimenez vs.Canizares, 109 Phil 273).
Who may bring an action to
annul a marriage?
PARTY TO ANNUL MARRIAGE (47)

PARENT/GUARDIAN without consent, before 21, or

PARTY (whose parent did not give consent)- within 5
years after 21 years of age

SANE SPOUSE (if no knowledge)

RELATIVE/GUARDIAN OF INSANE SPOUSE, at anytime
before death of EITHER PARTY,
INSANE during lucid interval or upon regaining sanity

FRAUD- INJURED PARTY, WITHIN 5 YEARS AFTER

DISCOVERY OF FRAUD
FORCE, ETC., INJURED PARTY, WITHIN 5
YEARS AFTER CESSATION THEREOF

IMPOTENCY, INJURED PARTY, WITHIN 5

YEARS AFTER MARRIAGE

SEXUALLY TD, INJURED PARTY, WITHIN 5

YEARS AFTER MARRIAGE
(48) IN ANNULMENT OR DECLARATION OF NULLITY
OF MARRIAGE, COURT SHALL ORDER PROSECUTOR
TO APPEAR TO PREVENT COLLUSION BETWEEN THE
PARTIES

NO JUDGMENT ON STIPULATION OF FACTS OR

CONFESSION OF JUDGMENT IN ANNULMENT OR
NULLITY OF MARRIAGE
49. DURING PENDENCY OF SUIT FOR ANNULMENT
OR NULLITY OF MARRIAGE-

1. court provides for support of spouses

2. custody and support of common children
3. Custody shall be given to spouse with due
consideration to-
a- moral and material welfare of the children
B- their choice of parent they wish to remain
C- provide for visitation rights of other parent
AFTER ANNULMENT: (50, 51)

1. Community shall be dissolved and liquidated

2. donations by reason of marriage shall be valid
3. innocent spouse may revoke designation of
guilty Spouse as beneficiary in life insurance
policy, even if designation is irrevocable.
4. guilty spouse shall be disqualified to inherit
from innocent spouse
5. Provides for custody and support of common
children
6. Orders the delivery of presumptive legitimes
7. conjugal dwelling and lot shall be
adjudicated to spouse whom majority of
children choses to remain; in case no
majority, court decides
8. either spouse may remarry, but deliver
presumptive legitimes, otherwise remarriage
is void
9. children conceived or born before judgment
are legitimate (53)
10. children conceived or born of subsequent
marriage are legitimate (54)
If the judgment of annulment or
declaration of nullity of
marriage, partition and
distribution is not registered,
what is the effect?
• The judgment of annulment or absolute nullity
of marriage, partition and distribution of the
properties of spouses and delivery of
presumptive legitimes shall be recorded in the
civil registry and registry of properties,
otherwise, the same shall not affect third
persons.
• If not registered, the subsequent marriage of
either of former spouses shall be null and void.
(52)
 Where there are no properties of the
spouses which could be the subject of
liquidation, and no legitimes to be delivered,
is there a need for recording of the judgment
of annulment or absolute nullity of marriage?
• There is no need for recording of the
judgment in the appropriate registries of
property where there are no properties that
would be subject of liquidation, partition and
distribution and no presumptive legitimes
that could be delivered. Logically, our
governing laws do not require such judgment
to be furnished and recorded in the registries
of property.
LEGAL SEPARATION (55)

1. PHYSICAL VIOLENCE repeated

GROSSLY ABUSIVE CONDUCT
2. PHYSICAL VIOLENCE OR MORAL PRESSURE to
change politic or religion
3. ATTEMPT TO CORRUPT
INDUCE to engage in prostitution
3. FINAL JUDGMENT WITH IMPRISONMENT OF
MORE THAN 6 YEARS, even if pardoned
4. DRUG ADDICTION, HABITUAL ALCHOLISM
5. LESBIANISM, HOMOSEXUALITY
6. BIGAMOUS MARRIAGE, ANYWHERE contracted
7. SEXUAL INFIDELITY OR PERVERSION
8. ATTEMPT AGAINST LIFE
9. ABANDONMENT FOR MORE THAN ONE YEAR,
without justifiable cause
GROUNDS FOR DENIAL (56)
1.CONDONATION - forgiven
2. CONSENT- agreed
3. CONNIVANCE-
4. MUTUAL GUILT- both had given ground
5. COLLUSION- both agree to commit or appear to commit
6. PRESCRIPTION-

TIME TO FILE- 5 YEARS FROM OCCURRENCE (57)

NO TRIAL BEFORE 6 MONTHS FROM FILING OF PETITION (58)

NO JUDGMENT UNLESS EARNEST EFFORTS FOR

RECONCILIATION MADE DURING PENDENCY OF ACTION AND
FAILED (59)
Under Section 19 of RA 9262 (Anti-Violence
Against Women and Children Act of 2004), the
requirement of six months cooling-off period
under Article 58 FC shall not apply where
violence, as specified in RA 9262, is alleged as
the ground for legal separation.

Ex. Repeated physical violence against the wife

or common children. In such cases, the court
shall proceed on the main case and other
incidents of the case as soon as possible.
If the ground for legal separation is any act
of violence punishable under RA 9262, said
law prohibits the awarding of custody of
minor children to the perpetrator of a
woman who is suffering from battered
woman syndrome.

The victim who is suffering from battered

woman syndrome shall not also be
disqualified from having custody of her
children. (Sec. 28, RA 9262)
H instituted an action for legal
separation against his wife, W on the
ground of adultery. It was however
established during trial that after H’s
discovery of his wife’s
infidelity, he still had sexual intercourse
with
her twice. Will the action prosper?
• No. The act of H in having sexual intercourse
with W in spite of his knowledge of the
latter’s infidelity is an act of implied
condonation. Such act of condonation shall
bar the granting of a decree of legal
separation. (Ginez vs Bugayong, 100 Phil 616)
 A caught his wife, B, having illicit relations
with P. He then told her that he will file an
action against her for legal separation which
the latter agreed provided that no criminal
charges shall be filed against her. The
complaint was filed and B defaulted. When
questioned by the Fiscal, B signified her
conformity to the legal separation. Is there
collussion? Is there confession of judgment to
bar the decree of legal separation?
• The confession made outside of the court is
not a confession of judgment. Confession of
judgment happens when defendant appears
in court and confesses to the right of the
plaintiff to judgment or files a pleading
expressly agreeing to plaintiff’s demand.
• There is evidence of adultery independent of
the confession, upon which the decree may
be granted.
• What the law prohibits is a judgment based
exclusively or mainly on defendant’s
confession. Otherwise, if a confession can
defeat the action ipso facto, any defendant,
who opposes the separation, will immediately
confess judgment, purposely to prevent it.
(Ocampo vs. Florenciano, 107 Phil 35)
• A and B entered into a contract whereby they
agreed to live separately and that they are
free to cohabit with anyone. Thereafter A
cohabited with M and had seven children
with her. B filed an action for legal separation
against A. Will the action prosper?
• No.
• The action has prescribed. Action for legal
separation prescribed in 5 years.
• By their express agreement, B had consented
or condoned the act of A. Having consented
or condoned the acts of A, he is undeserving
of court’s symphaty.
• B is not an innocent spouse. She is aware of
the cohabitation between A and M.
 Effects of filing of legal separation (61)

• Spouses are entitled to live separately

• No more right of carnal intercourse
• Court shall designate H or W to manage the
community property
• Court shall provide for the support of the
spouses and the common children
Effects of decree of legal separation (63, 64)

• Spouse shall live separately, but marriage

bond shall not be severed
• Community property shall be dissolved and
liquidated.
• Offending spouse forfeits share in the profits
• Offending spouse disqualified to inherit from
innocent spouse
• Innocent spouse may revoke donations in favor
of offending spouse, as well as designation as
beneficiary in any insurance policy, even
irrevocable
• Disposition in the will in favor of offending
spouse is revoked by operation of law.
• Custody of minor children awarded to innocent
spouse, provided that no child below 7 years
shall be separated from the mother
A married woman may use:

1. Her maiden first name and surname and

add her husband’s surname; or

2. Her maiden first name and her husband’s

surname, or

3. Her husband’s full name, but prefixing a

word indicating that she is his wife, such as
“Mrs”.
In case of legal separation, the wife shall
continue using her name and surname employed
before the legal separation. (Art. 372 FC)

In case of anulment of marriage, if the wife is the

guilty party, she shall resume her maiden name
and surname. If she is the innocent spouse, she
may resume her maiden name and surname, or
continue using the former husband’s surname,
unless: the court decress otherwise; or she or the
former husband is married again to another
person. (Art. 371 NCC)
• A brought an action for legal separation
against his wife B on ground of adultery. He
likewise asked the Court for the forfeiture of
the share of B in the community profits.
During the pendency of the case, A died. May
the heirs of A be substituted in his behalf?
• The action for legal separation, which involves
nothing more than separation from bed and
board is purely personal. Being personal in
character, the death of one party to the action
causes the death of the action itself.
• Even if the action involves property rights, the
abatement still applies. The property rights are
mere effects of a decree of legal separation.
Without the decree, such rights do not come
into existence.
 Reconciliation (65)
• If the spouses should reconcile, the
corresponding manifestation under oath duly
signed by them shall be filed with the court in
the same proceeding for legal separation.
 Effects of reconciliation (66)
Legal separation proceedings, if pending,
shall be terminated in whatsoever stage.

Final decree of legal separation shall be set

aside, but separation of property and
forfeiture shall subsists, unless the property
agree to revive their former regime.
 The use of the husband’s surname
during the marriage is permissive and
not obligatory. Hence, a married
woman may retain the use of her
maiden name. (In re: Josephine P. Uy-
Timosa, Bar matter No. 1625, July 18,
2006)
 Revival of former regime (67)
• Spouse should execute an agreement under oath and
specify the following:
1. properties to be contributed anew to
the restored regime
2. properties to be retained as separate
of each
3. the names of all their known creditors, addresses
and amounts owing to each
The agreement shall be approved and recorded. Does
not prejudice creditor without notice, unless debtor-
spouse has sufficient separate property
The Rule on Legal Separation (AM No. 02-11-11-SC)
appears to allow the spouses, upon reconciliation and
with intervention of the court, to adopt a new property
regime different from that which they had prior to the
filing of the petition for legal separation. (Sec. 23(e) and
24, AM No. 02-11-11-SC).

It is submitted, however, that the parties may not adopt

absolute community or conjugal partnerhip of gains as
their new property regime because regimes cannot
commence at any other time except the precise
moment of the celebration of marriage and any
stipulation to the contrary is expressly declared by law
to be void. (Art. 88 and 107, FC)
RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND
WIFE:

Obligations : (article 68)

-To live together

wife to live with husband except :
a- residence dangerous
b- husband has not fixed residence
c- husband carries shameful business at
home
-To observe mutual love, respect, and fidelity
-To render mutual help and support
Q. W, wife, abandoned her husband, H,
without justifiable reason, can H ask the
court to order W to return to the conjugal
home under penalty of contempt? What
other remedies are available to H?
Ans. No, bec. Cohabitation is purely personal
obligation (Arroyo vs. Vasquez de Arroyo, 42 Phil.
54)
Remedies : A- withhold support
B -recover moral damages
C- ask court to counsel
The refusal of the wife to perform her wifely
duties, her denial of consortium and her
desertion of her husband would certainly
constitute a wilful infliction of injury upon her
husband’s feelings in a manner contrary to
morals, good customs and public policy for which
Art. 21 of the NCC authorize an award of
damages.
Who fixed domicile?
Both, in case of disagreement, court decides
(article 69)

The court may exempt spouse from living with the

other :
A- if spouse lives abroad
B- other valid and compelling reason for
exemption
Support of the family – joint responsibility of
both (Art. 70)

Order :
a- from community property
b- income or fruits of separate property
C- separate property of spouses
(proportionate to their properties, but to
creditors, solidarily liable).
Management of household- right and duty of both (article
71) expenses to be paid in the same order as in support

Profession or occupation- wife may exercise without

consent of husband but Husband may object on valid,
serious and moral grounds

In case of disagreement – court decides on whether or

not objection proper, and benefits accrued to the family.

If benefit accrued to family prior to objection , resulting

obligation shall be enforced against the absolute
community; after objection, against separate property of
spouse who has not obtained consent.
Under RA 9262, if the husband prevents
his wife from engaging in any legitimate
profession, occupation or or activity, he
has committed an act of violence
punishable by said law (Sec. 5(e), RA
9262), except in cases where the husband
objects on valid, serious and moral
grounds. (Sec. 3(a) (D) (1), RA 9262).
Legal sanctions : ( petition court for relief)
(72) If spouse
1. neglects duties to conjugal union
2. commits acts which tend to bring
danger, dishonor or injury to the
other or to the family.
Exercise of profession- (73)
-either spouse may exercise without the consent
of the other
-spouse may object on valid, serious and moral
grounds
-in case of disagreement, the court shall decide
whether or not the objection is proper and
benefit accrued to the family before objection or
thereafter.
-if the benefit accrued prior, the resulting
obligation shall be enforced against the separate
property of spouse who has not obtained
consent.
PROPERTY RELATIONS BETWEEN HUSBAND
AND WIFE:

Governed By :
1.marriage settlement
2.family code
3. local customs (ARTICLE 74)
Property regimes (article 75)

1. absolute community
2. conjugal partnership gains
3. complete separation of property
4. combination of the above regimes
5. any other regimes, like dowry system
6. in case of void regime- governed by absolute
community.
Q. A, married B, a very rich woman. When B
died, A claimed ½ of the properties of B on the
basis of a public instrument executed by A and
B whereby all their separate properties were
converted into conjugal properties. Is the claim
valid?
Ans. The claim is not valid.

1. Property relations between husband

and wife cannot be changed, altered or
modified during marriage.
2. The public instrument, if given effect,
would result in giving validity to donation
between spouses which is not allowed by
law.
3. It would allow commission of fraud by
the spouses.
Forms of marriage settlement or
modification : (77)
1. Must be in writing
2. Must be signed by both
3. Must executed before marriage

Must be registered to affect third parties

 In case real properties are
contributed, the marriage settlement
must be in public document and
recorded in the local civil registry
and register of deeds, in order to
affect third persons.
No more minors needing assistance of
guardian for purposes of marriage
settlement as the age of majority has
been lowered to 18, which is also the age
of marriage.

If suffering from civil interdiction, to be assisted

by legal guardian in executing marriage
settlement. (79)
 Any modification, alteration or
change in the marriage settlement
must be made before the
celebration of the marriage. (76)
Effect of non-celebration of marriages:
(81)
1. property regime
2. donation proper nuptias
3. other stipulation
in consideration of marriage ARE
RENDERED VOID

However, stipulations that do not

depend on the celebration of marriage
shall be valid
Property relations governed by : Philippine law, except
contrary stipulation in marriage settlement. (irrespective of
place of marriage and residence of parties)

The rule does not apply-

1. both spouse are alien
2. extrinsic validity of contracts
affecting property not situated in the Phil and
executed in country where the property is located
3. extrinsic validity of contracts entered in Phil. but
affecting property situated outside of RP
whose laws require different formality for their extrinsic
validity.(81)
DONATIONS PROPTER NUPTIAS (82)
Req.
1. made before marriage
2. in consideration thereof
3. in favor of one or both of the future
spouses
Excepted: (not considered donation propter
nuptias)
-Ordinary weeding gifts after marriage
-Donation before but not in consideration
of the marriage
- Donation to other persons even if
founded on the intended marriage
-Insurance contract over the life of spouse
(belong to the beneficiary)
Limitations:
-no limitation if spouse agrees on
absolute community
- if not absolute community- 1/5 of
present property
-In case of future property- rule on
succession
GROUNDS FOR REVOCATION : (86)
1. non-celebration of marriage
2. marriage judicially declared void ab initio
A- if in marriage settlement- automatically revoked
B- if not in M S - if written-10 years, if oral- 6 years
3. marriage without parental consent (action must
be filed within 4 years)
4. Marriage annulled, donee acted in bad faith- 4 yrs
5. Legal separation, donee is guilty spouse- 5 yrs fr.
decree
6. Resolutory condition fulfilled, if written, 10 yrs.
If Oral- 6 yrs
7. Donee committed acts of ingratitude- 1 yr fr.
knowledge
Property donated with encumbrance :
(86)
Valid –
if foreclosed :
A- sold for less than the obligation-
donee not liable for deficiency
B- sold for more than the obligation-
donee entitled to excess.
DONATION BETWEEN SPOUSES : (87)

direct-void
indirect- void (where spouses is the
presumptive heir of donee)
except : moderate gifts on family
rejoicings.

*Rule applies to common-law relationships

Q. X had been taking care of B until she got
married to A. Prior to the marriage, A executed
a deed of donation, with the following
conditions: 1. if there are children to their
marriage, the property shall go to said children;
2. if there are no children, and A should die
ahead, ½ shall be given to his brothers; 3. if
there are no children, and B should die ahead,
½ shall go to X. Nine monts after their marriage,
B died without issue. X filed an action to
enforce the donation. Will the action prosper?
Ans. No, action will not prosper.

1. Donation is not a donation propter nuptias. It

was not made in favor of B, the wife.
2. It cannot be a valid donation inter vivos
because there was no acceptance by the donee.
3. It cannot be a valid donation mortis causa
because it was not executed in the formality of
will; besides, A is still alive. (note: there was
substitution of heirs).
Q. X executed a donation propter nuptias in
favor of his prospective wife, Y, who accepted
the same. The marriage however did not take
place. The creditors of X filed an action to
recover the property donated on the ground
that the marriage was not celebrated. Will the
action prosper?

Suppose the donation was made in the

marriage settlement, will the answer be the
same?
Ans. No, the action will not prosper.

A donation propter nuptias is only REVOCABLE

by the donor if the marriage is not celebrated.
If the donor did not bring an action for
revocation within the period of limitation, then
the donation would forever be valid.

However, if the donation was made in the

marriage settlement, then the donation is
revoked by operation of law.
Q. A donation propter nuptias was given
by X to Y. They were subsequently
married. Thereafter, Y discovered that X
was previously married. Y brought an
action to annul their bigamous marriage,
which was granted. X filed an action to
revoke his donation as their marriage was
judicially declared void. Will the action
prosper?
Ans. No, the action will not prosper.

A donation propter nuptias is revocable in case

the marriage is annulled, and the donee acted
in bad faith. In this case, Y, the wife, who was
the donee, did not act in bad faith. Rather, it
was the donor who acted in bad faith. Hence,
donation cannot be revoked by the donor.
Q- A and B, both single, lived together as
husband and wife, without the benefit of
marriage. During their cohabitation, A
donated a house and lot to B. When A
died, the heirs of A bring an action to
recover the property donated. Will the
action prosper?
Ans. The action will prosper

Donation between spouses who are legally

married is void. Same rule applies to
persons living together as husband wife
without a valid marriage. To allow a
different rule is to put premium to
illegimate relationship.
Q. X donated a parcel of land to his
common-law wife, Y. Thereafter, X and Y
got married. Shortly after their marriage, X
died. The sister of X filed an action to
recover the property donated by X on the
ground that it is void. Will the action
prosper?
Ans. The action will prosper, but only to ½ of the
property.
The donation made by X to his common-law wife Y is
admittedly void. Donation between legally married
spouses is void. Said rule applies in equal measure to
illegitimate relations.

Y is however entitled to ½ share of the property,

being an intestate heir, as she was legally married to X
before he died. The other ½ shall go to the sister of X,
who is also his intestate heir.
PROPERTY RELATIONS :

ABSOLUTE COMMUNITY- governs after the

effectivity of the family code, unless different
regime agreed upon by the spouses. .

COMMENCEMENT: precise moment marriage is

celebrated.

WAIVER of rights, interests, shares and effects of

community property during the marriage- VOID
EXCEPT:
1.waiver takes place upon judicial separation
of property
2. waiver takes place after marriage had been
dissolved or annulled.

WAIVER must appear in public instrument and

recorded.

Creditors of waiving spouse may petition the court to

rescind waiver to the extent of their credit.
COMMUNITY PROPERTY CONSIST OF:

1. all properties owned by the spouses

at the time of celebration of marriage

2. all properties acquired after marriage.

PROPERTIES EXCLUDED :

1. acquired by gratuitous title, including fruits and

income, except when grantor declares them to
form part of the community property.

2. property for personal and exclusive use of

spouses, except jewelry, which are community
property

3. property acquired before marriage by either

spouse, who has legitimate descendants by
former marriage, including fruits or income
thereon.
CHARGES UPON ABSOLUTE COMMUNITY:

1. SUPPORT for spouses, common children, and

legitimate children of each spouse

2. DEBTS and obligation contracted during

marriage by : A-administrator spouse
B- Both spouses
C- One spouse with consent of
other

3. DEBTS and obligations contracted by either

spouse to the extent family benefited.
4.TAXES liens, charges and expenses, including
major or minor repairs upon community
property.

5. TAXES and expenses for preservation made

during marriage upon separate property of
either spouse use by family.

6. EXPENSES to enable either spouse to commence

or complete a professional, vocational or other
activity for self-improvement.

7. ANTENUPTIAL DEBTS of either spouse that

redounded to the benefit of family.
8. VALUE of what is donated or promised by both
spouses to their common children for the
exclusive purpose of commencing or completing
professional or vocational course or for self-
improvement.

9. ANTENUPTIAL DEBTS of either spouse that do not

redound to the benefits of the family, SUPPORT for
Illeg. children, liabilities for crime, or quasi-delict,
if separate property not sufficient

10. EXPENSES for litgation between spouses, unless

suit found to be groundless.
If the community property is not sufficient, the
separate property of either spouse shall be solidarily
liable for the unpaid balance.

LOSSES IN GAMBLING, betting, sweepstakes, or any

other kind of gambling, whether prohibited or
permitted by law, shall be borne by the loser, and
not chargeable to the community, but winning
pertains to the community.
In the system of absolute
community, liabilities incurred by
either spouse by reason of crime is
chargeable to the absolute
community property, in the
absence or insufficiency of the
exclusive property of the debtor-
spouse. (Buado vs CA 586 SCRA
397)
ADMINISTRATION & ENJOYMENT of community
property- BOTH-

In case of DISAGREEMENT- husband’s decision

prevails, but wife may seek recourse in court within
5 years from date of contract implementing the
decision.

In case of incapacity or inability to participate in

administration- the other spouse shall assume sole
power, but cannot dispose or encumber community
property, without court approval or consent of the
other spouse.
DISPOSITION OR ENCUMBRANCE of community property-
BOTH-

If made by one, without consent of the other, it shall be

considered as continuing offer on the part of the
consenting spouse, and may be perfected as a binding
contract upon the acceptance by the other spouse or
authorization by the court before the offer is withdrawn by
either or both offerors..

If consent is withheld or cannot be obtained- COURT may

give the authority as warranted by the circumstances.

EITHER spouse may dispose by will his/her interest in the

absolute community.
DONATION OF COMMUNITY PROPERTY-
BOTH
- except moderate donations to charity
OR on occasion of family rejoicing OR
family distress.
DISSOLUTION OF ABSOLUTE COMMUNITY
REGIME-
1. death of either spouse
2. decree of legal separation
3. marriage is annulled or declared void
4. Judicial separation of property under
134 to 138
ARTICLE 134- SEPARATION OF PROPERTY DURING THE
MARRIAGE TAKES PLACE ONLY BY JUDICIAL ORDER-
DONE under -
A- Art. 136- by agreement where they jointly file
a verified petition for voluntary
dissolution of the absolute
community property

B- Art. 135- for sufficient cause.

ARTICLE 135-
1.spouse convicted with penalty of CIVIL
INTERDICTION
2. spouse judicially declared an ABSENTEE
3. LOSS OF PARENTAL AUTHORTITY decreed by
court
4. ABANDONMENT by the spouse OR failure to
comply with obligation
5. ABUSE OF POWER OF ADMINISTRATION
6. SEPARATION IN FACT FOR ONE YEAR,
reconciliation is highly improbable.
SEPARATION DE FACTO OF SPOUSES- shall not affect the
absolute community property- except:

A- spouse who leaves conjugal home or refuses to live

therein- shall have no right to be supported.
B- consent of spouse to any transaction is needed –
judicial authorization shall be obtained in summary
proceedings
C- if community property not sufficient, separate
property of both spouses shall be solidarily liable for
the support of the family.

The spouse present shall be given authority by the court

to encumber or dispose separate property or fruits to
satisfy the share of the absent spouse.
ABANDONMENT BY SPOUSE OF THE OTHER
Abandoned when spouse left conjugal
dwelling without any intention of returning.

Presumed to have no intention of

returning when spouse left conjugal dwelling
after 3 months or within said period give no
information as to his/her whereabouts.
REMEDY OF ABANDONED SPOUSE-
1. receivership
2. judicial separation of property
3. Petition for authority to be sole
administrator of community subject to
such precautionary conditions as court
may impose.
LIQUIDATION OF ABSOLUTE COMMUNITY ASSETS AND
LIABILITY-

PROCEDURES :

1. prepare inventory of absolute and separate properties

2. Pay debts and obligations
If not sufficient-separate property-solidarily liable
3. NET REMAINDER shall be divided equally
except- a- different divisions agreed upon in marriage
settlement.
B- Voluntary waiver by one spouse of his
share.
4. PRESUMPTIVE LEGITIMES of common children shall be
delivered
5. conjugal dwelling and lot adjudicated :
a- agreement of the parties
b- spouse, majority of the common children
chooses to remain, child below 7,
presumed to have chosen the mother
c- if no majority- court decides taking into
consideration the best interest of the
children.
TERMINATION OF COMMUNITY PROPERTY BY
DEATH-
A- liquidated in the proceeding for settlement of
estate deceased.
B- Surviving spouse shall liquidate community
property judicially or extrajudicially, within one
year from death of deceased spouse.
C- If no liquidation after one year from death-
DISPOSITION OR ENCUMBRANCE involving the
community property shall be VOID.
D- If the surviving spouse contracts a subsequent
marriage without liquidation of community
property, mandatory regime of complete
separation of property shall govern the property
relations of the subsequent marriage.
LIQUIDATION OF COMMUNITY PROPERTIES OF
TWO MARRIAGES-
A- DETERMINE the capital, fruits and income
of each community property upon such
proof as may be considered according to
the rules of evidence.
B- in case of doubt as to which the community
the existing properties belong, they be shall
divided between the two communities in
proportion to the capital and duration of
each.
CONJUGAL PARTNERSHIP OF GAINS

1.property of regime that applies when

agreed upon in the marriage settlement.
2.conjugal partnership of gains
already established between
spouses before the effectivity of the
family code.
RIGHT OF EACH SPOUSE IN THE CONJUGAL
PROPERTY DURING MARRIAGE IS MERELY
INCHOATE-
Thus, a private creditor of the husband cannot
attach or levy on one-half of the joint account of the
spouses in a bank on the ground that it is the share
of the husband in said account.

The right of the husband to one half of the

properties of the conjugal partnership does not vest
until its dissolution and there are net assets left.(De
Ansaldo vs. Sheriff of Manila, 64 Phil 156)
The Family Code, which took effect on 3
August 1988, provides that any
alienation or encumbrance made by
the husband of the conjugal
partnership property without the
consent of the wife is void.

However, when the sale was made

before the effectivity of the FC, the
applicable law is the New Civil Code.
Article 173 of the New Civil Code
provides that the disposition of real
property of the conjugal partnership
without the wife’s consent is not void
but merely voidable and the wife
could, during the marriage and within
10 years from the questioned
transaction, seeks its annulment.
(Heirs of Ignacia Aguillar-Reyes vs
Mijares, 410 SCRA 97).
However, any alienation or encumbrance made after
August 3, 1988 when the Family Code took effect by
the husband or the wife of the conjugal partnership
property without the consent of the other is null and
void. (Heirs of Ignacia Aguillar-Reyes, supra).

The present law specifically requires the written

consent of the other spouse, or authority of the court
for disposition or encumbrance of conjugal
partnership property without which, the disposition
or encumbrance shall be void. (Abalos vs Macatangay,
439 SCRA 649).
The reason for the rule- is that the right of the
husband or the wife to one-half of the conjugal
assets does not vest until the liquidation of the
conjugal partnership, or after the dissolution of
the marriage, when it is finally determined that,
after settlement of the conjugal obligations,
there are net assets left which can be divided
between the spouses or their respective heirs.
Prior thereto, the interest of each spouse in the
conjugal assets is inchoate, a mere expectancy,
which constitute neither a legal nor an
equitable estate. Hence, either of the spouse
may not give what he has not.
In Homeowners Savings & Loan Bank vs Dailo
(453 SCRA 282), the bank contended that the
mortgage of a conjugal property by the husband
without the consent of the wife is not void in its
entirety but valid with respect to the share of
the consenting spouse, citing Art. 493 of the
NCC, which allows a co-owner to dispose of his
aliquot share without the consent of the other
co-owner. The Court held that the rules of co-
ownership do not apply to the property relations
of conjugal partnership of gains because said
property regime is a special type of partnership.
In Pelayo vs Perez, 459 SCRA 475, the
Court held that when a wife affixed her
signature to a Deed of Sale on the space
provided for witnesses, she was deemed
to have given her implied consent to the
contract of sale. Hence, the consent of a
spouse to the disposition does not have to
be explicit or set forth in any particular
document so long as it is shown by acts of
the spouse that such consent or approval
was indeed given.
COMMENCEMENT, WAIVER OF RIGHTS
SHARES, EFFECTS OF ABSOLUTE
COMMUNITY APPLIES TO CONJUGAL
PARTNERSHIP OF GAINS.
EXCLUSIVE PROPERTY OF EACH SPOUSE-
1. brought to the marriage as his/her own.
2. acquires during marriage by gratuitous title
(by donation or will, either singly or jointly, if
share designated- per designation if not- share
and share alike)
3. acquired by right of redemption, by barter or by
exchange with property belonging to only one
of the spouses
4. purchased with exclusive money of the spouse.
In conjugal partnership regime, if a spouse
acquires a property through the exercise of
the right of redemption solely pertaining to
him/her, the property so acquired is his/her
exclusive property, even if conjugal funds
were used in the redemption. Villegas vs
Lingan, 526 SCRA 63). But the owner-
spouse has the obligation to reimburse the
conjugal partnership for the funds coming
from said property regime.
The wife during the marriage sold
under pacto de retro her
paraphernal property consisting of
house and lot. A few weeks later,
the wife died. The husband
redeemed the property using his
exclusive funds. To whom will the
property belong, husband or wife?
Property still belongs to the wife.
Property acquired by right of
redemption is exclusive property.
What matter is the origin of the
right, if the right of redemption
pertains to the wife, then it belong
to the wife if redeemed. Husband
can recover the amount used to
redeem.
H before marriage with W was
given by his friend a usufruct over a
riceland for 5 years. Two years
thereafter, H married W. Is the
usufruct conjugal or exclusive?
The right of usufruct is exclusive,
but the fruits derived from said
right is conjugal. Income or fruits of
the separate property of the
spouses is conjugal.
OWNERSHIP, POSSESSION, ADMINISTRATION,
ENJOYMENT OF EXCLUSIVE PROPERTY- retains by
the owner spouse. But fruits of the separate
property belongs to the conjugal partnership of
gains

Owner spouse may mortgage, encumber, alienate,

or dispose her exclusive property. Spouse may
appear alone in court to ligitate.
TRANSFER OF ADMINISTRATION OF EXCLUSIVE
PROPERTY TO OTHER SPOUSE- by public
instrument, recorded in registry property
where property is situated.

Alienation by spouse automatically terminate

the administration and proceeds shall be
turned over to owner-spouse.
PROPERTY DONATED TO SPOUSE :

1. if jointly with designation of shares- shall pertain

to the donee-spouse as his or her own exclusive
property.

2. if jointly, without designation of shares- shall

pertain to the spouses - share and share alike.

3. If jointly, without designation of shares, and one

of spouse refuses to accept, or incapacitated to
accept, or predeceases or dies before perfection
of donation- the share shall accrue by accretion
to the other spouse unless the donor provides no
accretion shall take place.
CONJUGAL PARTNERSHIP PROPERTY :

1. ACQUIRED by onerous title during marriage at the expense

of common fund.
- the test is the origin of the money invested in the purchase, if
it came from conjugal funds, the property acquired is conjugal.
(Rivera vs. Batallones, CA 40 OG 2090).

2. OBTAINED labor, industry, work or profession of either or

both spouse
- but teacher’s gratuity under special law, being remuneratory
is not conjugal. (Alano vs. Florido, 61 phil 303)

- money received under the SSS Law is not conjugal, although

the employee-spouse contributed to the SSS with his salaries, but
belongs to the designated beneficiary under the SSS Laws.
3. FRUITS, natural, industrial or civil due or received during
marriage from the common property and from the exclusive
property of each spouse.

4. SHARE of either spouse in the HIDDEN TREASURE as a finder or

owner of the property where treasure found

5. ACQUIRED through OCCUPATION such as fishing or hunting

6. LIVESTOCKS existing upon dissolution of the partnership in

excess of the number of each kind brought to the marriage by
each spouse.

7. ACQUIRED by chance such as winning from gambling or betting.

But losses shall be borne exclusively by the loser-spouse.(117)
H and W bought a fishpond from X for
P48,000, payable in 3 equal
installments. The first installment was
paid with funds belonging exclusively to
nd rd
W, while the 2 and 3 installments
were paid with funds borrowed by both
from Y. In securing said loan, several
lands belonging to W were given. Is the
fishpond paraphernal or conjugal?
Suggested answer-

The fishpond is partly paraphernal

(1/3) and partly conjugal (2/3). The
amount borrowed is conjugal in
character because they are acting
for the benefit of the partnership.
The collateral does not affect the
status of the fishpond.
PROPERTY BOUGHT ON INSTALLMENTS-

If paid partly from exclusive funds, partly from conjugal

funds-
1. belongs to spouse if ownership was vested before
marriage
2. but to the conjugal partnership if ownership was
vested after marriage.

In either case, amount advanced by the spouse or

partnership shall be reimbursed upon liquidation of the
partnership.(118)
CREDITS PAYABLE IN INSTALLMENTS- (119)

credit payable in installments within a period of

time, the installments payable during marriage
belongs to the spouse but interests thereon
belongs to the partnership.
A obtained a loan in the amount of
P20,000 from W prior to W’s
marriage to H a year later. Said loan
was to be payable in 3 years by way
of monthly installments. To whom
shall the installments due during
marriage belong? How about the
interests?
The credit is separate property of
W. Installments in payment thereof
is also separate. However, the
interests due during marriage shall
belong to the conjugal partnership.
IMPROVEMENTS ON SEPARATE PROPERTY OF
SPOUSE(120)

Elements :

1- improvements are for utility or adornment

2. made in separate property of the spouse
3. by the conjugal partnership or through acts or
efforts of either or both spouse.
Rules-

A- shall pertain to the conjugal partnership if the cost of

the improvement and resulting increase in value is
more than the value of the property at the time of
the improvement.
B- shall pertain to the owner-spouse if the cost of the
improvement and resulting increase is less than the
value of the property at the time of improvement.
C- the owner-spouse shall be entitled to
reimbursement, and shall retain ownership thereof
until reimbursement. Ownership shall be vested
upon reimbursement, which shall be made at the
time of the dissolution of the partnership.
The obligation to reimburse for the cost
of the improvements, under Art. 120
FC, rests on the spouse upon whom
ownership of the entire property is
vested- there is no such obligation on
the part of the purchaser of the
property, in case the property is sold by
the owner-spouse prior to
reimbursement. (Ferrer vs Ferrer, 508
SCRA 570)
CHARGES AND OBLIGATION OF THE CONJUGAL
PARTNERSHIP (121)

1. support of the spouses, support of the common

children, support of the leg children of either
spouse

2. debts and obligation contracted during marriage by :

administrator-spouse for benefit of partnership, both
spouses, by one of them with the consent of the
other.

3. Debts and obligations contracted by either spouse

without consent of the other to the extent that the
family have been benefited.
4. All taxes, liens, charges and expenses, including minor or
major repairs upon conjugal property.

5. All taxes and expenses for mere preservation made during

marriage upon separate property of either spouse

6. Expenses to enable either spouse to commence or complete

a professional, vocational or other activity for self-
improvement.

7. Antenuptial debts of either spouse insofar as they have

redounded to the benefit of the family.

8. Value of what is donated or promised by both spouses in

favor of their common legitimate children for the exclusive
purpose of commencing or completing a professional,
vocational or other activity for self-improvement.
9. Expenses for litigation between the spouse
unless the suit is found groundless.

If the conjugal property is insufficient, the

spouse shall be solidarily liable with their
separate properties.
ADDITIONAL CHARGES- (122)

10. personal debts contracted by either spouse before or during

marriage, to the extent that they redounded to the benefit
of the family.

11. Fines and pecuniary indemnities, and

12. Support of illegitimate children- shall be charged to the

conjugal property after payment of the obligations from (a)
to (1), and the spouse liable has no exclusive property or
insufficient to pay for the fines, pecuniary indemnities and
support of illegitimate children; subject to deduction from
his/her share at the time of liquidation of the conjugal
property..
Conjugal property cannot be held
liable for the personal debts
contracted by one spouse, unless
some advantage or benefit is
shown to have accrued to the
conjugal partnership. (Buado vs CA,
586 SCRA 397)
Unlike in the system of absolute community
where liabilities incurred by either spouse
by reason of a crime or quasi-delict is
chargeable to the absolute community
property, in the absence or insufficiency of
the exclusive property of the debtor-
spouse, the same advantage is not
accorded in the system of conjugal
partnership. The conjugal partnership of
gains has no duty to make advance
payments for the liability of the debtor-
spouse. (Buado vs CA 586 SCRA 397)
Legal presumption that debt redounds
to the benefit of the family- If either
spouse contracts an obligation on
behalf of the family business, there is a
legal presumption that such obligation
redounds to the benefit of the conjugal
partnership. (SEBTC vs Mar Tierra Corp.
508 SCRA 419; Ayala Investment and
Development vs CA 286 SCRA 272)
Thus-

1. If the husband himself is the

principal obligor in the contract, ie., the
direct recipient of the money and
services to be used in or for his own
business or profession, the transaction
falls within the term “obligations for the
benefit of the conjugal partnership”.
2. But if the money or services are
given to another person or entity and
the husband acted only as a surety or
guarantor, the transaction cannot by
itself be deemed an obligation for the
benefit of the conjugal partnership. It is
for the benefit of the principal debtor
and not for the surety or his family.
ADMINISTRATION AND ENJOYMENT OF CONJUGAL
PROPERTY. (124)

-shall belong to both spouses jointly in case of

disagreement, husband’s decision prevails

- wife may go to court for relief, within five years from

dateof contract implementing said decision

- if spouse is incapacitated or unable to participate in

administration of conjugal property, other spouse may
assume sole powers of administration- except- power to
dispose or encumber, which requires court approval or
consent of the other.
 - in the absence of the court authority or
consent of the other spouse, the disposition or
encumbrance shall be void however, the
transaction shall be considered as continuing
offer on the part of the consenting spouse and
third person, and perfected as a binding contract
upon the acceptance by the other spouse or
approval by the court before offer is withdrawn
by either or both offerors.
DONATION OF CONJUGAL PROPERTY –(125)
either can not donate without the consent of
the other
except- moderate donations to charity or on
occasions of family rejoicing or family distress.
DISSOLUTION OF CONJUGAL PARTNERSHIP (126)

1. upon death of either spouse

2. when there is decree of legal separation
3. when the marriage is annulled or declared void
4. in case of judicial separation of property during
marriage under Art 134-138
SEPARATION DE FACTO- (127)
shall not affect the conjugal partnership spouse who
leaves the conjugal home or refuses to live therein
without just cause, shall have no right to be supported

-when consent of spouse to any transaction is required,

judicial authorization shall be obtained in a summary
proceeding.

- Present spouse may be given judicial authority to

dispose or encumber separate property of other spouse
to satisfy the latter’s share if conjugal property is not
sufficient for the support of the family.
if spouse abandons the other without just cause or
fails to comply with his/her obligations, the
aggrieved spouse may petition court for :
1- receivership
2. judicial separation of property
3. authority to be sole administrator of conjugal
property.
-SPOUSE DEEMED TO HAVE ABANDONED THE OTHER-
when she or he left the conjugal dwelling without any
intention of returning

- SPOUSE who left the conjugal dwelling for a period of

three months or has failed within the same period to
give any information as to his/her whereabouts shall be
prima facie presumed to have no intention of returning
to the conjugal dwelling.
LIQUIDATION OF CONJUGAL PARTNERSHIP ASSETS AND
LIABILITIES(129)

PROCEDURES :

1. inventory of conjugal and separate properties

2. amounts advanced by the conjugal partnership in

payment of personal debts of either spouse shall be credited
to the partnership as asset thereof.

3. Reimbursement to the spouse/s of :

A- exclusive fund for acquisition of property
B- for value of property vested to the conjugal
Partnership
4. debts and obligation of partnership shall be paid

5. remainder of the exclusive property shall be delivered to each of them

6. loss of deterioration of movable belonging each spouse used for benefit of

family shall be paid from common funds

7. net remainder of conjugal assets shall be divided equally between spouses,

unless different proportion agreed upon in marriage settlement, or unless
waived or forfeited as provided in the code

8. the presumptive legitimes of common children shall be delivered upon

partition

9. conjugal dwelling and lot on which is situated shall be adjudicated to the

spouse with whom the majority of the common children choose to remain
unless otherwise agreed upon by the spouses, provided that children below 7
years deemed to have chosen the mother, unless the court decides otherwise;
in case there is no majority, the court decides taking consideration the best
interest of the children
LIQUIDATION OF CONJUGAL PARTNERSHIP OF 2 OR
MORE MARRIAGES(131)

Elements-
1. two or more marriages contracted by the same
person.
2. marriages contracted before the effectivity of this
code
3. liquidation carried out simultaneously
rules-
1.respective capital, fruits, and income of each
partnership shall be determined, upon proof
allowed under the rules of evidence

2. in case of doubt as to which partnership

the existing properties belong, the same shall
be divided between or among the different
partnership in proportion to capital and
duration of each.
SEPARATION OF PROPERTY OF SPOUSES :

SEPARATION OF PROPERTY TAKES PLACE :

1. if stipulated in marriage settlement
2. by judicial order
A- voluntary
B- sufficient cause
VALID CAUSES FOR JUDICIAL SEPARATION OF
PROPERTY:

1. CIVIL INTERDICTION
2. ABSENTEE(JUDICIAL)
3. LOSS PARENTAL AUTHORITY (court decree)
4. ABANDONMENT OF SPOUSE
5. FAILURE TO COMPLY WITH MARITAL
OBLIGATION IN 101-marital, parental and
property obligations.
6. ABUSE OF POWER ADMINISTRATION
7. SEPARATION IN FACT FOR 1 YEAR AND
RECONCILIATION HIGHLY IMPROPABLE.
VOLUNTARY SEPARATION OF PROPERTY :
Rules-
1. joint petition (verified)
2. creditors of community and personal notified
3. creditors of community and personal listed
4. court takes measure to protect creditors or persons with
pecuniary interests
5. once decreed, liquidation of community property
6. During, pendency, community pays for support of sp and
separation of property applies.
7. After dissolution, provisions on complete separation of
property applies
8. Petition and decree shall be registered in the local civil
registry
9. Separation of property of spouse shall not prejudice
rights previously acquired by creditors
REVIVAL OF THE PRIOR PROPERTY REGIME : BY FILING A
PETITION IN THE SAME COURT DECREE WAS ISSUED IN
THE FOLLOWING CASES :
1. civil interdiction terminates
2. absentee reappears
3. court satisfied spouse will not again abuse
administration
4. spouse returns to resume common life
5. parental authority judicially restored
6. spouses absent for one year returns
7. after decree, spouse voluntarily agree to revival
of the former regime (no voluntary separation
may thereafter be granted).
ADMINISTRATION OF EXCLUSIVE PROPERTY OF
SPOUSE TRANSFERRED TO OTHER :

1. spouse becomes guardian of other

2. spouse declared absentee
3. spouse under civil interdiction
4. Spouse is fugitive from justice
5. if the spouse is disqualified because of :
incompetence
conflict of interest
or other just cause- court shall appoint a
suitable person to be administrator.
REGIME OF COMPLETE SEPARATION OF
PROPERTY

1. agreed upon in marriage settlement

2. decreed by court in proper cases

NOTE : COMPLETE SEPARATION OF PROPERTY

REGIME CANNOT BE CONVERTED INTO ANY
OTHER REGIME DURING MARRIAGE BECAUSE
THERE IS NO LAW ALLOWING IT.
KINDS :

AS TO EXTENT- A- total or partial

AS TO KINDS-a- present, b-future, c-both
RIGHTS OF SPOUSES IN COMPLETE
SEPARATION OF PROPERTY :

1.OWN, DISPOSE, POSSESS, ADMINISTER

THEIR SEPARATE PROPERTY

2. OWN THE EARNINGS FROM BUSINESS,

PROFESSION OR INDUSTRY AND FRUITS OF
THEIR PROPERTY.
OBLIGATIONS :

1. BEARS FAMILY EXPENSES

PROPORTIONATE TO INCOME OR CURRENT
VALUE OF SEPARATE PROPERTIES.

2. LIABLE SOLIDARILY TO CREDITORS FOR

FAMILY EXPENSES.
RULES IN CASES OF UNIONS WITHOUT MARRIAGE:

FIRST GROUP:
1. CAPACITATED TO MARRY
2. LIVE EXCLUSIVELY WITH EACH OTHER AS H AND W
3. WITHOUT BENEFIT OF MARRIAGE

SECOND GROUP :
Living together under a void marriage
With previous valid marriage
RULES ON PROPERTY RELATIONS :
1. wages and salaries owned by both in equal shares. Irrespective of
who is earning.

2. Properties acquired during cohabitation :

A- if acquired by donation, succession or exchange- separate
property. - fruit and income thereof- separate
B- if acquired by parties through work or industry
rules of co-ownership applies(proportionate to their efforts in
acquiring)
if no proof, presumed equal, hence equal sharing.

NOTE : a party who did not actually participate in the acquisition

shall be deemed to have contributed jointly if the former’s effort
consisted in the care and maintenance of the family and the
household.
In torres vs. Yaptinchay- the supreme court
held that where the only contribution of
the common-law wife in the acquisition of
the properties was moral or inspirational in
character, her interest as co-owner of such
properties shall be determined by the
courts by using their sound discretion.
MANAGEMENT SHALL BE JOINT

NO ENCUMBRANCE OR DISPOSITION BY ACT

INTER VIVOS WITHOUT CONSENTOF THE
OTHER, UNTIL THE TERMINATION OF
COHABITATION
SPECIAL RULES APPLICABLE TO VOID
MARRIAGES :
IF ONLY ONE PARTY IN GOOD FAITH, the
OTHER GUILTY PARTY SHALL FORFEIT HIS
SHARES AS FOLLOWS:
common children
in default thereof, to common child’s
descendants
RULES ON SPECIAL VOID MARRIAGES such as :
Bigamous, adulterous, concubine, both married to
others, multiple alliances-
Only properties acquired by parties through their actual
joint contribution of money, property or industry shall be
owned in common in proportion to their contribution,
HENCE :
- wages and salaries belong to him exclusively
- care by one party of home, children, and household or
spiritual or moral inspiration provided to other, not
included in article.
- IF ONE PARTY IS VALIDLY MARRIED TO ANOTHER-share
will accrue to community of his existing marriage
-IF PARTY IN BAD FAITH IS NOT VALIDLY
MARRIED TO ANOTHER- share shall be forfeited
in favor of common children or descendants of
common children.

- IF BOTH PARTIES IN BAD FAITH- SHARE shall be

forfeited in favor of common children or
descendants of common children.(rule in pari
delicto does not apply)
FAMILY HOME-
Elements-
1. constituted jointly by husband and wife or by an
unmarried head of a family
2. dwelling house where they and their family reside
land on which it is situated

- property subject of conditional sale on installments,

where ownership is reserved by vendor only to
guarantee payment of purchase price may be constituted
as a family home. (156)
LIMITATIONS ON CONSTITUTION OF FAMILY HOME :

1. each family have only one home

2. family home can be constituted only on the
dwelling place and therefore, in the locality where the
family has its domicile.
- there must be actual occupancy of the family
home with the intention of dedicating the premises for
such purpose.
3. the value of family home exempt from seizure of
creditors can not exceed the limits fixed by law
COMMENCEMENT OF FAMILY HOME (153)

The family home is constituted on the house and lot

from the time it is occupied as a family residence, and
continues so long as any of its beneficiaries actually resides
therein.

From the time of constitution, the family home is exempt

from execution, forced sale or attachment except for-
1. non-payment of taxes
2. debts incurred prior to its constitution
3. debts secured by mortgages on the premises before or
after its constitution
4. debts due to laborers, mechanics, architects, builders,
materialmen, and others who have rendered service or
furnished materials for the construction of the building.(155)
EXEMPTION-
to the extent of P300,000.00 in case of
urban areas (chartered cities) and
P200,000.00 in case of rural areas.(157)
BENEFICIARIES OF FAMILY HOME (154)
1. husband and wife or unmarried
person who is head of the family
2. their parents, ascendants,
descendants, brothers and sisters living
in the family home and dependent for
support upon the husband and wife, or
head of the family.
SALE, DONATION, ASSIGNMENT OR ENCUMBRANCE
OF FAMILY HOME- (158)
1. may be sold, alienated, donated, assigned or
encumbered by the owner/s thereof
2. with written consent of-
- person constituting the same
-his spouse and
- majority of the beneficiaries of legal age
in case of conflict, court shall decide
EFFECT OF DEATH OF SPOUSES OF HEAD AND
FAMILY -(159)
family home shall continue despite death of
one or both spouses or the unmarried head of
family for a period of 10 years or for as long as
there is a minor beneficiary. The family home
continues until the beneficiary becomes of age.
(Patricio vs Dario III, 507 SCRA 438)

Heirs can not partition the family home unless

the court find compelling reasons.
PROCEDURE FOR CLAIMS OF CREDITORS OF FAMILY
HOME (160)
creditor’s claim is not one of those for which family
home is not exempt
obtains a judgement in his favor
reasonable ground to believe that family home’s
value is more than the amount fixed by law for its
exemption
creditor may apply to the court rendering
judgment for an order for the sale of the family
home.
The court shall order sale if the family home’s
value is in excess of the amount fixed by law on its
exemption.
FAMILY-

POLICY- (149)

Family is the foundation of the nation

Family is the basic social institution which
public policy cherishes and protects.
Family relations are governed by law
No customs, practice or agreement destructive
of the family shall be recognized or given effect
FAMILY RELATIONS- Includes-

between husband and wife

between parents and children
among other ascendants and
descendants
among brothers and sisters whether of
full-blood or half-blood
SUIT BETWEEN MEMBERS OF THE SAME
FAMILY – (151)
no suit shall prosper unless it should
appear from the verified complaint or
petition that earnest efforts toward a
compromise have been made, but the
same have failed. If it is shown that no
such efforts were in fact made, the case
must be dismissed.
RULES DOES NOT APPLY TO CASES :

Affecting civil status of persons

Validity of marriage or legal separation
Any ground for legal separation
Future support
Jurisdiction of courts
Future legitime
PATERNITY AND FILIATION-

Paternity- is the civil status of the

father with respect to the child.
Maternity- is the civil status of the
mother with respect to the child.
Filiation- is the status of the child in
relation to the father or mother.
KIND OF FILIATION-

1-Natural- relation between parent

and child arising from nature or from
child’s birth.
2-Artificial- relationship that arises
between parent and child by fiction of
law or in imitation of nature, as in
adoption.
LIGITIMATE CHILDREN-

Filiation of legitimate children-

by nature: legitimate
illegitimate

by fiction of law: by adoption

LEGITIMATE CHILDREN- (164)

I. those conceived or born during marriage of

parents

II – those conceived as a result of artificial

insemination
of the wife with sperm of husband
of the wife with sperm of donor
of the wife with sperm of both donor and
husband
In case of artificial insemination-

both spouse authorized or ratified the

insemination in a written instrument
executed and signed by them before
the birth of the child, the instrument
shall be recorded in the civil registry
together with the birth certificate of
the child.
Presumption of legitimacy (Art. 164 FC)
In Liyao Jr vs Tanhoti-Liyao, 378 SCRA 563, the husband
and wife were separated for many years. During their
separation, the wife had an illicit relation with another
man, with whom she cohabited and had a child. When
the paramour died, the wife on behalf of her child, filed
an action for compulsory recognition of the latter as the
illegitimate child of her paramour for the purpose of
partaking in the latter’s vast estate. The SC denied the
action because the child is presumed to be a legitimate
child of the husband and wife, the child being
conceived and born during the couple’s valid marriage.
In Concepcion vs CA, 468 SCRA 438, the wife during the
subsistence of her marriage with her first husband, married
anew. Thereafter, upon petition of the second husband, the
second marriage was declared void for being bigamous and
the common child of the wife and the second husband was
declared to be an illegitimate child by the trial court. The
custody of the child was awarded to the mother while the
second husband was granted visitation rights. On appeal from
the decision granting the second husband visitation rights
over the child, the SC held that the second husband is not
entitled to visitation rights because of the absence of parent-
child relationship that exists between them. The Court
explained that since the child was born during the valid
marriage of the wife and the first husband, the child is
presumed to be a legitimate child of that marriage.
GROUNDS TO IMPUGN LEGITIMACY OF A CHILD (166)
1. physical impossibility of sexual intercourse
by husband with wife within the first 120 days
of the 300 days which immediately preceded
the birth of the child due to :
a-physical incapacity of husband to have
sexual intercourse with his wife
b- fact that husband and wife were living
separately in such a way that sexual
intercourse was not possible.
c- serious illness of the husband which
absolutely prevented sexual intercourse
2. If it is proved that for biological or other
scientific reasons , the child could not
have been that of the husband, except in
case of artificial insemination
 3. that in case of children conceive
through artificial insemination, the
written authorization or ratification of
either parent was obtain through mistake
,fraud, violence, intimidation or undue
influence.
WIFE MARRYING WITHIN 300 DAYS FROM
TERMINATION OF MARRIAGE (168)

a child born before 180 days after the solemnization of

the subsequent marriage is considered to have been
conceived during the former marriage, provided born
within 300 days after termination of the 1st marriage.

b- Child born after 180 days following the celebration of

the subsequent marriage is considered to have been
conceived during the marriage, even though born
within 300 days after termination of the former
marriage.
WIFE’S DECLARATION OF LEGITIMACY OR ILLEGITIMACY OF
CHILD (167)

The child shall be considered legitimate although the mother

may have declared against its legitimacy or may have been
convicted as an adulteress.

CHILD BORN AFTER 300 DAYS FROM TERMINATION OF

MARRIAGE (169)

The legitimacy or illegitimacy of a child born after 300 days

following the termination of the marriage shall be proved by
whosoever alleges such legitimacy or illegitimacy.
PERIOD TO BRING ACTION TO IMPUGN LEGITIMACY (170)

IF HUSBAND or IF HIS HEIRS ARE RESIDENT OF THE PLACE

WHERE BIRTH TOOK PLACE OR WAS RECORDED-
The action must be brought within 1 year from knowledge of
the birth or its recording in the civil register

IF HUSBAND OR HIS HEIRS ARE NOT RESIDENT OF THE PLACE

WHERE BIRTH TOOK PLACE OR WAS RECORDED-
The action must be brought within 2 years if he is residing in the
Philippines, and 3 years if residing abroad

If the birth of child was concealed from or unknown to the

husband or his heirs, the period shall be counted from the
discovery or knowledge of birth or fact of registration,
whichever comes first.
HEIRS MAY BRING ACTION TO IMPUGN
LEGITIMACY OF CHILD (171)
if husband should die before the expiration of
the period fixed for bringing the action.

if husband should die after the filling of

complaint, without having desisted therefrom.

if the child was born after the death of the

husband
PROOF OF FILIATION: (172)
1. Record of birth appearing in the civil registry
2. Final judgment
3. Admission of legitimate filiation in a public document
or private handwritten instrument and signed by parent
concerned.

In the absence of the foregoing-

Open and continuous possession of status of a legitimate child
Any other means allowed by the rules of court and special laws,
such as-
baptismal certificate
judicial admission
family bible wherein name of child was entered
common reputation respecting pedigree
admission by silence
testimonies of witnesses
It is settled in law and jurisprudence, that
the status and filiation of a child cannot be
compromised. Public policy demands that
there be no compromise on the status and
filiation of a child. Paternity and filiation or
the lack of the same, is a relationship that
must be judicially established, and it is for
the Court to declare its existence or
absence. It cannot be left to the will or
agreement of the parties. (Uy vs Chua 600
SCRA 806.
In Uy vs Chua, while there was a previous
compromise agreement between the parties
approved by the court in a previous case
wherein the petitioner had agreed that there
was no blood relationship between her and the
respondent, it was held that there is no res
judicata even If the second case involves the
same cause of action (for recognition of
paternity) between the same parties
considering that the compromise agreement in
the previous case is null and void as there can
be no compromise on the status and filiation of
a child.
As for the baptismal certificate, it
can only serve as evidence of the
administration of the sacrament
on the date specified but not of
the veracity of the entries with
respect to the child’s paternity.
(Puno vs Puno Enterprises, Inc. 599
SCRA 585).
In Cabatania vs CA, 441 SCRA 96, the Court
held that the extremely subjective test of
physical resemblance or similarity will not
suffice as evidence to prove paternity and
filiation.

This ruling abandons the dictum in Tijing

vs CA 354SCRA 17, where the Court held
that resemblance between a minor and his
alleged parent is competent and material
evidence to establish parentage.
PERIOD TO CLAIM LEGITIMATE FILIATION –(173)

the action to claim legitimacy may be brought by the

child during his or her lifetime and shall be transmitted
to the heirs should the child die during minority or in a
state of insanity

heirs have a period of 5 years to institute the action

if the child dies after commencing the action, the heirs

of the child will be substituted for him, even if the
parent also dies during the pendency of the action
RIGHTS OF LEGITIMATE CHILDREN- (174)

1. To bear surname of father and

mother
2. To receive support from parents,
ascendants, brothers and sisters
3. To be entitled to legitime and other
successional rights under the civil code
ILLEGITIMATE CHILDREN-
Children conceived and born outside a valid marriage are
illegitimate, unless provided by the family code. (165)

FILIATION-
Illegitimate children may establish their illegitimate filiation in
the same way as legitimate children

ACTION TO CLAIM ILLEGITIMATE FILIATION (175)

The action must be brought within same period for legitimate

filiation except- when based on continuous possession of status
of illegitimate children or by other means allowed under the
rules of court, the action must be brought during the lifetime of
the alleged parent.
RIGHTS OF ILLEGITIMATE CHILDREN – (176)
1. Use the surname of mother
2. Under the parental authority of mother
3. Entitled to support
4. Entitled to legitime under the civil code-
(1/2 that of the legitimate child)

Note: RA 9255 approved on Feb. 24, 2004,

allows the illeg. Child to use the surname of the
father, if acknowledged by the latter.
A certificate of live birth purportedly identifying
the putative father is not competent evidence
of paternity where there is no showing that the
putative father had a hand in the preparation of
the certificate. The local civil registrar has no
authority to record the paternity of an
illegitimate child on the information of a third
person. (Puno vs Puno Enterprises, Inc. 599
SCRA 585). In this case, it was observed that
only the mother supplied the data in the birth
certificate and signed the same while there was
no evidence that the alleged father
acknowledged the child as his.
Illegitimate children shall use the
surname of the mother, regardless of
whether or not the father admits
paternity. (Mossesgeld vs CA, 300 SCRA
464).

Hence, the illegitimate father cannot

compel the local civil registrar to
register the certificate of live birth of
the illegitimate child using his surname.
However, an illegitimate child shall have
the option (but not an obligation) to use
the surname of the father in the following
instances:
1. If his/her filiation has been expressly
recognized by the father through the
record of birth appearing in the civil
register
2. when an admission of paternity is made
by the father in a public document or
private handwritten instrument.
The recognition of the illegitimate child
in the record of birth, or through an
admission in a public document or
private handwritten instrument is in
itself, a consummated act of
acknowledgment of the child’s
paternity; hence, no separate action for
judicial approval is necessary. (Dela
Cruz vs Gracia, 594 SCRA 648)
Must the admission of paternity in
a private handwritten instrument
be signed by the putative father?
In Dela Cruz vs Gracia, 594 SCRA 648, the SC lay
down the rules:
a- where the private handwritten instrument is
the lone piece of evidence submitted to prove
filiation, the same must be signed by the
acknowledging parent.
b. where the private instrument is accompanied
by other relevant and competent evidence, it
suffices that the claim of filiation therein be
shown to have been made and signature of the
acknowledging parent is merely corroborative
of such evidence.
In Briones vs Miguel, 440 SCRA 455, the
Court reiterated the rule that an
illegitimate child is under the parental
authority of the mother, and the
recognition of an illegitimate child by
the father is a ground for ordering the
latter to give support, but not custody
of the child. The illegitimate father,
however, is entitled to visitation rights.
 In In re: Stephanie Naty Astorga, 454
SCRA 541, it was held that an illegitimate
child, upon adoption by her natural father,
may be allowed to use the surname of her
natural mother as her middle name. The
Court explained that the same is in
keeping with the Filipino custom of adding
the surname of the child’s mother as his
middle name.
 The SC held that the law does not allow one to drop
the middle name from his registered name. Middle
name serves to identify the maternal lineage or filiation
of a person as well as further distinguish him from
others who may have the same given name and
surname as he has. In this case, when Julian was born
prior to the marriage of his parents, he was named
Julian Lin Carulasan. After the subsequent marriage of
his parents, his name was changed to Julian Lin
Carulasan Wang. He now seeks to drop the middle
name Carulasan. (In re: Change of name and/or
correction ofEntry in the Civil Registry of Julian Lin
Carulasan Wang, 454 SCRA 155)
 In Braza vs the City Civil Registrar of
Himamaylan City, Negros Occidental, GR No.
181174, Dec. 4, 2009, when the first wife found
out that her deceased husband had a second
marriage and a child in the second marriage, she
filed on Dec. 23, 2005 a petition to correct the
entries in the birth record of the child contending
that the child could not have been legitimated
because the marriage of the parents was void for
being bigamous. In her petition, she likewise
prayed that the marriage of the parents of the
child be declared void on the ground that it is
bigamous.
 The court ruled that the cause of action is actually to
seek the declaration of the marriage of the parents of
the child as void for being bigamous and impugn the
child’s, which causes of action are governed not by Rule
108 but by AM No. 02-11-10-SC which took effect on
March 15, 2003, and Art. 171 of the FC, hence, the
petition should be filed in a Family Court as expressly
provided in said Code. The Court reasoned that the
validity of marriages as well as the legitimacy and
filiation can be questioned only in a direct action
seasonably filed by the proper party, and not through a
collateral attack such as the petition filed before the
court a quo.
 Since the marriage to be declared a
nullity was celebrated during the
effectivity of the FC and the case
questioning its validity was filed after
March 15, 2003, the case is governed
by AM No. 02-11-10-SC. Thus, only the
husband or second wife, who are
parties to the marriage, can file the
action.
LEGITIMATED CHILDREN-

Legitimation- is the remedy by means of which those

who in fact were not born in wedlock and should
therefore, be considered illegitimate, are by fiction,
considered legitimate, it being supposed that they were
born when their parents were validly married.

Legitimated children are illegitimate children who,

because of the subsequent marriage of their parents
are, by legal fiction, considered legitimate.
Requisites of legitimation:
1. the child is conceived and born outside
of wedlock
2. at the time of the child’s conception, the
parents were either: not disqualified by any
impediment to marry each other, or
disqualified only because either or both of
them were below 18 years of age (RA 9858)
3. after the birth of the child, the parents
subsequently enter into a valid marriage
WHEN LEGITIMATION TAKES PLACE (178)

Legitimation takes place by the subsequent marriage of

parents provided the parents have acknowledged the
child before or after the marriage.

Annulment of voidable marriage shall not affect the

legitimation.

RIGHTS OF LEGITIMATED CHILDREN- (179)

Same rights as legitimate children.

EFFECT OF LEGITIMATION –(180)

The legitimation shall retroact to the

time of the child’s birth

The legitimation of children who died

before the celebration of the marriage
shall benefit their descendants.(181)
WHO IMPUGNS AND GROUNDS TO IMPUGN
LEGITIMATION (182)

Legitimation may be impugned only by those who are

prejudiced in their rights, (testamentary or reinstated
heirs), within five years from the time their cause of
action accrues.(from death of putative parents)

Legitimation may be impugned on the following

grounds –
1. subsequent marriage of parents is void
2. child allegedly legitimated is not a natural child
3. the child is not really the child of the alleged
parents.
WHO MAY ADOPT?
1. of age
2. possessed of civil capacity and legal rights
3. can support and care for his children, in keeping with the
means of the family
4. 16 years older than adopted
except – 1. adopter is parent by nature of adopted
2. adopter is spouse of legitimate parent of the
person adopted

NOTE :
Person with children can adopt
Adopter or adopted may be single or married
Age difference is to assure maturity
WHO MAY NOT ADOPT ?
1. guardian with respect to ward before the final
account of guardianship is approved
2. those convicted of crime involving moral turpitude
3. alien
except- a- former Filipino adopting relatives by
consanguinity
b- adopting the legitimate child of Filipino
spouse
c- married to a Filipino citizen and jointly
adopting relative by consanguinity of the latter
(adoption of illegitimate child of Filipino spouse)
exception to exception- inter- country adoption
HUSBAND AND WIFE MUST JOINTLY
ADOPT :
Except-
1. spouse adopts his illegitimate child,
with the consent of the other spouse
2. spouse adopts the legitimate child of
the other, in which case, exercise joint
parental authority.
3. if the spouse are legally separated from
each other. (Sec. 7, RA 8552)
WHO MAY NOT BE ADOPTED?
I. PERSON OF AGE
Except-
a- child by nature of the adopter or
by the spouse
b- prior to adoption, considered
and treated as child during
minority
2. alien with no diplomatic relation
3. person already adopted , unless
revoked or rescinded
WHOSE CONSENT IS NEEDED ?
1. child to be adopted if 10 years or over
2. parent by nature of adopted
3. children of adopter, if 10 yrs over
4. illeg. Children of adopter, if 10 yrs over and living with
adopter
5. spouse of adopter
6. spouse of person to be adopted

NOTE :
consent of parent who abandoned child is not necessary.
If both parents abandoned the child to be adopted, then
consent of those exercising substitute parental authority is
needed
 In Landingin vs Republic, 493 SCRA 415,
the Court held that the written consent of
the biological parents is indispensable for
the validity of a decree of adoption. The
Court explained that the natural right of a
parent to his child requires that his consent
must be obtained before his parental rights
and duties may be terminated and re-
established in the adoptive parents.
 If the written consen of the biological
parents cannot be obtained, the
written consent of the legal guardian of
the minors will suffice. If it is claimed
that the biological mother of the minor
had indeed abandoned them, the
written consent of their legal guardian
must be adduced. (Landingin vs
Republic)
 Prior to the amendment introduced by RA
9523 (effective 2009), the declaration of a child
as legally available for adoption may be had
either judicially or administratively. With the
amendment introduced by RA 9523, only the
DSWD now has the sole authority to issue the
certification declaring a child legally available
for adoption. Such certification that a child is
legally available for adoption shall be issued by
the DSWD in lieu of a judicial order, thus
making the entire process administrative in
nature.
 In addition, the amendatory law
provides that such certification shall be,
for all intents and purposes, the
primary evidence that the child is
legally available in a domestic adoption
proceeding (as provided in RA 8552 or
the Domestic Adoption Act) and in an
Inter-country adoption proceeding (as
provided in RA 8043 or the Inter-
Country Adoption Act).
EFFECTS OF ADOPTION :

-Adopted shall be deemed child of the adopter

-Adopted has right to use surname of adopter
-Parental authority of parents by nature shall
terminate and vested in the adopter – except-
if adopter is spouse of parent by nature of
adopted, then, both shall exercise joint parental
authority
-Adopted shall remain intestate heir of his parents by
nature and other blood relatives
-Adoption cannot confer on the adopted the
citizenship of the adopter
LEGAL SUCCESSION ON THE ESTATE OF ADOPTED :
children\ leg. illeg. Descendants spouse of adopted shall inherit from him

parents by nature- ½ of estate

adopters- ½ of estate

surviving spouse- ½ of estate

adopters- ½ of estate

illeg. children ½ of estate

adopters ½ of estate

illeg. Children- 1/3 estate

surviving spouse- 1/3 estate
adopters- 1/3 estate

adopters only whole estate

only collateral relatives- I intestacy applies
GROUNDS FOR REVOCATION OF ADOPTION :

A.IF ADOPTED IS MINOR OR INCAPACITATED-

(on the same grounds for loss or suspension of parental authority)

1. Art. 229-
upon adoption of child adopted by another
upon appointment of judicial guardian
judicial declaration of abandonment
final judgment divesting parental authority from adopters
judicial declaration of absence or incapacity of person exercising parental authority

2. Art. 230 – suspended upon conviction with penalty of civil interdiction.

Reinstated upon service of penalty or pardon or amnesty

3. Art. 231- suspend parental authority if :

treats child with excessive harshness
gives child corrupting order or counsel or example
compels child to beg
subjects child or allows child to be subjected to acts of lasciviousness

4- Art. 232-subjected child to sexual abuse or allows him to be subjected to abuse

WHO MAY FILE ACTION FOR REVOCATION/ RESCISSION?
1- any person authorized by court
2. proper government instrumentality acting in behalf of the
child, like –DSSD

B- IF ADOPTED CHILD IS ALREADY 18 YRS OLD –

File personally-
Grounds- 920- for disinheriting as ascendant
a- parents abandoned their children, induced their daughter to
live a corrupt or immoral life
b- parent convicted of attempt against the life of adopted,
spouse, ascendants or descendants
c- Accused adopted of a crime with penalty of imprisonment
for six years or more, accusation found to be false.
D- Convicted pf adultery or concubinage with spouse of
adopted
e- Refusal to support the adopted without justifiable cause
Note: The adopter can no longer
file an action to revoke the
adoption. (Adm. Circular). The
reason being that adoption is for
the benefit of the adopted.
EFFECT OF REVOCATION:

If adopted still minor, reinstate parental authority of parents,

unless disqualified or incapacitated, in which case, court
appoints a guardian

If adopted is physically or mentally handicapped court appoints

a guardian

All reciprocal right and obligations between adopter and

adopted are extinguished

Adopted shall resume his surname prior to adoption

Court shall order the amendment of the records of the birth of

adopted in the local civil registrar
INTER-COUNTRY ADOPTION
LAW
INTER-COUNTRY ADOPTION

Inter-country adoption refers to the socio-legal process of

adopting a Filipino child by an alien or a Filipino citizen
permanently residing abroad where the petition is filed, the
supervised trial custody is undertaken, and the decree of
adoption is issued outside the Philippines.

Child means a person below fifteen (15) years of age unless

sooner emancipated by law.

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.
WHO MAY BE ADOPTED-

Only a legally free child may be the

subject of inter-country adoption.

Requisites-
a- Child Study Report
b- Birth Certificate or foundling certificate
c- deed of voluntary commitment or decree of
abandonment or death certificate of parents
d- recent photo of child
WHO MAY ADOPT

Any alien or Filipino citizen permanently residing abroad if-

a- at least 27 years of age and at least 16 years older
than the child to be adopted, at the time of application
except- 1. parent by nature of the child to be adopted
2. spouse of such parent (of child to be adopted)

- if married, his or her spouse must jointly file for adoption

b- has the capacity to act and assume all rights and

responsibilities of parental authority under his national law
and has undergone appropriate counseling from an
accredited counselor in his country.
 c- has not been convicted of a crime involving moral
turpitude

d- is eligible to adopt under his national law

e- 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.
f- agrees to uphold the basic right of the child as
embodied under Philippine laws, the UN Convention on
the Rights of the Child and to abide by the Rules and
regulations issued to implement the provisions of this
act.

g- 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 or her national law.

h- possess all the qualifications provided herein and

other applicable Philippine laws.
WHERE TO FILE APPLICATION-

An application to adopt a Filipino child shall be filed

a- Regional Trial Court having jurisdiction over
the child, or
b- Inter-Country Adoption Board
thru: l. intermediate agency,
2. governmental or accredited
agency in the country of the
adopting parents
Documents to be submitted-
1. birth certificate
2. marriage contract
3. written consent of biological/adopted children
above 10 years of age
4. physical. Medical and psychological evaluation
by duly licensed physician or psychologist
5. Income tax return or any document showing the
financial capability of the applicants
6. police clearance of applicants
7. character reference from local church/minister,
applicant’s employer and member of the immediate
community who have known the applicants for at
least five years
8. recent postcard-size pictures of the applicant and his
immediate family
TRIAL CUSTODY-

Trial custody shall be for a period

of six months from time of
placement.
SUPPORT
SUPPORT- everything indispensable for :
1- sustenance
2- dwelling
3- medical attendance
4- education
5- transportation

in keeping with the financial capacity of the

family
- The education of the person entitled
to be supported shall include his
schooling or training for some
profession, trade or vocation, even
beyond the age of majority.

- Transportation shall include expenses

in going to school or to and from the
place of work.
CHARACTERISTICS :
- Purely personal – founded on personal
necessity
- Cannot be attached or executed- SURVIVAL
- Instransmissable and non-assignable
- Variable
- Reciprocal
- Demandable from time of needs and even
beyond age of majority or even if married.
PERSON OBLIGED TO GIVE SUPPORT :
1- Spouses
2- Leg. asc. And desc.
3- Parents and their leg. children, and leg. and
illeg. children of the latter.
4- Parents and their illeg. Children, and the
leg. and illeg. children of the latter.
5- Leg. brothers and sisters, whether of full or
half blood.
6- Illeg. Brothers or sisters, except- when
already of age and due to cause imputable to
claimant’s fault or negligence
SOURCES OF SUPPORT :

- SPOUSE- absolute or conjugal

property
- Common children- absolute or
conjugal property
- Children of spouse by another
marriage- same
Illegitimate children of either spouse-
a- if ABSOLUTE COMMUNITY REGIME-
1- separate property
2- If insufficient- absolute community
But deduct from share of spouse upon
liquidation

b- if CONJUGAL PARTNERSHIP-
1- separate property
2- if insufficient-conjugal property
But deduct from share of spouse upon
liquidation
Brothers or sisters- from separate
property of spouse

- If insufficient-from absolute or
conjugal property if financially
capable.

But to be deducted upon liquidation

-
SUPPORT DURING PROCEEDING FOR
LEGAL SEPARATION, ANNULMENT OF
MARRIAGE OR DECLARATION OF NULLITY
OF MARRIAGE:

during pendency- from absolute or

conjugal property

after judgment- mutual support ceases

BUT IN LEGAL SEPARATION- the
court may order the guilty spouse
to give support to innocent spouse,
specifying the terms thereof.
ORDER OF PREFERENCE ON WHO
WILL GIVE SUPPORT :
1- Spouse
2- Descendants, nearest in degree
3- Ascendants, nearest in degree
4- Brothers or sisters
 In Patricio vs Dario III, 507 SCRA 438,
it was held that grandchildren cannot
demand support directly from their
grandparents, if they have parents
(ascendants of nearest degree) who are
capable of supporting them. This is so
because we have to follow the order of
support under Art. 199 FC
RULES-
- If support falls on two persons or more, both shall give
support in proportion to resources of each
- In cause of urgent need, the court may order one to
give support provisionally, subject to claim for
reimbursement from the other.
- If several beneficiaries, against only one giver, and
resources not sufficient- order of payment shall be as
follows :
1. spouse
2. descendants, nearest degree
3. ascendants, nearest in degree
4. brothers or sisters
But in case of concurrence
between spouse and child- child
shall be preferred to be supported.
SPECIAL RULES ON SUPPORT :

amount of support dependent on :

1- means of giver
3- necessities of recipient
- support demandable from needs, but
payable from judicial or extra-judicial
demands
- support pendent lite claimed in
accordance with the rules of court
- payment of support shall be made within
five days from each corresponding month.
No refund even if dies within the month
support can be made by : (option of
giver)
- paying the allowance fixed

- receiving and maintaining in the

family dwelling the recipient
except- when there is moral or legal
obstacle thereto.
Right to receive support
- money or property given as support – not
subject to levy or attachment or execution
except
1. support in arrears
2. contractual support in excess of legal
support
3. support given by will in excess of
legal support
NOTE : Contractual support can be
subject to adjustment whenever
modification is necessary due to
changes in the circumstances
manifestly beyond the
contemplation of the parties
Support can be given by strangers –

- When giver has knowledge, the stranger can

claim from giver, unless the stranger has no
intention to be reimbursed
- When giver unjustly refuses or fails to give
support when urgently needed by the latter,
stranger may give, with right of reimbursement.
This applies specially where mother and father
unjustly refused or fails to give support to the
child if urgently needed.
PARENTAL AUTHORITY
PARENTAL AUTHORITY-

Concept- mass of rights and obligations

which parents have in relation to the
person and property of their children until
their emancipation, and even beyond
under certain circumstances.
PURPOSE –
1. sound physical development of
children
2. cultivation of their intellectual
perceptions
3. nourishment of their appetitive
and sensitive faculties(Reyes vs.
Alvarez, 8 Phil. 723)
LAW ON PARENTAL AUTHORITY-

Before august 3 1988, PD 603 and civil

code

After august 3, 1988 , family code

expressly repealing Title XI of the civil
code on parental authority and Arts.
17, 18 and 19 of PD 603 on parental
authority (art 254, family code)
CHARACTERISTICS OF PARENTAL
AUTHORITY –
- A natural right and duty of parents(209)
- Can not be renounced, transferred or
waived except in cases authorized by law,
(210), as in the case of:
1. adoption
2. guardianship
3. commitment of child in an entity or
institution engaged in child care or in
children’s home(223-224)
- Jointly exercised (211)
in case of disagreement, father’s decision
prevails unless there is judicial order to the
contrary.
- Purely personal and cannot be exercised
thru agents
- Temporary, ends when child emancipated,
can take care of himself & his property or
parent unable to properly exercise the
authority
PARENTAL AUTHORITY CONSISTS OF:
(209)

caring and rearing of such children for

civic consciousness and efficiency,
development of their moral, mental,
and physical character and well-being,
parental responsibility
IN CASE OF DEATH OR ABSENCE OF
EITHER PARENT- parental
authority shall be exercised by :
parent present (122)
IN CASE OF REMARRIAGE OF
SURVIVING PARENT- parental
authority shall be exercised by :
surviving parent, unless court
appoints a guardian (212)
IN CASE OF SEPARATION OF PARENTS, (213) parental
authority shall be exercised by :
parent designated by court, but :
court shall take into account all relevant considerations,
specially the choice of child over 7 years of age, unless
parent chosen is unfit;

no child under 7 years of age shall be separated from

the mother, unless court finds compelling reason to
order otherwise, such as insanity, communicable
disease which might endanger health and life of child,
maltreatment of child or other similar reasons which
make her unfit.
 In the case of Pablo-Gualberto vs
Gualberto, 461 SCRA 450, and Gamboa-
Hirsch vs CA, 527 SCRA 380, the Court
referred to the second paragraph of Article
213 of the FC, giving the mother
preference in awarding custody of the
child under the age of seven as the “tender
age presumption”.
 The Court further held that the mere fact
that the mother is a lesbian is not a
compelling reason to deprive her of
custody without showing that she carried
on her purported relationship with a
person of the same sex in the presence of
the child or under circumstances not
conducive to the child’s proper moral
development.
 The so-called “tender age presumption”
under Art. 213 of the FC may be overcome
only by compelling evidence of the
mother’s unfitness. The mother is declared
unsuitable to have custody of her children
in one or more of the following instances:
neglect, abandonment, unemployment,
immorality, habitual drunkenness, drug
addiction, maltreatment of the child,
insanity or affliction with communicable
disease. (Gamboa-Hirsch vs CA)
IN CASE OF DEATH, ABSENCE OR
UNSUITABILITY OF BOTH PARENTS-
substitute parental authority shall be
exercised by surviving grandparent

if several survive, one designated by

court (214)
FILIAL PRIVILEGE-
Descendant can not be compelled to
testify, in a criminal case, against his
parents and grandparents , except-
indispensable in a crime against the
descendants OR crime by one parent
against the other
SUBSTITUTE AND SPECIAL PARENTAL
AUTHORITY shall be exercised by : (in
default of parents or court appointed
guardian )

1. surviving grandparent
2. oldest brother or sister, over 21 years of
age, unless disqualified
3. child’s actual custodian, over 21 of age,
unless unfit or disqualified. (216)
IN CASE OF FOUNDLINGS , ABANDONED,
NEGLECTED OR ABUSE CHILDREN –(217)
Substitute parental authority shall be
entrusted to –

- heads of children’s homes, orphanages

and similar institution duly accredited by
proper gov’t agency
- designation shall be through summary
judicial proceeding
SPECIAL PARENTAL AUTHORITY SHALL BE
EXERCISED BY-
- the School, its administrator and teachers
- Individual, entity or institution engage in
child care while under their supervision
instruction or custody
It shall apply to all authorized activities
whether inside or outside the premises of the
school , entity or institution.
The school administrator, teacher
or individual engaged in child care
and exercising parental authority
shall in no case inflict corporal
punishment upon the child.
DISTINCTION BETWEEN SUBSTITUTE
AND SPECIAL PARENTAL AUTHORITY –

Substitute parental authority is exercised in the case of

death, absence or unsuitability of parents.
Substitute parental authority is not exercised
concurrently with the exercise by parent of parental
authority.
Special authority is exercised concurrent with parental
authority of parents.
The parents temporarily relinquish parental authority
over those granted special authority while children are
in the custody of the latter.
LIABILITY OF PERSONS GIVEN SUBSTITUTE
OR SPECIAL PARENTAL AUTHORITY-

Shall be principally and solidarily liable for

damage caused by acts or omissions of the
minor under their custody.
The parents, guardian or person exercising
substitute parental authority shall be
subsidiarily liable.
Due diligence is available as defense.
RIGHTS OF PARENTS OR PERSON
EXERCISING PARENTAL AUTHORITY-
(220)

- to keep them in their company

- to support
- to educate
- to instruct them by right precept
and good example
- to provide for their upbringing in keeping with
their means.
- to give them love and affection
- to give them advice and counsel
- to give them companionship and
understanding
- to provide them with moral and spiritual
guidance
- to inculcate in them honesty, integrity, self-
discipline, self-reliance, industry and thrift
- To stimulate their interest in civic affairs
- To inspire in them compliance with
duties of citizenship
- to enhance, protect, preserve and
maintain their physical and mental
health at all times .
- to furnish them with good and
wholesome educational materials
- To supervise their activities, reaction and
association with others
- To protect them from bad companies
- To prevent them from acquiring habits
detrimental to their health, studies and
morals.
- to represent them in all matters affecting
their interest
- to demand from them respect and
obedience
- to impose discipline on them as may be
required under the circumstances
- to perform such other duties as are
imposed by law upon parents and
guardians, such as those right and duties
specified in chapters 3 and chapter 4 of PD
603 on parental crimes
ART 204 of PD 603 – penalizing
parents or guardians who aid, or
connive in the commission by the
child of delinquency or do acts
promoting or contributing to a
child becoming juvenile deliquent.
LIABILITY FOR TORTS- (221)

Parents and persons exercising parental

authority shall be civilly liable for the
injuries and damages caused by the acts or
omissions of their unemancipated
children, LIVING in their company and
UNDER their parental AUTHORITY , subject
to defenses of due diligence.
The liability is solidary. (Araneta
vs. Arreglado 104 Phil 529 ) and
primary and direct, not subsidiary.
(Barredo vs. Soriano, 73 Phil 607)
MEASURES TO ASSIST PARENTS IN IMPOSING
DISCIPLINE TO CHILD-
223- petition court where child resides for an order
providing for disciplinary measure over the child
= child shall be entitled to assistance of counsel, of his
own choice or appointed by the court
= summary hearing shall be conducted wherein
petitioner and child shall be heard
= if court finds petitioner at fault, even if petition is
meritorious, the court may also order deprivation or
suspension of parental authority ; or adopts such
measure as may be reasonable, including appointment
of a guardian
224- the measure may include commitment of
the child for not more than 30 days in entities
or institution engaged in child care or children’s
home duly accredited by proper gov’t agency
- parent shall not interfere with the care of the
child whenever committed, but shall provide
for his support.
- Upon proper petition or motu propio, the
court may terminate the commitment
whenever just and proper.

=
PARENTAL AUTHORITY OVER PROPERTY OF
CHILDREN (225)
Father and mother shall jointly exercise legal
guardianship over the property of their
unemancipated common children without
necessity of court appointment.

if the market value of the property or annual

income of the child exceeds P50,000.00,the parent
concern shall furnish a bond in an amount the court
may determine, but not less than 10 % of the value
of the property or annual income
Verified petition for approval of the
bond shall be filed in proper court
where child resides, or if child resides
in foreign country, court of the place
where the property is situated.
PROPERTY OF THE CHILD INCLUDES – (226)
1- child’s earnings through his labor, work
or industry
2. property acquired by child by
gratuitous title
3. property acquired by child by onerous
title
4. fruits of all the properties of the child
5. insurance proceeds accruing to the
child
- It shall be devoted exclusively for his
support and education, unless the title or
transfer provides otherwise.
- And secondarily, for the collective needs
of the family.

parental usufruct over the properties of

their unemancipated children had been
abolished.
UNEMANCIPATED CHILD ENTRUSTED WITH
MANAGEMENT OF PARENTS PROPERTY 227

- net proceeds of properties shall belong to the

parent/s owner.
- Child shall be given reasonable monthly
allowance in an amount not less than which
shall be given to strangers who manages the
property
- If parents give the entire proceeds of the
property to the child, it shall not be charged
to his legitime
TERMINATION OF PARENTAL
AUTHORITY (228)

- upon death of parents

- upon death of child
- upon emancipation of the child

termination is permanent and can no

be revived
OTHER GROUNDS FOR TERMINATION OF
PARENTAL AUTHORITY (229)
- upon adoption of the child
- upon appointment of a general guardian
- upon judicial declaration of abandonment of
the child in a case filled for the purpose
- upon final judgment of a competent court
divesting the party concerned of parental
authority
- upon judicial declaration of absence or
incapacity of the person exercising parental
authority
- PARENTAL AUTHORITY may be revived by final
judgment by :

- rescission of the adoption

- termination of the guardianship
- restoration of parental authority to parent
who has returned home after abandoning
child, or who has been divested of authority
for any other reason
- restoration of parental authority to an absent
spouse who has returned or formerly
incapacitated parents who has regained
incapacity
AUTOMATIC SUSPENSION OF PARENTAL
AUTHORITY (230)

- conviction of parent for crime which

carried the penalty of civil interdiction
- authority is automatically restored
upon service of the penalty or upon
pardon or amnesty of the offender
SUSPENSION OF PARENTAL AUTHORITY THRU
COURT ACTION (231) Grounds-

- treats the child with excessive harshness or

cruelty
- gives the child corrupting orders, counsel or
example
- compels the child to beg
- subject child or allows him to be subjected to
acts of lasciviousness
above grounds include cases which have
resulted from culpable negligence of the
parents
PERMANENT DEPRIVATION OF PARENTAL
AUTHORITY (232)

parent subjected the child or allowed

him/her to be subjected to sexual abuse

deprivation is permanent and can not be

restored
NO CORPORAL PUNISHMENT BY THOSE
EXERCISING SUBSTITUTE AUTHORITY (233)

- person exercising substitute parental authority

have the same authority over the child as the
parents
- can impose discipline on the child as required
under the circumstances, which includes
moderate punishment, but not amounting to
maltreatment or cruelty
- can not inflict corporal punishment upon the
child
EMANCIPATION AND AGE OF MAJORITY- (234-
237 FAMILY CODE)

(REP. ACT NO. 6809)

Section 1 . Article 234, executive Order NO. 209
of the Family Code of the Philippines, is hereby
amended to read as follows :
“Art. 234. Emancipation takes place by the
attainment of majority. Unless otherwise
provided, majority commences at the age of 18
years.”
Section 2. Articles 235 and 237 of the same
code are hereby repealed

Section 3. Article 236 of the same code is

also hereby amended to read as follows :
“Art. 236. Emancipation shall terminate
parental authority over the person and
property of the child who shall then be
qualified and responsible for all acts of
civil life, save the exception established by
existing laws in special cases
Contracting marriage shall require parental
consent until the age of 21

Nothing in this code shall be construed to

derogate from the duty or responsibility of
parents and guardians for children and
wards below 21 years of age mentioned in
the second and third paragraphs of Article
2180 of the new civil code
BY reason of section 3 of RA 6809, the
decision in Elcano vs. Hill, 77 SCRA 89
wherein the father of a married minor
was held still liable for damages resulting
from the child’s having killed someone,
which has been abrogated by the former
Article 236 of the family code, would still
now be applicable under the said
amendment to Article 236.
Change of First Name:
Administrative change of name or nickname is
allowed on the following grounds:
1. petitioner finds the first name or nickname
to be ridiculous, tainted with dishonor or
extremely difficult to write or pronounce;
2. the new first name or nickname has been
habitually and continuously used by the
petitioner and he has been publicly known by
that first name or nickname in the community;
3. the change will avoid confusion. (RA 9048)
Before a person can legally change
his given name, he must present
proper or reasonable cause or any
compelling reason justifying such
change. (Wang vs Cebu City Civil
Registrar, 454 SCRA 155)
In Silverio vs Republic, the SC held
that a person’s first name