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Article 1

Article 2

CIVIL CODE OF THE PHILIPPINES


Chapter 1: Effect and Application of Laws
This Act shall be known as the Civil Code of the Philippines.
Roxas Code Commission / 1947 Code Commission prepared the main
draft
o Created via Executive Order (EO) No. 48 by Manuel Roxas.
o Members:
! Dr. Jorge Bocobo Chairman
! Judge Guillermo B. Guevarra
! Dean Pedro Y. Ylagan
! Francisco R. Capistrano
! Arturo M. Tolentino* - was removed after being elected as
congressman
! Dr. Carmelino Alvendia
o May 8, 1947-December 15, 1947 drafting period
o January 26, 1949 passed into the Senate and HOR
Laws shall take effect after fifteen days following the completion of their publication
in the Official Gazette, unless it is otherwise provided. This Code shall take effect
one year after publication.
August 30, 1950 - Civil Code took effect on this date
EO No. 200 Civil Code amended on June 18, 1987 by Cory Aquino; took
effect immediately after its publication in the Official Gazette (OG)
o Reasons:
! Tanada, et al. vs. Tuvera, et al. paved the way for the
amendment, because of the OGs erratic release and
limited readership
! General circulation will better perform the function of
communicating laws because of wide circulation and
regular release
Condition of Statutes effectivity
Requisites for effectivity
Does not explicitly provide for its
effectivity

If different period, shorter or


longer (unless otherwise
provided*)

render law ineffective


Must be in full, or not publication at all
After publication, all people are deemed to be notified of the law
even if they have not read them.
What must be published?
o Presidential decrees, EOs pursuant to valid delegation from the
Congress
o Administrative rules and regulations (if the purpose is to enforce of
implement existing laws)
o Charter of a city
What doesnt need to be published?
o Interpretative and internal regulations, letters of instructions
regulating only personnel of the agency
o Municipal ordinances
Ignorance of the law excuses no one from compliance therewith.
ignorantia legis non excusat
Reason:
o Expediency
o Necessity (Zulueta v. Zulueta, U.S. v. Deloso, Delgado v. Alonso)
Pursuant to the requisites for effectivity of the law
True even if the person has no knowledge of the law
Applicable only to mandatory and prohibitory laws (Consunji v. Court of
Appeals)
Laws shall have no retroactive effect, unless the contrary is provided.
Reason: Law looks to the future.
Unless:
o Purpose and intention of the legislature is expressly declared or
necessarily implied; in case of doubt, must be resolved against
the retrospective effect
Retrospective application.
o Must not impair the obligation of contracts or affect injuriously
vested rights
o Statutes are not to be construed as intended to have a retroactive
effect
Instances when retroactive effect is allowed.
o Law expressly provides for retroactivity.
! Ex. Family Code (August 3, 1988) shall have retroactive
effect insofar as it does not prejudice or impair vested or
acquired rights in accordance with the Civil Code or other
laws
o Law is curative or remedial.
! Curative laws
As long as it is not within constitutional inhibitions
or retrospective legislation impairing obligation or
o
o

Article 3

Article 4

Publication in newspaper of
general circulation OR OG
After the 15-day period
On period expressed by the law
(but only after upon publication)

Effectivity of Laws
o Unless otherwise provided* - refers only to effectivity and NOT
publication
! Publication is an INDISPENSIBLE requisite; absence will

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cntracts or disturbing vested rights


Requisites:
Remedial by curing defects and adding means to
o Not presumed, but must be clearly and convincingly shown by
enforce existing obligations.
express stipulation or acts admitting no other reasonable
explanation
More readily ascribe to laws that are legalizing than
o A right must be in existence at the time of the waiver (Ereneta v.
disadvantegously affect past relations and
Bezore)
transactions
o
Must be exercised by a duly capacitated person actually
Laws which regulate the registration of titles to land
possessing the right to make the waiver
may be held to apply to deed dated before as well
! Has knowledge of the facts basic to the exercise of the
! Ex: DBP v. Court of Appeals
rights waived
Certain lots were acquired (pursuant to RA 85)
! Is aware of the consequences
then Congress passed RA 3147 to legalize the
Prohibition against waiver.
acquisition
o Cannot be made if contrary to:
o Law is procedural.
! Law, public order, public policy, morals, or good customs
! Statute deals with procedure only, it applies to all actions
! Or prejudicial to a third person with a right recognized by
those accrued or pending and future actions.
law (Gongon v. CA)
o Law is penal in character and favorable to the accused.
o
Signing
of a satisfaction receipt from a disabled employee.
! Penal laws shall have retroactive effect insofar as they
! Doesnt constitute a waiver agreeing to receive less
favor the person guilty of a felony, who is not a habitual
compensation than the worker is entitled to recover under
criminal
the law (Franklin Baker Co. of the Philippines v. Alillana)
Habitual delinquent: if within a period of 10 years
o Acceptance of benefits such as separation pay and terminal leave
from the date of release or last convicted of serious
benefits do not amount to estoppel or waiver of right of employee to
or less serious physical injuries, he is found guilty
contest his illegal dismissal (San Miguel v. Cruz)
of any said crimes a third time or oftener.
Object of a statue is to promote great public interests, liberty and morals, it
Article 5 Acts executed against the provisions of mandatory or prohibitory laws shall be void,
cannot be defeated by any private stipulation
except when the law itself authorizes their validity.
Article
7
Laws
are
repealed only by subsequent ones, and their violation or non-observance
Mandatory provision of law
shall
not
be
excused by disuse, or custom or practice to the contrary.
o Omission of which renders the proceeding or acts illegal or void.
o Ex. Man impugning the legitimacy of his child beyond the 1-year
When the courts declared a law to be inconsistent with the Constitution, the former
period after birth, then the case will be dismissed pursuant to the
shall be void and the latter shall govern.
mandatory provision of the law
Prohibitory provision of law
Administrative or executive acts, orders and regulations shall be valid only when
o Contain positive prohibitions and are couched in negative terms
they are not contrary to the laws or the Constitution. (5a)
that the act required shall not be done otherwise than designated
Repeal of a law is the legislative act of abrogating through a subsequent
However, if law provides for the validity of acts committed in violation of
law the effects of a previous statute or portions thereof.
mandatory/prohibitory provision, such act will be considered valid and
o Implied repeal: when new law contains provisions contrary to or
enforceable.
inconsistent with those of a former without expressly repealing
Article 6 Rights may be waived, unless the waiver is contrary to law, public policy, morals or
them.
good customs, or prejudicial to a third person with a right recognized by law.
! Repeals and amendment by implications are not favored
Waiver.
because it is vague.
o The intentional relinquishment of a known right (Castro v. Del
o
Express
repeal: literally declared by a new law, either in:
Rosario)
!
Specific
terms particular laws and provisions are named
o Ignorance of material fact negates waiver; waiver cannot be
and
identified
and declared to be repealed
established by a consent given under a mistake or
!
General
terms
where a provision in a new law declares
misapprehension of fact (Consunji v. CA)
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Article 8

Article 9

Article
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Article
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all laws and parts of laws inconsistent to be repealed. (But


it actually just predicates the intended repeal upon
substantial conflict is found in acts)
! But in statutory construction, it is said that: a special statute
is not repealed by a subsequent statute general in terms
unless the intent to repeal or alter is manifest.
Statutes should not be given a meaning that will bring them in conflict with
the Constitution.
o When a portion of a statute is unconstitutional and other parts valid,
the parts will be separated and constitutional portion upheld. Unless
they are mutually dependent and connected, then even the
constitutionak part must fall with them.
A rule is bining on the courts so long as the procedure for its promulgated is
followed, and its scope within the authority granted by the legislature.
o But if it is contrary to law and constitution, it is invalid.
Judicial decisions applying or interpreting the laws or the Constitution shall form a
part of the legal system of the Philippines. (n)
! Courts have the principal function of interpreting and construing vague
provisions of law relative to a particular dispute.
! Judicial decisions shall form part of the law of the land until authoritatively
abandoned. They also constitute evidence of what the law means.
! Supreme Court decisions = authoritative and precedent-setting whereas
inferior courts = merely persuasive
No judge or court shall decline to render judgment by reason of the silence,
obscurity or insufficiency of the laws. (6)
! The duty of judges is to dispense justice in accordance with the
constitutional concept that no person shall be deprived of life, liberty, and
property without due process of law.
! Must not evade performance of responsibility because of non-existence of
any law. He must be guided by equity, fairness and sense of justice. When
conclusions are not without logic, he cannot be said to be incompetent.
! Though judiciary cannot legislate, the existence of this provision almost
says otherwise. This is becase like all human beings, the mind of the
legislator cannot envisage all possible cases to which the law may apply.
In case of doubt in the interpretation or application of laws, it is presumed that the
lawmaking body intended right and justice to prevail. (n)
! When the law is clear, no choice but to apply the law.
! In case of ambiguity, the interpretation of the law requires fidelity to the
legislative purpose of the law. What the Congress intended cannot be
frustrated and its objective must be carried out.
! It is the judicial duty of judges to construe statutes so as to avoid injustice or
absurdity.
Customs which are contrary to law, public order or public policy shall not be
countenanced. (n)

Article
12

A custom must be proved as a fact, according to the rules of evidence. (n)


Customs rule of conduct formed by repetition of facts, uniformly
observed/practiced as a social rule, legally binding and obligatory.
! Courts do not take judicial notice of customs.
! Customs must be proved as a fact according to the rule of evidence.
! Juridical custom is different from social custom. Former can supplement
statutory law or applied in the absence of a statute. The latter, no.
! Customs, which are contrary to law, public order, or public policy, shall not
be countenanced even when proven.
When the laws speak of years, months, days or nights, it shall be understood that
years are of three hundred sixty-five days each; months, of thirty days; days, of
twenty-four hours; and nights from sunset to sunrise.
!

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If months are designated by their name, they shall be computed by the number of
days which they respectively have.

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In computing a period, the first day shall be excluded, and the last day included.
(7a)
! Garvida v. Sales: In computing years, the first year is reached after
completing the first 365 days. The phrase not more than 21 years of age
means not over 21 years or not beyond 21 years. It means 21 365-day
cycle. It does not mean 21 years and one day or some days because that is
more than 21 365-day cycles. The law does not state that the candidate be
less than 22 years old on election day.
! If designated by years, 365 days. If months, 30 days. But if by name of
month, shall be computed in accordance with how many days that month
has.
Penal laws and those of public security and safety shall be obligatory upon all who
live or sojourn in the Philippine territory, subject to the principles of public
international law and to treaty stipulations. (8a)
! Citizens and foreigners are subject to all penal laws. The liability for said
laws will attach whether or not a foreigner is merely sojourning the
Philippines.
! While liable, however the foreigners may be immune from suit and therefore
cannot be criminally prosecuted in the Philippines in cases where
Philippines has waived criminal jurisdiction on the basis of public
international law and treaty stipulations.
! 1961 Vienna Convention of Diplomatic Relations:
o Person of the diplomatic agent shall be inviolable and he shall not
be liable to any form of arrest of detention.
o He shall enjoy immunity from criminal jurisdiction of the receiving
state.
o Diplomatic agent = head of the mission or a member of the

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diplomatic staff of the mission


o Heads of state officially visiting are also immune.
Laws relating to family rights and duties, or to the status, condition and legal
capacity of persons are binding upon citizens of the Philippines, even though living
abroad. (9a)
! Nationality rule: Philippine laws with respect to family rights and duties or
status, condition and legal capacity shall govern Filipinos, regardless of
where they are.
! Filipino contracts divorce abroad is invalid as there is no divorce in the
Philippine. Unless its the foreigner who divorced the Filipino, then it is valid.
Real property as well as personal property is subject to the law of the country where
it is stipulated.

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However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the nature of the property and
regardless of the country wherein said property may be found. (10a)
! The law of the country where the real property is situated shall be the
governing law of such real property.
! Intestate and testamentary successions will be regulated by the law of the
deceased and is applicable regardless of the nature of the property.
! The national law must be observed with regard to the following:
o Order of succession
o Amount of successional rights
o Intrinsic validity of the provisions of the will
o Capacity to succeed
! Real property = land and estate; Personal = moveable property that needs
to be registered with the State (cars)
! You cannot donate to a foreigner unless you
The forms and solemnities of contracts, wills, and other public instruments shall be
governed by the laws of the country in which they are executed.

Article
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Diplomatic and consular officials are representatives of the state. Any act or
contract made in a foreign country before them must conform with the
solemnities under Philippine law. This is because the host country waives
its jurisdiction over the premises of the diplomatic office of another country.
o This is why marriages between Filipinos solemnized by a consular
official abroad must be following Philippine laws.
o In such marriages, the issuance of the marriage licens and the
duties of the local civil registrar and the solemnizing officer with
regard to the celebration of the marriage shall be performed by the
consul-general, consul, or vice-consul abroad.
! Prohibitive laws concerning persons, their acts or property, and those which
have for their object public order, public policy, and good customs shall be
rendered ineffective by laws or judgments promulgated or by
determinations or conventions agreed upon in a foreign country.
o Any Filipino who procures an absolute divorce will remain in the
eyes of Philippine law as not having been divorced.
! If Filipina marries American in the US Embassy, and pre-nuptial
agreements were executed, the American laws will govern such agreement.
In matters which are governed by the Code of Commerce and special laws, their
deficiency shall be supplied by the provisions of this Code. (16a)
! This Civil Code, by expressed mandate of the said code, supplies the
deficiency of the Code of Commerce and special laws in the matters
governed by the latter. (Suppletory nature of the Civil Code)
Chapter 2: Human Relations
Every person must, in the exercise of his rights and in the performance of his duties,
act with justice, give everyone his due, and observe honesty and good faith.
Every person who, contrary to law, wilfully or negligently causes damage to another,
shall indemnify the latter for the same.
Any person who wilfully causes loss or injury to another in a manner that is contrary
to morals, good customs or public policy shall compensate the latter for the
damage.
! Art. 19 only provides a rule of conduct that is consistent with an orderly and
harmonious relationship between and among men and women. Codifies the
concept of justice and fair play so abuse of right by a person is prevented.
o Also known as principle of abuse of rights
o When a right is exercised in manner, which does not conform to
norms in Art. 19 and results damage to another, a legal wrong is
committed for which the wrongdoer must be held responsible.
o Elements of abuse of right:
! There is legal right or duty
! Which was exercised in bad faith
! For the sole intent of prejudicing or injuring another.
! Art. 20 includes negligent people (invoking Art. 3), and thus renders it
impossible that a person who suffers damage because of another shall find
!

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Article
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Article
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Article
21

When the acts referred to are executed before the diplomatic or consular officials of
the Republic of the Philippines in a foreign country, the solemnities established by
Philippine laws shall be observed in their execution.
Prohibitive laws concerning persons, their acts or property, and those which have,
for their object, public order, public policy and good customs shall not be rendered
ineffective by laws or judgments promulgated, or by determinations or conventions
agreed upon in a foreign country. (11a)
! Ex. If it is required in Japan that for a holographic will to be valid, the date
thereof need not be in handwriting of the testator then such will is valid even
if in Philippine law, everything must be in the handwriting of the testator.
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himself without relief.


o Good faith is presumed. He who alleges bad faith must prove it.
o Good faith: state of mind which is manifested by acts of the
individual concerned. Consists of intention to abstain from taking an
unconscionable and unscrupulous advantage of another.
o Bad faith: not just bad judgment or simple negligence, dishonest
purpose or some moral obliquity and conscious doing of a wrong, a
breach of known duty due to some motives or interest of ill-will that
partakes nature of fraud. Malice connotes ill-will or spite, and
speaks not in response to duty. Implies inetition to do ulterior and
unjustifiable harm. It connotes bad faith or bad motive.
! Art. 21 was designed to fill in the countless gaps in statutes which leave so
many victims of moral wrongs helpless, even though they have actually
suffered material and moral injury.
o It deals with acts contra bonus mores (against good morals)
o Elements:
! There is an act which is legal
! But which is contrary to morals, good customs, public
order, or public policy
! And it is done with intent to injure.
o Presupposes loss or injury, material or otherwise which one may
suffer as a result of such violation.
! Relation with each other.
o Art. 19 & 21: act must be intentional
o Art. 20: does not distinguish; can be done either willfully or
negligently.
! Read examples in the book: pp. 34-39.
Every person who through an act of performance by another, or any other means,
acquires or comes into possession of something at the expense of the latter without
just or legal ground, shall return the same to him.
Even when an act or event causing damage to another's property was not due to
the fault or negligence of the defendant, the latter shall be liable for indemnity if
through the act or event he was benefited.
! Unjust Enrichment: No person can claim what is not validly and legally his
or hers. No one should unduly profit on something which does not
meritoriously belong to him or her.
! Examples: pp. 40-43
In all contractual, property or other relations, when one of the parties is at a
disadvantage on account of his moral dependence, ignorance, indigence, mental
weakness, tender age or other handicap, the courts must be vigilant for his
protection.
! The courts must render justice and therefore must be very vigilant in
protecting the rights of the disadvantaged with the end view that any
decision will be in consonance with what is right and legal.

De Lima v. Laguna Tayabas Company: pauper litgants were aggrieved


parties in a case which was pending in the court for a long time appealed
the decision of the lower court to the CA, the Supreme Court decided to
adopt a liberal view and decided even the issue on the interest which was
not appealed in the CA.
! Pleadings as well as remedial laws should be construed liberally in order
that litigants may have ample opportunity to pursue their respective claims
and that a possible denial of substantial justice due to legal technicalities
may be avoided.
Thoughtless extravagance in expenses for pleasure or display during a period of
acute public want or emergency may be stopped by order of the courts at the
instance of any government or private charitable institution.
! This law seeks to prevent inconsiderate and ostentatious activities during
times of emergency.
! ONLY government or private charitable institution allowed to seek an
injunction.
Every person shall respect the dignity, personality, privacy and peace of mind of his
neighbors and other persons. The following and similar acts, though they may not
constitute a criminal offense, shall produce a cause of action for damages,
prevention and other relief:
(1) Prying into the privacy of another's residence:
(2) Meddling with or disturbing the private life or family relations of another;
(3) Intriguing to cause another to be alienated from his friends;
(4) Vexing or humiliating another on account of his religious beliefs, lowly station in
life, place of birth, physical defect, or other personal condition.
Reason for inclusion:
o Privacy of ones home is an inviolable right
o Because penal laws against defamation and unjust vexation are
inadequate
o Social equality is not sought by this legal provision but due regard
for decency and propriety.
RCPI v. Verchez (2006): family in Sorsogon sent a telegram to another
family member asking for money for their sick mother, where the company
was not able send the telegram on time and thus resulted to filial
disturbance on the family, the SC awarded damages based on Art. 26(2)
Any person suffering material or moral loss because a public servant or employee
refuses or neglects, without just cause, to perform his official duty may file an action
for damages and other relief against he latter, without prejudice to any disciplinary
administrative action that may be taken.
RELIEF AGAINST PUBLIC OFFICIALS
o Public official: agent or at least a representation of the fovernment
and thus the law exacts on him/her an obligation to be vigilant
Ledesma v. CA: President of a state college in bad faith and despite
decision of Public Schools Bureau refused to let a student graduate with
!

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honors despite deserving it. Said public officer held liable for damages in
his personal capacity.
Vda. De Laig v. CA: Register of deeds assisted in the fraudulent
procurement of a certificate of title in Land Registration Act, SC rules that
he was liable for damages.
Correa v. CFI of Bulacan: mayor held liable for illegally dismissing
policemen
Unfair competition in agricultural, commercial or industrial enterprises or in labor
through the use of force, intimidation, deceit, machination or any other unjust,
oppressive or highhanded method shall give rise to a right of action by the person
who thereby suffers damage
! Democracy becomes a veritable mockery if any person or group of persons
by any unjust or highhanded method may deprive others of a fair chance to
engage in business or earn a living.
When the accused in a criminal prosecution is acquitted on the ground that his guilt
has not been proved beyond reasonable doubt, a civil action for damages for the
same act or omission may be instituted. Such action requires only a preponderance
of evidence. Upon motion of the defendant, the court may require the plaintiff to file
a bond to answer for damages in case the complaint should be found to be
malicious.

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If in a criminal case the judgment of acquittal is based upon reasonable doubt, the
court shall so declare. In the absence of any declaration to that effect, it may be
inferred from the text of the decision whether or not the acquittal is due to that
ground
! CIVIL ACTION.
o Proof beyond reasonable doubt amount of proof which forms an
abiding moral certain that the accused committed the crime
charged; not an absolute certainty; already more exacting in a civil
case; needed for criminal conviction; fact that guilty must be
expressly stated
o Preponderance of evidence evidence adduced by one side
outweighs that of the other; guilt was not proven beyond
reasonable doubt must be stated in the decision, but if not stated
can be inferred from decision himself
! If he was acquitted because he was INNOCENT, one cannot file a civil
case. But if only because he is not guilty beyond reasonable doubt, you can
file a civil case.
! Judgment of acquittal does not bar a subsequent civil action for the crime
When a separate civil action is brought to demand civil liability arising from a
criminal offense, and no criminal proceedings are instituted during the pendency of
the civil case, a preponderance of evidence shall likewise be sufficient to prove the
act complained of.
! Contemplates a fact that there seems to be a criminal offense but not case

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was filed, so you can file a civil case.


! Preponderance of evidence is enough.
When the civil action is based on an obligation not arising from the act or omission
complained of as a felony, such civil action may proceed independently of the
criminal proceedings and regardless of the result of the latter.
Contemplates quasi-delicts which do not necessarily arise from the
commission of a crime
Gives an aggrieved part a remedy and cause of action in such situations
Does not provide for an independent civil action; an independent civil action
is based on the obligation not arising from the act or immission complained
of as a felony; civil action may proceed independently of the criminal
proceedings regardless of the result
Any public officer or employee, or any private individual, who directly or indirectly
obstructs, defeats, violates or in any manner impedes or impairs any of the following
rights and liberties of another person shall be liable to the latter for damages:
(1) Freedom of religion;
(2) Freedom of speech;
(3) Freedom to write for the press or to maintain a periodical publication;
(4) Freedom from arbitrary or illegal detention;
(5) Freedom of suffrage;
(6) The right against deprivation of property without due process of law;
(7) The right to a just compensation when private property is taken for public use;
(8) The right to the equal protection of the laws;
(9) The right to be secure in one's person, house, papers, and effects against
unreasonable searches and seizures;
(10) The liberty of abode and of changing the same;
(11) The privacy of communication and correspondence;
(12) The right to become a member of associations or societies for purposes not
contrary to law;
(13) The right to take part in a peaceable assembly to petition the government for
redress of grievances;
(14) The right to be free from involuntary servitude in any form;
(15) The right of the accused against excessive bail;
(16) The right of the accused to be heard by himself and counsel, to be informed of
the nature and cause of the accusation against him, to have a speedy and public
trial, to meet the witnesses face to face, and to have compulsory process to secure
the attendance of witness in his behalf;
(17) Freedom from being compelled to be a witness against one's self, or from
being forced to confess guilt, or from being induced by a promise of immunity or
reward to make such confession, except when the person confessing becomes a
State witness;
(18) Freedom from excessive fines, or cruel and unusual punishment, unless the
same is imposed or inflicted in accordance with a statute which has not been
judicially declared unconstitutional; and

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(19) Freedom of access to the courts.


In any of the cases referred to in this article, whether or not the defendant's act or
omission constitutes a criminal offense, the aggrieved party has a right to
commence an entirely separate and distinct civil action for damages, and for other
relief. Such civil action shall proceed independently of any criminal prosecution (if
the latter be instituted), and mat be proved by a preponderance of evidence.
The indemnity shall include moral damages. Exemplary damages may also be
adjudicated.
The responsibility herein set forth is not demandable from a judge unless his act or
omission constitutes a violation of the Penal Code or other penal statute
PARTICULAR WRONG OR INJURY.
o Liwayway Vinzons Chato v. Fortune Tobacco (2008): SC applied
Art. 32.
o 2 kinds of duties of public officers
! Duty owing to the public collectively / body politic: ex.
Governor owes duty to see that laws are executed
properly, appoints able people, bad laws do not receive his
approval duties he owns to the public that no one could
single himself out and say that these duties are owed to
him alone. These duties should not benefit only any
particular person in the community.
! Duty owing to particular individuals: they owe to the public
the duty of proper administration, and some have a special
obligation to serve individuals because technically, the
people are his bosses. Ex: a recorder of deeds toi the
person who owns the deed, etc.
o This helps determine the liability of a person for his nonperformance/performance of a duty. It depends on the duty. If
theres no duty to do something, then its not a liability if the official
does not do it.
o When what is involved is duty owing to the public in general, one
cannot have a cause of action for damages against the officer even
if he was injured by the action of the person.
o When public officer fails to perform a public duty, remedy is judicial.
Exception: when complaining individual suffers particular/special
injury because of improper performance
o THUS WHAT ART. 32 REALLY MEANS: individual can hold a
public officer personally liable for damages on account of an act or
immission that violates a constitutional right only if it results in a
particular injury.
o In the case cited, there was no particular right violated plus it

referred to the first type of duty, so Art. 32 wasnt applicable.


SEPARATE CIVIL ACTION FOR VIOLATION OF CONSTITUTIONAL
RIGHTS.
o One can file for a civil action, separate from the criminal action now
because:
! Before, fiscal was the one who had to carry out the
investigation which led to justice not being served because
either the fiscal had too many cases, evidence would
usually be insufficient, reluctant to prosecute a fellow
official. Now, with civil actions, no longer under fiscal.
! Requirement of proof beyond reasonable dount was hard.
Now, preponderance of evidence is enough.
! Citizen will always have a remedy despite the creativity of
some lawyers/decisions in criminal cases. If ya know what I
mean.
GOOD FAITH NOT A DEFENSE.
o Lim v. Ponce de Leon: fiscal ordered impounding of stolen motor
without valid search warrant, thus ordered the detachment
commander to get it. In the suit, fiscal said that they were in good
faith because the thing was stolen anyway; SC: rejected good faith
as defense, but absolved the detachment commander for it (Art. 11,
par. 6 of the RPC obedience to an order).
JUDGES.
o Esguerra v. Gonzales-Asdala (2004): judges cannot be subjected
to liability for any of their official acts, no matter how erroneous as
long as they were in good faith.
In cases of defamation, fraud, and physical injuries a civil action for damages,
entirely separate and distinct from the criminal action, may be brought by the injured
party. Such civil action shall proceed independently of the criminal prosecution, and
shall require only a preponderance of evidence.
RATIONALE
o Allow citizen to enforce his rights in a private action brought by him,
regardless of the action of the State attorney.
o It is not conducive to civic spirit to habituate citizens to depend
upon government for vindication.
o While criminal case is most proper, he should be permitted to
demand reparation for the wrong which peculiarly affects him
DEFAMATION, FRAUD, PHYSICAL INJURIES
o Fraud: include estafa
o Defamation: includes libel
o Physical injuries: include death/crime of homicide but it cannot
include reckless imprudence resulting in homicide
When a member of a city or municipal police force refuses or fails to render aid or
protection to any person in case of danger to life or property, such peace officer

Article
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Article
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Article
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shall be primarily liable for damages, and the city or municipality shall be
subsidiarily responsible therefor. The civil action herein recognized shall be
independent of any criminal proceedings, and a preponderance of evidence shall
suffice to support such action.
MEMBERS OF POLICE FORCE.
o Failure or refusal of police, whose duty is maintain peace and order
in the community, can be a basis for claiming damages against
them.
o Along with the city/municipality will be subsidiarily responsible too.
When a person, claiming to be injured by a criminal offense, charges another with
the same, for which no independent civil action is granted in this Code or any
special law, but the justice of the peace finds no reasonable grounds to believe that
a crime has been committed, or the prosecuting attorney refuses or fails to institute
criminal proceedings, the complaint may bring a civil action for damages against the
alleged offender. Such civil action may be supported by a preponderance of
evidence. Upon the defendant's motion, the court may require the plaintiff to file a
bond to indemnify the defendant in case the complaint should be found to be
malicious.
If during the pendency of the civil action, an information should be presented by the
prosecuting attorney, the civil action shall be suspended until the termination of the
criminal proceedings.
RESERVATION OF CIVIL ACTIONS
o Can be found in Rule 111 of the Rules of Court of the Philippines.
o When one files a criminal cause, automatically theres a civil case.
But, if the party waives his right, or separately institutes the civil
action prior to the criminal action, is OK.
o Should be made before prosecution starts presenting evidence.
o Filing feed will constitute the first lien on the judgment awarding
such damages
o The amount of damages, when specified, the filing fees shall be
paid by the offended party upon filing in court.
o No filing fees required for actual damages.
o Counterclaim, cross-claim, third-party complaint cannot be filed
o BP 22 always includes civil action. Never can be reserved.
o Upon filing of join actions, offended party shall pay in full based on
the amount of the check involved.
o When criminal action has commenced, separate civil action is
suspended until final judgment has been made.
o If criminal action is filed after civil action has been instituted, the
latter shall be suspended on whatever stage it may be. But the
party, in a motion, may consolidate the civil case with the criminal
action.
o In case of consolidation, evidence given in civil action is already
also evidence in the criminal action.

During suspension of criminal action, the period of prescription of


civil action shall be tolled
o The extinction of penal action does not carry extinction of civil
action.
o In cases of Art. 32, 33, 34, 2176 independent civil action may be
brought by the offended party. But no one can recover damages
twice for the same act/omission charged in criminal action.
o Death of the accused during the pendency of criminal action shall
extinguish criminal liability.
o However, independent civil action as reiterated above, can continue
against estate, legal reps, heirs.
o If accused dies before arraignment, case shall be dismissed without
prejudice to the offended party.
o A final judgment rendered in a civil action absolving defendant from
civil liability is not a bar to criminal action against defendant for the
defendant for the same act/omission subject of the civil action.
Pre-judicial questions which must be decided before any criminal prosecution may
be instituted or may proceed, shall be governed by rules of court which the
Supreme Court shall promulgate and which shall not be in conflict with the
provisions of this Code
BOOK I: PERSONS
TITLE I. CIVIL PERSONALITY
CHAPTER 1: GENERAL PROVISIONS
Juridical capacity, which is the fitness to be the subject of legal relations, is inherent
in every natural person and is lost only through death. Capacity to act, which is the
power to do acts with legal effect, is acquired and may be lost. (n)
Juridical capacity acquired upon birth of a person; terminated only upon
death
o Even if a child is still unborn and still in the womb, child is given
provisional personality, entitled to support and donation
o Ex. Citizenship means you can be a subject of a legal relation
o Ex. Obligation is created between a child and parent (right to be
subject of care and duty)
Capacity to act not inherent in a person; it is attained or conferred and
can be lost not only by death or any valid cause provided by law
o Usually acquired when you reach 18
Minority, insanity or imbecility, the state of being a deaf-mute, prodigality and civil
interdiction are mere restrictions on capacity to act, and do not exempt the
incapacitated person from certain obligations, as when the latter arise from his acts
or from property relations, such as easements. (32a)
The following circumstances, among others, modify or limit capacity to act: age,
insanity, imbecility, the state of being a deaf-mute, penalty, prodigality, family
relations, alienage, absence, insolvency and trusteeship. The consequences of
these circumstances are governed in this Code, other codes, the Rules of Court,
o

Article
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Article
37

Article
38
Article
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and in special laws. Capacity to act is not limited on account of religious belief or
political opinion.
A married woman, twenty-one years of age or over, is qualified for all acts of civil
life, except in cases specified by law. (n)
Art 38: restricts capacity to act
Art 39: broader in scope but enumerates situations which modify capacity to
act
Significance of both:
o Make an overview of situation that qualifies a persons power to
undertake acts which can produce legal effects
o Intended to give people not adept in the technicalities of law a
sense that Civil Code provides rules governing relation between
people, juridical entities, government and there are situations
which may effectively, juridically, and legally affect such
relationships
CHAPTER 2: NATURAL PERSONS
Article
Birth determines personality; but the conceived child shall be considered born for all
40
purposes that are favorable to it, provided it be born later with the conditions
specified in the following article. (29a)
Article
For civil purposes, the fetus is considered born if it is alive at the time it is
41
completely delivered from the mother's womb. However, if the fetus had an intrauterine life of less than seven months, it is not deemed born if it dies within twentyfour hours after its complete delivery from the maternal womb. (30a)
Art 40 was amended by Art. 5 of P.D. 603 or the Child and Youth Welfare
Code:
The civil personality of the child shall commence from the time of his conception for
all purposes favorable to him, subject to the requirements of Art. 41
Quimiguing v. Icao: Quimiguing demands support from Icao who
impregnated her. Child is not yet born, but court grants her petition because
such unborn child had a the right of support from the parents even if just a
conceived child.
Geluz v. CA: a parent cannot invoke the concept of provisional personality
of a conceived child to obtain damages for and behald of an aborted child
since the conditions set by Art. 40 and 41 were not met. However, can
obtain damages on their won right.
BIRTH CERTIFICATE the best evidence of the fact of birth
o Once registered with the local civil registrar, it becomes a public
document
o Entries are only prima facie evidence and can be rebutted by
competent evidence
o Sec. 4 of Civil Registry Law:
! Declaration of the physician or midwife in attendance at the
birth, or the declaration of either parent shall be sufficient

for the registration.


Declaration exempt from documentary stamp tax
To be sent to local civil registrar not later than 30 days after
birth
! Date and hour of birth; sex and nationality of infant; names,
citizenship, religion of parents or by mother alone; civil
status of parents; place of birth; others.
! Exposed child " report to LCR the place, date, and hour of
finding
! Illegitimate child " birth certificate to be signed and sworn
to jointly by parents or only by the mother if father refuses;
in case father refuses, the document will not state the
name of the father or other info of the father
CONFIDENTIALITY OF BIRTH RECORDS.
o Birth records, including birth certificate, are strictly confidential;
contents cannot be revealed except when provided by law
o Even if confidential, still a public document because they can be
obtained by those interested via proper legal procedure
o Birth records are confidential. Can only be issued upon request of:
! Person himself
! Spouse, parent/s, direct descendants, guardian legally in
charge in case of minor
! Court or proper public official for necessary administrative,
judicial,and other proceedings to determine identity of the
childs parents
! Nearest of kin in case of death
Civil personality is extinguished by death.
!
!

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The effect of death upon the rights and obligations of the deceased is determined
by law, by contract and by will. (32a)
Death puts an end to civil personality.
DEATH CERTIFICATE.
o LCR of a city/municipality must have custody of the death
certificates of people who died in their locaclity.
o No human body shall be burired unless proper death certificate has
been presented and recorded in the LCR.
o Physcian or health officer or any family member shall report to
health authorities to issue a death certificate and will be recorded in
LCR.
! Epidemic: bodies may be buried, provided proper death
certificates have been secured which shall be registered
not later than 5 days after burial of the body.
CONTRACT, WILL, AND THE LAW.
o Rights and obligations of a dead person can still be regulated by

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contract, will, or law.


Thus: creditors have right to claim from estate
Thus: testator, through a will, can disinherit heirs on valid grounds
and control his properties even after death
o Thus: people who disrespect the dead, interferes in a funderal shall
be liable for damages
If there is a doubt, as between two or more persons who are called to succeed each
other, as to which of them died first, whoever alleges the death of one prior to the
other, shall prove the same; in the absence of proof, it is presumed that they died at
the same time and there shall be no transmission of rights from one to the other.
(33)
PROOF OF DEATH.
o Applies only to people called to succeed each other.
o Must be established by positive evidence.
o But can also be established by circumstantial evidence based on
facts. If inferences are made, must be from an existing fact
o Proof of death can never be established from mere inference
arising from another inference
Joaquin v. Navarro: death of mother and her son occurred during a
massacre, it was held that the son died before the mother.
CHAPTER 3: JURIDICAL PERSONS
The following are juridical persons:
o
o

Article
43

Article
44

(1) The State and its political subdivisions;


(2) Other corporations, institutions and entities for public interest or purpose,
created by law; their personality begins as soon as they have been constituted
according to law;

Article
45

(3) Corporations, partnerships and associations for private interest or purpose to


which the law grants a juridical personality, separate and distinct from that of each
shareholder, partner or member. (35a)
Juridical persons mentioned in Nos. 1 and 2 of the preceding article are governed
by the laws creating or recognizing them.
Private corporations are regulated by laws of general application on the subject.

Article
46

Partnerships and associations for private interest or purpose are governed by the
provisions of this Code concerning partnerships. (36 and 37a)
Juridical persons may acquire and possess property of all kinds, as well as incur
obligations and bring civil or criminal actions, in conformity with the laws and
regulations of their organization. (38a)
JURIDICAL PERSON
o Being of legal existence susceptible of rights and obligations or of

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being the subject of juridical relations


STATE
o State and its political subdivisions " JURIDICAL PERSONS
o Def. of state: sovereign person with the people composing it
viewed as an organized corporate society under a government with
the legal competence to exact obedience of its commands.
o political organization of a society legally supreme within and
independent of legal control from without
o can enter into treaties and contracts
o in default of persons entitled to succeed to the estate of the
deceased person, the State shall inherit his whole estate
o State cannot be sued without consent. How to consent?
! Express consent: general law or special law.
Ex. Money claims.
Law may be passed to enable a person to sue the
government from an alleged quasi-delict (Meritt v.
Government of the Philippine Islands; USA v.
Guinto)
! Consent: implied when government enters into business
contracts, descending into the level of the contracting party.
o Difference between suability and liability
! Suability: depends on consent of state to be sued, liability
on the applicable law and the established facts. When a
state is suable, doesnt mean it is liable. But, can never be
held liable if it never consented to be sued.
! When state waives sovereign immunity, it gives plaintiff
chance to prove that defendant is liable
o Philrock v. Board of Liquidators: even when government is liable, it
does not mean that judgment can be enforced by execution against
its funds as that would need appropriation from Legislature.
POLITICAL SUBDIVISIONS
o Municipal corporations " provinces, cities, municipalities
o Dual capacity
! Exercise right springing from sovereignty while
performing acts, these are political and governmental. They
are public functionaries performing public service and
officers and agents/servants of the state
! Exercise private, proprietary or corporate right, arising from
existence as legal persons and not as public agencies.
They can function on behalf of municipalities in their
corporate or individual capacity (not for the state of
sovereign power)
o Municipality of San Fernando v. Judge Firme: municipality sought
to be held liable for the damages caused by an employee driver,

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SC exonerated the municipality because it was exercising


governmental functions.
CORPORATION
o BP 68: Corporation Code of the Philippines
o Effective May 1, 1980
o GOCCs (PNB, DBP, PAGCOR, etc.) special legislation
o Corporation: artificial being created by operation of law, having the
right of succession and the powers, attributes, and properties
expressly authorized by law or incident to its existence
PARTNERSHIP
o 2 or more persons bind themselves to contribute
money/property/industry to a commond fund, with intention of
dividing profits among themselves
o 2 more persons may also form a partnership for the exercise of a
profession
DISTINCT PERSONALITY AND EXCEPTIONS
o They may be granted by a law a juridical personality
separate/distinct from each shareholder, partner, member.
o Obligation of corporation is obligation of the corporation alone
o But this can be pierced/disregarded.
Article
Upon the dissolution of corporations, institutions and other entities for public interest
47
or purpose mentioned in No. 2 of Article 44, their property and other assets shall be
disposed of in pursuance of law or the charter creating them. If nothing has been
specified on this point, the property and other assets shall be applied to similar
purposes for the benefit of the region, province, city or municipality which during the
existence of the institution derived the principal benefits from the same. (39a)
DISSOLUTION
o Governed by Title IV of the Corporation Code
o Governed in accordance with provision of their charters, or if none,
Corporation Code.
TITLE II. CITIZENSHIP AND DOMICILE
Article
The following are citizens of the Philippines:
48
(1) Those who were citizens of the Philippines at the time of the adoption of the
Constitution of the Philippines;

Article
49
Article
50
Article
51

(2) Those born in the Philippines of foreign parents who, before the adoption of said
Constitution, had been elected to public office in the Philippines;
(3) Those whose fathers are citizens of the Philippines;
(4) Those whose mothers are citizens of the Philippines and, upon reaching the age
of majority, elect Philippine citizenship;
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(5) Those who are naturalized in accordance with law. (n)


Naturalization and the loss and reacquisition of citizenship of the Philippines are
governed by special laws. (n)
For the exercise of civil rights and the fulfillment of civil obligations, the domicile of
natural persons is the place of their habitual residence. (40a)
When the law creating or recognizing them, or any other provision does not fix the
domicile of juridical persons, the same shall be understood to be the place where
their legal representation is established or where they exercise their principal
functions. (41a)
DOMICILE
o Domicile fixed permanent residence to which when absent one
has the intention of returning; residence coupled with intention to
remain for an unlimited time. No length of residence without
intention of remaining will constitute domicile.
o Residence indicate place of abode, whether temporary or
permanent
o Minors follow domicile of parents
o How to lose domicile of origin/how to change domicle?
! Actual removal or actual change of domicile
! Bona fide intention of abandoning the former place of
residence to establish new one
! Acts which correspond to the purpose
CITIZENSHIP
o Citizens of the Philippines (Art. IV of 1987 Constitution)
! Citizens at time of adoption of Consti
! Those whose parents are citizens of the PH
! Bore before January 17, 1973* (1973 Constitution was
enacted here) of Filipino mothers who elect Philippine
citizenship upon reaching age of majority
! Naturalized in accordance with the law
o Natural-born citizens citizens of the Philippines from birth without
having to perform any act to acquire/perfect their citizenship
o Citizenship may be lost/reacquired by law
o Filipinos who marry aliens shall retain citizenship unless by
act/omission deemed to have renounced it
o Dual allegiance of citizens is inimical to national interest and shall
be dealt with by law
JUS SANGUINIS
o Citizenship by blood is applied in the PH.
o Jus soli refers to citizenship on the basis of the place of birth.
ACQUISITION OF CITIZENSHIP
o Governed by Commonwealth Act No. 473: for a foreigner to
become a Philippine citizen, proper petition shall be filed and after
hearing shall be issued naturalization

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Qualifications (6)
1. Not less than 21 years old
2. Resided in the PH for a continuous period of not less than
10 years
3. Must be of good moral character and believes in
Constitution, must have conducted himself in a proper
manner during residence in the PH
4. Must own real estate in the PH not less than Php5,000 or
must know some lucrative trade, profession, or lawful
occupation (*** but foreigners now can only hold land if it
was inherited through succession)
5. Speaks and writes in English/Spanish AND any of the
principal Philippine languages
6. Enrolled minor children in a school recognized by the
government, where Philippine history, etc. are taught
o Special qualifications (5)
1. Held office under Government of the PH
2. Established a new industry or introduced a useful invention
3. Married to a Filipino woman
4. Engaged as a teacher in the PH which does not
discriminate based on nationality/race for not less than two
years
5. Born in the PH
o Disqualified (8)
1. People against organized government or affliated with
people who are
2. People who promote violence
3. Polygamists or believers of such
4. Persons convicted of crimes involving moral turpitude
5. Persons suffering from mental alienation/incurable disease
6. Those who have not mingled socially with Filipinos during
their stay here
7. Citizens of those whom the PH is at war with during war
8. Those countries which do no grant Filipinos right to
become naturalized citizens
LOSS AND REACQUISITION OF CITIZENSHIP
o Governed by Commonwealth Act No. 63, amended by RA 106
o Grounds for loss: (7)
1. Naturalization in a foreign country
2. Express renunciation of citizenship
3. Oath of allegiance to another country upon reaching age of
majority or more (not allowed to divest PH citizenship
during war)
4. Rendering service to or accepting commission in the armed
o

EO No.
209

Article 1

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forces of a foreign country


a. Except when with consent of the PH is given --when the other country has defensive/offensive
pact of alliance with the foreign country, foreign
country has armed forces in the PH with consent,
does so only with connection to service with said
country, during these times he cannot vote
5. Cancellation of certification of naturalization
6. Declared as deserter of AFP at time of war, unless given
plenary pardon/amnesty
7. Womans marraige to a foreigner if by their law, she will
acquire the husbands nationality upon marriage
o Gross for reacquisition
1. Naturalization (but should have no disqualification)
2. Repatriation of deserters
3. Number 7 of ground for loss when the marital status is
terminated
4. Direct act of Congress
THE FAMILY CODE OF THE PHILIPPINES
Drafted by Justice Jose B.L. Reyes, Justice Ricardo C. Puno, and Justice
Eduardo Caguioa
August 3, 1988: Family Code took effect on this date
December 18, 1989: RA 6809 took effect, amending Title X of the Family
Code on emancipation and age of majority
TITLE I. MARRIAGE
CHAPTER 1: REQUISITES OF MARRIAGE
Marriage is a special contract of permanent union between a man and a woman
entered into in accordance with law for the establishment of conjugal and family life.
It is the foundation of the family and an inviolable social institution whose nature,
consequences, and incidents are governed by law and not subject to stipulation,
except that marriage settlements may fix the property relations during the marriage
within the limits provided by this Code. (52a)
NATURE AND IMPORTANCE OF MARRIAGE.
o Through marriage, a man and woman enter a joint life living, acting,
and working as one.
o They become a single moral, spiritual and social being for
procreation and for mutual help and protection physically, morally,
and materially.
o Marriage is a CIVIL CONTRACT, regulated by law.
Difference between ordinary contract vs. marriage contract
Ordinary contract
Marriage contract
- has prescription
- no prescription period
- non-fulfillment entitles damages
- cannot be compelled to live together
- cannot be compelled to do it
but can be sanctioned

12%

- contract can be rescinded


- can be modified, restricted, enlarged
upon consent

- marriage subsists despite violations


incurred during marriage
- relation cannot be changed; once
formed, law steps in and holds the
parties various obligations and
liabilities
- not a usual contract, more of a social
relation from which obligations arise
because of the law itself
Marriage cannot be restricted by discriminatory policies of private
individuals or corporations.
o Philippine Telegraph and Telephone Company v. NLRC: company
disqualified from work any woman who contracts marriage. SC:
runs afoul constitution and State policy on marriage.
Marriage is not an ordinary contract
o Art. 349 of RPC: Bigamy
o Art. 350 of RPC: penalty for it is prision correccional for contracting
marriage knowing that laws have not been complied with
o Marriage Law of 1929: criminal penalties for erring persons who are
authorized to solemnize a marriage
o RA 6955 or law on Mail-Order Bride: law makes it a criminal
offense for any person to establish a business or aid a business
through adverts for the purpose of matching Filipino women to
foreign nationals.
o RA 9208 or Anti-Trafficking in Persons Act of 2003: introducing or
matching for money or other considerations any Filipino woman to
a foreign national for marriage to trade her in human exploitation.
o Art. 266-C of RPC, amended by RA 8353: subsequent valid
marriage in the crime of rape extinguishes criminal action or penalty
for rape, provided that marriage was not void ab initio.
Marriage creates a social statues or relation between the contracting parties
which the State is also interested in.
o Double status that affects two persons, and reflects upon the
statutes of another and the relation between them. " except for the
American divorce with a Filipina, which is valid in lieu of nationality
rule
The right to marry is a recognized fundamental human right under
international law
o Universal Declaration of Human Rights
o International Covenant on Economic, Social, and Cultural Rights
o International Covenant on Civil and Political Rights
It is also protected by the Philippine Constitution.
o Sec. 12, Art. II, Art. 15
o Right to enter into a marriage has been regarded as within the

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ambit of right of association.


Married couples have the right to privacy and are protected from all
undue and unwarranted government intrusion.
o The Constitution does not stop the legislative department from
creating divorce laws. They have plenary power to legislate this.
o While marriage creates a permanent union, it does not shed the
spouses integrity or privacy as private individuals.
! Zulueta v. CA: A wife, to get evidence of infidelity for legal
separation case, ransacked husbands office and took
documents addressed to the paramour, SC: wife cannot
use such evidence.
! Neither husband nor wife may tesitify for or against the
other without the consent of the affected spouse while
marriage subsists.
! Neither can they be examined as to any communication
received in confidence by one from the other during
marriage.
o Theres a difference with freedom of communication and
compulsion for one to share what he knows to another.
! Duncan v. Glazo: an employment contract requiring
employees to disclose relations with employees of
competing drug companies. SC: it was not a violation of
equal protection clause because the relationship may
compromise the interest of the company.
! Star Paper Corp. v. Simbol: company policy provided that
in case 2 employees get married, one should resign from
the company. SC: such policy is illegal as it failed to
provide a legititmate business concern for imposing such
policy.
Marriage is subject to control of legislature.
o 3 parties in a marriage: spouses and the State.
o State is concerned not only with validity but sustainability of
marriage.
o Art. 823: person executes a will and legacy is given to spouse; such
will will only take effect unless there are 3 competent witnesses
(lest it is VOID)
o Art. 874: an absolute condition to not contract a first or subsequent
marriage on a voluntary heir shall not be considered as written
UNLESS IMPOSED ON WIDOW/WIDOWER by the deceased
spouse or by the latters ascendants/descendants. In case
applicable to the exception, the marriage will NOT BE VOID, but
will only make ineffective the grant by the deceased spouse.
Except for property relations fixed in a marriage settlement, the nature,
consequence, and incidents of marriage as a social institution are governed
o

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by law and not subject to stipulations.


To create the husband and wife relation and give rise to mutual rights,
duties, and liabilities from that relation, there must be a valid marriage.
o In determining the validity of marriage, it is to be tested by the law
in force at the time of the marriage.
nd
o Gomez v. Lipana (1970): W/N 2 marriage is void and could be
subject of collateral attack. SC applied the law effective in 1935
Marriage Law of 1929, effective December 4, 1929.
o General rule: nature of the marriage already celebrated cannot be
changed by a subsequent amendment to the law.
o Repealing a statute prohibiting certain marriages does not operate
to make valid and effectual a marriage contracted previously in
violation.
o Ex. Marriage between step brothers and step sisters.
! Civil Code: marriage between stepbrother and stepsister
was void
! Family Code: they can now marry.
! But stepbrother and stepsister marriage under Civil Code
remains void.
o Ex. Art. 52 and 53 of Family Code
! Family Code: subsequent marriage is VOID if before
contracting marriage, former spouses failed to liquidate
their property after finality of decree and to deliver
presumptive legitime
! Civil Code: such provision did not exist
o Ex. Mistake in identity
! Civil Code: Instance of fraud which was an annullable
ground
! Family Code: it is already a ground to declare marriage
void ab initio
o Void marriages can never be ratified.
Art. 36: allows filing of petition to declare marriage voif even if ground was
not statutorily provided as basis
o Before, prescription period: 10 years after effectivity of code
o Amended by RA 8533 by deleting the 10 years prescription period
o Balogbog v. CA: a particular marriage should be proven in accord
to Art. 53-54 of Spanish Civil Code because this was in force at the
time of marriage. SC: Spanish Civil Code did not take effect
because the Spanish Gov. Gen. suspended that law. The case was
decided under the present Civil Code.
No marriage shall be valid, unless these essential requisites are present:
(1) Legal capacity of the contracting parties who must be a male and a female; and
(2) Consent freely given in the presence of the solemnizing officer. (53a)
The formal requisites of marriage are:

Article 2
Article 3

Article 4

Article 5
Article 6

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(1) Authority of the solemnizing officer;


(2) A valid marriage license except in the cases provided for in Chapter 2 of this
Title; and
(3) A marriage ceremony which takes place with the appearance of the contracting
parties before the solemnizing officer and their personal declaration that they take
each other as husband and wife in the presence of not less than two witnesses of
legal age. (53a, 55a)
The absence of any of the essential or formal requisites shall render the marriage
void ab initio, except as stated in Art. 35 (2).
A defect in any of the essential requisites shall not affect the validity of the marriage
but the party or parties responsible for the irregularity shall be civilly, criminally and
administratively liable. (n)
Any male or female of the age of eighteen years or upwards not under any of the
impediments mentioned in Articles 37 and 38, may contract marriage. (54a)
No prescribed form or religious rite for the solemnization of the marriage is required.
It shall be necessary, however, for the contracting parties to appear personally
before the solemnizing officer and declare in the presence of not less than two
witnesses of legal age that they take each other as husband and wife. This
declaration shall be contained in the marriage certificate which shall be signed by
the contracting parties and their witnesses and attested by the solemnizing officer.
In case of a marriage in articulo mortis, when the party at the point of death is
unable to sign the marriage certificate, it shall be sufficient for one of the witnesses
to the marriage to write the name of said party, which fact shall be attested by the
solemnizing officer. (55a)
Absence of essential requisites
Void ab initio
Absence of formal requiestes
Void ab initio
Defect in formal requisites
Voidable (Art. 45 & 46)
Irregularity in formal requisites
Irregular (no effects, but someone will
be liable)
LEGAL CAPACITY. The marrying age and age of majority is 18 years old
and above.
o Below 18, regardless of parents consent: VOID
o Incestuous marriage (Art. 37): VOID
o Contrary to public policy (Art. 38): VOID
CONTRACTING PARTIES MUST BE OF DIFFERENT SEX.
EFFECT OF SEX CHANGE.
o When should the gender identity of a conracting party to a marriage
be determined: at the time of a contracting part
o Silverio v. Republic (Oct. 22, 2007): petitioner biological sex change
through sex-reassignment surgery; petitioned for amendment of
birth certificate for change of sex to be able to marry the partner.

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SC: petition rejected; sex is determined by visually looking at the


genitals of the baby at the time of its birth. There is no law
recognizing reassignment.
o Republic v. Cagandahan (Sept. 12, 2008): petitioner has
Congenital Adrenal Hyperplasia (CAH), in which he/she has both
male and female characteristics and organs. It was shown that
although he/she has female organs, he/she secretes male
hormones, had no breasts, no menstruation, and felt like a male
person. SC: considered him as an intersex individual and
therefore allowed him to change his gender and name from
Jennifer to Jeff in his birth certificate.
CONSENT. Requirements of consent: (1) freely given; (2) made in the
presence of the SO.
o Art. 57, PD 603: Parents should not force or unduly influence him or
her to marry a person he or she has not freely chosen.
o Total absence of consent = void ab initio marriage
o Consent obtained through fraud, force, intimidation, undue
influence = annullable/voidable
o Free consent: contracting parties willingly and deliberately entered
into the marriage, both capable of intelligently understanding the
nature and consequence of the act.
o Consent need not be in any special manner of form, so long as
there is manifestation that they take each other as H&W
o In presence of SO so that they may have due publication before
third persons.
o They have to be personally present. Proxy marriages are
disallowed in the Philippines.
Authority of SO: formal requirement constitutes the ABSENCE OR
PRESENCE OF THE AUTHORITY OF THE SO. More on this in Art. 7.
o Local Government Code (January 1, 1992): mayor of a
city/municipality can solemnize a marriage
o Authority of the SO is presumed in the absence of any showing to
the contrary
o SO is not bound to investigate if marriage license (ML) has been
duly and regularly issued by the LCR (all he needs to know is that it
has been issued by the LCR and it may be presumed from the
issuance that LCR already ascertained that the contracting parties
fulfilled the requirements)
o Art. 29, 27, 28, 34 provide cases when obtaining ML is not required
(point of death situations, and cohabitation as H&W for at least 5
years)
o SO who solemnizes without authority, people who advertise
themselves as SO through signs/placards in office, residence or
newspapers " subject to criminal penalties of 1 month-2 years

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imprisonment; 200-2000 pesos penalty. Priests who violate such


law: disqualified from solemnizing marriages for 6 months to 6
years.
VALID MARRIAGE LICENSE. Must be issued by LCR of the place where
marriage application was filed.
o ML has a lifetime of 120 days, effective anywhere in the
Philippines. After 120 days and if unused, it will be canceled.
o Date of issue = date of signing of the marriage license by the LCR.
o ML not effective for marriage solemnized abroad.
o Other requirements for issuance of ML are mere directory. Nonobservance " mere irregularity which will not render the marriage
void or annullable.
o IF ML IS ISSUED IN A PLACE WHEREIN THE CONTRACTING
PARTIES DO NOT RESIDE, and marriage is performed on the
basis of such marriage license " marriage still VALID
o If ML stipulates the wrong name (wrong spelling, etc.) " marriage
STILL VALID
o If ML stipulates wrong age, provided that age was above the
marrying age or between 18-21 and stipulated an older age to
escape the need for parents consent " marriage STILL VALID
(but marriage is annullable not because of the error in the ML, but
because of Art. 45)
o If ML application.... " STILL VALID
! Did not disclose prior marriage or divorce
! Flasley stated that he/she had not been previously married
! Misrepresented his/her residence
! Falsely swore that he/she was not under guardianship
! Forged his/her father/mothers consent to marriafge
o If ML concealed that they are of same sex " marriage is VOID
MARRIAGE CEREMONY. Family Code only recognizes ceremonial
marriages, or marriages solemnized by persons duly authorized by the
state.
o No prescribed form of marriage ceremony
o Minimum requirement: parties appear personally before the SO;
declare that they take each other as H&W; in the presence of 2
witnesses of legal age
o Declaration of consent: need not be vocally expressed; can be
shown through other signs of approval. They may signify by
whatever ceremony they may select. It is the agreement itself which
constitutes the contract.
o Failure to sign a marriage certificate or absence of the marriage
certificate does not render the marriage void or annullable.
WITNESSES IN A MARRIAGE CEREMONY. No less than 2 witnsses of
legal age.

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Absence of witnesses " void marriage SUPPOSEDLY but it can


be argued
o Absence of 2 witnesses " merely an irregularity, shall not affect
validity of marriage but would make parties civilliy, criminally,
administratively liable (seems that the SC favors this)
o Balogbog v. CA: contended that marriage did not exist because no
evidence that they declared each other as H&W. SC: exchange of
vows can be presumed to have been made from the testimonies of
the witnesses.
COMMON-LAW MARRIAGES; NOT RECOGNIZED.
o Common-law marriage non-ceremonial/informal marriage by
agreement, entered into by man and woman with capacity to marry,
without compliance with statutory formalities pertaining to marriage
license.
! Coupled by consummation (includes cohabitation as H&W)
! Reputation (public recognizes the marital status)
o Common-law marriages in England and US are not recognized in
the PH because that marriages are authorized by the state is an
indispensable requisite for valid marriage in the PH.
o Use of the word spouses and Husband and wife in the Civil
Code only refers to H&W lawfully married to Philippine laws and not
common-law marriages
ABSENCE, DEFECT, IRREGULARITIES IN ESSENTIAL AND FORMAL
REQUIREMENTS
o Marriage using expired marriage license " VOID marriage (no ML)
o Marriage by way of jest " VOID marriage (no real consent)
o Marriage by proxy " VOID marriage (no consent freely given to SO
and absence of personal declaration.)
o EXCEPTIONS
! VALID: marriages in articulo mortis and marriages among
Muslims and other ethnic/cultural minorities performed in
accordance with their practices
! VALID: marriage solemnized by person with no SO,
provide that either 1 is in good faith that SO has proper
authority
o Judge solemnizes marriage without seeing the ML and requires
only submission after ceremony " improper acts
! If parties really had a ML, marriage " valid marriage; no
ML is just irregularity
! If parties really DO NOT have a ML, and judge requires to
procure such ML after the ceremony " VOID MARRIAGE
o Judge did not sign and date the marriage contract, did not furnish
the parties and LCR with copies " administratively liable
IRREGULARITIES WHICH DO NOT AFFECT VALDIITY OF MARRIAGE
o

Article 7

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1. Absence of 2 witnesses of legal age dyring marriage ceremony


2. Absence of Marriage Certificate
3. Marriage solemnized in a place other than chambers of the judge,
or in open court, in church, chapel, or temple, or in the office of the
consul-general, consul, or vice-consul
4. Issuance of marriage license in city or municipality NOT THE
RESIDENCE of either contracting parties
5. Unsworn application for ML
6. Failure of contracting parties to present original birth or baptismal
certificate who failed to ask for it
7. Failure of contracting parties bet. 18-21 to exhibit consent of
parents or persons with legal charge to the LCR
8. Failrure of contracting parties between 21-25 to exhibit advice of
parents to LCR
9. Failure to undergo marriage counseling
10. Failure of LCR to post required notices
11. Issuance of ML despite absence of publication or prioer completion
of 10-day period for publication
12. Failure of contracting parties to pay prescribed fees for ML
13. Failure of person SO tosend cpies fo MC to the LCR
14. Failure of the LCR to enter the application for marriages filed with
him in the registry book on which they were received.
BREACH OF PROMISE TO MARRY. Mere breach of promise is not an
actionable wrong.
o Aggrived party cannot file a case to compel the one who breached
the promise to enter into the marriage contract (RamierezCuaderno v. Cuaderno)
o Actual damages were awarded to plaintiff for expenses incurred to
the preparation of the wedding. (Wassmer v. Velez)
Marriage may be solemnized by:
(1) Any incumbent member of the judiciary within the court's jurisdiction;
(2) Any priest, rabbi, imam, or minister of any church or religious sect duly
authorized by his church or religious sect and registered with the civil registrar
general, acting within the limits of the written authority granted by his church or
religious sect and provided that at least one of the contracting parties belongs to the
solemnizing officer's church or religious sect;
(3) Any ship captain or airplane chief only in the case mentioned in Article 31;
(4) Any military commander of a unit to which a chaplain is assigned, in the absence
of the latter, during a military operation, likewise only in the cases mentioned in
Article 32;
(5) Any consul-general, consul or vice-consul in the case provided in Article
10.(56a)
AUTHORIZED SOLEMNIZERS OF MARRIAGE.
o Why the need for authorization: marriage is considered as involving

16%

questions of public policy


State is interested party of the marriage and its consent is essential
to the marriage; consent of State is manifested through the SO who
solemnizes the marriage; while in annulment cases, consent of
State is manifested through the courts
JUDGES
o Only within their courts jurisdiction (even if outside the office, as
long as within said areas)
o Must be incumbent and NOT retired judges
o CTA, CA, Sandiganbayan, SC " national scope
o If solemnized by a judge outside his jurisdiction, marriage " VOID
because of absence of AUTHORITY of SO (this is according to the
CODE)*
o Obiter dictum of judge in Navarro v. Domagotoy is WRONG (says
that its just an irregularity)*
o Reprehensible and irregular for a judge to collect fees after
solemnizing a marriage
* if this is asked in midterms/finals, answer BOTH
MINISTER OF ANY RELIGIOUS SECT
o Requisites for a priest to validly solemnize marriage:
! Duly authorized by his/her church or religious sect** may
impose limitation as to the place where he/she can
solemnize a marriage
! Must act within the limits of the written authority granted to
him by his religious sect
! Must be registered with the civil registrar general
! At least one of the contracting parties whos marriage he or
she is to solemnize belongs to the sect
o Can you invoke Art. 35(2) if couple got married not part of the sect?
No because theyre not in good faith. Ignorance of the law excuses
no one.
SHIP CAPTAIN OR AIRPLANE CHIEF
o Requisites:
! Marriage must be in articulo mortis (one of the parties is at
the point of death)
! Marriage must be between passengers or crew members
! Generally, ship must be at sea or in flight. But stopovers at
ports of call is okay too.
o Assistant pilot has no authority because law only allows chief of the
plane to do so.
MILITARY COMMANDER
o Requisites:
! Military commander of a unit (but can also solemnize even
if the contracting parties are NOT part of his unit)

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Must be a commissioned officer (second lieutenant and up)


Chaplain is assigned to the unit (battalion under the
present table of org, not just a mere company)
! The chaplain is absent at the time of the marriage (if
chaplain is present, he should be the one to solemnize the
marriage but he must comply with Art. 7(2). So if he cannot,
military commander OK)
! Marriage must be one in articulo mortis
! Contracting parties, whether members of the armed forces
or civilians, must be within the zone of military operation
(zone implies widespread military activity over the area and
does NOT refer to a simulated exercise; shall also include
maneuvers, police actions, declared/undeclared wars, civil
war, rebellion, etc.)
CONSUL-GENERAL, CONSUL, VICE-CONSUL
o Can only solemnize when both contracting parties are Filipino
citizens
o Solemnizer + civil registrar duties
o In such ceremonies, Philippine laws are applicable, hence:
! They must appear in the SOs office abroad
! Declared in presence of 2 legal witnesses
! Personal appearance
o Declaration to be in the marriage contract, signed by contracting
parties, witnesses, and attested by SO
o If outside the office of the consuls office " request the said official
in writing in which case the marriage be solemnized at a
house/place designated by them in a sworn statement
o Marriage between Filipino and foreigner by consul abroad is VOID.
Why? Authority of consul as SO limited to Filipino citizens.
! Exception: if marriage between such solemnized by
Philippine consul is recognized as valid in the host country,
then such marriage is VALID in the PH, pursuant to Art. 26
of Family Code
o Authority only ABROAD, not in the PH
MAYOR of a city or municipality
o Because of Local Government Code
o Effective: January 1, 1992
o When mayor is incapacitated to perform his duties for physical or
legal reasons (such as, but not limited to, LOA, abroad, suspension
from office) VM automatically exercise the powers and perform the
duties of the Mayor concerned, except: power to appoint, suspend,
dismiss employees (which can only be exercised if Mayors
incapacity exceeds 30 days). In this case, VM can also solemnize a
marriage
!
!

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GOOD FAITH OF PARTIES


o But if marriage was solemnized by a person NOT LEGALLY
AUTHORIZED to do so, and EITHER of the contracting parties
believed in good faith that he/she had the authority, marriage "
VALID (See Art. 35(2))
The marriage shall be solemnized publicly in the chambers of the judge or in open
court, in the church, chapel or temple, or in the office the consul-general, consul or
vice-consul, as the case may be, and not elsewhere, except in cases of marriages
contracted on the point of death or in remote places in accordance with Article 29 of
this Code, or where both of the parties request the solemnizing officer in writing in
which case the marriage may be solemnized at a house or place designated by
them in a sworn statement to that effect. (57a)
VENUE.
o Art. 8 is directory in nature. Non-observance will not invalidate
marriage.
o But can subject the person/s who cause the violation to civil,
criminal, administrative liability
o Exception is articular mortis or when BOTH parties request a SO in
writing in which case the marriage be solemnized elsewhere.
A marriage license shall be issued by the local civil registrar of the city or
municipality where either contracting party habitually resides, except in marriages
where no license is required in accordance with Chapter 2 of this Title. (58a)
PLACE OF ISSUE.
o Should get the ML from LCR of the city/municipality where EITHER
resides.
o If obtained elsewhere, merely an IRREGULARITY.
Marriages between Filipino citizens abroad may be solemnized by a consul-general,
consul or vice-consul of the Republic of the Philippines. The issuance of the
marriage license and the duties of the local civil registrar and of the solemnizing
officer with regard to the celebration of marriage shall be performed by said
consular official. (75a)
CONSULAR OFFICIALS.
o Duties of LCR and SO are performed by consul-general, consul,
vice-consul of the Philippines abroad.
o They issue both ML and solemnizes the marriages of the
contracting parties WHICH BOTH NEED TO BE FILIPINOS.
o Shall be deemed to be in accordance with Philippines laws
because of Art. 17 of Civil Code re: extrinsic validity of contracts
Where a marriage license is required, each of the contracting parties shall file
separately a sworn application for such license with the proper local civil registrar
which shall specify the following:
(1) Full name of the contracting party;
(2) Place of birth;
(3) Age and date of birth;

Article 8

Article 9

Article
10

Article
11

Article
12

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(4) Civil status;


(5) If previously married, how, when and where the previous marriage was
dissolved or annulled;
(6) Present residence and citizenship;
(7) Degree of relationship of the contracting parties;
(8) Full name, residence and citizenship of the father;
(9) Full name, residence and citizenship of the mother; and
(10) Full name, residence and citizenship of the guardian or person having charge,
in case the contracting party has neither father nor mother and is under the age of
twenty-one years.
The applicants, their parents or guardians shall not be required to exhibit their
residence certificates in any formality in connection with the securing of the
marriage license. (59a)
PURPOSE OF DOCUMENTARY REQUIREMENTS
o To make marriages the secure and stable institution it should be
o Proper documents are mainted to serve as proofs of their existence
o To discourage deception and seduction, prevent illicit intercourse
under the guise of matirtomy and relieve from doubt the status of
parties who live together as man and wife by providing competent
evidence of mariages
o Also used as evidence of the status and legitimacy of the offsprings
MARRIAGE APPLICATION.
o Can be obtained by anyone.
o Once signed and sworn into and filed, LCR has no choice but to
accept the application and process it until ML is issued.
o If legal impediment is known, LCR cannot discontinue processing.
Must only note down the impediment and issue marriage license
UNLESS STOPPED BY THE COURT
The local civil registrar, upon receiving such application, shall require the
presentation of the original birth certificates or, in default thereof, the baptismal
certificates of the contracting parties or copies of such documents duly attested by
the persons having custody of the originals. These certificates or certified copies of
the documents by this Article need not be sworn to and shall be exempt from the
documentary stamp tax. The signature and official title of the person issuing the
certificate shall be sufficient proof of its authenticity.
If either of the contracting parties is unable to produce his birth or baptismal
certificate or a certified copy of either because of the destruction or loss of the
original or if it is shown by an affidavit of such party or of any other person that such
birth or baptismal certificate has not yet been received though the same has been
required of the person having custody thereof at least fifteen days prior to the date
of the application, such party may furnish in lieu thereof his current residence
certificate or an instrument drawn up and sworn to before the local civil registrar
concerned or any public official authorized to administer oaths. Such instrument

18%

shall contain the sworn declaration of two witnesses of lawful age, setting forth the
full name, residence and citizenship of such contracting party and of his or her
parents, if known, and the place and date of birth of such party. The nearest of kin
of the contracting parties shall be preferred as witnesses, or, in their default,
persons of good reputation in the province or the locality.

Article
13

Article
14

The presentation of birth or baptismal certificate shall not be required if the parents
of the contracting parties appear personally before the local civil registrar concerned
and swear to the correctness of the lawful age of said parties, as stated in the
application, or when the local civil registrar shall, by merely looking at the applicants
upon their personally appearing before him, be convinced that either or both of
them have the required age. (60a)
In case either of the contracting parties has been previously married, the applicant
shall be required to furnish, instead of the birth or baptismal certificate required in
the last preceding article, the death certificate of the deceased spouse or the judicial
decree of the absolute divorce, or the judicial decree of annulment or declaration of
nullity of his or her previous marriage.
In case the death certificate cannot be secured, the party shall make an affidavit
setting forth this circumstance and his or her actual civil status and the name and
date of death of the deceased spouse. (61a)
In case either or both of the contracting parties, not having been emancipated by a
previous marriage, are between the ages of eighteen and twenty-one, they shall, in
addition to the requirements of the preceding articles, exhibit to the local civil
registrar, the consent to their marriage of their father, mother, surviving parent or
guardian, or persons having legal charge of them, in the order mentioned. Such
consent shall be manifested in writing by the interested party, who personally
appears before the proper local civil registrar, or in the form of an affidavit made in
the presence of two witnesses and attested before any official authorized by law to
administer oaths. The personal manifestation shall be recorded in both applications
for marriage license, and the affidavit, if one is executed instead, shall be attached
to said applications. (61a)
NO EMANCIPATION BY MARRIAGE
o Before, it was allowed. Under Family Code, NOT anymore.
o Emancipation is attained if the child reached 18 years old
PARENTAL CONSENT
o If any of the contracting parties is at least 18 and above but below
21, to be issued a ML, the consent of the ff in this order is needed
! FATHER
! MOTHER
! SURVIVING PARENT
! GUARDIAN OR PERSONS HAVING LEGAL CHARGE OF
THEM
o Non-compliance (no consent, or pushed through even if consent is

Article
15

Article
16

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not asked at all), marriage " ANNULLABLE only OR irregularity


only in a formal requirement
o Why? Because effect of statutes forbidding the issuance of ML
without consent is DIRECTORY only
o Parental consent is REQUIRED but does not add anything to the
legal capacity of the parties
o Requirement of parental consent " may not be licensed to marry
upon their own consent alone but that the consent of parents must
be added; lack of consent will not invalidate marriage BUT THOSE
WHO NEGLECT TO ACQUIRE IT WILL FACE PENALTIES OF
THE LAW
o Even if with consent but BELOW 18 " VOID
What if father disagrees and mother agrees, what will LCR do?
o Delay issuance for 3 months
Any contracting party between the age of twenty-one and twenty-five shall be
obliged to ask their parents or guardian for advice upon the intended marriage. If
they do not obtain such advice, or if it be unfavorable, the marriage license shall not
be issued till after three months following the completion of the publication of the
application therefor. A sworn statement by the contracting parties to the effect that
such advice has been sought, together with the written advice given, if any, shall be
attached to the application for marriage license. Should the parents or guardian
refuse to give any advice, this fact shall be stated in the sworn statement. (62a)
In the cases where parental consent or parental advice is needed, the party or
parties concerned shall, in addition to the requirements of the preceding articles,
attach a certificate issued by a priest, imam or minister authorized to solemnize
marriage under Article 7 of this Code or a marriage counselor duly accredited by the
proper government agency to the effect that the contracting parties have undergone
marriage counseling. Failure to attach said certificates of marriage counseling shall
suspend the issuance of the marriage license for a period of three months from the
completion of the publication of the application. Issuance of the marriage license
within the prohibited period shall subject the issuing officer to administrative
sanctions but shall not affect the validity of the marriage.
Should only one of the contracting parties need parental consent or parental advice,
the other party must be present at the counseling referred to in the preceding
paragraph. (n)
PARENTAL ADVICE. Absence of the advice does not affect the marriage,
not even annullable.
It is in the law to keep with the Philippine tradition and to induce further and
more mature deliberation of their decision to get married.
RA 10354, Sec. 15: no ML unless certificate of compliance re: attending
Responsible Parenthood seminar is presented
o Thus, there are 2 counseling: MARRIAGE, FAMILY PLANNING
DIFFERENCE BETWEEN PARENTAL CONSENT AND PARENTAL

19%

Article
17

Article
18

ADVICE
o If no consent " CANNOT WITHHOLD ML (unless father disagrees
but mother agrees can withhold for 3 months)
o If no parental advice " CAN WITHHOLD ML FOR 3 MONTHS
The local civil registrar shall prepare a notice which shall contain the full names and
residences of the applicants for a marriage license and other data given in the
applications. The notice shall be posted for ten consecutive days on a bulletin board
outside the office of the local civil registrar located in a conspicuous place within the
building and accessible to the general public. This notice shall request all persons
having knowledge of any impediment to the marriage to advise the local civil
registrar thereof. The marriage license shall be issued after the completion of the
period of publication. (63a)
DUTY OF THE LCR.
o After filling up and submission of marriage application to LCR "
post a notice to inform everyone re: impending marriage and
torequest for information re: legal impediments of the parties and
advise LCR thereof
o Requirements:
! 10 consecutive days
! Bulletin board outside the office of the LCR
! Located in a conspicuous place in the building
! Accessible to the public
o After publication, ML is issued.
o If 21-25 year olds do not obtain PARENTAL ADVICE or if advice is
UNFAVORABLE, issuance of ML not until 3 months following
completion of publication of application
! However, if ML was issued all the same and parties marry
using such within the 120-day period, marriage " VALID
o Failure to obtain parental consent for 18-21 year olds, and failure to
provide certification that they have undergone marriage counseling
" LCR to suspend issuance of ML for 3 months from the
completion of publication of application
! If LCR issues ML earlier than 3 months, issuing officer
liable administratively. BUT MARRIAGE " VALID.
What if you get the ML youre still under 17 but youre 18 when you get
married (after 120 days?) Is marriage valid? Can LCR issue a ML despite
not being of age? MY HUMBLE OPINION: I THINK NOT!
In case of any impediment known to the local civil registrar or brought to his
attention, he shall note down the particulars thereof and his findings thereon in the
application for marriage license, but shall nonetheless issue said license after the
completion of the period of publication, unless ordered otherwise by a competent
court at his own instance or that of any interest party. No filing fee shall be charged
for the petition nor a corresponding bond required for the issuances of the
order. (64a)

Article
19

Article
20

Article
21

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The local civil registrar shall require the payment of the fees prescribed by law or
regulations before the issuance of the marriage license. No other sum shall be
collected in the nature of a fee or tax of any kind for the issuance of said license. It
shall, however, be issued free of charge to indigent parties, that is those who have
no visible means of income or whose income is insufficient for their subsistence a
fact established by their affidavit, or by their oath before the local civil
registrar. (65a)
INVESTIGATIVE POWER OF LCR AND COURT INTERVENTION
o In case of impediment, LCR " only notes down the particulars and
findings in the application for ML and duty bound to ISSUE license
after payment of necessary fees (except when indigent), after
completion of publication, or after 3 months after publication (if
applicable)
o Law does not restrain LCR from investigating but LCR is prohibited
from withholding the ML despite legal impediment
! Because to limit opportunity for extortion
! Giving leeway to LCR could be a source of graft
o Only COURT INTERVENTION can empower LCR to validly refuse
to issue the ML
! May be prompted by LCR or any interested party
(contracting parties parents, brothers and sisters, existing
spouse if any, or those who may be prejudiced by the
marriage)
! NO filing fee for such petition AND NO bond required for
issuance of the order
o If despite injunction from court, LCR issues license, marriage "
VALID (because validity of ML not affected by violation of injuction)
and MERE irregularity
CRIMINAL LIABILITY OF LCR: 1 month to 2 years imprisonment, fine
Php200-2000
The license shall be valid in any part of the Philippines for a period of one hundred
twenty days from the date of issue, and shall be deemed automatically canceled at
the expiration of the said period if the contracting parties have not made use of it.
The expiry date shall be stamped in bold characters on the face of every license
issued. (65a)
Valid only in the Philippines and NOT ABROAD
Good for 120 days from date of issue
After 120 days " ineffective
When either or both of the contracting parties are citizens of a foreign country, it
shall be necessary for them before a marriage license can be obtained, to submit a
certificate of legal capacity to contract marriage, issued by their respective
diplomatic or consular officials.
Stateless persons or refugees from other countries shall, in lieu of the certificate of
legal capacity herein required, submit an affidavit stating the circumstances showing

20%

Article
22

Article
23

such capacity to contract marriage. (66a)


CERTIFICATE OF AFFIDAVIT OF LEGAL CAPACITY
o Foreigners can contract marriage in the PH
o If both foreigners + want to be married under either MINISTER OF
RELIGIOUS SECT / MAYOR " submit certificate of legal capacity
to LCR " secure ML in the PH
o Certificate of legal capacity: necessary because PH adheres to the
national law of the contracting parties with respect to their legal
capacity to contract marriage
! Ex. If 16 y/o can marry under Country A, this person can
marry in the PH despite being 16, provided certificate is
shown, and ML is secured
o No certificate of LC " no issuance of ML
o BUT if ML still issued even without certificate of LC, marriage "
VALID (irregularity in formal requirement only)
o Stateless persons/refugees " file affidavit stating circumstances
showing capacity to contract marriage in lieu of certificate of LC
o If FOREIGNERS solemnized by their consul-general assigned in
the PH, NO NEED FOR ML if their law allows it. This marriage will
be recognized in the PH
The marriage certificate, in which the parties shall declare that they take each other
as husband and wife, shall also state:
(1) The full name, sex and age of each contracting party;
(2) Their citizenship, religion and habitual residence;
(3) The date and precise time of the celebration of the marriage;
(4) That the proper marriage license has been issued according to law, except in
marriage provided for in Chapter 2 of this Title;
(5) That either or both of the contracting parties have secured the parental consent
in appropriate cases;
(6) That either or both of the contracting parties have complied with the legal
requirement regarding parental advice in appropriate cases; and
(7) That the parties have entered into marriage settlement, if any, attaching a copy
thereof. (67a)
It shall be the duty of the person solemnizing the marriage to furnish either of the
contracting parties the original of the marriage certificate referred to in Article 6 and
to send the duplicate and triplicate copies of the certificate not later than fifteen days
after the marriage, to the local civil registrar of the place where the marriage was
solemnized. Proper receipts shall be issued by the local civil registrar to the
solemnizing officer transmitting copies of the marriage certificate. The solemnizing
officer shall retain in his file the quadruplicate copy of the marriage certificate, the
copy of the marriage certificate, the original of the marriage license and, in proper
cases, the affidavit of the contracting party regarding the solemnization of the
marriage in place other than those mentioned in Article 8. (68a)
PRESUMPTION OF MARRIAGE

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ALWAYS PRESUME MARRIAGE / SEMPER PRESUMITUR PRO


MATRIMONIO
o It is presumed that a man and a woman deporting themselves as
H&W have entered into a contract of marriage lawfully
o Presumption considered satisfactory if uncontradicted but may be
contradicted and overcome by evidence.
o Law and public policy favor matrimony.
o Law presumes morality, not immorality, marriage and not
concubinage, legitimacy and not bastardy.
o Presumption gains strength trhough lapse of time
o Balogbog v. CA (1997): Credible testimony stating that a wedding
took place gives presumption that exchange of vows was made
declaring each other as H&W
PROOF OF MARRIAGE
o May be proved by evidence of any kind
o Primary or best evidence of marriage is the marriage
contract/certificate
o Mere photocopy from the LCR is not admissible but if it came from
the LCR and is duly certified, it is admissible.
o If not certified and was presented in the court but not objected, the
photocopy is sufficient proof.
o Baptismal certificates, birth certificates, judicial decisions, family
bible in which the names of the sposuses have been entered are
good evidences of marriage.
! Vda. De Chua v CA (1998): But TCTs, residence
certificates, passports, etc. cannot prove marriage
(especially when it has been certified by LCR that theres
no MC registered)
o Certificate of marriage made many years after marriage is
inadmissible especially when not registered in official records
o Failure to present MC is not fatal. Parties can still rely on
presumption of marriage.
! Rivera v. IAC: X cannot present his parents MC bcause
the MC was burned durig the war. Even then, marriage is
presumed because the parents lived for many years,
begetting 7 children.
o Delgado Vda. Dela Rosa v. Heirs of Mariciana Rustia Vda. De
Damian (2006): absence of record of the marriage was asserted to
assail the existence of marriage, SC reviewed the evidence and
rejected the assertion. While MC is a primary evidence of marriage,
its absence is not always proof that no marriage took place.
Presumption of marriage arises. Evidence need not establish the
marriage but must be enough to strenthten the assumption.
o Marriage may be proved by parol evidence.
o

21%

Testimony of the witness or the SO is admissible. But the


testimonies must be credible and witnesses, credible too.
o People v. Ignacio (1997): fact of marriage was established y the SC
on the basis of oral testimony of the witnesses such as the son and
the wifes
o Young v. Mapayo (2000): Complainant is bound by his admission of
the fact of marriage occurring on a specific date
o Pugeda v. Trias: public and open cohabitation and birth certificate +
baptismal certificate of their children, statement of marriage in
documents " proves fact of marriage
o Son Cui v. Guepangco: solemn statement in the will of a decease
as to his marriage is also admissible
o Santiago v. Cruz; US v Evangelista: mere cohabitation not direct
proof of marriage; muts be proved by documents or oral testimony
if such documents are lost
o Cohabitation must be more than mere living together, must be an
association consciously and openly as H&W
PROOF TO ATTACK VALIDITY OF MARRIAGE
o When assailing validity of marriage, required to make plain, against
contract pressure of presumption of legality, the truth of law and
fact that the marriage was not legal.
o Evidence to repel presumption must be strong, distinct, and
satisfactory
o Sy v. CA (2000): in petition for nullity of marriage based on
nd
psychological capacity, when a 2 assertion was made in appeal to
SC with regard to ML, it was accepted because there clearly was
no ML at time of marriage ceremony
o People v Janssen: ML obtained from place which is not the
residence of any party is merely an irregularity but such
circumstance necessitate further investigations as to its authenticity
o RP v CA and Castro: Offical certification from LCR re: ML not
located OR was issued to another couple OR was spurious and
fabricated " convincing evidence to destroy validity of marriage on
the ground of no ML
o Nicdao Carino v Carino: MC did not indicate the ML and LCR
cannot find the ML, sufficient to prove non-issuance of ML
o Sevilla v Cardenas: LCR cannot find ML due to work load of the
office, SC did not allow nullity of marriage because it did not
categorically show that there was no ML
o Sy Joe Lieng v. Sy Quia: marriage + 40-year married life cannot be
discredited through an alleged prior Chinese marriage unless there
was a clear, strong, unequivocsal proof to produce existence of
impediment
o Fernandez v. Puatu: presumption of marriage through cohabitation
o

Article
24
Article
25

Article
26

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may be considered offset by the fact that they lived separately for
the last 35 years of their lives and away from each other
o Sarmiento v. CA: while birth certificate has probative value of
marriage, a TCT indicating that the husband is a widower
preponderated in favor of assertion that theres no marriage
DECLARATORY RELIEF
o If they are unsure if they can proceed with marriage, they can file
for declaratory relief to seek court judgment on their capacity to
marry
It shall be the duty of the local civil registrar to prepare the documents required by
this Title, and to administer oaths to all interested parties without any charge in both
cases. The documents and affidavits filed in connection with applications for
marriage licenses shall be exempt from documentary stamp tax. (n)
The local civil registrar concerned shall enter all applications for marriage licenses
filed with him in a registry book strictly in the order in which the same are received.
He shall record in said book the names of the applicants, the date on which the
marriage license was issued, and such other data as may be necessary. (n)
EFFECT OF DUTY OF LCR
o LCR issuances are given high probative value
o Absence of marriage license in the LCR is enough to declare the
marriage void
MARRIAGE REGISTER
o Register of all persos married in the locality
o Included: full name, address, ages, place and date of marriage,
names and address of witnesses, full name and address of parents
if spouses 18-21, full name,title, address of SO
All marriages solemnized outside the Philippines, in accordance with the laws in
force in the country where they were solemnized, and valid there as such, shall also
be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and
(6), 3637 and 38. (17a)
Where a marriage between a Filipino citizen and a foreigner is validly celebrated
and a divorce is thereafter validly obtained abroad by the alien spouse capacitating
him or her to remarry, the Filipino spouse shall have capacity to remarry under
Philippine law. (As amended by Executive Order 227)
VALIDATION PROVISION
o Lex loci celebrationis rule valid marriages solemnized abroad are
recognized in the PH
MATTER OF INTERNATIONAL COMITY
o Recognized because of comity or because public policy and justice
demand the recognition of such laws
o Marriages without ML are valid abroad
EXCEPTIONS
o Marrying in a place where marriage below 18 years old is OK, and

22%

both parties are Filipino and are below 18 years old " marriage
NOT VALID even if ML was granted to them
! Why not applicable for Filipino-foreigner marriage?
Because if Art. 35(1) is followed, nationality law will not be
respected
o Bigamous and polygamous marriages even if valid abroad, NOT
VALID in the PH
! Bigamy: person contracts another marriage before former
was legally dissolved or before spouse was declared
presumptively dead by means of judgment from a proper
proceeding
! Polygamy: act or state of a person who knowing that
he/she has 2 or more wives/husbands, marries another
! Art. 41: bigamous marriage MAY BE recognized when
before celebration of new marriage, one of the spouses
was absent for 4 consecutive years or 2 consecutive years
in cases where there is danger of death AND the spouse
present has a well-founded belief that the absent spouse
was already dead, and therefore obtains a judicial
nd
declaration of presumptive death and marries again. 2
marriage is VALID without prejudice to the reappearance of
the absentee spouse
nd
! If the 2 marriage was contracted abroad, the person is
NOT criminally bigamous but CIVILLY bigamous
o Marriage abroad where there is mistake of identity of the other
party is not recognized, even if it was the foreigner-spouse who
made the mistake
o When a marriage was annulled or declared null and void but failed
to record judicial decree with LCR, partition and distribute
properties, deliver childrens presumptive legitime, ANY
SUBSEQUENT MARRIES OF EITHER SPOUSE IS VOID (Art. 53
and 52)
o Marriage by a Filipino to a person who is PSYCHOLOGICALLY
INCAPACITATED to erform essential marital obligations abroad,
even if valid in the foreign country where it has been solemnized;
applies also if it is the Filipino who is psychologically incapacitated
o Incestuous marriages or those between ascendants, descendants
of any degree, as well as brothers and sisters, whether of full or half
blood are not considered valid here even if allowed in the country
o Marriages void under Philippine laws for being against public policy
even if it is legal in the country where it was solemnized
COMMON-LAW MARRIAGE OBTAINED ABROAD VALID IN THE PH?
o Should not be recognized because it can be argued that such
marriages were not solemnized, which was the wording used by

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Art. 26, as common law marriages did not undergo the process of
solemnization in another state
o Read the rest of the commentary in the book.
SAME SEX MARRIAGE OF FILIPINOS ABROAD ARE INVALID
o Public policy in the PH mandates that only a man and woman can
marry each other
PROOF OF FOREIGN MARRIAGE
o To establish the validity of the marriage pursuant to comity, it is
necessary to prove the foreign law as a question of fact and to
prove the celebration of marriage through convincing evidence
o Presumption of marriage being performed validly according to the
law of that jurisdiction arises upon proof of a marriage
o If the law is not pleaded or proved, the laws in that state, absence
of proof to the contrary, will be presumed by the court to be the
same as the laws of its own state (PH)
o Wong Woo Yin v. Vivo: Chinese woman claims they were married
before a village leader but has no proof. Since theres no proof, in
order for the marriage to be considered valid, it has to be in-line
with PH laws. Since village leaders are not authorized to solemnize
in PH, said marriage was not considered valid.
o Yao kee v. Sy-Gonzales: Burden of proof to show fact of marriage
and the foreign marital law falls upon the one who asserts the
validity of the marriage contracted abroad
o Board of Commissions (CID) v. Dela Rosa (1991): in case if doubt,
all presumptions favor the solidarity of the family and every
intendment of the law or facts lean toward validity of marriage.
he who asserts that the marriage is NOT VALID shall bear the
burden of proof to present the foreign law
o Dissent by Justice Florentino Feliciano: foreign marriage must first
be shown as factual matters before declaring them valid in the PH
ABSOLUTE DIVORCE
o Generally not recognized in the PH
o If 2 Filipinos who are married in the PH or anywhere in the world,
their status as married people will follow them anywhere
o Divorce initiated by a Filipino is against public policy
o Tenchavez v. Escano: Thus if a Filipina married to a foreigner
initiated a divorce elsewhere, and such was granted and she
subsequently married another person, she is technically committing
adultery
o But the state recognizes divorces of aliens obtain in other states as
a matter of international comity; our civil law adheres to the
nationality rule on the matter of status or legal capacity of a person
o Van Dorn v. Romillo: marriage abroad by Filipino and foreigner "
foreigner divorces Filipino spouse " Filipino can marry again

23%

Republic v. Orbecido: both parties were Filipinos " one of the


spouses becomes a citizen of another country and filed for divorce
" Filipino spouse can marry again
! Determinative point is time of the divorce, not marriage
! Allowed not because of Art. 26 but because of adherence
to nationality principle with respect to persons status
! If the person who obtained the divorce wants to become
Filipino again, the divorce decree will still be recognized
because at the time of the filing of divorce, he/she was not
Filipino
o Recio v. Garcia: marriage between 2 Filipinos " one of them
becomes naturalized and obtains absolute divorce decree abroad
" the foreigner will be allowed to remarry when comes back to
Philippines
o BEFORE FAMILY CODE: Filipino marries a foreigner " Filipino
obtains divorce " Filipino NOT allowed to marry but foreigner CAN
PROVING FOREIGN DIVORCE
o Bayot v. CA: court affirmed dismissal of case for declaration on
nullity on the ground that the petitioner obtained divorce abroad,
recognized by the PH
o VALIDITY OF DIVORCE DECREE
! Foreign decree must be duly authenticated by the foreign
court issuing said decree
! The law must also be authenticated by the legislator or the
source of the divorce law
o LEGAL EFFECTS OF DIVORCE DECREE
! Marital vinculum / marital bond is severed (both free to remarry after completing legal requirements)
! No more obligations as husband to live with, observe
respect/fidelity and render support
o TWIN ELEMENTS FOR APPLICABILITY OF ART. 26(2)
! Valid marriage has been celebrated between a Filipino
citizen and a foreigner
! Valid divorce is obtained abroad by alien spouse
capacitating him/her to remarry
o NO CAUSE OF ACTION IN PETITION FOR NULLITY OF
MARRIAGE
! Cause of action an act or omission of one party in
violation of the legal right of the other
! Exists when following elements are present
Right in favor of petitioner
Obligation on the defendant to not violate such
right
Act/omission on the part of such defendant
o

violative of the right of the plaintiff / breach of


obligation
! No cause of action to declare it dissolved or nullified
VOID AND VOIDABLE FOREIGN MARRIAGES
o Filipino in a foreign marriage which is null and void in that country
shall also be null and void in the PH
o Civil case can be filed in the PH to nullify a foreign marriage using
as basis the legal grounds for nullity provided by the marriage laws
of the state
CHAPTER 2: MARRIAGES EXEMPT FROM LICENSE REQUIREMENT
Article
In case either or both of the contracting parties are at the point of death, the
27
marriage may be solemnized without necessity of a marriage license and shall
remain valid even if the ailing party subsequently survives.(72a)
Article
If the residence of either party is so located that there is no means of transportation
28
to enable such party to appear personally before the local civil registrar, the
marriage may be solemnized without necessity of a marriage license. (72a)
Article
In the cases provided for in the two preceding articles, the solemnizing officer shall
29
state in an affidavit executed before the local civil registrar or any other person
legally authorized to administer oaths that the marriage was performed in articulo
mortis or that the residence of either party, specifying the barrio or barangay, is so
located that there is no means of transportation to enable such party to appear
personally before the local civil registrar and that the officer took the necessary
steps to ascertain the ages and relationship of the contracting parties and the
absence of legal impediment to the marriage. (72a)
Article
The original of the affidavit required in the last preceding article, together with the
30
legible copy of the marriage contract, shall be sent by the person solemnizing the
marriage to the local civil registrar of the municipality where it was performed within
the period of thirty days after the performance of the marriage. (75a)
Article
A marriage in articulo mortis between passengers or crew members may also be
31
solemnized by a ship captain or by an airplane pilot not only while the ship is at sea
or the plane is in flight, but also during stopovers at ports of call. (74a)
Article
A military commander of a unit, who is a commissioned officer, shall likewise have
32
authority to solemnize marriages in articulo mortis between persons within the zone
of military operation, whether members of the armed forces or civilians. (74a)
Article
Marriages among Muslims or among members of the ethnic cultural communities
33
may be performed validly without the necessity of marriage license, provided they
are solemnized in accordance with their customs, rites or practices. (78a)
Article
No license shall be necessary for the marriage of a man and a woman who have
34
lived together as husband and wife for at least five years and without any legal
impediment to marry each other. The contracting parties shall state the foregoing
facts in an affidavit before any person authorized by law to administer oaths. The
solemnizing officer shall also state under oath that he ascertained the qualifications
of the contracting parties are found no legal impediment to the marriage. (76a)
EXEMPTION FROM ML

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24%

Art. 27, 28, 21-34 " situations where contracting parties dont need
to obtain ML before getting married
o Reasons for such are anchored on necessity and practicality
(articular mortis, respect for customs of ethnic minorities such as
Muslims and ethnic groups, and policy of legitimizing illicit
cohabitation)
FAR AREAS
o Residence is so far that there are no means of transportation to
enable them to appear personally before the LCR " NO ML OK
SOs UNDER ART. 7 AND MAYOR
o They can solemnize marriage even without valid ML if either/both
parties are in articulo mortis
o Marriage valid " even if ailing party survives
CHIEF PILOT AND SHIP CAPTAINS
o SO: only chief pilot
o Only articular mortis
o Only while in flight, at sea, or during stopover
o Only among passengers and crew members
MILITARY COMMANDER
nd
o SO: Commission officer " 2 lieutenant ensign and above
o SO: Commander of a unit (any subdivision regiment, battalion,
etc.) of an army whose strength is laid down by regulations
! Minutes of Family Code implies should be at least a
battalion
o Only articulo mortis
o Only when theres a chaplain assigned and such chaplain is
missing
o Only within zone of military operation and during such
o Contracting parties can be armed forces members or civilians
MUSLIM AND ETHNIC GROUPS
o Art. 78 of Civil Code: marriages of ethnic groups, pagans, Muslims
performed in accordance with their customs, rites, practices "
VALID even if without ML
! But this was just for 20 years after 1950 Civil Code took
effect; after 20 years, they must comply with mandates of
Civil Code
o Code of Muslim Personal Law: February 4, 1977 effective
! Law on persons and family relations among Muslims
! Exempted by Family Code from procuring ML provided that
marriage will be solemnized according to their customs
o RA No. 6766 or Organic Act for the Cordillera Autonomous Region:
marriages solemnized between/among members of indigenous
tribal group or cultural community in accordance with their
indigenous customary laws shall be valid and the dissolution
o

thereof in accord with these laws shall be recognized


COHABITATION FOR 5 YEARS
o Can marry without ML
o Requirements (Art. 34):
! Must have lived as H&W for at least 5 years exclusively
and continuously
! Must not have any legal impediment to marry each other
**only at the time of the marriage
Before (Art. 76 of CC): majority age, unmarried for
whole 5 years
Now (Art. 34 of FC): legal impediment any
possible ground or basis under the FC, including
non-age, and the status to be already married
o During 5-year period, it is not necessary that they must not have
suffered from any legal impediment
o In such marriage, the following must happen:
! Contracting parties IN AN AFFIDAVIT: state the fact of their
cohabitation for at least 5 years and the absence of legal
impediments to marry
! SO shall state under oath that he ascertained the
qualifications of the parties and found no legal impediment
Failure to investigate by SO " marriage NOT
invalidated
! Cosca v. Palaypayon: judge solemnized marriage of 18year-old without ML on the basis of the affidavit, SC: judge
acted improperly. Should have conducted investigation on
parties qualifications, because if 18 it means they
cohabited by 13 years old. Affidavit may have been forged.
BUT marriage still stands because at the time of the
marriage, they had no legal impediment.
! De Castro v. Assidao-De Castro (2008): SC declared
marriage null and void on ground of no ML upon evidence
that there was NO cohabitation for 5 years contrary to the
affidavit by the parties. Falsity of affidavit cannot be
irregular; 5-year period substantial to grant exemption from
ML
DIRECTORY REQUIREMENTS
o Procedure in Art. 29-30 of FC re: duties of SO is merely directory.
o Non-observance, marriage " VALID STILL
o But non-compliance by SO " liable 1 month-2 years or fine less
than 300 pesos-2000 pesos
CHAPTER 3: VOID AND VOIDABLE MARRIAGES
Article
The following marriages shall be void from the beginning:
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(1) Those contracted by any party below eighteen years of age even with the
consent of parents or guardians;
(2) Those solemnized by any person not legally authorized to perform marriages
unless such marriages were contracted with either or both parties believing in good
faith that the solemnizing officer had the legal authority to do so;
(3) Those solemnized without license, except those covered the preceding Chapter;
(4) Those bigamous or polygamous marriages not failing under Article 41;
(5) Those contracted through mistake of one contracting party as to the identity of
the other; and
(6) Those subsequent marriages that are void under Article 53.
VOID MARRIAGES
o Not valid from inception
o Absence from any of the essential or formal requisites " VOID
MARRIAGE
! 7 exceptions: Art. 27, 28, 31, 32, 33, 34, 35(2)
! 8 other grounds for void marriages: 35, 36, 37, 38, 40, 41,
44, 53
o Step-brother and step-sister can marry each other; even a court
appointed guardian and the ward can marry because theres no law
prohibiting it (the list above is exclusive)
o The grounds for a void marriage may co-exist in 1 case. A petition
for declaration of nullity deals with only 1 cause of action " the
invalidity of marriage from beginning (Mallion v. Alcantara)
VOID AND VOIDABLE MARRIAGE
Void ab initio
Annullable/voidable
Never ever valid
Valid until terminated
Can never be ratified* or
Can be ratified/confirmed by
confirmed by free cohabitation
cohabitation/ prescription
(estoppel not applicable, sworn
Cannot be assailed collaterally
statement and
except in a direct proceeding
misrepresentation not
Cannot be question after death
applicable too)
of either spouse (must be
Can be assailed collaterally
within lifetime), in this case the
Can be questioned after death
parties and their offspring will
of either party
be left as if they were validly
married
Action/defense is
imprescriptible
The action prescribes
Any interested party may
Only family (those designated
assail
by law as parents/guardians)
can assail
No legal effects except re:
properties, co-ownership
Property regime is generally
through join contribution,
conjugal/AC, and children
effects to children in such void
conceived before annulment
marriages (in rel. to Art. 43, 44,
are legitimate
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51, 53, 54 of FC)


o Mallion v. Alcantara (2006): petitioner denied of nullity of marriage
via psychological incapacity, filed another petition for nullity based
nd
on absence of marriage license, SC: dismissal of 2 case because
petitioner violated rule on splitting-a-cause of action; res judicata
applied and petitioner waived such defect.
! Different grounds of nullity does not mean different causes
of action; petitioner should have invoked such ground in the
st
1 case. Because petitioner did not, he already admitted
the validity of the celebration and waived all defects
! Opinion of Sta. Maria: this ruling gave more weight to
procedure than substance. Did not take into account that
no amount of ratification, waiver, acquiescence or estoppel
can validate a void marriage. SC in this case validated a
void marriage.
BAD FAITH OR GOOD FAITH IN VOID MARRIAGES
o General rule: good faith or bad faith " immaterial in determining
marriage null and void
o Equitable doctrine of unclean hands where the court should not
grant relief to the wrongdoer is not a rule as applied in nullity
actions because it is merely judge-made and has no statutory basis
o 2 exceptions:
! Art. 35(2): either of the contracting parties is in good faith
believing that a SO has authority to solemnize a marriage
even though has none
! Art. 41: person whose spouse disappears for 4 years to 2
years in the proper cases if he/she
Had a well-founded belief that spouse is dead
Procures judicial declaration of presumptive death
Good faith with subsequent spouse at time of
marriage (to be void, both must be in bad faith)
BAD FAITH AFFECTS PROPERTY DISPOSITION
o General rule: void marriages property regime is co-ownership
o Disposition of co-ownership at the time of liquidation, W/N one of
the parties is in bad faith is a basic consideration
! 1 person in a void marriage is in good faith " bad faith
persons share will be forfeited for the common children OR
for bad faith persons descendants OR innocent spouse
COLLATERAL AND DIRECT ATTACK
o General rule: void marriage CAN be collaterally attacked; nullity can
be asserted even if not the main or principal issue of the case and
no previous judicial declaration of nullity is required by law
o Any proof of nullity can be shown in court
o De Castro v. Assidao-De Castro (2008): complaint for support

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against husband to compel support for child. Husband interposed


an affiremantive defense that they were not married. SC: while
case of support, lower court can make a declaration that the
marriage was void to determine the right of the child. SC rejected
that another case should be filed to declare nullity.
o 3 cases where direct attack on the nullity of marriage must first be
undertaken** only husband and wife can filed a case for declaration
of nullity:
1. Remarriage: judicial declaration of nullity of marriage
(JDNoM) must be obtained before he/she can remarry.
This is the only acceptable proof to show voidness of the
first marriage.
2. For purposes other than remarriage, JDNOM not needed
but if for determination of heirship, legitimacy/illegitimacy of
the child, settlement of estate, dissolution of prop regime,
criminal case court may pass upon the validity even if not
directly instituted. There arises need for declaration of
nullity. (Ninal v. Bayadog)
3. Art. 50 in rel. to Art. 43(3) and Art. 86(1): to revoke a
donation propter nuptial / in consideration of a marriage,
given to one or both of the married couple on the ground
that marriage is void, JDNOM MUST BE OBTAINED. Not
enough that marriage is void pursuant to law. JDNOM will
allow the donor to revoke the donation or consider it
revoked by operation of law.
BELOW 18 YEARS OF AGE
o Consent of marriage not material and will not even make the
marriage valid
o Spanish Code: 12 years old for female and 14 for male " because
of puberty
o Civil Code: 14 for female, 16 for male " because husband has
primary obligation to support
o Now, level of maturity/responsibility taken into consideration;
discrepancy in age is ruled unconstitiuional for being discriminatory.
! Scientific studies childbearing between 12-17 years old
increases probability of unsafe pregnancy
NON-AUTHORITY OF SO
o Ceremonial marriage = involves intervention only of those
authorized by the State; if not, marriage is VOID
GOOD FAITH MARRIAGE
o Either parties thought in good faith that the SO had legal authority,
marriage " VALID
! Good faith validates only the authority of SO
o Must be declared by law as valid; if not: putative marriage or a

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marriage which is void because of absence of authority of SO


Good faith is a question of fact that must be proven in a trial vourt
BUT good faith must also always be presumed until contrary is
shown
o Good faith: honest and reasonable belief that marriage was valid at
its inception; no legal impediment to impair validity; must not act
blindly without reasonable precautions when he hears or
knowledge of some legal impediment.
o Code Commission: good faith is interpreted literally (see p. 202)
o Dr. Arturo Tolentino: distinguished ignorance of the law and
mistake of fact due diligence is important; they should have
check for the solemnizers license to marry
Mistake of Fact
Mistake in Identity
Mistake in Law
SO misrepresented
wrong physical identity;
Notary public was
himself as judge " Art.
wrong family name, etc.
believed to be a
35(2) can be invoked
not included. Ground for
legitimate SO; not good
nullity.
faith (good faith means
due diligence); cannot be
invoked
o

BIGAMOUS OR POLYGAMOUS MARRIAGE


o Except those under special laws such as the Muslim Code or under
Art. 41 of FC
o Law prohibits married man/woman from contracting another bond
of union as long as the consort is alive
o Such subsequent marriages are VOID
o IMPORTANT: In a bigamous marriage, first marriage must have
been VALID.
o IMPORTANT: If first marriage is void in itself and subsequent
marriage was contracted with JDNOM, subsequent marriage is
ALSO VOID.
MISTAKE IN IDENTITY
o Civil Code: mistake in identity is an instance of fraud " annullable
marriage
o Family Code: mistake in identity " ground for nullity of marriage
o Void because theres a complete absence of consent; contracting
party absolutely did not intend to marry the other as the person is
not the same person he know before the marriage
o Only the person who mistook the spouse can seek nullification
o Does not include: name, character of the person, attributes, age,
religion, social standing, pedigree, pecuniary means,
temperaments, acquirements, condition in life, etc
VOID UNDER ART. 53.
o Marriages which are annulled or declared void need to undertake

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Article
36

liquidiation, partition, distribution of properties and delivery of


presumptive legitime
o Non-compliance " VOID MARRIAGE
A marriage contracted by any party who, at the time of the celebration, was
psychologically incapacitated to comply with the essential marital obligations of
marriage, shall likewise be void even if such incapacity becomes manifest only after
its solemnization. (As amended by Executive Order 227)
PSYCHOLOGICAL INCAPACITY (PI)
o No definition in the law
o Determination of meaning is left to the courts on a case-to-case
basis
o Absence of definition was made because situations contemplated
by the law vary from one case to another
o Ground is restricted to incapacity to comply with essential marital
obligations
o Mental disposition must seriously and effectively prevent them from
having a functional married life
o Perez-Ferarraris v. Ferraris: Has to be an illness afflicting the party
even before the celebration of marriage, but can be manifested
later on during the marriage
o Chi Ming Tsoi v. CA: Involves a senseless, protracted and constant
refusal to comply with essential marital obligations although
physically capable of performing such
o Tongol v. Tongol: Person can be efficient and mentally capable in
other professions in life but irresponsible with his/her married life
o Not mere stubborn refusal; must be lack of appreciation of ones
marital obligation
o Insanity can be a good indicate of PI, not a pre-requisite for the
existence
o Ratification cannot apply because it is a ground for nullity
o Cohabitation is not a defense, not even bearing children
o Santos v. CA and Julia Rosario Bedia-Santos (1995): first case to
be decided under this; ruled against Leouel.
o Insanity v. PI why is insanity ground for annulment and not
declaration of nullity?
! Insanity appearance of consent; curable; there are lucid
intervals
! PI does not refer to consent but the essence of marital
obligation; not curable; not a defect in the mind but
understanding of consequences of marriage
Ex. Incapacity to copulate permanent psychological
o After marriage, PI becomes manifest then later on cured. Recourse
" remarry
o Retroactivity only until 10 years for fear of avalanche of cases

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PSYCHOLOGY STUFF
CONSTITUTIONAL CONSIDERATION
o Antonio v. Reyes (2006): Denial of petition to declare nullity is
reflective of the constitutional mandate to protect marriage. But
since void marriages do not further State initiatives, then it is right
to protect marriages by declaring such void
PROVING PI
o Psychosomatic and deals with state of mind and only proven by
indicators and external manifestations of the person claimed to be
incapacitated.
o Procreation is essential obligation
o Parenthood is also part of essential obligation if in a case that
person is physically capable but simply refuses, and such refusal is
senseless and constant " PI
o Unreasonable attachment to barkada and family " indicator of PI
o Actual breakdown of family life by separation of H&W " good
indicator
o Republic v. Quintero Hamano: Separation not conclusive proof of
PI
o Bier v. Bier, Navales v. Navales: Must be attributed to psychological
illness, not just physical
o Republic v. Cabantug-Baguio: cannot be mere refusal or neglect to
comply with obligations, must be downright capacity to perform
o Aspillaga v. Aspillaga: mere incompatibility and irreconcilable
differences not enough
o Laurena v. CA (2008): totality of marriage life affected by gross
irresponsibility and utter disregard by subject spouse toward family
life, manifested by actions
o Very personal and limited one, doesnt mean that if person is PI to
one wife, doesnt mean to the next wife, he wouldnt be
o Republic v. Hamano: being a foreigner doesnt negate PI
o Te v. Te (2009): nullity of marriage granted; petitioner dependent
personality disorder, respondent narcisstic and anti-social
personality disorder
! Expert opinion - must consider as decisive evidence
o Marcos v. Marcos: But no requirement to be declared PI by a
physician if totality of evidence is enough to sustain finding. Must
show link between acts and the disorder itself
o Halili v. Halili: granted nullity based on petitioner - mixed personality
disorder from self-defeating personality disorder to dependent
personality disorder
EXPERT TESTIMONY
o Psychiatrist testimony extremely helpful
o But not requirement

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Court may/may not accept testimony because decision based on


totality og evidence
o If credible and consistent, will be given great weight
o Antonio v. Reyes: court adhered to testimony of psychiatrist when
he didn not even personally examine respondent but via records
o Ting v Ting: petition not granted; psychiatrist said hes not PI
o Rumbaua b. Rumbaua: report was general and did not specify
linkages; petition denied
! Testimony of husband with respect to report not within
doctor-patient privilege communication
o Najera v. Najera: psychologists testimony was inadequate and
does not conform to persuasive evidence
LIFTED FROM CANON LAW and CHURCH
o Dr. Veloso: must be characterized by Gravity, Juridical
Antecedence, Incurability
o Hervada and Wauck: true inability to commit to essential marital
obligations, tantamount to PI
o 6 elements to mature marital relationship:
! permanent and faithful commitment to partner
! openness to children and partner
! stability
! emotional maturity
! financial responsibility
! ability to cope with marriage stress
JURISPRUDENTIAL GUIDELINES
o RP v. CA and Molina (1997): SC guidelines
! Burden of proof - plaintiff
! Root cause must be
Medically/clinically identified
Alleged in complaint
Sufficiently proven by experts
Clearly explain in the decision
! PI must be existing at time of marriage celebration
! Medically or clinically permanent and curable
! Grave illness bring about disability to assume obligations
! Essential obligations being Art. 68-71
! Interpretations by National Appellate Matrimonial Tribunal
of the Catholic Church given persuasive effect
! OSG and fiscal to appeal counsel of state (but OSG not
anymore needed)
o Te v. Te: stresses each case on PI is unique/seen in own merit
DAMAGES
o Buenaventura v. CA: no award of moral damages, exemplary
damages, and attorneys fees
o

o
o
Article
37

Article
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Why? Very nature of PI is non-cognizance of marital obligation at


time of marriage negates bad faith (which is needed for damages)
No award of exemplary damages and attorney fee in the absence
of bad faith

Marriages between the following are incestuous and void from the beginning,
whether relationship between the parties be legitimate or illegitimate:
(1) Between ascendants and descendants of any degree; and
(2) Between brothers and sisters, whether of the full or half blood. (81a)
REASONS FOR PROHIBITING INCESTUOUS MARRIAGE
o Grossly indecent, immoral, inimical to purity and happiness of the
family and welfare of future generations
o Confusion in succession; abhorrent to nature; causes genetic
problems
o Goes beyond comity; even foreigners are bound by this
The following marriages shall be void from the beginning for reasons of public
policy:
(1) Between collateral blood relatives whether legitimate or illegitimate, up to the
fourth civil degree;
(2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
(4) Between the adopting parent and the adopted child;
(5) Between the surviving spouse of the adopting parent and the adopted child;
(6) Between the surviving spouse of the adopted child and the adopter;
(7) Between an adopted child and a legitimate child of the adopter;
(8) Between adopted children of the same adopter; and
(9) Between parties where one, with the intention to marry the other, killed that other
person's spouse, or his or her own spouse. (82)
REASONS FOR PROHIBITION OF VOID MARRIAGES
o To foster a normal, peaceful, and wholesome integral nuclear
family unit
o Enumeration is exclusive
COLLATERAL BLOOD RELATIVES BY CONSANGUINITY
o May disturb public policy as it may likely result in the dangers of Art
37
o Relationship by consanguinity is not capable of dissolution
o Consider the nearest and immediate common ascendant and count
number of relative from one of them to the common ascendant and
from the common ascendant to the other one
COLLATERAL HALF-BLOOD RELATIVES BY CONSANGUINITY
th
o Prohibition extends up to 4 civil degree which include ones uncle,
aunt, niece, nephew, first cousins.
o Of course it applies to full-blood relationships

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Law does not provide that marriages between collateral blood


relatives by the half-blood are prohibited
o Audley v. Audley: w/n provision in a marital statute prohibiting
marriages between uncles and nieces or aunts and nephews also
include half-blood relationships, SC of New York: yes.
o In Re: Simms Estate: marriage between uncle and niece is not
incestuous and void. Reason of CA of NY: such marriage is not
specifically included by law as a void marriage and therefore cannot
be considered as such. " PROPER VIEW. All doubts must be
construed as in favor of marriage; only those expressly prohibited
by law as void shall be treated as such.
RELATIONSHIP BY AFFINITY
o Step-parents and step-children and parents-in-law and children-inlaw are related by affinity
o Doctrine of affinity: canonical maxim that marriage makes H&W one
o However, step-brother and step-sister can marry
EFFECT OF TERMINATION OF MARRIAGE ON THE AFFINITY
PROHIBITION
o In the event the marriage is annulled or nullified in accordance with
the law, relationship by affinity between step-parents and stepchildren and parents-in-law and children-in-law is terminated.
! Said persons become strangers to each other and allows
them to marry each other legally
o In case of death, mixed views:
! Carman v. Newell: relationship of affinity is not terminated
w/n there are children in the marriage
! Kelly v. Neely: if the spouses have no living issues or
children and one of the spouses dies, the relationship by
affinity is dissolved. Follows that relationship by affinity
ceases with the dissolution of the marriage which produces
it " better view
On the other hand, relationship by affinity is
continued despite the death of one of the spouses
where there are living issues or children of the
marriage in whose veins the blood of the marriage
comingled, since the relation by affinity continued
ADOPTIVE RELATIONSHIP
o Relation created in adoption is limited to parent and child
o Adopter cannot marry the adopted and surviving spouse of the
adopted (FPJ cannot marry Grace Poe nor Grace Poes husband)
o Adopted cannot marry: (Grace Poe cannot marry)
! Adopter (FPJ)
! Surviving spouse of adopter (Susan Roceslol)
! Legitimate child of adopter
o

! Other adopted children of the adopter


Adopted can VALIDLY MARRY:
! The parents of the adopter (FPS)
! The illegitimate child of the adopter (Lovi)
! Other relatives whether by consanguinity or affinity of the
adopter
o Adopter can VALIDLY MARRY:
! Legitimate or adopted child of the adopted
! The natural parent of the adopted
! Other relatives whether by consanguinity or affinity of the
adopted
o Spouse of either the adopted or the adopted as A SURVIVING
SPOUSE " marriage terminated by death
! If marriage of the adopter and spouses was declared void,
the adopted can validly marry the previous spouse because
he/she is not a surviving spouse but a FORMER SPOUSE
INTENTIONAL KILLING OF SPOUSE
o Must be animated with the intention to kill another person
o No prior criminal conviction by the law for the killing is required;
mere preponderance of evidence is required to prove the killing
o Can be a unilateral intention and need not be shared by the other
spouse so that even the knowing party will be affected by the void
character of the marriage
o If you were acquitted will you still be able to marry?
! If the person really didnt do it YES
! If the person was acquitted just because of lack of
evidence, but theres reasonable doubt created NO
The action or defense for the declaration of absolute nullity of a marriage shall not
prescribe. (As amended by Executive Order 227 and Republic Act No. 8533; The
phrase "However, in case of marriage celebrated before the effectivity of this Code
and falling under Article 36, such action or defense shall prescribe in ten years after
this Code shall taken effect"has been deleted by Republic Act No. 8533 [Approved
February 23, 1998]).
PRESCRIPTIVE PERIOD
o Time within which to file an action for the declaration of nullity of a
marriage or invoke nullity as a defense, whether in a direct or
collateral manner does NOT PRESCRIBE
o JDNOM: does not legally dissolve a marriage because such
marriage is void from the beginning; but merely declares or
confirms the voidness, non-existence or incipient validity of a
marriage
o Ninal v. Bayadog: petition for JDNOM was filed by the children of
the deceased party only after the latters death, SC: ruled that such
can proceed. Why? Because void marriages is considered as
o

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having never taken place and will be treated as non-existent by


courts.
o AM No. 02-11-10 (effective MARCH 15, 2003): said prescription
does not hold anymore becayse H&W can file the case and if filed,
will be closed/terminated during its pendency, either the husband or
wife should die.
! Heirs can also no longer file a case for nullity of marriage
! Technically prescriptive period is only within the lifetime of
the people
o EO 227: if ground for nullity is that spouse is psychologically
incapacitated and marriage was celebrated BEFORE AUGUST 3,
1988,
! Prescriptive period: 10 years from that date OR August 1,
1998
! If marriage celebrated after FC effectivity action will not
prescribe.
o RA 8533: repealed the 10 year prescription. No more prescriptive
period for ALL void marriages.
PARTIES
o Only H&W can file a case in the court declaring the marriage is void
o Equitable doctrine of unclean hands: court should not grant relief to
the wrongdoer is not a rule as applied in nullity actions because it
is merely judge-made and has no statutory basis
! Any of the parties can file for nullity actions even if such
party is the wrongdoer.
! But wrongdoer may be held liable by way of counterclaim
by other provisions such as Human Relations in Civil Code
or Art. 19, 20, 21 thereof.
o PRIOR TO MARCH 15, 2003: Any interested party such as
parents, step-children can file direct nullity of marriage.
! Heirs can no longer file a case for nullity of their parents or
their parent with their step-parents marriage
! Parents cannot file a case for nullity in relation to the
marriage of their children. Neither can an heir file such a
case in relation to the marriage of his/her parent with
another.
nd
o Perez v. CA (2006): 2 wife filed a petition to intervene in the
declaration of nullity of marriage filed by husband, SC: denied the
intervention because she has no legal interest.
o BUT VOID MARRIAGES CAN BE COLLATERALLY ATTACKED.
And this is imprescriptible, by interested parties only or those
directly affected.
! Usually for intestate proceedings
! You can use other evidence other than JDNOM such as

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marriage contract, etc.


The absolute nullity of a previous marriage may be invoked for purposes of
remarriage on the basis solely of a final judgment declaring such previous marriage
void. (n)
JUDICIAL DECLARATION OF NULLITY
o If marriage is void ab initio, one cannot simply contract another
marriage without a previous JDNOM, and if not in accord with Art.
52 (partition, liquidation, delivery of presumptive legitime)
o If such subsequent marriage is contracted without the JDNOM, it
will be void ab initio as well (Art. 53)
o Why? For the sake of good order of society and for peace of mind
of persons concerned because it was proven before the courts
HISTORICAL BACKGROUND FOR NEED OF JDNOM
Case
Valid w/out
Void w/out
JDNOM
JDNOM
Sept. 28, 1954
Mendoza
X
Feb. 28, 1957
Aragon
X
June 30, 1970
Gomez
X
Jan. 30, 1971
Conseguera
X
June 21, 1977
Odayat
X
May 30, 1983
Tolentino
X
Aug. 19, 1986
Wiegel
X
Oct. 28, 1986
Yap
X
Aug. 3, 1988
Family Code
X
NEED FOR JDNOM
o Domingo v. CA: one cannot determine for himself whether or
not his marriage is valid and that a court action is needed.
o This provision, as a rule of procedure, in effect states that the
only acceptable proof of nullity of a first marriage as JDNOM
o The aim is to do away with the uncertainty on the status of the
nd
2 marriage
o De Castro v. Assidao-De Castro: in case of support, a lower
court can declare a marriage void even without prior JDNOM
filed ina a separation action considering that the
deterinmination of the issue on the validty of the marriage was
important int the resolution of the right of the child to be
support.
Art. 40 and BIGAMY
st
nd
o Valdez v. RTC: If 1 marriage is void and 2 marriage is
contracted without getting JDNOM, liquidate, distribute etc., the
nd
2 marriage is VOID NOT BECAUSE it is bigamous but
because it failed to comply with requirements under Art. 40.
nd
o Subsequent void bigamous marriage " 2 marriage was
contracted when the first marriage is STILL VALID AND STILL

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st

Article
41

SUBSISTS. (1 marriage = valid or at least annullable)


nd
o Nicdao-Carino v. Carino: SC decided that 2 marriage is
st
bigamous because the 1 marriage though void still presumed
to be valid because there was no JDNOM. They also applied
the property regime under Art. 148. " wrong decision
according to Sta. Maria because it obfuscates the difference
between Art. 40 and 41
Art. 40 and CRIMINAL BIGAMY
nd
o Crime of bigamy: person who shall contract a 2 / subsequent
marriage before the former marriage has been legally dissolved
or before the absent spouse has been declared presumptively
dead
st
! 1 marriage = valid/annullable or not void ab initio and
nd
2 marriage = would have been valid had it not been
bigamous.
nd
! If 2 marriage would NOT have been valid because no
essential/formal requirements " NO CRIME OF
BIGAMY
o Mercado v. Mercado (2000): criminal bigamy is committed as
nd
long as 2 marriage was contracted without obtaining JDNOM.
! It says that criminal bigamy is determined not by the
st
fact that the 1 marriage is really legally void but by the
fact that no JDNOM was obtained.
o Dissent by Justice Vitug: criminal bigamy contemplates existing
marriage or at least an annullable or voidable one but NOT A
VOID ONE. A void marriage is a sound defense against
criminal bigamy regardless of JDNOM " correct rule; only
effect of no JDNOM is void pursuant to Art. 52 & 53
o People v. Cobar (1997): had the same views as Vitug
o Elements of Bigamy:
! Offender has been legally married (either valid or
voidable)
! Marriage has not been legally dissolved or in case
spouse is absent, cannot be presumed dead
! Offender contracts a second or subsequent marriage
! Second or subsequent marriage has all the essential
requisites for validity
A marriage contracted by any person during subsistence of a previous marriage
shall be null and void, unless before the celebration of the subsequent marriage, the
prior spouse had been absent for four consecutive years and the spouse present
has a well-founded belief that the absent spouse was already dead. In case of
disappearance where there is danger of death under the circumstances set forth in
the provisions of Article 391 of the Civil Code, an absence of only two years shall be
sufficient.

Article
42

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For the purpose of contracting the subsequent marriage under the preceding
paragraph the spouse present must institute a summary proceeding as provided in
this Code for the declaration of presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent spouse. (83a)
The subsequent marriage referred to in the preceding Article shall be automatically
terminated by the recording of the affidavit of reappearance of the absent spouse,
unless there is a judgment annulling the previous marriage or declaring it void ab
initio.
A sworn statement of the fact and circumstances of reappearance shall be recorded
in the civil registry of the residence of the parties to the subsequent marriage at the
instance of any interested person, with due notice to the spouses of the subsequent
marriage and without prejudice to the fact of reappearance being judicially
determined in case such fact is disputed. (n)
BIGAMOUS MARRIAGE
o General rule: a marriage contracted during the lifetime of the first
spouse " NULL AND VOID
o Even if the first marriage is annullable or voidable, any subsequent
marriage is bigamous and void ab initio
EXCEPTION
nd
o A bigamous marriage may be considered valid if prior to the 2
marriage and without prejudice to the effect of the absent spouses
reappearance, the present spouse obtains judicial declaration of
presumptive death (JDPD) via a summary proceeding in a court of
competent jurisdiction
o Before JDPD is given, must be shown that:
! Spouse was absent for 4 consecutive years + wellfounded belief that absent spouse is dead
! 2 years in case of disappearance where there is danger of
death, Art. 391:
On board a lost vessel/aeroplane or someone not
heard of for 2 years since its loss
Absent spouse is member of the armed force has
taken part in the war and has been missing for 2
years
Absent spouse has been in danger of death under
other circumstances
! JDPD without prejudice to the reappearance of absent
spouse as it is only a statement that prior spouse is
presumable death. It is only prima facie, can be overthrown
by evidence
TERMINATION OF THE SUBSEQUENT MARRIAGE
o Automatic termination of the subsequent marriage can be obtained

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by the recording of the affidavit of reappearance of the absent


spouse in the civil registry of the residence of the parties to the
subsequent marriage (unless there is a judgment annulling the
previous marriage ore declaring it void ab initio)
o If spouse reappeared but did not file an affidavit or sworn statement
with the civil registrar of his reappearance, there will technically
exist 2 valid marriages.
o This is a valid bigamous marriage.
ST
LIQUIDATION OF PROPERTIES FROM THE 1 MARRIAGE
o After issuance of JDPD, the properties of the first marriage must be
liquidated in accord to Art. 103 and 130
o If no liquidation " property regime of 2nd marriage is complete
separation of property
o For purposes of opening the succession of the absent spouse (Art.
390), absentee shall not be presumed dead until after
! 10 years absence (generally)
! 5 years absence (if 75 years old or older)
! 4 years absence (if under Art. 391)
o If spouse reappears, he is entitled to the balance of his estate after
payment of all debts. Balance may be recovered by motion in the
same proceeding
WELL-FOUNDED BELIEF
o Art. 41: time requires has been shorted to 4 years + need for JDPD
to enable present spouse to remarry + stricter standard than civil
code (well-founded belief)
o Art. 83(3) of CC: merely required that theres no news that spouse
is alive or the absentee was generally considered to be dead
o well-founded belief depends on the scenario
o RP v. Gregorio Nolasco: the case where the seaman wanted to get
the JDPD from the court because his English spouse was missing;
SC: he failed to conduct a search for the missing wife with diligence
to give rise to a well-founded belief
! Extraordinary diligence is required
o Republic v. CA: person seeking JDPD presented only Brgy.
Captain and not those who asked, not even the in-laws who knew
of the wifes abandonment
JUDICIAL DECLARATION OF PRESUMPTIVE DEATH
o 7 years after it being unknown whether or not the absentee still
lives, he shall be presumed dead for all purposes except
succession.
SWORN STATEMENT OF REAPPEARANCE
nd
o Reappearance can lead to termination of 2 marriage by executing
a sworn statement or affidavit of the fact and circumstance
nd
o 2 marriage automatically terminating by the recording of the

affidavit of reappearance
Any interested party (parents, children, present spouse and
subsequent spouse, parents and children of other contracting
parties) can file the sworn statement
o SSS v. Jarque Vda. De Bailon: if no sworn statement, mere
reappearance will not terminate the marriage
o But the better view should be that mere reappearance should be
enough to render the effect of the JDPD.
o While termination is automatic, no prejudice to the outcome of any
judicial proceeding questioning the reappearance
o First spouse does not file sworn statement or affidavit, both
marriages will be considered subsisting.
st
o But the law will protect the second marriage rather than the 1 .
o If reappearing spouse wants to marry another person, he/she has
to file the sworn statement and go for annulment. If no ground,
he/she shall remain married
CRIMINAL LIABILITY
nd
o Penalty of prision mayor for those who will contract a 2 marriage
st
before the 1 one is legally dissolved or before declared
presumptively dead
The termination of the subsequent marriage referred to in the preceding Article shall
produce the following effects:
(1) The children of the subsequent marriage conceived prior to its termination shall
be considered legitimate;
(2) The absolute community of property or the conjugal partnership, as the case
may be, shall be dissolved and liquidated, but if either spouse contracted said
marriage in bad faith, his or her share of the net profits of the community property or
conjugal partnership property shall be forfeited in favor of the common children or, if
there are none, the children of the guilty spouse by a previous marriage or in default
of children, the innocent spouse;
(3) Donations by reason of marriage shall remain valid, except that if the donee
contracted the marriage in bad faith, such donations made to said donee are
revoked by operation of law;
(4) The innocent spouse may revoke the designation of the other spouse who acted
in bad faith as beneficiary in any insurance policy, even if such designation be
stipulated as irrevocable; and
(5) The spouse who contracted the subsequent marriage in bad faith shall be
disqualified to inherit from the innocent spouse by testate and intestate
succession. (n)
If both spouses of the subsequent marriage acted in bad faith, said marriage shall
be void ab initio and all donations by reason of marriage and testamentary
dispositions made by one in favor of the other are revoked by operation of law. (n)
STATUS OF CHILDREN
nd
o Children in 2 marriage conceived in case of presumptive death of
o

Article
43

Article
44

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1 of the spouses and before termination shall be considered


LEGITIMATE
! Even if one of the spouses was in bad faith
EFFECT OF TERMINATION ON THE PROPERTY REGIME
o Property regime shall be dissolved and liquidated
o After payment of debts and obligations of ACP/CPG, spouses shall
divide the property equally or in accord with the sharing stipulated
in a valid marriage settlement unless theres a voluntary waiver of
share by either spouses upon the judicial separation of the property
o If either spouse acted in bad faith: guilty spouse shall not get his
share in the net profits of the propertu regime, and will be forfeited
in favor of common children/children from previous
marriage/innocent spouse
o Computation of net profits subject to forfeiture: said profits shall be
the increase in value between the market value at time of
celebration and market value at time of dissolution
DONATIONS BY REASON OF MARRIAGE
o Donations are gratuitous, hence if both parties are in good faith,
donation by reason of marriage still valid even when such marriage
is terminated.
o Donations propter nuptias still valid even if donor acted in bad faith
in contracting the marriage
o If donee acted in bad faith, the donation propter nuptias is
terminated/revoked by operation of law.
o Of course, also applies when both parties are bad faith
! But it seems that Art. 1412 says that since both were in bad
faith, neither may recover what he has given by virtue of
the contract " NOT APPLICABLE IN ART. 44 BECAUSE
MARRIAGE IS A SPECIAL CONTRACT
! Art. 739 of CC: donation made between persons who are
guilty of adultery/concubinage at the time of donation is
void
! Art. 44 " both in bad faith, testamentary dispositions made
by one in favor of the other are revoked by operation of
law.
DESIGNATION AS BENFICIARY INSURANCE POLICY
o Innocent spouse has choice to revoke or maintain the other spouse
as beneficiary in an insurance policy (can do so even if insurance is
irrevocable)
DISQUALIFICATION AS TO INHERITANCE
o Both parties are in bad faith, such is avoid marriage and
testamentary disposition made by one in favor of the other is
revoked by operation of law
o If marriage is void, then they cannot inherit by intestate succession

Article
45

because no legal relation binds them


MARRIAGE CONTRACTED IN BAD FAITH
o Only 1 was bad faith " marriage still VALID
o Both bad faith " marriage VOID
nd
o Good faith must be present up to the celebration of the 2 marriage
A marriage may be annulled for any of the following causes, existing at the time of
the marriage:

Article
46

(1) That the party in whose behalf it is sought to have the marriage annulled was
eighteen years of age or over but below twenty-one, and the marriage was
solemnized without the consent of the parents, guardian or person having substitute
parental authority over the party, in that order, unless after attaining the age of
twenty-one, such party freely cohabited with the other and both lived together as
husband and wife;
(2) That either party was of unsound mind, unless such party after coming to
reason, freely cohabited with the other as husband and wife;
(3) That the consent of either party was obtained by fraud, unless such party
afterwards, with full knowledge of the facts constituting the fraud, freely cohabited
with the other as husband and wife;
(4) That the consent of either party was obtained by force, intimidation or undue
influence, unless the same having disappeared or ceased, such party thereafter
freely cohabited with the other as husband and wife;
(5) That either party was physically incapable of consummating the marriage with
the other, and such incapacity continues and appears to be incurable; or
(6) That either party was afflicted with a sexually-transmissible disease found to be
serious and appears to be incurable. (85a)
Any of the following circumstances shall constitute fraud referred to in Number 3 of
the preceding Article:

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(1) Non-disclosure of a previous conviction by final judgment of the other party of a


crime involving moral turpitude;
(2) Concealment by the wife of the fact that at the time of the marriage, she was
pregnant by a man other than her husband;
(3) Concealment of sexually transmissible disease, regardless of its nature, existing
at the time of the marriage; or
(4) Concealment of drug addiction, habitual alcoholism or homosexuality or
lesbianism existing at the time of the marriage.
No other misrepresentation or deceit as to character, health, rank, fortune or
chastity shall constitute such fraud as will give grounds for action for the annulment
of marriage. (86a)
PUBLIC POLICY CONSIDERATION
o State finds interest in expressing the Family Code the exclusive
grounds for annulment
o To annul a marriage, clear and undeniable proofs are necessary.

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Marriage is defeated by rendering the continuance intolerable to


one of the parties and productive of no possible good to the
community, relief in some way should be obtainable
EXCLUSIVITY OF GROUNDS FOR ANNULMENT
o Annullable = voidable -- both valid up to the time it is terminated.
o Grounds for annulment are only those specified. In line with policy
of state to enhance permanence of marriage
o Annulment cannot be left to the whims of the spouses
o Mere non-cohabitation is not a ground for annulment of marriage
NO PARENTAL CONSENT
o 18 up to below 21 y/o " not possessing degree of maturity to be
able to comprehend the consequences and serious responsibilities
of marital relations; hence consent needed
o no parental consent, marriage = annullable
UNSOUND MIND
o There must be a derangement of the mind to prevent the party from
comprehending the nature of the contract and from giving to it his
free and intelligent consent
o Marriages are not invalidated by mere weakness of mind or
dullness of intellect/eccentricities or partial dementia
BURDEN OF PROOF
o In all civil actions, general rule: burden of proof of insanity rests
upon him who alleges insanity or seeks to avoid an act on account
of it, devolves upon him to establish fact of insanity by
preponderance of evidence
o If previous state of insanity was proven, burden of proof shifts to the
person who says that the act was done during a lucid interval/a
sane act
FRAUD
o Refers to non-disclosure or concealment of certain circumstances
which materially affect the essence of marriage.
o No fraud when there is no concealment or when there is disclosure
o Any act of fraud not included in Art/ 46 cannot be invoked to annul
marriage
NON-DISCLOSURE OF PREVIOUS CONVICTION AS FRAUD
o To constitute fraud, party must have been convicted by final
judgment of a crime involving moral turpitude.
o Moral turpitude everything which is contrary to justice, honesty, or
good morals
o Need for conviction by final judgment
! Not necessary that 1 investigates the criminal records;
failure to do so will not bar a case for annulment
! Burden is on the convicted person to reveal his criminal
record.
o

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! If doesnt reveal, constitute non-disclosure


CONCEALMENT OF PREGNANCE AS FRAUD
o Limits only to the wife, not husband
o Law doesnt assuage the grief od the wife
o Concealment must have been done in bad faith
o Mere pregnancy alone at the time of the marriage not sufficient to
annul a marriage on this ground
o Must be a conceal of pregnancy by the wife
o If wife did not expressly inform the man of his pregnancy but the
condition was already apparent, he cannot claim lack of knowledge
of such
o If a man knew of the unchaste character of a woman with he had
extra-marital sexual intercourse and married her because she
assured him the baby is his, the man cannot be allowed to have his
marriage annulled. Why?
! Doctrine of unclean hands
! Husband knew of wifes unchaste-nessss and pregnancy
and trusted her word on it
! He experienced and participated in the womans
incontinence
! He took her for better or worse
o If a woman misrepresented herself that she was pregnant to induce
the man into marry her, such fianc cannot annul the marriage
CONCEALMENT OF STD REGARDLESS OF NATURE AS FRAUD
o Nature or gravity is irrelevant in order to invoke this ground
o Enough that STD was concealed at the time of marriage ceremony
o Consummation not required for ground to exist
CONCEALMENT OF DRUG ADDICTION AND HABITUAL ALCOHOLISM
AS FRAUD
o Habitual drunkenness = habitual intemperance = habitual
alcoholism
! Persistent habit of being intoxicated, that the person by
frequent indulgence may be said to have a fixed and
irresistible habit of drunkenness
! Does not have to be constantly drunk; enough that he is
unable to resist when the opportunity is presented
! Ground to sever not merely because it disqualifies him from
attending to business but because it renders him unfit for
the duties of the marital relation and disqualifies him from
properly rearing and caring for the children born of the
marriage
o Concealment of drug addiction
! Limited only to regulated/prohibitive drugs
CONCEALMENT OF HOMOSEXUALITY OR LESBIANISM AS FRAUD

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Institution of marriage is based on trust and the difference of sexes


both in the physical and psychological sense
o Homosexuality/lesbianism may not serve the purpose of the law
mandating a heterosexual relationship
o It might strike deeply at the most basic elements of marriage which
is the exclusive sexual bond between spouses
o Ground is not homosexuality or lesbianism but CONCEALMENT of
it; element of bad faith on the homosexual is important
o Must be duly proven
o Effects to the injured spouse in case of concealment or discovery of
homo/lesbianism may affect innocent spouses marital duties
performance
VITIATED CONSENT
o Essential requisites of marriage: consent is freely given, not
obtained by force, intimidation, or undue influence
o Not necessary that the coercion is physical.
o Intimidation: compulsion by a reasonable and well-grounded fear of
an imminent and grave evil upon his person/property upon the
person or property of his spouse, etc.
! To determine the degree of intimidation: age, sex,
condition of the person will be borne in mind
! Must arise from an unlawful act, not the exercise of right
o May be proven by preponderance of evidence, which includes the
actuations of the parties
o Villanueva v. CA (2006): Guy claimed he was forced to marry the
woman because of threats, etc. but court rules against it because
he was a sekyu and he should have known self-defense etc.
INCAPACITY TO CONSUMMATE
o Denotes the permanent inability on the part of one of the spouses
to perform the complete act of sexual intercourse
o All types of causes for non-consummation even psychological
which leads to physical inability are included
! Impotency of both males/females included.
! Epilepsy " not sufficient to show incapacity
! Refusal to engage in sex " not sufficient to show
incapacity
! Physical incapacity " required
! Must exist at the time of the marriage ceremony
! Must be continuous
! Must be incurable
BURDEN OF PROOF IN CASES OF INCAPACITY TO CONSUMMATE
o Adult male is presumed to have normal powers of virility
o Whoever alleges incapacity has the burden to prove it
o General rule: incapacity to engage in sex cannot be presume but
o

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must be proven by preponderance of evidence


Presumption always in favor of potency
Impotency need not be universal; if incapacity is psychological in
nature, it may exist only to current spouse
RULE OF TRIENNIAL COHABITATION
o Presumption of impotence arises on the rule of triennial
cohabitation
o If wife remains a virgin for 3 years from time spouses cohabited,
husband has burden to show that he is not impotent by
preponderance of evidence
STERILITY
o Not impotency
o Can successfully engage in sex; not a ground for annulment
o Possession of organs necessary to conception is not essential
STD
o If concealed drying the marriage ceremony " fraud
o Need not be incurable
o If not concealed, still a ground for annulment " must be incurable
and serious STD
o Ex. Syphilis yikes.
o If the disease was obtained after marriage, cannot be a ground for
annulment but can be used as evidence for sexual infidelity under
legal separation
RATIFICATION OF ANNULLABLE MARRIAGES
o Ratification is made if the injured party freely cohabits with the
guilty party in the proper situations provided by law
o Why? Everything must be taken to preserve the marriage and
uphold the family as an integral unit of society
o Even if circumstances shoe that despite defects at the time of the
marriage ceremony that would render marriage annullable, parties
manifest their approval of the union when they do not avail of the
proper decree of annulment
o Ratified when:
Ratified when
No consent 18-20 Did not file a suit and freely cohabits after 21 y/o
year old person
Between 18-21 and cohabited, NOT ratification
Insanity
Insane person, freely came to reason, freely cohabited
Fraud
Injured party with full knowledge of the facts freely
cohabited with the other as h&w
Vitiated consent
Disappearance/cessation of force, intimidation, undue
influence and freely cohabited as H&W
Physical
NO RATIFICATION /cannot be ratified by free cohabitation.
incapacity to
But with PRESCRIPTION period
consummate
**MUST BE BECAUSE OF INCURABLE STD, existing at
o
o

36%

Article
47

the time of marriage


**EVEN IF THEY KNEW OF THE STD even before the
marriage
Why? Not because of consent defect alone, but because
negates purpose of marriage to procreate
The action for annulment of marriage must be filed by the following persons and
within the periods indicated herein:
(1) For causes mentioned in number 1 of Article 45 by the party whose parent or
guardian did not give his or her consent, within five years after attaining the age of
twenty-one, or by the parent or guardian or person having legal charge of the minor,
at any time before such party has reached the age of twenty-one;
(2) For causes mentioned in number 2 of Article 45, by the same spouse, who had
no knowledge of the other's insanity; or by any relative or guardian or person having
legal charge of the insane, at any time before the death of either party, or by the
insane spouse during a lucid interval or after regaining sanity;
(3) For causes mentioned in number 3 of Article 45, by the injured party, within five
years after the discovery of the fraud;
(4) For causes mentioned in number 4 of Article 45, by the injured party, within five
years from the time the force, intimidation or undue influence disappeared or
ceased;
(5) For causes mentioned in number 5 and 6 of Article 45, by the injured party,
within five years after the marriage. (87a)
NATURE OF ANNULMENT CASE
o Annulment cases " actions in rem, concerns parties status which
binds everyone in the world
o res the marriage tie
o jurisdiction of RTC depends on nationality or domicile, not the place
where it was celebrated
GROUND, PARTIES, PRESCRIPTIVE PERIOD
o Prescription: time within which a case can be filed in court
o After this period, case cannot be filed anymore
Ground
Party to File the Suit
Prescription period
No
Parent/guardian having legal
Anytime before no-consent
parents
charge of the no consent party party reaches 21 y/o
consent
No consent party
Within 5 years after attaining 21
Insanity

Fraud

Sane spouse without knowledge


of insanity
Relative, guardian, or person
having legal charge of insane
Insane spouse
Injured party

Anytime before death of either


party
At anytime before death of either
party
During lucid interval or after
regaining sanity
Within 5 years of discovery of
fraud

Vitiated
consent

Article
48

Article
49

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Injured party

Within 5 years from time


force/intimidation/undue
influence disappeared/ceased
Within 5 years after marriage
ceremony

Incapacity to
Injured party
consummate/
STD
DIFFERENCE BETWEEN PRESCRIPTION & RATIFICATION
o Ratification shorter than prescription
NO PARENTS CONSENT
o Not enough for the plaintiffparent to allege a cause of action in
favor of someone; he must show that it exists in favor of
himself/herself
o Starting point of prescriptive period for parents: anytime after
marriage but before 21
o For no-consent party: within 5 years after 21 (until 26)
INSANITY
o Starting point: anytime before death because the insane person
cannot reciprocate the commitment of sane spouse
FRAUD
o Only injured party alone can file. Even if person became insane
because of the fraud or intimidation, parents or others MAY NOT
file for the injured party.
o Starting point: discovery of fraud (until 5 years after)
VITIATED CONSENT
o Starting point: until 5 years after disappearance from force
INCAPACITY TO CONSUMMATE
o Starting point: MARRIAGE CEREMONY
NOTE
o Even if injured party has 5 years to annul based on said ground,
FREE COHABITATION WITHIN 5 YEARS WILL NOT LET THE
ANNULMENT SUCCEED
In all cases of annulment or declaration of absolute nullity of marriage, the Court
shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of
the State to take steps to prevent collusion between the parties and to take care
that evidence is not fabricated or suppressed.
In the cases referred to in the preceding paragraph, no judgment shall be based
upon a stipulation of facts or confession of judgment. (88a)
During the pendency of the action and in the absence of adequate provisions in a
written agreement between the spouses, the Court shall provide for the support of
the spouses and the custody and support of their common children. The Court shall
give paramount consideration to the moral and material welfare of said children and
their choice of the parent with whom they wish to remain as provided to in Title IX. It
shall also provide for appropriate visitation rights of the other parent. (n)
PROCEDURE IN ANNULMENT AND IN DECLARATION OF NULLITY

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CASES (Now governed by AM No. 00-11-01-SC, effective MARCH 15,


2003)
o File complaint with the proper RTC
o Defendant must file an answer within 15 days from receipt of the
summons and copy of complaint
! If no answer, cannot be declared in default
! The Court will then order the full-blown hearing of the case
where FISCAL will appear to make sure (1) no collusion,
(2) evidence not fabricated
! If court renders default judgment will not prevent such
decree to not have legal defect (an erroneous judgment is
NOT A VOID JUDGMENT)
o If defendant answers, Court orders hearing of the case
o Fiscal will appear on behalf of the state to ensure no collusion or no
fabrication of evidence
! If Court issues an order directing fiscal to investigate for
collusion/fabricatiom, and the petitioner does not want to
reveal evidence prematurely, the annulment case MAY BE
DISMISSED BY THE COURT, upon motion of fiscal
! Inquiry of fiscal can be on any relevant manner
o No suspension of the case if they are discussing a compromise
o An annulment suit cannot be terminated by a compromise
agreement; no valid compromise is legally possible on the issue of
validity of marriage
o ALL CASES: must have full-blown hearing
! Parties: duty-bound to prove their grounds by
preponderance of evidence
! Summary proceedings not allowed, even when the
counterclaim seeking to annul marriage without denial or
resistance
! Why? Such action is not one to obtain declaratory relief;
state is avowed to protect marriages.
! Even if statements were confessed or admitted to by
respondent, judgement cannot be decreed
! MATERIAL FACTS MUST ALWAYS BE PROVED.
ROLE OF FISCAL AND SOLICITOR GENERAL
o Fiscal/prosecuting attorney must be present for annulment and
nullity cases
o OSG can nevertheless intervene because marriage is vested with
public interest
o Their duty
! Find out if theres collusion or make sure evidence is not
fabricated
! Required to submit memorandum to defene a valid

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marriage or expose invalid ones


Must actively participate
When fiscal merely filed a manifestation that there was no
collusion, merely appeared at some hearings " SC,
remanded case for further proceeding even when lower
courts already denied petition for nullity (Sin v. Sin)
! Maquilan v. Maquilan (June 2007): partial voluntary
separation of property via compromise, duly approved by
court prior to JDNOM " VALID even if no participation
from PP/OSG
o Their difference
! Prosecutor: checks for collusion/evidence
! OSG: look into the actual merits and challenge courts
decision if it believes the decision to be wrong
o If the case was strongly opposed, it is clear that the litigation is
characterized by a no-holds-barred contests and not by collusion
! Non-intervention of fiscal to assure lack of collusion is not
fatal
COLLUSION
o Parties agree to make it appear that the marriage is effective due to
existence of grounds for annulment/nullity and agreeing to
represent such was false/non-existent cause of action before the
court to facilitate the issuance of JDNOM
o Corrupt agreement between H&W and RENDERS DISMISSIBLE
ANY ANNULMENT OR NULLITY CASE initiated through it
o Respondent withdrawing opposition or not defend him/herself, can
be evidence but not THE evidence of collusion
o Cannot be inferred from mere confession alone or even when
defendant also desires the annulment/separation/nullity
o If judge doesnt order the investigation of collusion " subject to
administrative sanction
STIPULATION OF FACTS OR CONFESSION OF JUDGMENT
o Decree cannot be issued on the SOLE basis of stipulation of facts
or confession of judgment
! Stipulation of fact: admission by both parties in court
agreement
! Confession of judgment: admission made in court by
defendant
o However, if such are sufficient corroborated by other independent
substantial evidence, annulment (etc.) may be warranted.
o Cardenas v. Cardenas and Rinen: first wife filed annulment case of
nd
nd
the 2 bigamous marriage of the husband. 2 wife admitted being
st
st
married and agreed that 1 wife is the 1 wife. SC " such
nd
stipulation of facts were sufficient to declare the 2 marriage void
!
!

38%

NOTES ON THE ABOVEMENTIONED POINTS FROM CLASS


o Whats not allowed?
! Judgment based on stipulation of facts
! Judgment based on confession of judgment
! Judgment based on pleadings
! Compromises that are unfair/unlawful:
Civil status
Validity of marriage or legal separation
Ground for legal separation
Future support
Jurisdiction of courts
Future legitime
SUPPORT OF SPOUSES AND CUSTODY OF CHILDREN
o While the suits are tried, spouses and custody and support of
children shall be governed by the spouses agreement
o Usually:
! Supported by ACP/CPG
! Support and custody pendente lite can be ordered by the
court
! If agreement found inadequate by the court, may disregard
such and make provisions that are adqueate
o Nullity cases
! Court finds out that spouse not entitled to support because
of marriage was void,
! Court " order the recipient to return the person who gave
support the amounts paid with legal interest from dates of
actual interest
o Unless there are other reasons to show non-entitlement to support
" support given to the spouses need not be reimbursed because
marriage was valid up to the time it was dissolved
o Extra attention to support and custody of common children
! Give them paramount consideration with regard to
moral/material welfare
! Children can choose which parent they want
! Consider: sex, age, characteristics of the child and their
needs, the home of the parties, capacity of each parent,
their relationship, etc.
! Children under 7 years of age " goes to mother
VISITATION RIGHTS
o Custody can be given to 1 parent but does not deprive other parent
from visitorial rights
! Unless court, under compelling reasons, deprives him/her
of such right
! Can be reinstated if deprivation is harsh or not present

Article
50

Article
51

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anymore
o Silva v. CA: example of visitation rights case
The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and by
Article 44 shall also apply in the proper cases to marriages which are declared ab
initio or annulled by final judgment under Articles 40 and 45.
The final judgment in such cases shall provide for the liquidation, partition and
distribution of the properties of the spouses, the custody and support of the
common children, and the delivery of third presumptive legitimes, unless such
matters had been adjudicated in previous judicial proceedings.
All creditors of the spouses as well as of the absolute community or the conjugal
partnership shall be notified of the proceedings for liquidation.
In the partition, the conjugal dwelling and the lot on which it is situated, shall be
adjudicated in accordance with the provisions of Articles 102 and 129.
In said partition, the value of the presumptive legitimes of all common children,
computed as of the date of the final judgment of the trial court, shall be delivered in
cash, property or sound securities, unless the parties, by mutual agreement
judicially approved, had already provided for such matters.
The children or their guardian or the trustee of their property may ask for the
enforcement of the judgment.
The delivery of the presumptive legitimes herein prescribed shall in no way
prejudice the ultimate successional rights of the children accruing upon the death of
either of both of the parents; but the value of the properties already received under
the decree of annulment or absolute nullity shall be considered as advances on
their legitime. (n)
JUDGMENT OF ANNULMENT OF MARRIAGE
o State the factual and legal basis for conclusion
o Court cannot grant relief not based on allegation of petition unless
issues related to main case were presented without objection
o Should the court render an erroneous judgment/judgment not
based on pleadings " JUDGEMENT VOID FOR BEING CORAMNON-JUDICE
! But if not assailed in motion for reconsideration, judgment
shall not be set aside and will continue to be effective
o Findings on existence/non-existence of psychological incapacity "
final and binding on the SC unless sufficiently shown that the trial
courts findings are manifestly erroneous
o Liquidation, partition and distribution of properties already included
in decision
! Unless adjudicated upon in previous proceedings or parties
agreed in marriage settlement
! Domingo v. CA: SC ruling which said so
ENTRY OF JUDGMENT AND DECREE OF NULLITY OF ANNULMENT
o Unless theres a motion for reconsideration or an appeal is made

39%

after decision, it will become final after expiration of 15 days from


receipt of decision
o Once final:
! issuance of entry of judgment
! decree of absolute nullity of marriage or annulment of
marriage best evidence of nullity/annulment of marriage
Decree shall only be issued after
o registrations of entry of judgment in the
proper LCR
o approved partition and distribution of
properties in proper registry of deeds
o delivery of presumptive legitime
PRESUMPTIVE LEGITIME
o Legitime part of testators property which he cannot dispose of
because law has reserved it for heirs who are COMPULSORY.
o With decree of annulment or nullity, it shall also provide for the
presumptive legitime be delivered to the common children in
cash/sound securities/properties UNLESS THE PARTIES
MUTUALL AND JUDICIALLY APPROVED FOR IT ALREADY.
o Reason: to protect children from subsequent marriages
o If incapacitated to have any legitime transmission can be raised
by transferor and decided by the court
o Child already receives the legitime then become incapacitated,
recovery of transferor will be a matter of values, not necessarily the
property itself
o ACP excludes partition of the property of either of the presumptive
legitime by former marriage
o Basis of presumptive legitime: properties of the persons involved at
the time of this particular situation that it would be the same when
he dies. It may increase, decrease, disappear. But point is: some
people have to be protected.
o If 2 people marry and merge properties, and you do not exclude
presumptive legitime, children from former marriage will be at
disadvantage because they have to share what should have
nd
belonged to them with the 2 set of children " THATS WHY
PRESUMPTIVE LEGITIME was set aside. This is what happened
before the Family Code.
o Computing for presumptive legitime:
! As of date of the final judgment of the trial court
o Judicial proceeding for approval of mutual agreement which
provides re: how presumptive legitime will be delivered shall be in a
summary proceeding.
o The presumptive legitime given to the children are considered
advances on their actual legitime.

When marriage is annulled " presumptive legitime must be


delivered to them
o Void marriages " delivery of presumptive legitime generally not
required EXCEPT when it was void in non-observance of Art. 40
(no JDNOM, etc), 50 (delivery of presumptive legitime), 51 (how to
value) 52 (recording of delivery in registry of property)
o Valdez v. RTC: SC ruled that general rule for void marriage, special
co-ownership will be applicable. But for liquidation and partition "
only ordinary rules of co-ownership and not Art. 50, 51, 52 of the
FC. Wherein, no requirement of delivery of presumptive legitime.
o Art. 43 (2) (3) (4) (5) applies only to:
! Void marriages under Art. 40 (no JDNOM, no presumptive,
etc.) " as of property relationship is ACP or CPG
! Voidable marriages under Art. 45
o Nicdao Carino v. Carino (2001): SC ruled subsequent marriage in
violation of Art. 40 is bigamous. Therefore, property is coownership. " WRONG DECISION. Follow Valdez ruling.
o Common children not parties to annulment case but materially
affected due to presumptive legitime granted by law a legal
standing to seek the enforcement of the judgment. Even guardian
or trustee of property may do so on behalf of children
! Done in summary proceeding.
The judgment of annulment or of absolute nullity of the marriage, the partition and
distribution of the properties of the spouses and the delivery of the children's
presumptive legitimes shall be recorded in the appropriate civil registry and
registries of property; otherwise, the same shall not affect third persons. (n)
Either of the former spouses may marry again after compliance with the
requirements of the immediately preceding Article; otherwise, the subsequent
marriage shall be null and void.
Children conceived or born before the judgment of annulment or absolute nullity of
the marriage under Article 36 has become final and executory shall be considered
legitimate. Children conceived or born of the subsequent marriage under Article 53
shall likewise be legitimate.
LIQUIDATION AND PARTITION OF PROPERTIES
o Nullity of marriage, liquidation " ORDINARY RULES OF COOWNERSHIP
o Valdez v. RTC liquidation process of ACP/CPG will not apply in a
void marriage except if Art. 40
o Voidable marriage, liquidation " in accordance with the rules
provided for under the chapters in the ACP/CPG or pre-nuptial
agreement
o Maquilan v. Maquilan (2007): SC ruled partial separation property
via compromise agreement approved by court prior to judicial
declaration of nullity " VALID
o

Article
52
Article
53
Article
54

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40%

RECORDING IN THE CIVIL REGISTRY AND REGISTRY OF PROPERTY


RA 9262 VAWC (can only be invoked by the wife)
rd
o Needed to bind 3 persons
o Protection order
o Needed to validly contract with subsequent marriage
o Violence broadly defined. When theres threat of violence, wife
rd
nd
o Non-compliance " not affect 3 persons. Thus, if 2 marriage is
can ask for protection order
contracted this is not binding.
o Stands alone and separate from nullity case (even if one fails to
o Non-compliance with liquidation and partition " cause for nonprove nullity etc. as long as theres threat)
issuance of decree of nullity/annulment
o Cannot ask to invoke if theres no decree of nullity or legal
separation
APPROPRIATE CIVIL REGISTRY AND REGISTRIES OF PROPERTY
o It is not permanent
o JDNOM / JD of Annulment
AM 02RULE ON PROVISIONAL ORDERS
! LCR of city/municipality where court issued decision
11-12(Effective March 15, 2003)
! LCR of city/municipality where marriage was solemnized
SC
o Registry of property
! Registry of where such properties are located
Types of orders in COURT
o Duty of the successful petition
o Spousal support
! Send the copy of the final decree to LCR
o Child support
o Duty of the clerk of court
o Visitation rights
! Ascertain if registered, if not, send copy to LCR of court
o Hold departure order
STATUS OF CHILDREN
o Order of protection/restraining order
o Administration of properties
Child
Status
TITLE II. LEGAL SEPARATION
Child born/conceived before judgment of annulment or
Legitimate
absolute nullity
Article
A petition for legal separation may be filed on any of the following grounds:
55
Child conceived/born in subsequent marriage
Legitimate
(1) Repeated physical violence or grossly abusive conduct directed against the
Child conceived/born after marriage
Legitimate
petitioner, a common child, or a child of the petitioner;
Child born/conceived but parents dont marry
Legitimate
(2) Physical violence or moral pressure to compel the petitioner to change religious
Child born/conceived before marriage, then such marriage Legitimate " now
or political affiliation;
was declared void
illegitimate
(3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a
Child born/conceived in a new marriage but void in accord Legitimate
child of the petitioner, to engage in prostitution, or connivance in such corruption or
to Art. 40 (52, 53)
inducement;
Child born/conceived in a marriage declared void due to
Legitimate
(4) Final judgment sentencing the respondent to imprisonment of more than six
psychological incapacity
years, even if pardoned;
Child born and conceived before marriage, then such
Illegitimate
(5) Drug addiction or habitual alcoholism of the respondent;
marriage was void due to psychological incapacity
(6) Lesbianism or homosexuality of the respondent;
Child born/conceived in a void marriage
Generally
(7) Contracting by the respondent of a subsequent bigamous marriage, whether in
illegitimate
the Philippines or abroad;
NOTES FROM CLASS
(8) Sexual infidelity or perversion;
o If theres a void marriage (ex. No ML) child " illegitimate
(9) Attempt by the respondent against the life of the petitioner; or
o Subsequently marries without nullifying; files and get a decision,
(10) Abandonment of petitioner by respondent without justifiable cause for more
subsequent marriage " void. But child " legitimate
than one year.
AM 02RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARRIAGES AND
For purposes of this Article, the term "child" shall include a child by nature or by
11-10ANNULMENT OF VOIDABLE MARRIAGES
adoption. (9a)
SC
(Effective March 15, 2003)
LEGAL SEPARATION
Reason for hold departure order so that spouse may not leave country
o Does not affect marital status, does not dissolve the marriage
with the child
o Decree of LS is terminable at the will of the parties merely through
o Either party may ask for it
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manifestation in court the marriage continuing


EXCLUSIVITY OF GROUNDS FOR LEGAL SEPARATION
o Grounds for LS are only those enumerated
o May or may not exist at time of marriage ceremony, may occur after
marriage celebration
o Usually occurs after celebration
REPEATED PHYSICAL VIOLENCE OR GROSSLY ABUSIVE CONDUCT
o May be on petitioner, common child, or child of petitioner
o Does not include repeated violence of respondents child
o However such may be cause to suspend/terminate the parental
authority of respondent, depending on degree
o Physical violence meaning = infliction of bodily harm
o Determinative factor = frequency, not pain
o Violence must be inflicted with bad faith and malice
o Even if act is not repeated or not physical violence, recourse "
grossly abusive conduct
o GAC determined on a case-to-case basis
! Ex. Pulling of hair, squeeze of neck without intent to kill,
continued manifestation of indifference or aversion, use of
offensive language with intent and fixed purpose of causing
unhappiness
COMPULSION BY PHYSICAL VIOLENCE OR MORAL PRESSURE TO
CHANGE RELIGIOUS/POLITICAL AFFLIATION
o One attempt or one incident of physical violence or moral pressure
to compel change
o These things are very important; there should be unity in the family
despite differences
CORRUPTION OR INDUCEMENT TO ENGAGE IN PROSTITUTION
o Parents have duty to provide their unemancipated children with
moral and spiritual guidance
o If child is induced to engage in prostitution or corruption or
inducement " LS under this is allowed
o May or may not be emancipated.
o Immoral and corrupt act " ONLY ABOUT PROSTITUTION.
! Hence, if Erap convinced son to bribe the courts or
whatever, it is not counted.
o Mere attempt is enough; success in corrupting immaterial
o Does not include such attempts of the spouse with other persons
such as his own child with another person
! However may be a cause to suspend or terminate the
parental authority
! If corruption successful " permanent termination
FINAL JUDGMENT INVOLVING MORE THAN 6 YEARS IMPRISONMENT
o Need not be against the spouse, their children, or petitioners

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children
Can be agsinst anybody
Can be invoked even if he has been pardoned
Judgment must be final.
Injured spouse may not file while criminal conviction is on appeal
because its not yet final. Spouse to be assumed innocent until
conviction is sustained. Can still be reversed by higher courts, after
all.
o Pardon of marital rape wife pardons. Can she still file? No?????,
effect of pardon shall extinguish criminal action
o If final judgment was made at time of marriage and spouse did not
disclose " not just LS. Also ground for ANNULMENT.
o NOTES FROM CLASS: Depends when is forgiveness? #4
generic crime pardon. Special law extinguish penalty (absolutory
clause) . Try to make a way to change the law to incorporate that
thought
DRUG ADDICTION, HABITUAL ALCOHOLISM, LESBIANISM,
HOMOSEXUALITY
o Annulment cases -" instances of fraud existing at celebration of
marriage
o LS " grounds can exist even after marriage ceremony
o For gay/lesbian: there has to be an overt act that would give rise to
LS
o Example. H&W who is lesbian, marry H and he knew even then.
Can they file for LS? Yes.
! Defense of wife: condonation/consent of H " not valid
because it must be of acts
! How should consent be construed of husband with lesbian
wife and etc.?
Not consenting to acts of lesbianism. Just being
lesbian
o Examples of acts/offense complained of:
! H was caught wearing Ws clothes
BIGAMY
nd
o Bigamy civil act of illegally contracting a 2 marriage despite full
st
knowledge that the 1 marriage is still validly existing OR when
spouse did not first obtain JDPD
o Whether illegal subsequent marriage was solemnized abroad "
immaterial; CIVILLY LIABLE ALWAYS
nd
o 2 bigamous marriage, wherever celebrated, a legal separation
decree may issue
o But criminally liable only if inside the PH
SEXUAL INFIDELITY OR PERVERSION
o Sexual infidelity
o
o
o
o

42%

Adultery and concubinage included


Other acts so long as what was committed by spouse is
clear betrayal of trusts
Even single act of intercourse is enough
! Applicable to Filipina woman who obtains absolute divorce
abroad then marries another. Former spouse may validly
claim bigamy.
o Sexual perversion
! Can also be with spouse
! Bestiality
ATTEMPT ON LIFE
o Must proceed from an evil design, not from any justifiable cause
like self-defense or when caught in flagrante delicto having carnal
knowledge with another person
o No previous criminal conviction require
o Can be proven by preponderance of evidence
o If spouse is criminally convicted, innocent spouse may disinherit
him unless theres reconciliation
o If innocent spouse previously made a will in favor of guilty spouse,
legal separation decree will revoke such
UNJUSTIFIED ABANDONMENT
o Desertion must be willfull
o Willfull "there is design to forsake the spouse intentionally or
without cause and to break up the union; deliberate intent to cease
living with spouse; abnegation of duties of marriage relation, not to
return
o Mere severance not sufficient
o Must be wrongful intent continued for a time period
o Abandonment without justification
o Ong v. Ong (2006): wife left because she was battered by husband
justifiable cause, not ground for legal separation
o Physical separation not enough. If duties not neglected, like support
is given, etc, no ground for LS under this
o Must be absolute cessation of martial relations and total
renunciation of duties
o Ex. Man tells wife and her children from former marriage to leave.
" man abandoned woman. Wrongful because not reasonable
o Ex. Both parties concur " not willfull desertion of one by another
o Must be for more than 1 year to warrant decree
o Abandonment not granted against spouse who became insane
after desertion, but before the period had expired in computing
period, the time during the offending spouse has been insane
cannot be included
! Why? Desertion must continue to be willfull or intentional
!
!

for the full statutory period


Insane person cannot be said to have maintained such an
intention
! If he had retain the power of reason he might have
repented and returned before expiration of full period
o If spouse heavily protested and persuaded other spouse to not
leave, the fact he submitted to the inevitable and helped her with
leaving " NOT CONSTRUED AS CONSENT TO SEPARATION
o Spouse deemed to have abandoned when she has left the conjugal
home without intent of returning
! If conjugal home was left for 3 months or has failed to give
any period shall be prima facie presumed to have no
intention of returning " present spouse may become sole
administrator of property, etc.
The petition for legal separation shall be denied on any of the following grounds:
(1) Where the aggrieved party has condoned the offense or act complained of;
(2) Where the aggrieved party has consented to the commission of the offense or
act complained of;
(3) Where there is connivance between the parties in the commission of the offense
or act constituting the ground for legal separation;
(4) Where both parties have given ground for legal separation;
(5) Where there is collusion between the parties to obtain decree of legal
separation; or
(6) Where the action is barred by prescription. (100a)
An action for legal separation shall be filed within five years from the time of the
occurrence of the cause. (102)
CONDONATION
o Act of forgiving the offense after its commission
o Implies a condition of future goof behavior by offending spouse
o Subsequent offense revokes or nullifies the condonation and
revives the original offense
o Ocampo v. Florenciano: failure of husband to look actively for
adulterous wife after she left the home is not condonation or
consent. It was the obligation of the woman to return
o Almacen v. Baltazar: act of giving money to an erring wife and no
action was taken against her in the courts are sufficient to establish
condonation. It does not require sexual intercourse. Condonation
may be express or implied.
CONSENT
o Either spouse agreed to or did not object, despite full knowledge, to
the act giving rise to a ground for LS before such an act was
committed
o People v. Schneckenburger, People v. Guinucud: agreement
between spouses that they will live separately and will not object to
!

Article
56

Article
57

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43%

Article
58
Article
59
Article
60

the others sexual infidelity, adultery or concubinage, SC "


agreement void but there was consent to the commit sexual
infidelity
o Consent may be deduced from acts
o People v. Sensano: husband, knowing wife resumed living with
kabit and did not assert his rights and instead left for Hawaii for 7
years totally abandoning his wife and child, SC " acts of husband
constituted consent to the adulterous acts; cannot file case for
adultery against wife
CONNIVANCE
o Greene v. Greene: denotes direction, influence, personal exertion,
or other action with knowledge and belief that such action would
produce certain results
o Doctrine of unclean hand
o Witherspoon v. Witherspoon: husband employed agents to coerce
wife to illicit sexual activities " active connivance
RECRIMINATION OR EQUAL GUILT
o He who comes into equity must come with clean hands
o Rule: when 2 persons acted in bad faith, should be considered as
having acted in good faith in pari delicto
o Ong v. Ong: wife-beater sought dismissal of LS case because of
equal guilt as wife also abandoned him, SC " rejected such
position. No equal guilt as abandonment was justified.
COLLUSION
o Collusion is corrupt agreement while connivance is corrupt
consenting
o There must be an agreement between H&W to procure separation
o Ocampo v. Florenciano: collusion implies more than consent or lack
of opposition to the agreement. Means, agreement between H&W
to commit or appear to commit a matrimonial offense or suppress
evidence of valid defense to enable separation
PRESCRIPTION
o May be 5 witjin 5 years from the occurrence of the cause
o After that LS case may not be filed
o Time of discovery " immaterial in counting prescriptive period
An action for legal separation shall in no case be tried before six months shall have
elapsed since the filing of the petition. (103)
No legal separation may be decreed unless the Court has taken steps toward the
reconciliation of the spouses and is fully satisfied, despite such efforts, that
reconciliation is highly improbable. (n)
No decree of legal separation shall be based upon a stipulation of facts or a
confession of judgment.
In any case, the Court shall order the prosecuting attorney or fiscal assigned to it to
take steps to prevent collusion between the parties and to take care that the

Article
61

Article
62

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evidence is not fabricated or suppressed. (101a)


After the filing of the petition for legal separation, the spouses shall be entitled to
live separately from each other.
The court, in the absence of a written agreement between the spouses, shall
designate either of them or a third person to administer the absolute community or
conjugal partnership property. The administrator appointed by the court shall have
the same powers and duties as those of a guardian under the Rules of
Court. (104a)
During the pendency of the action for legal separation, the provisions of Article 49
shall likewise apply to the support of the spouses and the custody and support of
the common children. (105a)
PROCEDURE
o Governed by SC Resolution En Banc A.M. No. 00-11-01-SC
o Answer within 15 days from receipt of summons and copy of
petition
o Fails to answer, cannot be defaulted but court shall order fiscal to
investigate for collusion and evidence fabrication
o Party answers " fiscal ahs to be in the trial to make sure no
collusion and no fabrication of evidence
o If vehemently opposed/contested non-intervention of fiscal is not
fatal to the validity of the court proceedings
o w/n defendant files an answer to complaint, no hearing until 6
months cooling off period, designed to give parties time to
contemplate position (maybe they can reconciliate within that
period)
o Failure to observe cooling-off period " ground to set aside decision
granting LS
! Pacete v. Carriaga: legit wife filed case to nullify Hs
bigamous marriage with his mistress and to obtain LS
decree. Trial court without observing cooling-off period
granted LS, voiding bigamous marriage. SC " set aside
decision. 6 months not observed.
o EXCEPTION: Sec. 19 of RA 9262
! Violence is broad
! If violence is broad, art. 58 shall no apply. There shall be
no cooling-off period
o 6 month period only for the legal separation case but for custody of
children, alimony, support " may be within that 6 months
o No LS may be decreed unless court took steps to reconcile
spouses and is satisfied that reconciliation never will happen
o Preponderance of evidence " needed to substantiate LS
o Material facts must always be proved
o Gandionco v. Penadora: civil case of LS filed on ground of sexual
infidenlity because H committed concubinage and also a criminal

44%

Article
63

case was filed, the civil case may proceed ahead/simultaneously


with criminal action for concubinage, even if just same offense.
! Civil action intended for:
! right to live separate,
! dissolution of ACP/CPG,
! support and disqualification from inheriting from innocent
spouse
o Afer case was submitted for decision, judge will decide but must not
be based on confession or stipulation of facts
o If petition is denied, court cannot compel the parties to cohabit as it
is a personal act
o Legal effects of LS " Art. 63 64
MANAGEMENT OF PROPERTIES DURING SUIT
o In absence of written agreement, court shall designate either them
or a third person to administer ACP/CPG
o Administrator have same powers duties of guardian under Rules of
Court
o Sabalones v. CA (1994): H after years as diplomat when to PH to
his bigamous wife and illegitimate children. 19 years abroad, the
legititmate wife administered without complaint. H after his arrival
filed case to approve sale of one of the CPG. Wife opposed and
counterclaimed for LS, praying forfeiture of Hs share in CPG. Court
" wife won. Appealed. Injunction was filed by wife to stop H from
interfering with management of properties. Also did H. CA "
granted wifes motion. Husband appealed, they are joint
administrators. SC " gave administration to wife. But said that it is
not permanent, just that wife gets to administer without interference
from H.
DEATH TERMINATES LEGAL SEPARATION CASE
o Lapuz v. Eufemio: SC" action for legal separation is purely
personal. Death of one party to the action causes death to the
action itself. No need for LS because marriage is dissolve, not even
hers can continue.
o Right to dissolution, etc. are all rights and disabilities that are
vested exclusively in the person of spouse. Rights are mere effects
of decree of separation. Without such decree, the rights do not
come to existence.
The decree of legal separation shall have the following effects:
(1) The spouses shall be entitled to live separately from each other, but the
marriage bonds shall not be severed;
(2) The absolute community or the conjugal partnership shall be dissolved and
liquidated but the offending spouse shall have no right to any share of the net profits
earned by the absolute community or the conjugal partnership, which shall be
forfeited in accordance with the provisions of Article 43(2);

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(3) The custody of the minor children shall be awarded to the innocent spouse,
subject to the provisions of Article 213 of this Code; and
(4) The offending spouse shall be disqualified from inheriting from the innocent
spouse by intestate succession. Moreover, provisions in favor of the offending
spouse made in the will of the innocent spouse shall be revoked by operation of
law. (106a)
EFFECTS OF A DECREE OF LEGAL SEPARATION
o When decree is issued, finality of separation is complete after lapse
of period to appeal to higher courts even effects (ex. Liquidation of
property) have not been commenced or terminated
o Macadangdang v CA: dissolution and liquidation are necessary
consequences, and is an inevitable incident of judgment declaring
legal separation. Any attempt to reserve such questions for future
determination is improper. Property rights are incidental, and must
be settled within the issuance of decree.
MARRIAGE BOND MAINTAINED
o Only entitled to live separately
o So even if apart, spouse can be held criminally liabel for bigamy,
concubinage, adultery
LIQUIDATION OF PROPERTY
o ACP or CPG " liquidated
o Guilty spouse no right to net profits earned by ACP/CPG, to be
forfeited in favor of common children, children by former marriage,
innocent spouse
o Computing: profits shall be increase in value between market value
of community property at the time of marriage and MV at time of
dissolution
CUSTODY OF MINOR CHILDREN
o Generally, innocent spouse shall be awarded the custody of minor
children
o Paramount interest of child is the standard
o So court can award to third person if both spouses not fit to take
care of child
o No child below 7 years shall be separated from mom unless court
finds compelling reason
INTESTATE AND TESTAE DISQUALIFICATION
o Offending spouse shall be disqualified from inheriting from innocent
spouse by intestate succession
o Provisions in favor or guilty spouse made in the will of the innocent
spouse shall be revoked by operation of law
o Does not provide revocation to be rendered ineffectual if LS decree
is set aside upon manifestation that parties reconciled
o Art. 921(4) of CC: person can disinherit his/her spouse in a will if
the latter has given cause for LS even if not yet found guilty of

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committing such
Art. 922 of CC: such disinheritance in a will shall be rendered
ineffectual upon mutual reconciliation of the spouses
After the finality of the decree of legal separation, the innocent spouse may revoke
the donations made by him or by her in favor of the offending spouse, as well as the
designation of the latter as beneficiary in any insurance policy, even if such
designation be stipulated as irrevocable. The revocation of the donations shall be
recorded in the registries of property in the places where the properties are located.
Alienations, liens and encumbrances registered in good faith before the recording of
the complaint for revocation in the registries of property shall be respected. The
revocation of or change in the designation of the insurance beneficiary shall take
effect upon written notification thereof to the insured.
The action to revoke the donation under this Article must be brought within five
years from the time the decree of legal separation become final. (107a)
DONATIONS AND BENEFICIARY IN INSURANCE
o Donations and act of innocent party in designating guilty spouse as
beneficiary " acts of liberality
o Thus, law gives option to revoke
o Re: beneficiary in insurance, even if irrevocable, will be considered
revoked upon written notification to the insured. " though it seems
that the journal says it should have been to the insurer
o Re: donations, if innocent spouse revokes it, he/she must file an
action for revocation within 5 years from time the decree of LS is
final
o If donation is void (Art. 87), right to bring action to declare nullity
does not prescribe
If the spouses should reconcile, a corresponding joint manifestation under oath duly
signed by them shall be filed with the court in the same proceeding for legal
separation. (n)
The reconciliation referred to in the preceding Articles shall have the following
consequences:
(1) The legal separation proceedings, if still pending, shall thereby be terminated at
whatever stage; and
(2) The final decree of legal separation shall be set aside, but the separation of
property and any forfeiture of the share of the guilty spouse already effected shall
subsist, unless the spouses agree to revive their former property regime.
The court's order containing the foregoing shall be recorded in the proper civil
registries. (108a)
The agreement to revive the former property regime referred to in the preceding
Article shall be executed under oath and shall specify:
(1) The properties to be contributed anew to the restored regime;
(2) Those to be retained as separated properties of each spouse; and
(3) The names of all their known creditors, their addresses and the amounts owing
to each.
o

Article
64

Article
65
Article
66

Article
67

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The agreement of revival and the motion for its approval shall be filed with the court
in the same proceeding for legal separation, with copies of both furnished to the
creditors named therein. After due hearing, the court shall, in its order, take
measure to protect the interest of creditors and such order shall be recorded in the
proper registries of properties.
The recording of the ordering in the registries of property shall not prejudice any
creditor not listed or not notified, unless the debtor-spouse has sufficient separate
properties to satisfy the creditor's claim. (195a, 108a)
o EFFECT OF RECONCILIATION
o If reconcile, file joint manifestation of reconciliation in court
o If legal separation case is pending, it will be terminated
o If decree has already been issued, whether with finality/not, will be
set aside
o Separation of properties will subsist
o They can come into agreement to revive property regime, which
shall be approved by the court
o Contains:
! List of properties remain separate
! Properties to be contributed to revive property regime
! Names and addresses of creditors and credit amount
o Creditors to be furnished with motion seeking approval of
agreement
o After hearing, court will protect interest of creditors and order will be
recorded in civil registry of property]
o Recording of order in the registry property will not prejudice
creditors not listed/notified unless debtor-spouse has sufficient
properties
o REVIVAL AND ADOPTION
o Can revive original prop regime
o Another regime different from their prior property relation - new rule
which was from the SC resolution
! View 1:
Art. 66 & 67 restrictive, only for revival of former
property
New rule allows different property regime. Undue
extension and has no legal basis. Thus in case of
conflict, FC shall prevail
Clearly, adoption of new property regime is not
allowed acc. To Art. 66 & 67
! View 2:
Art. 66 only refers to revival, does not provide that
different property regime is not allowed
Law is not restrictive therefore they should allow
change in property regime

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But then, it also says in the law that changing of


property regime anytime within the marriage is not
allowed
LS does not sever the marriage, therefore change
of property regime shouldnt be allowed

View 3:
Provided court approval, parties can request for
new property regime
Does not take into consideration Art. 88 and 107

INHERITANCE
o If innocent spouse already disinherited old spouse, subsequent
reconciliation renders ineffectual any disinheritance
o Revival of revokes provision in a will " NOT IN THE FAMILY
CODE EVER so its weird
RECORDING OF THE ORDER OF REVIVAL
o No recording in proper LCR, creditors not prejudiced w/n
notified/listed
o Recording and notification of creditors will have an effect on
creditors claims.
o Recording of the order of revival will prejudice those creditors those
creditors listed in the order or those notified of motion of revival
! If not listed and not notified will not prejudice
o Ex. A & B decide to reconciled. Separate properties remain
separate even after LS decree has been dissolved. Then revive,
they can file a motion. And then if they decide to put their separate
properties to become part og their revive CPG, order can be issued
to effect subject to certain reservations. Court can set aside certain
separate properties of each spouse to pay off or protect each
respective creditors. If no props were set aside for listed creditors
who were notified, but did file claims to protect interests, shall be
prejudiced by recording of order in registry of props. Thus, if before
revival A was ordered by by court to pay creditor X, X could only
execute on As house, the subsequent issue of reviving CPG w/c
included As house, will prejudice X in case notified and was listed
in the revival order as creditor or notified. X therefore cannot upon
default of A to pay obligation execute on the house because A & B
are now co-owners. X can be legally prejudiced. What he should
have done was file opposition or claim in court proceeding which
heard revival so as to protect his interest. If he was not listed as
creditor nor nortified, upon deafault of A with his obligation, X can
still foreclose the house as if its a separate property. However, A
owns other properties equivalent to As debt, X will be prejudiced
even if not listed in recorded order as creditor or not notified. He will
not be able to execute on the house or other assets which became

CPG properties of A & B.


AM 02RULE ON LEGAL SEPARATION
11-11SC
TITLE III. RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE
Article
The husband and wife are obliged to live together, observe mutual love, respect
68
and fidelity, and render mutual help and support. (109a)
! The significant and practical purpose of providing in the law the duties and
obligations of husband and wife:
o The general happiness of the married life is secured in its
indissolubility. When people understand that they must live
together, they learn to soften by mutual accommodation; they
become good husband and wife; for necessity is a powerful master
in teaching the duties which it imposes.
o For short: marriage is strengthened by its indissolubility. If youre
stuck together, youre bound to make it work.
o Ex. If a spouse unjustifiably does not want to live, will this be a
sufficient ground for severance?
! The law favors marriage and not separation. If its not
psychological incapacity, you are not off the hook.
! Procreation is also an essential marital obligation.
! Except for support, the court cannot validly issue a decision compelling
spouses to live together, observe mutual love, respect and fidelity. Only
moral obligation of the spouse constitutes that motivating factor. These are
highly personal duties and obligations
o The same goes for wifes domestic assistance and conjugal
companionship.
! There can be no damages merely because of a breach of marital obligation.
But there are other remedies: Art. 19-21 of Civil Code.
o But he who seeks to collect indemnity for damages resulting from
deprivation of domestic services must prove such service.
o The loss must be monetized.
! What will happen if you refuse to live with spouse without just cause?
o You will be deprived of support from the community property (CP)
even though the latter initially belonged to you.
! Marital rape
o Rape: when the offended party is deprived of reason or is
unconscious
o A husband can be held liable for raping his wife. But the
subsequent forgiveness of the wife extinguishes the criminal action
or the penalty. But if the marriage was void ab initio, then the
penalty or the crime will not be abated. (Art. 226-C of RPC,
amended by RA 8353)
o Rape is also an act of violence against women, including wife.

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Prior to amendment, there was the matrimonial exemption to crime of rape,


anchored on these concepts (rebuttal afterwards)
o Upon marriage, a man and woman no longer retained separate
legal experience. Man, in effect, cannot be convicted of raping
himself.
! Rape statutes have always aimed to protect the safety and
personal liberty of women. Women have rights and
privileges completely separable from their husbands,
proven by RA 8353 (rape is a crime against persons).
o Upon entering the marriage contract, a wife consents to sexual
intercourse with her husband and law does not allow her to retract
such consent. Thus, husband is legally incapable of raping his wife
because the element of rape is lack of consent.
! This is not sound because even marriage itself is
revocable. If a wife can exercise right to legally separate
with her husband, what more revoking consent to
intercourse?
The husband and wife shall fix the family domicile. In case of disagreement, the
court shall decide.
!

Article
69

The court may exempt one spouse from living with the other if the latter should live
abroad or there are other valid and compelling reasons for the exemption. However,
such exemption shall not apply if the same is not compatible with the solidarity of
the family. (110a)
! Domicile is the place of habitual residence.
! Spouses can only have one domicile.
! A minor follows the domicile of his/her parents.
! Fixing of the family domicile should be by agreement between the husband
and wife.
! Older Civil Code said that husband, being the legal administrator of the
property dictates the domicile. The Family Code recognizes the changes in
concept of womens rights.
! In case of disagreement, the court shall decide. Judicial proceeding shall be
summary in nature.
! A spouse can validly live away from the other only if the latter should live
abroad or there are other valid reasons fro exemption.
! The court will decide if it will issue an order exempting the spouse to live
with the other. But it should not apply is it is not compatible with the
solidarity of the family. Judicial proceeding = summary in nature (Art. 253 of
Family Code).
! The force of the exemption to not live together:
o If the Court does not grant exemption, the injured spouse can file
for damages.
o The spouse who does not want to live shall support himself/herself

Article
70

Article
71
Article
72

Article
73

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with own separate property. He/she shall not be supported by the


community property.
The spouses are jointly responsible for the support of the family. The expenses for
such support and other conjugal obligations shall be paid from the community
property and, in the absence thereof, from the income or fruits of their separate
properties. In case of insufficiency or absence of said income or fruits, such
obligations shall be satisfied from the separate properties. (111a)
The management of the household shall be the right and the duty of both spouses.
The expenses for such management shall be paid in accordance with the provisions
of Article 70. (115a)
When one of the spouses neglects his or her duties to the conjugal union or
commits acts which tend to bring danger, dishonor or injury to the other or to the
family, the aggrieved party may apply to the court for relief. (116a)
! Support (household management, support expense) is very important and
the frequency in which it appears in the Family Code highlights the point.
1. Art. 70 spouses jointly responsible for support
2. Art. 68 husband and wife obliged to support each other
3. Art. 94 & 121 ACP and CPG shall be liable for support of spouses
and common legitimate children
4. Art. 49 in cases of annulment or nullity, the court shall provide for
the support of the spouse, and support and custody of the children
5. Art. 198 during proceedings for legal separation / annulment /
declaration of nullity of marriage, spouse and children shall be
supported from ACP or CPG properties.
6. Title VIII all about support
7. Art. 220 parents and those exercising parental authority have the
duty to support the children
8. Art. 70 & 71 support can be taken from ACP/CGP, fruits of
separate properties, separate properties
! Management and relief are the rights and duty of both spouses regardless
of property regime.
! In the event that one of the spouses neglects his or her duties to conjugal
union, or commits acts which tend to bring danger, dishonor or injury to the
other or to the family, the aggrieved party may apply to court for relief.
! Forms of relief:
1. Case for legal separation
2. Nullification of marriage based on Art. 36
3. Petition for receivership
4. Petition for judicial separation of property
5. Petition for authority to be the sole administrator of the property
subject to conditions of the court (ex. When the husband is a
gambler, wife can apply to be the administrator)
Either spouse may exercise any legitimate profession, occupation, business or
activity without the consent of the other. The latter may object only on valid, serious,

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and moral grounds.


In case of disagreement, the court shall decide whether or not:
(1) The objection is proper; and
(2) Benefit has occurred to the family prior to the objection or thereafter. If the
benefit accrued prior to the objection, the resulting obligation shall be enforced
against the separate property of the spouse who has not obtained consent.
The foregoing provisions shall not prejudice the rights of creditors who acted in
good faith.
! THIS LAW HAS ALREADY BEEN REPEALED:
Art. 73. Either spouse may exercise any legitimate profession, occupation, business
or activity without the consent of the other. The latter may object only on valid,
serious, and moral grounds.
In case of disagreement, the court shall decide whether or not:
(1) The objection is proper, and
(2) Benefit has accrued to the family prior to the objection or thereafter. If the
benefit accrued prior to the objection, the resulting obligation shall be
enforced against the community property. If the benefit accrued thereafter,
such obligation shall be enforced against the separate property of the spouse
who has not obtained consent.
The foregoing provisions shall not prejudice the rights of creditors who acted in
good faith.
!

!
!

!
!

If husband compels wife to desist from pursuing a profession or any other


conduct which the wife has the right to engage in, or if he prevents the wife
from engaging in activities for the purpose or effect of controlling or
restricting her movement or conduct, these are considered acts of violence
against women against RA 9262. This is punishable.
The exercise of a legitimate profession, occupation, business, activity is
always considered to redound the benefit of the family.
Isolated transaction such as being a guarantor for a third persons debt is
not considered as redounding to the benefit of the family.
o Therefore to hold the ACP or CPP liable for any loss from such
activity, there must be proofs showing that the family benefited.
In case of disagreement, the objection must be anchored only on valid,
serious and moral grounds.
The courts shall decide if the objection is proper. The proceeding shall be
summary in nature.
o If found objectionable, the exercise of the business can be judicially
stopped.
General rule:

Debts and obligations, of whatever nature and regardless of time


they were incurred, whether before or after marriage ceremony, IF
IT REDOUNDS TO THE BENEFIT OF THE FAMILY, it shall be
chargeable to the CPP or ACP.
o Obligation incurred as a result of a spouses exercise of legitimate
profession/occupation or as a result of a spouses undertaking of
his or her own business, is an obligation redounding to or for the
benefit of the family or ACP or CPP.
! Exception to the rule:
o Benefit accrued prior to objection, resulting obligation is enforced
against the separate property of the spouse who did not obtain
consent.
! In order for the exception to apply:
o Innocent spouse must have no knowledge of the other spouses
engagement in an immoral activity.
o If he knew beforehand, and merely interposed an objection but later
on used the money for family needs, it is deemed that there was no
disagreement. It was not an authentic objection.
o Check example from book: p. 412.
! Fun fact: it seems that there was error in printing this law. That the spouse
who did not obtain consent shall incur the liability (only his/her separate
property).
TITLE IV. PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE
CHAPTER 1: GENERAL PROVISIONS
Article
The property relationship between husband and wife shall be governed in the
74
following order:
(1) By marriage settlements executed before the marriage;
(2) By the provisions of this Code; and
(3) By the local custom. (118)
Article
The future spouses may, in the marriage settlements, agree upon the regime of
75
absolute community, conjugal partnership of gains, complete separation of property,
or any other regime. In the absence of a marriage settlement, or when the regime
agreed upon is void, the system of absolute community of property as established
in this Code shall govern. (119a)
Article
In order that any modification in the marriage settlements may be valid, it must be
76
made before the celebration of the marriage, subject to the provisions of Articles 66,
67, 128, 135 and 136. (121)
Article
The marriage settlements and any modification thereof shall be in writing, signed by
77
the parties and executed before the celebration of the marriage. They shall not
prejudice third persons unless they are registered in the local civil registry where the
marriage contract is recorded as well as in the proper registries of properties. (122a)
! By the contract of marriage, a man and woman enter a joint life, acting,
living, and working as one. There should be between them a full and
complete community if existence.

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Because of this oneness, they cannot sell property to each other,


except when:
! A separation of property was agreed upon in the marriage
settlement
! There has been a judicial separation of property
Property relations shall be governed by their marriage settlement.
o Must be in writing,
o signed by the parties, and
o made prior to the celebration of the marriage.
! If not written, it is INVALID, not just unenforceable which is
provided by the Civil Code.
They can stipulate on any arrangement provided it is not contrary to law
and public policy, and within limits of Family Code.
1. They cannot dictate effectivity of the settlement at a time other
than the celebration of marriage. VOID if they do so.
2. They cannot stipulate that they can make substantial donation to
each other during marriage. VOID if they do so, because of Art. 87.
3. In case when marriage is terminated because of the death of one
spouse, and there has been no liquidation of properties within one
year of the spouses death, and surviving spouse remarries, the
surviving spouse and new spouse cannot execute a marriage
settlement other than COMPLETE SEPARATION OF PROPERTY
REGIME. VOID if they do so, because of Art. 103 and 130.
4. They cannot vary the marital personal rights and duties.
5. They cannot divest their children of legal rights.
If there is no marriage settlement, absolute community of property will
prevail.
o They can also design their own property regime, which is not in
violation of law.
To bind persons, the marriage settlement and modifications must be
registered in the local civil registrar where the marriage contract is recorded
and the proper registries of property.
o See example: p. 419-421
o EXPLAIN ME FURTHEEEERRRRRR
o If no marriage settlement, there is nothing to file in the local civil
registrar and property registries.
They must exercise a high degree of good faith in creating the contract.
They must consider the following:
o Situation of the parties
o Age
o Health and experience
o Respective properties
o Family ties and connections
o Spouses needs and such favors as tend to show that agreement
o

!
!
!

Article
78
Article
79

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was understood
! But even if it was unfair, yet the spouse understood the
unfairness, then signed, it is binding.
Burden of proof for alleging invalidity of pre-nuptial agreement is on the
spouse alleging it but if the contract is unreasonable, the burden shifts and
it is incumbent for the other party to prove the validity.
General rule: in order that the modification of a marriage settlement is valid,
it must be made prior to the marriage ceremony.
Exceptions (modifications after marriage ceremony, which need judicial
approval):
1. Art. 66 reconciliation effects
2. Art. 67 reviving former property regime after reconciliation
3. Art. 128 abandonment or failure to comply with marital
obligations
4. Art. 135 further grounds for judicial separation of property.
The spouses may file a voluntary and verified petition in court to
modify their property regime into a separate community of property
regime
5. Art. 136 voluntary dissolution of both parties
When parties stipulate that local custom shall apply, or that the absolute
community of property shall not govern their property relations but fail to
stipulate what property regime will be applied, the only recourse is to apply
the local custom.
o But if they say that neither local custom nor ACP shall apply, it is
VOID. Being void, ACP will prevail.

!
A minor who according to law may contract marriage may also execute his or her
marriage settlements, but they shall be valid only if the persons designated in Article
14 to give consent to the marriage are made parties to the agreement, subject to
the provisions of Title IX of this Code. (120a)
For the validity of any marriage settlement executed by a person upon whom a
sentence of civil interdiction has been pronounced or who is subject to any other
disability, it shall be indispensable for the guardian appointed by a competent court
to be made a party thereto. (123a)
! The law (Art. 78) is now useless because only people 18 years of age and
up are allowed to marry.
! An 18-year-old can validly execute a marriage settlement even without
consent of the parents, etc. in Art. 14 of Family Code.
! Civil interdiction shall deprive the offender during the time of his sentence:
o the rights of parental authority or guardianship, either as to the
person or property, of marital authority, of the right to manage his
property, and of the right to dispose of such property by any act
inter vivos.
o Reclusion perpetua and reclusion temporal shall render absolute

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Article
80

disqualification even though pardoned as to the principal penalty,


unless expressly remitted in the pardon.
o Death penalty when not executed because of commutation or
pardon, shall carry with it that of the perpetual absolute
disqualification of civil interdiction following the date of the
sentence, unless such accessory penalties have been expressly
remitted.
In the absence of a contrary stipulation in a marriage settlement, the property
relations of the spouses shall be governed by Philippine laws, regardless of the
place of the celebration of the marriage and their residence.

This rule shall not apply:


(1) Where both spouses are aliens;
(2) With respect to the extrinsic validity of contracts affecting property not situated in
the Philippines and executed in the country where the property is located; and
(3) With respect to the extrinsic validity of contracts entered into in the Philippines
but affecting property situated in a foreign country whose laws require different
formalities for its extrinsic validity. (124a)
! Philippine laws will govern the property relations of a Filipino couple in the
absence of agreement to the contrary.
o This rule applies even if married abroad.
! Art. 16: real property and personal property shall always be subject to the
law of the country where it is situated. Contracts concerning such
properties, if executed here, will have its extrinsic validity governed by the
laws of the respective countries.
! NO. 3 EXERCISE of International Comity.
Article
Everything stipulated in the settlements or contracts referred to in the preceding
81
articles in consideration of a future marriage, including donations between the
prospective spouses made therein, shall be rendered void if the marriage does not
take place. However, stipulations that do not depend upon the celebration of the
marriages shall be valid. (125a)
! The consideration of a marriage settlement is the marriage itself. If it does
not take place, the marriage settlement is considered VOID.
! Provisions in a marriage settlement are separable if there are provisions
that are invalid but do not affect the validity of other provisions. Others will
remain in force.
CHAPTER 2: DONATIONS BY REASON OF MARRIAGE
Article
Donations by reason of marriage are those which are made before its celebration, in
82
consideration of the same, and in favor of one or both of the future spouses. (126)
Article
These donations are governed by the rules on ordinary donations established in
83
Title III of Book III of the Civil Code, insofar as they are not modified by the following
articles. (127a)
Article
If the future spouses agree upon a regime other than the absolute community of
84
property, they cannot donate to each other in their marriage settlements more than
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one-fifth of their present property. Any excess shall be considered void.


Donations of future property shall be governed by the provisions on testamentary
succession and the formalities of wills. (130a)
! Donations by reason of marriage:
o Made before celebration (INDISPENSIBLE)
o Because of marriage
o In favor of one or both of future spouses
! Donations are governed by:
o Title III of Book III of the Civil Code, insofar as they are not modified
by the next provisions.
! Donation must be accepted personally OR through an
authorized person with power to for the purpose (If not,
VOID)
! Acceptance must be made during the lifetime of the
donor and done.
! Donation of a moveable property:
May be made orally or in writing.
Oral donation requires SIMULTANEOUS
DELIVERY of the thing or document representing
the right donated.
If value of the personal property donated exceeds
Php 5000, the donation and acceptance shall be
made in writing. If not, VOID.
! Donation of an immovable property:
MUST BE WRITTEN
Valid IF made in a public document which
specifies the:
o Property donated,
o Value of the charges which the donee must
satisfy.
Acceptance may be in made in the same deed of
donation or in a separate public document.
o If separate document, the donor shall be
notified in an authentic form and shall be
noted in both instruments.
Shall not take effect unless acceptance is done
during the lifetime of the donor.
! In case of regime that is NOT absolute community: " IF IN A MARRIAGE
SETTLEMENT
o Donations more than 1/5 of present property is NOT ALLOWED.
o The excess will be considered VOID.
o It is more restrictive because marriage is not a bargaining
agreement.

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If not in a marriage settlement " shall not prejudice compulsory heir.


o Civil Code: Shall not be more than he or she may give or receive
by will.
o Seems to be more freedom to give the free portion
Donations of future property:
o Governed by provisions on testamentary succession and formalities
of wills.
o May be handwritten.
! But must be entirely handwritten, dated, and signed by the
donor.
o If not handwritten:
! It must be signed at the end by either
The donor himself or
The donors name written by some other person in
his presence and by his express direction and
attested and subscribed by 3 or more credible
witnesses in the presence of the donor and of
another.
! The deed must also be signed by donor or other person
On each and every pages left margin of the
instrument, except on the last page
All the pages shall be numbered correlatively in
letters placed on the upper part of the page.
Attestation clause:
o state the number of pages used in the
deed of donation,
o the fact that the donor signed the deed of
donation and every page thereof
o OR the fact that the donor cause some
other person to write his name under his
express direction in the presence of
witnesses and that they witnessed and
signed the deed of donation.
o If in a language unknown to the witnesses,
it shall be interpreted to them.
o All wills must be acknowledged before a notary public by the donor
and witness.
Donation propter nuptias
o Definition: donation by reason of marriage; it is without onerous
consideration, the marriage being merely the occasion or motive for
donation, not its cause.
o These are still subject to reduction upon the donors death if it
would infringe the legitime of a forced heir.
o Can be contained in a marriage settlement

Donations excluded:
o Made in favor of spouses after marriage celebration
o Executed in favor of future spouse but not because of marriage
o Granted to people other than spouse
! Donations between future spouses
o Useless if ACP is the property regime (spouses become coowners)
! Valid donation propter nuptias:
1. There is a valid marriage settlement
2. The marriage settlement must stipulate a property regime other
than ACP
3. Donation must not be more than 1/5 of present property
Shall not apply if donation is not contained in marriage
settlement. Title III, Book III of Civil Code will govern. (The
donor must reserve mans for support of himself and all relatives
who are entitled for his support. Without this provision, the
donation may be reduced upon petition of the relative.)
The will and wishes of the donor should not be unduly derailed
by a limitation not even provide by law or by an alleged spirit of
the law.
It is assumed that the donation was made in good faith unless
convincingly shown.
Check some notes on donation.
4. Donation must be accepted by would-be spouse
5. Must comply with Title III, Book III of Civil Code
! Some notes on donation:
A donation is an act of pure liberality on the part of the donor. It is
not negotiated. Donation is also not a settlement in itself. Though
can be part of the marriage settlement, not considered as part of
the property settlement.
While donation must be accepted by the donee, he or she must not
have any part in the donors decision of giving such donation.
Donations by reason of marriage of property subject to encumbrances shall be
valid. In case of foreclosure of the encumbrance and the property is sold for less
than the total amount of the obligation secured, the donee shall not be liable for the
deficiency. If the property is sold for more than the total amount of said obligation,
the donee shall be entitled to the excess. (131a)
Donation is an act of liberality. If the donation is subject of liability, then the
donation is still VALID.
But the donees rights are subject to encumbrance.
Example: property to be donated was foreclosed to answer for donors debt:
o Donee is not liable for deficiency because he/she is not a debtor;
being done does not even make him /her solidarily liable
o But if the property is sold and the money is more than amount of
!

Article
85

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Article
86

liability of donor, the excess will go to donee. " donee is entitled to


value of the property.
o But, done cant seek reimbursement for the amount received by
creditor as donation is a conveyance of pure liberality.
If there is a lien in the donation, and it is within the value, it should be
acknowledged (donee should pay up)
o But if the debt is more than the donations value " debtor
A donation by reason of marriage may be revoked by the donor in the following
cases:
(1) If the marriage is not celebrated or judicially declared void ab initio except
donations made in the marriage settlements, which shall be governed by Article 81;
(2) When the marriage takes place without the consent of the parents or guardian,
as required by law;
(3) When the marriage is annulled, and the donee acted in bad faith;
(4) Upon legal separation, the donee being the guilty spouse;
(5) If it is with a resolutory condition and the condition is complied with;
(6) When the donee has committed an act of ingratitude as specified by the
provisions of the Civil Code on donations in general. (132a)
Prescriptive Period within which the donor can exercise the right to revoke
or recover the donation given
o GENERALLY, 5 years from the time the right of action accrues.
The mere fact that the marriage is void is not enough for the donor to
revoke the donation.
Revoked by operation of law donor does not have a choice
1. When marriage is not celebrated and the donation was stipulated in
the marriage settlement (Art. 81)
a. Prescriptive period: NO PRESCRIPTION if the donation is
void as the donation was stipulated in the marriage
settlement.
2. VOID MARRIAGE because of Art. 40 in relation to Art. 52-53
because marriage was contracted before getting the declaration of
nullity and donation was made in BAD FAITH
a. Prescriptive Period:
i. MOVEABLE PROPERTY 8 years from the time
the possession was lost
ii. REAL PROPERTY 30 years
3. VOID MARRIAGE in which both parties have BAD FAITH in
contracting subsequent marriage where one obtained judicial
declaration of presumptive death
4. Any donation given by a married person to the second spouse if
they were both guilty of concubinage or adultery at the time of
donation (MARRIED PERSON DONATES TO KABIT WHILE IN AN
ADULTEROUS/CONCUBINAGE RELATIONSHIP)

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5. VOID MARRIAGE - Any donation given by a married person to the


second spouse at a time when they were already living together
without a valid marriage (MARRIED PERSONS FIRST MARRIAGE
IS VOID BUT WAS NOT YET DECLARED VOID BUT MARRIED
NEW SPOUSE ANYWAY, NEW SPOUSES DONATION IS
REVOKED UPON THE FINALITY OF JUDICIAL DECLARATION
OF NULLITY OF MARRIED PERSON AND NEW SPOUSES
MARRIAGE)
6. Marriage was ANNULLED and the donee acted in bad faith
generally throughout the marriage
7. Donations in a legally separated marriage in which the donee is
guilty of sexual infidelity (concubinage/adultery)
8. Donations between persons living together as husband and wife
without valid marriage
May be revoked: (it may not be the innocent spouse always the
donor, who can also be a third person!)
1. When marriage is not celebrated and the donation was stipulated in
a separate instrument (not the marriage settlement)
a. Prescriptive period: 5 years; right of action accrues from
the moment the marriage was not solemnized on the fixed
date.
2. OTHER CASES where a marriage has been judicially declared void
for grounds other than Art. 40, in relation to Art. 52-53. Good faith
or bad faith is irrelevant.
a. Prescriptive period: 5 years; right of action accrues from
the time the judicial declaration of nullity has become final
to file an action to recover the property.
3. Donations made by the second spouse to his/her spouse who is in
a BIGAMOUS MARRIAGE, after the finality of judicial declaration of
nullity of the bigamous marriage (KABIT DONATES TO MARRIED
PERSON)
a. Prescriptive period: 5 years; right of action accrues from
the time the judicial declaration of nullity has become final
to file an action to recover the property.
4. Donations made by a donor in a VOID MARRIAGE in which both
contracting parties are in good faith and finality of the judicial
declaration of nullity was issued
a. Prescriptive period: 5 years; right of action accrues from
the time the judicial declaration of nullity has become final
to file an action to recover the property.
5. When donation was made by the donor in a marriage with someone
aged 18-21 years old and who married without consent of his/her
parents
a. Prescriptive period: 5 years, and will accrue from the time

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he had knowledge that the needed consent was not


obtained (only after marriage. If non-consent was learned
prior to marriage, donor may not revoke because parents
can give consent during the ceremony.)
b. No need for annulment in order to revoke!
6. Donations made by a spouse-donor to a spouse-donee in a legally
separated marriage (except for when the ground was sexual
infidelity)
a. Prescriptive period: 5 years; accrues from finality of the
decree of legal separation
7. If the donation propter nuptias was made with a resolutory condition
and such was complied with
a. Prescriptive period: 5 years; accrues from the happening of
the resolutory condition
b. Donation extinguishes when the condition is complied with
8. By reasons of ingratitude (Art 765 of Civil Code):
a. If the donee should commit some offense against the
person, the honor or the property of the donor, or of his
wife or children under his parental authority;
b. If the donee imputes to the donor any criminal offense, or
any act involving moral turpitude, even though he should
prove it, unless the crime or the act has been committed
against the donee himself, his wife or children under his
authority;
c. If the donee unduly refuses donor of support when the
donee is legally or morally bound to give support to the
donor.
i. Prescriptive period: 1 year from the time the donor
had knowledge of the fact of ingratitude and it was
possible for him or her to bring the suit
Valid
o For those NOT A DONATION PROPTER NUPTIAS (if it is clear
from such marriage settlement that the donation does not depend
on the celebration of the marriage)
CLASS DISCUSSION (Art 86)
If the marriage is not celebrated or judicially declared void ab initio except
donations made in the marriage settlements, which shall be governed by
Article 81;
o Declaration is needed
o Even though X is in bad faith, the donation is void. X may or may
not revoke the donation in favor of X
o If you look at 43 (terminated), 45(annulement), 50 ???(no
declaration of nullity) " even if donee did not act in bad faith,
revoked by operation of law.
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EXCEPT FOR LEGAL SEPARATION, because marriage


subsists
! Action for legal separation is only against the guilty spouse
can the donor exercise the option to revoke or not
! If in LS, the donee is in good faith " cannot revoke
! Same thing in 43 and 40 " if donee did not act in good
faith, cannot revoke
In all the cases, except for the void marriages, if the doneeee is not in bad
faith you cannot revoke.
o Even third party persons can revoke
If it is a void marriage whether the doneee is a bigamist, he or she may not
revoke. May seem unfair but
Art. 86(3) is direct opposite of Art. 40
Art. 40 " void marriage; void ab initio.
o What if the doneeeee is in good faith, but the marriage is void? Can
the donor revoke? Will it fall under 86(1)?
! Possible arguments:
No: because it is treated the same as 43 and 45 as
far as property is concerned
Yes: 86(1) does not distinguish.
! Which is correct?
! MIDTERMS " ANSWER BOTH.
! If both acted in bad faith " automatically revoked
When the marriage is annulled and doneeee acted in bad faith
o Stat Con: later law prevails over the former
o Follow 86.3 " may be revoked
o Follow 45 " donor has a choice
o Which is the better rule? If you look at where you situate 45, it is a
valid marriage until annulled. Even in legal separation, it is a
different rule because there is not severance of marriage but in
annulement there is also the severance of marriage. Where to
put it? Answer BOTH
o 43 " more on the basis of substantive law. If guilty " automatic
revocation.
! Substantively it seems that it should be revoked but
! Statcon says " should be other way
If you are a donor and takes back the donation from the innocent spouse "
valid
Recurring reference to Art 739(1) you donate to each other but you are in
a bigamous relationship
o Generally: If both bad faith " revoked by operation by law BUT
o If both are guilty in a legal separation "
o If 1 bad faith, but adultery/concubinage in legal separation " 86(4)
DOES NOT APPLY. 739 applies which refers to the bigamous
!

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Article
87

couple as PERSONS and not SPOUSES. DONATION = VOID.


o READ AND CROSS REFERENCE MEEEEEE.
o Guilt here can be proven merely by preponderance of evidence
o 739 " DECLARATION OF NULLITY OF THE DONATION
Marriage takes place without the consent
o You can count the consent after the marriage; cannot be earlier
because parents can still say
Act of ingratitutde
o Offense on the honor, ..
! Children under parental authority " below 18 years old
UNLESS you have a special incapacity where you need a
guardian
o Imputes the donor etc etc.
! Truth is not a defense " it should be proven
! Unless the crime has been committed by the doneeee
himself against the donors spouse/children
o Refuse support
! When the doneeee is legally OR MORALLY obliged to
support
! You might not be legally obliged but you can be MORALLY
obliged because walang UTANG NA LOOB (when you
accepted the donation/act of liberality)
MAY NOT:
o When marriages are void ab initio because it wasgood faith
IT DOES NOT MATTER IF THE DONATION WAS NOT IN A MARRIAGE
SETTLEMENT.
You have to be very careful for WHAT THE REASON OF THE IS. It has to be BY
REASON OF MARRIAGE.
Every donation or grant of gratuitous advantage, direct or indirect, between the
spouses during the marriage shall be void, except moderate gifts which the spouses
may give each other on the occasion of any family rejoicing. The prohibition shall
also apply to persons living together as husband and wife without a valid
marriage. (133a)
This is to prohibit donations in favor of the other consort and his
descendants because of fear of undue and improper influence upon the
donor to become poor because of his/her love for the donee. (something
like that)
Prohibition also applies to persons living together as husband and wife
without a valid marriage.
Indirect donations (NOT ALLOWED):
1. to a stepchild who has no compulsory and/or legal heirs, such as
his or her children, other than the spouse at the time of the
donation
2. to a common child who has no compulsory and/or legal heirs,

Article
88

such as his or her children, other than the spouse at the time of the
donation
3. to the parents of the other spouse
4. to the other spouses adopted child who has no compulsory
and/or legal heirs, or, in cases when, at the time of the donation,
the only surviving relative of the adopted the other spouse (relative
of the adopted)
5. to a common adopted child who has no other compulsory and/or
legal heirs
Donations by both spouses in favor of their common legitimate children for
the exclusive purpose of commencing or completing a professional course
or other activities for self-improvement are valid. The amount of such
donation shall be chargeable to the ACP or CPG.
Who cannot challenge the validity of the transfer?
o People having absolutely no relation to the parties to the transfer at
the time it occurred and had no rights present, remote, or otherwise
to the property.
Reserva Troncal: Provides that in the law of succession, the ascendant,
who inherits from his descendant any property which the latter may have
acquired by gratuitous title from another ascendant or a sibling, is obliged to
reserve such property as he may have acquired by operation of law for the
benefit of relatives who are within the third degree and who belong to the
line from which the property came.

CHAPTER 3: ABSOLUTE COMMUNITY


Section 1. General Provisions
The absolute community of property between spouses shall commence at the
precise moment that the marriage is celebrated. Any stipulation, express or implied,
for the commencement of the community regime at any other time shall be
void. (145a)
Composition of the ACP: all properties owned by the contracting spouses
before the marriage ceremony and those which they may acquire thereafter.
o In partial separation of property regime, property not agreed upon as
separate shall pertain to AC. (Art. 144)
Spouses are co-owners of all the properties.
o No waiver of rights, interests, shares, and effects of ACP can be
made except upon judicial separation of property.
Excluded from ACP: See Article 92.
ACP is the more traditional regime because it is in consonance with the
traditional oneness of the Filipino family.
Matthews v. Taylor: Aliens married to a Filipino do not have any interest in
the community property in the Philippines.
o Even if the Filipina enters into a lease agreement without consent of

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Article
89

spouse, the lease is not void because aliens are disqualified from
acquiring lands of public domain. (Why? Because of conservation of
national patrimony)
o Even if the alien provided the funds for the acquisition of the lot.
o But in hereditary succession, an alien may get a hold of Philippine
property in the public domain.
o Foreigner will not have an interest. The land never became part of
the community property.
o Its different from the car
ACP commences at the precise moment of the celebration of the marriage.
Any stipulation directing otherwise is void.

NOTES
3 instances when ACP governs
o When marriage settlement is void
o ACP is stipulated
o No marriage settlement
No waiver of rights, shares and effects of the absolute community of property during
the marriage can be made except in case of judicial separation of property.

When the waiver takes place upon a judicial separation of property, or after the
marriage has been dissolved or annulled, the same shall appear in a public
instrument and shall be recorded as provided in Article 77. The creditors of the
spouse who made such waiver may petition the court to rescind the waiver to the
extent of the amount sufficient to cover the amount of their credits. (146a)
Article
The provisions on co-ownership shall apply to the absolute community of property
90
between the spouses in all matters not provided for in this Chapter. (n)
Section 2. What Constitutes Community Property
Article
Unless otherwise provided in this Chapter or in the marriage settlements, the
91
community property shall consist of all the property owned by the spouses at the
time of the celebration of the marriage or acquired thereafter. (197a)
Article
The following shall be excluded from the community property:
92
(1) Property acquired during the marriage by gratuitous title by either spouse, and
the fruits as well as the income thereof, if any, unless it is expressly provided by the
donor, testator or grantor that they shall form part of the community property;
(2) Property for personal and exclusive use of either spouse. However, jewelry shall
form part of the community property;
(3) Property acquired before the marriage by either spouse who has legitimate
descendants by a former marriage, and the fruits as well as the income, if any, of
such property. (201a)
Article
Property acquired during the marriage is presumed to belong to the community,
93
unless it is proved that it is one of those excluded therefrom. (160)
ACP is a special type of co-ownership.
o Law on co-ownership will apply if not provided for by the Family
Code.
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Art. 486: co-owners may use the thing provided he/she does so in
accordance with the purpose the thing is intended for and in a way
to not injure co-ownership interest
o Art. 487: any co-owner may bring an action for ejectment
o Unlike ordinary co-ownership: No waiver of rights, interests, shares
and effects of ACP can be made except in case of judicial
separation of property.
! Why? " Interest of the parties in community property is
merely inchoate or an expectancy prior to liquidation
! Why " Go back to the concept of the community property.
Can you actually pinpoint which one is yours? No.
WAIVER. When a waiver takes place upon judicial separation of property
OR marriage has been dissolved/annulled " the waiver shall appear in a
public instrument as provided for in Art. 77.
o Creditors of the spouse who made the waiver may petition to the
court to rescind the waiver to the extent of the amount sufficient to
cover the credit.
WAIVER. When waiver takes place without a judicial separation of property
decree, such waiver shall be void because it is contrary to law and public
policy (Art. 6 of Civil Code)
o Art. 89: clearly a prohibitive provision
EXCLUSIONS.
1. Those excluded properties stipulated in the marriage settlement.
2. Properties acquired by gratuitous title (including the income of such
properties)
a. Must have been a valid gratuitous acquisition during
marriage
rd
i. It contemplates those made by 3 persons
b. Thus, donation by spouse of a substantial amount of his
separate property to wife is not a gratuitous title because it
is not valid
i. Remember? Only moderate gifts are allowed!
c. But the donor may stipulate that the income of the donated
property can go to the ACP
3. Personal and exclusive use of either of the spouses (except for
substantial amount of jewelry " ACP)
a. Construed in terms of value
b. Items can either be brought into the marriage or was
acquired during the marriage
c. Personal and exclusive use " has to be substantial
4. Property acquired before the marriage by either spouse who has
legitimate descendants
! Descendants:
Not just children. Includes grandchildren, etc.
o

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Must be legitimate, otherwise VOID


Ex. Previous marriage = null and void because they are
collateral blood relatives; children = illegitimate; spouse
marries again. If spouse has liquidated everything " ACP
! Ex. Previous marriage = null and void because of
psychological incapacity or non-compliance of Art. 52 & 53;
children = legitimate. Old property acquired by spouse who
has children from previous marriage " NOT ACP.
Either surviving SPOUSE owns it or the children as
presumptive legitime of the former spouse.
If the previous marriage was not recorded. Whats
the status of the child? Legitimate. But the law here
says, legitimate descendant from a former
marriage " can thus the Art. 92(3) apply will it be
nd
part of ACP in the 2 marriage??? No.
For illegitimate children the law does not provide
for them. Even if you have a specific property
allocated for the illegitimate child and the spouse is
careless enough to not do a pre-nup, the property
will become part of ACP.
! Ex. Previous marriage = terminated by death. No liquidation
of property. Spouse remarries. Property " Complete
Separation of properties
! Ex. Previous marriage = terminated by death. Liquidated
property. Spouse remarries. Spouse has no legitimate
descendants. Property regime " ACP if no marriage
settlement
! Ex. Previous marriage = terminated by death. Liquidated
property. Spouse remarries. Spouse HAS legitimate
descendants. Property from old marriage " separate even if
ACP will govern marriage
Art. 109(4): Properties purchased using exclusive money of the
wife/husband is an exclusive property (separately owned by that spouse) is
found under CONJUGAL PARTNERSHIP OF GAINS
o WEIRD because why was it not included in 92? The fact that it was
not included in Art. 92 stresses that intention of the Family Code
is to make the husband and wife a truly single community
Ex. Husband wins Php1M prior to marriage and such was separated from
the CP. Same Php1M was used for buying a house. The house will not be
considered separate property but community property.
o Why? There are no other exclusions allowed by law.
! Theres NO Art. 109(4) counterpart for ACP
! Art. 93: unless proved that it is one of those excluded
therefrom
!

! Art. 91: acquired thereafter


In such example, even if he sold it, the money from such sale will still be
ACP because it is acquired thereafter
If excluded properties are sold, money will become ACP of the current
marriage or subsequent marriage because it is acquired thereafter
If property is exchanged/bartered for another property, the new property will
still be ACP UNLESS the property will qualify as property used for personal
and exclusive use of the spouse
Section 3. Charges Upon and Obligations of the Absolute Community
Article
The absolute community of property shall be liable for:
94
(1) The support of the spouses, their common children, and legitimate children of
either spouse; however, the support of illegitimate children shall be governed by the
provisions of this Code on Support;
(2) All debts and obligations contracted during the marriage by the designated
administrator-spouse for the benefit of the community, or by both spouses, or by one
spouse with the consent of the other;
(3) Debts and obligations contracted by either spouse without the consent of
the other to the extent that the family may have been benefited;
(4) All taxes, liens, charges and expenses, including major or minor repairs, upon
the community property;
(5) All taxes and expenses for mere preservation made during marriage upon the
separate property of either spouse used by the family;
(6) Expenses to enable either spouse to commence or complete a professional
or vocational course, or other activity for self-improvement;
(7) Ante-nuptial debts of either spouse insofar as they have redounded to the
benefit of the family;
(8) The value of what is donated or promised by both spouses in favor of their
common legitimate children for the exclusive purpose of commencing or
completing a professional or vocational course or other activity for self-improvement;
(9) Ante-nuptial debts of either spouse other than those falling under paragraph (7)
of this Article, the support of illegitimate children of either spouse, and liabilities
incurred by either spouse by reason of a crime or a quasi-delict, in case of absence
or insufficiency of the exclusive property of the debtor-spouse, the payment of which
shall be considered as advances to be deducted from the share of the debtor-spouse
upon liquidation of the community; and
(10) Expenses of litigation between the spouses unless the suit is found to be
groundless.
If the community property is insufficient to cover the foregoing liabilities, except those
falling under paragraph (9), the spouses shall be solidarily liable for the unpaid
balance with their separate properties. (161a, 162a, 163a, 202a-205a)
SUPPORT
o Support is the most sacred and most important of all obligations
imposed by law and is imposed with overwhelming reality.
! Comprises of everything indispensible for sustenance,

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dwelling, medical attendance, education and transportation,


in keeping with the financial capacity of the family.
o Common children they have one parentage. This is the only time
when the ACP will answer the illegitimate child.
! If the void marriage happened because there was an
impediment or lack of marrying age.
! RA 9858 upon their marriage, the children who were
conceived or born at the time when they had legal
impediment will be LEGITIMATED. VOID MARRIAGE
BECAUSE THERE WAS LEGAL IMPEDIMENT
! Common children are even more than the legitimate and
legitimated children.
! How can this be? If the child was born and there was no ML,
there was no valid marriage. Therefore, illegitimate. VOID
MARRIAGE BECAUSE DEFECT IN REQUISITES
SUPPORT FOR ILLEGITIMATE CHILDREN
o Shall be taken from separate property of spouse-parent
o If not enough, can be taken from CP, but those taken from CP will
be considered as advances.
DEBTS AND OBLIGATIONS.
o ACP will be liable for debts and obligations incurred by the
administrator of the family.
! But there must be PROOF that the obligation incurred
redounded to the benefit of the family.
o Even if the debt was not for the benefit of the family + debt/obligation
was incurred with consent of the other " ACP shall be liable
! Consent may be express or implied.
o If debt/obligation was contracted by only 1 spouse without consent +
redounded to benefit of the family " ACP liable to the extent of the
benefit of the family
o If D/O was contracted prior to marriage + redounded to benefit of the
family " ACP liable
o If D/O was contracted prior to marriage + no benefit to the family "
separate property
! In case of insufficient separate property, ACP liable BUT will
be taken out of the spouses share upon liquidation of the
CP
o All loss resulting from exercise of profession or family business by
any spouse " charged to ACP
TAXES, LIENS, CHARGES, REPAIRS.
o Chargeable to ACP even without consent.
TAXES, EXPENSES FOR PRESERVATION OF PROPERTY
o Accountable to ACP
o Why? Presumed that such property is being used by the family

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during marriage
Example: it is being used for renting out and profits redound to the
family
EXPENSES OR DONATION FOR SELF-IMPROVEMENT ACTIVITIES.
o ACP liable
o Donation must be by both spouses
! If only 1 is donating, can fall under Art. 87 which prohibits
donations to common children
o Except moderate gifts given to each other for rejoicing
o How about cosmetic surgery? How does it benefit? Is it just for the
persons self-gratification?
LIABILITIES BY REASON OF A CRIME OR QUASI-DELICT
o Separate property of the erring spouse liable, NOT ACP
o But if insufficient, ACP shall pay (but such payments will be
advances to be deducted from his/her share from ACP upon
liquidation)
EXPENSES OF LITIGATION
o Provided that the suit is between the husband and wife AND IS NOT
GROUNDLESS " ACP may be liable
o ACP may also be liable if suit is not between husband and wife BUT
benefits the family
o What does groundless mean? "
! in a criminal case, if below beyond reasonable doubt and
acquitted NOT GROUNDLESS
! In a criminal case and the action has expired " groundless
SOLIDARY LIABILITY OF SPOUSES
o SOLIDARY OBLIGATIONS: Several creditors/debtors or both occur
and each of them have the right to demand and each is bound to
perform the trial for the obligation
o Spouses shall be solidarily liable for unpaid balance with their
separate properties if community property is not enough
o The solidary liability does not include:
! Pre-nuptial debts not redounding to family benefit
! Support of illegitimate children
! Liabilities incurred by reason of crime/quasi-delict
INSOLVENCY OF SPOUSES
o As long as AC subsists, the ACP will not be liable for payment of the
insolvent spouses obligations EXCEPT when redounded to benefit
of the family
! Assignee appointed by the court to represent the insolvent
and creditors in insolvency proceedings, whether voluntary
or voluntarily. He shall convert all property into money to
settle debts of the debtor.
Charges against ACP
o

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No. 1 is support.. Are the others also support?

Article
95

Whatever may be lost during the marriage in any game of chance, betting,
sweepstakes, or any other kind of gambling, whether permitted or prohibited by law,
shall be borne by the loser and shall not be charged to the community but any
winnings therefrom shall form part of the community property. (164a)
! Lose " separate property of loser
! Win " community property
! Activities necessarily connote that the spouses parted with some valuable
consideration hoping that some valuable return will be gained
! Ex. Stranger gave to husband a sweepstake ticket which was a winning
won, and the spouse won the prize money, the winning is considered
separate property.
o Why? It is considered a donation to the spouse. But, if it was
stipulated that the donation and its fruits will go to the ACP, then it
will go the ACP.
! Gambling vs. Lotto
o Lotto: permitted by law
o Gambling: against public policy
Section 4. Ownership, Administration, Enjoyment, and Disposition of the Community Property
Article
The administration and enjoyment of the community property shall belong to both
96
spouses jointly. In case of disagreement, the husband's decision shall prevail,
subject to recourse to the court by the wife for proper remedy, which must be availed
of within five years from the date of the contract implementing such decision.
In the event that one spouse is incapacitated or otherwise unable to participate in the
administration of the common properties, the other spouse may assume sole powers
of administration. These powers do not include disposition or encumbrance without
authority of the court or the written consent of the other spouse. In the absence of
such authority or consent, the disposition or encumbrance shall be void. However,
the transaction shall be construed as a continuing offer on the part of the consenting
spouse and the third person, 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. (206a)
JOINT ADMINISTRATION AND ENJOYMENT
o This highlights the fact that spouses are co-owners of the properties
they introduced to the marriage and those acquired after marriage
(except those excluded pursuant to Art. 92)
o Administration of property " may be validly delegated to only 1
spouse in a marriage settlement prior to the marriage
o Docena v. Lapesura (2001): Joint management does not require for
spouses to act together always
! General rule: verification and certification of non-forum
shopping in a petition must be signed by all petitioners but
signature of H or W is substantial compliance already. It is
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presumed that each spouse has knowledge of the spouses


actions.
! Each spouse may exercise full power of management alone.
Subject to court intervention in some cases
o Each spouse may act individually even without consent of the other
in cases of repairs of the property as these are urgent
! If practicable, should notify co-owners
o Art. 489: Expenses for improvement " decided by co-owners
o Art. 491: No alterations without consent of co-owner, even if
beneficial (but then it says in the FC that D/O if beneficial will be
shouldered by ACP)
o Co-ownership provisions in Family Code prevail over Civil Code
(which is just SUPPLETORY)
! EXAMPLE ON ROOF IMPROVEMENTS (p. 469)
o Husbands decision on the administration of the property shall
prevail so that a void or vacuum will not arise. Its a stop-gap
measure. But the wife can find recourse to the court.
! Looking at this in a gender lens, the woman is coming from
a time when she was in charge of the household. If you
want to empower the other spouse, why do you put her in
such burden to go to court? Do you really think she will go to
court?
! Provided that it is filed within 5 years from the date of the
contract implementing such decision
! Judicial proceeding " summary in nature
! Why husband? BECAUSE TRADITION (PATRIARCHAL
SOCIETY!!!)
! If husband disagrees and wife proceeds with objected
contract, husband can also file in the courts
o Unlike CC, theres no provision in FC re: situation where one spouse
with no incapacity alienates or disposes any of the common
properties without consent of other spouse. Art. 96 gave broad
powers to administer but also gave powers to limit it by allowing
them to have recourse through court.
! Justice Puno: if theres conflict between spouses with regard
to selling or keeping a land for example, one may go to the
court to settle it. But whoever is the administrator will remain
to be so for the other lands. The case only affects the
disputed land/property.
o First paragraph contemplates act of disposition. This is the rule that
will apply if the other spouse is not incapacitated.
EFFECT OF ALIENATION AND ENCUMBRANCE
o Vda. De Ramones v. Agbayani (2005): Any disposition of the CP by
any of the spouse without knowledge and consent of the other is

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NULL AND VOID. Before, it was just voidable.


Action to nullify has no prescriptive period. Why? It is null and void.
rd
! But 3 party purchaser can be protected by law when the
Transfer Certificate of Title (TCT) says that the owner is
single when he is married, the sale is NOT VOIDABLE. But
if buyer knew of owner being married, it is VOIDED.
! PNB v. CA: Remedy of aggrieved spouse: compel the erring
spouse to account for the proceeds of the sale as part of the
community property
o If there was knowledge but without consent and disagreement arises
! Contract entered into by husband (whose decision will
prevail in cases of disagreement) is ANNULLABLE at the
instance of the wife
Ravina v. Abrille (2009): 5 years prescription period
from the date of the contract implementing the
decision
! But if wife ratifies by express/implied act, she cannot seek
the annulment EVEN WITHIN THE 5-YEAR PERIOD
! Right of wife to annul not only pertains to share in property
but whole contract
o If decision of wife was implemented, husband can find relief by filing
an injunction suit to stop the implementation of the contract entered
into by the wife in his name without authority OR to nullify the act on
ground that it contrary to law and public policy
EFFECT AND INCAPACITY OF ONE OF THE SPOUSES ON
ADMINISTRATION
o In case of incapacity, the other spouse may assume the sole power
of administration
! Appointment shall be in a summary proceeding
o If spouse is incompetent " comatose, semi-comatose condition,
victim of stroke, brain accident, without motor and mental faculties,
and with diagnosis of brain stem infarct
! Uy v. CA (2000): Proper remedy: judicial guardianship
proceeding under Rule 93 of Rules of Court (not a summary
proceeding under Family Code)
o Abalos v. Macatangay (2004): The spouse who assumes
administration cannot dispose or encumber property without judicial
approval or the written consent of the incapacitated spouse
! Otherwise, VOID
! Legal significance: treat the same as a continuing offer on
rd
the part of the consenting spouse and 3 person
! Perfection of contract can be achieved when written
acceptance is given by the other spouse OR UPON
authorization of the court

Article
97

Article
98

Effectivity will take effect only after such acceptance

Notes
o

Fuentes v. _____ (2010): In all cases where the wife DOES NOT
consent for whatever reason (either no consent or no court
intervention approving a sale), the SALE IS VOID. Na-isolate yung
st
nd
1 paragraph from 2 paragraph. Any decision without the other
spouses consent will be void unless there is court administration.
o For all the acts other than sale or encumbrance " for court
intervention
o What happens when you sell the property and it says youre single?
When the title is transferred to the innocent buyer the buyer will
get the property
! Since bad faith,
Wife will get 100% of the amount (for example
Php1M) + damages under Art. 19-21
! Forfeiture " annulment, LS NOT APPLICABLE
Either spouse may dispose by will of his or her interest in the community
property. (n)
! A will is an act whereby a person is permitted, with the formalities provided
by law, to control to a certain degree the disposition of his estate, to take
effect after his death.
o Art. 886 of CC: Testator can provide that certain properties will go to
whoever he/she wishes, provided that it will not encroach the lawful
legitimes of his compulsory heirs.
o But because ACP is co-ownership, the spouse can only dispose his
or her interest in the community property and not in a specific
property.
o A disposition made in a will of such interest the community property
cannot be considered as a waiver of such interest.
o The act of disposition highlights the testators intent to control the
property to take effect after death.
Neither spouse may donate any community property without the consent of the
other. However, either spouse may, without the consent of the other, make moderate
donations from the community property for charity or on occasions of family rejoicing
or family distress. (n)
! REASON FOR PROHIBITING DONATIONS (from American jurisprudence Estate of McNutt)
o This is intended to protect the latters share from the prodigality of a
reckless or faithless spouse.
! However, donations by both spouses or by one spouse with consent of
another are generally valid, subject to revocation or reduction should
donations turn out to be inofficious or infringe upon the legitime or
successional rights of another compulsory heir (Art. 760-773 of CC)
! But even with the consent of the other spouse, the donor-spouse cannot

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make a substantial donation to the consenting spouse (Art. 87)


Exception: either spouse may, without the consent of the other, make
moderate donations from the community property for charity or on occasions
of family rejoicing
o Husbands may give gifts of trifling value without wifes consent
(Hanley v. Most)
o Gifts to their common legitimate children for their starting/finishing a
course in self-improvement
o Both of which are chargeable to the ACP.
! Notes
o During typhoon you can donate to charities
o Wife also suffered during the typhoon, there is distress. Can
husband give moderate donations?
Section 5. Dissolution of Absolute Community Regime
Article
The absolute community terminates:
99
(1) Upon the death of either spouse;
(2) When there is a decree of legal separation;
(3) When the marriage is annulled or declared void; or
(4) In case of judicial separation of property during the marriage under Articles 134 to
138. (175a)
! DISSOLUTION OF COMMUNITY PROPERTY
o Termination of ACP does not necessarily mean termination of
marriage
o After dissolution is the liquidation and partition
! DEATH OF EITHER SPOUSE
o Art 42: Civil personality is extinguished by death and effect of death
upon rights and obligations of the deceased is determined by law.
o Art 103: Upon termination of marriage by death, the community of
property shall be liquidated in the same proceeding for the
settlement of the estate of the deceased
! LEGAL SEPARATION DECREE
o ACP or CPG will be dissolved and liquidated by the offending
spouse shall have no right to any share of the net profits earned by
the ACP or CPG which shall be forfeited in accordance with Art.
43(2)
o Upon reconciliation, they may agree to revive the property regime
(Art. 67)
! ANNULMENT DECREE
o Final judgment in annulment granting the termination of the marriage
shall provide for the:
! liquidation,
! partition, and
! distribution of the properties of the spouses,
! the custody and support of the common children, and
!

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! the delivery of their presumptive legitime


As a consequence of the annulment decree, the ACP shall be
dissolved
o But if one spouse acted in bad faith: his/her share of the net profits
of the community property shall be forfeited in favor of the common
children or the children of the guilty spouse or the innocent spouse
(Art. 43, 50)
NULLITY DECREE
o General rule: there is no absolute community of property in a void
marriage
o Art. 147 & 148 governs a void marriages property arrangement
! Art 147: in case where a man and woman are capacitated to
marry, live exclusively with each other as husband and wife
without the benefit of marriage or under a void marriage "
liquidated in accord with rules of co-ownership under the
Civil Code (not Family Code on ACP)
But if 1 of the parties in said void marriage is in
good faith " share of bad faith person shall be
forfeited in favor of common children or their
descendants, each vacant share shall belong to the
respective surviving descendants (if none, share will
go to innocent party)
! Art 148: for void marriages not falling under 147. Shall be
liquidated also in accord with rules on co-ownership of the
Civil Code
Forfeiture process same as Art 147
o Exception: ACP or CPG could govern a void marriage "
subsequent void marriage that exist by non-observance of Art 40.
! Valdes v. RTC: In case of non-observance, Art 40
contemplates a situation involving the declaration of nullity
of a subsequent marriage by a spouse of a prior void
marriage before the latter is judicially declared void
! Upon declaration of nullity, Art 50 will apply and Art 43
! Art 43 already provides for the dissolution of ACP or CPG
and for forfeiture procedure in case of bad faith spouse
! Reason (from Valdes case): present law aims to do away
with any continuing uncertainty on the status of the second
marriage
! Nicdao Carino v. Carino (2001): subsequent marriage in
violation of Art. 40 is void because it is bigamous. Thus, its
co-ownership governed by Art. 148. This is WRONG,
otherwise Art. 99(3) will not make sense.
JUDICIAL SEPARATION OF PROPERTY
o May be voluntary or involuntary
o

61%

Voluntary: file agreement for separation of property in courts to


obtain the necessary court approval (Art 136)
! After approval, the parties can file a revival of property
regime but once revived, no voluntary separation of property
may be granted
o Involuntary: It must be for sufficient cause and must have court
approval
! Sufficient causes:
o Spouse of petitioner has been sentenced to a
penalty which carries civil interdiction *
o Spouse of petitioner has been judicially declared
an absentee *
o That loss of parental authority of the spouse of
the petitioner has been declared by the court *
o That the spouse of the petitioner has abandoned
him/her or failed to comply with his/her obligations
as provided in Art 101
o That the spouse granted the power of administration
in the marriage settlements has abused that power
o That at the time of the petition, the spouses have
been separated in fact for at least 1 year and
reconciliation is highly improbable
! * " Needs court orders. The rest, not needed.
! LIQUIDATION AFTER AFFIDAVIT OF REAPPEARANCE
o ACP/CPG is dissolved when a reappearing spouse or interested
person in Art 41 files and affidavit of appearance to terminate the
subsequent marriage of the present spouse validly contracted with
another person
o But if either spouse contracted in bad faith, his/her share of property
will be forfeited " common children, guilty spouses children,
innocent spouse
The separation in fact between husband and wife shall not affect the regime of
absolute community except that:
o

Article
100

(1) The spouse who leaves the conjugal home or refuses to live therein, without just
cause, shall not have the right to be supported;
(2) When the consent of one spouse to any transaction of the other is required by
law, judicial authorization shall be obtained in a summary proceeding;
(3) In the absence of sufficient community property, the separate property of both
spouses shall be solidarily liable for the support of the family. The spouse present
shall, upon proper petition in a summary proceeding, be given judicial authority to
administer or encumber any specific separate property of the other spouse and use
the fruits or proceeds thereof to satisfy the latters share. (178a)
! EFFECT OF SEPARATION IN FACT
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Generally: ACP will not be affected by separation in fact


ACP will still be liable for all obligations incurred by either spouses
for the benefit of the family; also liable for Art 94.
o Separate property " liable for obligations incurred for the benefit of
the family when ACP not enough
NO SUPPORT
o Spouse who leaves the conjugal home or refuses to live, without just
cause " no right to be supported by ACP
o Fault must always be proven
o Sumulong v. Cembrano: Mere fact of separating from the house,
which cannot be presumed culpable when there is no evidence of
fault or guilt on the one who separates " does not constitute
nullification of support
o If spouse left with valid cause " can still be supported by ACP
! ACP can still be liable for support of spouses, expenses for
education, obligations that redound to the benefit of the
family (Art 94)
o If at fault or no just cause " erring spouse not supported by ACP
even if co-owner
! But ACP still liable for D/O incurred for benefit of family (Art
94)
! Penalty for the act of disrupting family unity
o What do we withhold from the erring spouse? What does support
mean???
! Ex. You are undergoing an activity for self-improvement as
hairstylist. You get tuition from ACP. Because youre so
invested in that course you live far from the family abode.
Spouse does not consent to your leaving. It has been
agreed that your leaving the conjugal dwelling is unjustified.
Should you still have the right to be supported?
! Yes, you still have the right but only for the tuition,
equipment. What will be eliminated is food but not the tuition
WE ONLY ASSOCIATE SUPPORT in ART. 101
WITH ART. 94(1)
COURT AUTHORIZATION
o Consent of one spouse is required for transaction, judicial
authorization can be obtained by summary proceeding
o Any spouses W/N left the conjugal home can seek judicial relief
o Ex. Spouse leaves without valid cause but in order to support
children wants to sell conjugal car but good faith spouse doesnt
agree, bad faith spouse can file for judicial relief " summary in
nature in accord to Art. 239-248 of FC
SOLIDARY LIABILITY AND ADMINISTRATION OF PROPERTY
o Art. 100(3): In absence of sufficient CP, family support " liable to
o
o

62%

separate property of both spouses (reiteration of Art. 94)


Spouse present shall, upon proper petition in court, be given judicial
authority in a summary proceeding to administer/encumber any
specific property of the other spouse and use the fruits to satisfy the
other spouses share
o Only present spouse is given standing by the law to file such petition
o Authority granted is limited to:
! Enable spouse to satisfy the other spouses share in the
obligations used to support the family which should be
totally paid by the ACP had it not been for the insufficiency
! Ex. If family borrowed from a creditor in order to pay for
tuition, in the absence of sufficient ACP " creditor can go
against the separate properties
! If separated de facto / legally separated " creditor can go
against separate properties at the same time OR against
separate properties of 1 one them only
If creditor only goes for the separate properties of
the present spouse " present spouse must pay the
total amount due to the creditor THEN seek
reimbursement from absent spouses separate
property
How? File judicial summary proceeding to be made
administrator of absent spouses separate
properties and use fruits to pay for reimbursement
Administrator can also encumber property for such
purpose
If present spouse does not want to pay total
obligation from own separate property alone, prior to
payment, present spouse can file summary
proceeding so that he/she got the funds needed
from absent spouses separate properties income
to complete the payment
If a spouse without just cause abandons the other or fails to comply with his or her
obligations to the family, the aggrieved spouse may petition the court for
receivership, for judicial separation of property or for authority to be the sole
administrator of the absolute community, subject to such precautionary conditions as
the court may impose.
o

Article
101

The obligations to the family mentioned in the preceding paragraph refer to marital,
parental or property relations.
A spouse is deemed to have abandoned the other when her or she has left the
conjugal dwelling without intention of returning. The spouse who has left the conjugal
dwelling for a period of three months or has failed within the same period to give any

information as to his or her whereabouts shall be prima facie presumed to have no


intention of returning to the conjugal dwelling. (178a)
ABANDONMENT
o Abandonment implies a departure by one spouse with the avowed
intent never to return, followed by prolonged absence without just
cause and without in the meantime providing in the least for ones
family, although able to do so
o Absolute cessation of martial duties, rights with intention of
perpetual separation
o Dela Cruz v. Dela Cruz: Must not only be physical estrangement but
also amount to financial and moral desertion
o Courts need to be careful in looking at the evidence in determining
W/N there is abandonment.
! Because judgments ordering division of conjugal assets
without no real abandonment may slam the doors for
possible reconciliation
o Aggrieved party may also petition for receivership or for authority to
be sole administrator of ACP or CPG subject to courts conditions
(Art. 101 & 128)
o Art. 101 and 128 provide presumption and provide that a spouse
who left 3 months or failed to give info as to whereabouts shall be
prima facie presumed to have no intention of returning
FAILURE TO COMPLY WITH FAMILY OBLIGATIONS
o Reliefs of this provision only applies if either spouses fails to comply
with obligations to the family
o Obligations: MARITAL, PARENTAL, OR PROPERTY.
! If designated administrator abuses administration Art. 101
can be availed of
! Mere refusal or failure to inform by admin of property of the
progress of the business is not abuse. (Dela Cruz v. Dela
Cruz)
! Abuse: not enough that H performs acts prejudicial to W; not
sufficient to commit acts injurious to the partnership. These
may just be inefficient/negligent administration. It instead
connotes willfull and utter disregard of the interest of
partnership, evidenced by a repetition of deliberate acts
and/or omissions prejudicial to W
o Fails to comply if negligence/inefficiency is not isolated, but so
gross that constantly done without effort to improve, Art. 101 and
128 applies.
o If failure to comply constitutes PI to perform essential marital
obligations, Art. 36 can be availed of.
o If abandonment without just cause for more than 1 year, Art. 55(10).
Section 6. Liquidation of the Absolute Community Assets and Liabilities

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Article
102

Upon dissolution of the absolute community regime, the following procedure shall
apply:
(1) An inventory shall be prepared, listing separately all the properties of the
absolute community and the exclusive properties of each spouse.
(2) The debts and obligations of the absolute community shall be paid out of its
assets. In case of insufficiency of said assets, the spouses shall be solidarily liable
for the unpaid balance with their separate properties in accordance with the
provisions of the second paragraph of Article 94.
(3) Whatever remains of the exclusive properties of the spouses shall thereafter be
delivered to each of them.
(4) The net remainder of the properties of the absolute community shall constitute its
net assets, which shall be divided equally between husband and wife, unless a
different proportion or division was agreed upon in the marriage settlements, or
unless there has been a voluntary waiver of such share provided in this Code. For
purpose of computing the net profits subject to forfeiture in accordance with Articles
43, No. (2) and 63, No. (2), the said profits shall be the increase in value between
the market value of the community property at the time of the celebration of
the marriage and the market value at the time of its dissolution.
(5) The presumptive legitimes of the common children shall be delivered upon
partition, in accordance with Article 51.
(6) Unless otherwise agreed upon by the parties, in the partition of the properties, the
conjugal dwelling and the lot on which it is situated shall be adjudicated to the
spouse with whom the majority of the common children choose to remain. Children
below the age of seven years are deemed to have chosen the mother, unless the
court has decided otherwise. In case there in no such majority, the court shall
decide, taking into consideration the best interests of said children. (n)
LIQUIDATION PROCEDURE
o Dissolution occurs when Art. 99 takes place.
o This is a step-by-step instruction on how to liquidate.
o In a voluntary judicial separation of property (JSP), liquidation may
be governed by agreement of the parties, provided that Court
approves
INVENTORY
o All properties at time of dissolution, whether part of the community
property or separate property, must be inventoried, itemized and
valued.
o De la Rama v. De la Rama: Wrong to determine the amount to be
divided by adding up the profits which had been made on each year
of the communitys continuance and saying that the result thereof is
that amount
o Prado v. Natividad: In appraisal of properties, it is not the purchase
price but the market price, or in default assessed value at time of
liquidation
o Padilla v. Paterno: If proceedings take a long time and the values

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alter, there is nothing to prevent a new valuation when the last stage
is reach (actual division/partition comes) so long as all the properties
are newly appraised in reference to the same period of time. No law
or doctrine that says that prior appraisal is conclusive upon parties
and the courts.

o
PAYMENT OF DEBTS
o After inventory, all debts in which the ACP is liable shall be paid.
o Includes all obligations in Art. 94 of FC
! Art. 94(9): payments made by the ACP due to the
insufficiency of the separate property of debtor-spouse for
(1) pre-nuptial debts which did not redound to the benefit of
the family, (2) support of illegitimate children of debtorspouse, (3) liabilities incurred by such debtor-spouse by
reason of crime or quasi-delict " considered advances to
be deducted from the community property
! In case of insufficiency of ACP, the spouses shall be
solidarily liable for unpaid balance with separate properties
! Basis of asking for separate property " because debts and
obligations are SOLIDARY
DELIVERY OF EXCLUSIVE PROPERTIES
o After payment of advances made by ACP and/or the obligations for
which the separate properties were made solidary liable " deliver
whatever remains of the exclusive properties to each of them
o Properties refer to those stipulated in marriage settlement as
exclusive properties or even during the marriage (Art. 91) or those in
Art. 92
PARTITION OF NET ASSETS
o Equally divide net assets, the net remainder of community property
st
after undertaking 1 three steps
o Interest limited to these net assets or net remainder
o Nable Jose v. Nable Jose: Until a liquidation has been made, it is
impossible to say w/n there will be a net remainder to be divided
between the parties
o If there is a different proportion or division agreed upon in the
marriage settlement or unless there has been a voluntary waiver of
such share as provided for in FC " equal sharing will not apply
! Waiver must be valid
! If waiver refers to those made during the subsistence of
ACP, such waiver is invalid and ineffective as it is prohibited
under Art. 89
! Valid waiver can only occur upon JSP or after marriage is
dissolved/annulled. Must be contained in a public instrument
(Art. 89)

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In case of annulment of marriage, ACP shall be dissolved and


liquidated but if either spouse contracted marriage in bad faith,
his/her share shall be forfeited in favor of common children or
children of guilty spouse in a previous marriage or in innocent
spouse (Art. 50, 43)
o In case of LS and annulment, bad faith spouse shall forfeit his share
in net profits which shall be the increase in value between market
value of the community property at time of celebration of marriage
and market value at time of dissolution
o In case marriage is judicially nullified + when the informal civil
relationship is governed by Art. 147 + only 1 of the parties is in good
faith " share of bad faith party shall be forfeited in favor of common
children
! In case of default or waiver of by any of the common
children or their descendants, each vacant share shall
belong to the respective surviving descendants
! In all cases, forfeiture shall take place upon termination of
cohabitation
! Will also apply in case of void marriage where property
relationship is governed by Art. 148
! Will NOT APPLY to a subsequent void marriage as result of
non-observance of Art. 40 in rel. to Art. 52-53. Rule that will
apply " Art. 50 in rel. to Art. 43(2), forfeiture rule in case of
liquidation of ACP
DELIVERY OF THE PRESUMPTIVE LEGITIME
o Delivered only after the finality of a judicial decree of annulment or
nullity of subsequent void marriage
o Only those in accordance with Art. 51 refers to the termination of
marriage either by an annulment of nullity judgment in the proper
cases2
! Shall be provided for in the final judgment
! Children or guardian may ask for enforcement (Art. 51)
through summary proceeding
! Value of presumptive legitime shall be computed as of the
date of final judgment, and delivered in case, property or
sound securities unless parties mutually agree to provide for
it (must be judicially approved too)
o Need not be made in LS or void marriages other than Art. 40
Upon the termination of the marriage by death, the community property shall be
liquidated in the same proceeding for the settlement of the estate of the deceased.
o

Article
103

If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate


the community property either judicially or extra-judicially within one year from the
death of the deceased spouse. If upon the lapse of the said period, no liquidation is

made, any disposition or encumbrance involving the community property of the


terminated marriage shall be void.
Should the surviving spouse contract a subsequent marriage without compliance
with the foregoing requirements, a mandatory regime of complete separation of
property shall govern the property relations of the subsequent marriage. (n)
LIQUIDATION UPON DEATH
o Sec. 2, Rule 73 of Rules: when the marriage is dissolved by death of
H/W, community property shall be inventoried, administered, and
liquidated, and debts paid in the estate/intestate proceedings of the
deceased spouse.
! If both spouses died, CPG shall be liquidated in
testate/intestate proceedings of either
o If deceased spouse left no will and no debts + heirs are all of age
OR minors are represented by their judicial/legal representatives
duly authorized for the purpose " parties may divide the estate
among themselves as they see fit by means of a public instrument
filed in the register of deeds without securing letters of
administration from the court
! Should they disagree, they may do so in an ordinary action
for partition
! If there is only 1 heir, he may adjudicate to himself the entire
estate by means of an affidavit filed in the office of the
register of deeds
o Also provides that upon lapse of 1-year period from death of 1
spouse, no liquidation is made, any disposition or encumbrance
involving the community property of the terminated marriage "
VOID
! Any disposition/encumbrance of any specific property before
liquidation has been completed and therefore even before
the lapse of 1-year period is premature " ALSO VOID
! Why? Because upon death of one of the spouse, only the
interest to the property and not any physical and definite
property is vested on the heirs. If the deceased has
creditors, the interest will only be conferred after payment of
the debts of the deceased. Only after liquidation and
partition when specific properties are definitely and
physically determined that a sale of such allotted property
can be made.
! Although after death of the decedent, the heirs can sell,
waive or even alienate their interest to the property they
inherit, they cannot sell a specific property as the same can
only be determined only after liquidation and partition
NATURE OF INTEREST OF HEIRS PRIOR TO LIQUIDATION

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o
o
o
o

o
o

Art. 103 = identical to Art. 130 in connection with rules on the CPG;
the explanation below applies also to Art. 130
Both spouses have a stake in the ACP or CPG but the spouse
cannot claim any definite property at the time when the same is still
in existence.
Upon death of one of the spouse " it is cause for dissolution " the
rights of the heirs vest also
Reganon v. Imperial: right of succession of a person are transmitted
from the moment of death. When the heir is of legal age and estate
has no debts, said heir immediate succeeds by force of law to the
dominion ownership and possession of the properties of his
predecessor and stands legally in the shoes of such
Marigsa v. Macabuntoc: If deceased spouse is survived by spouse
and compulsory heirs (legitimate children), ACP/CPG, which has
been dissolved by such death of the spouse " evolves into a coownership between the surviving spouse and the heirs
Hagosojos v. CA: Considering CPG property, upon death of Jacinta,
the CPG evolved into a co-ownership between Antonio (surviving
spouse) and her 3 three children. Anastacio owned 5/8 while each of
the children 1/8 each.
Maria Lopez v. Magdalena Gonzaga Vda. De Cuaycong: each coowner owns the whole, and over it he exercise rights of dominion but
at the same time he is the owner of a share which is really abstract
because until the division is effected, the share is not concretely
determined. Rights of the co-owners are as absolute as dominion
requires because they may enjoy and dispose of the CP without any
limitation, but they should not prejudice the general interest of the
community. They also possess full ownership of their share, which
they may alienate, convey or mortgage but it will not be certain until
community ceases.
As co-owner spouse/heirs can undertake any act of dominion over
their interest but not over a specific concrete property.
Art. 493: each co-owner shall have the full ownership of his part and
of the fruits of it and he may alienate, assign or mortgage it,
although the effect shall be limited to the portion which may be
allotted to him in the division upon termination of the co-ownership
De Borja v. De Borja: prior to the liquidation and partition, the
interest of an heir in the estate of the deceased person may
nevertheless be attached for purposes of execution even if the
estate is in the process of settlement before the courts
! Sec. 7(e), Rule 57 of the 1997 Rule of Procedure: one of the
properties that can be attached for purposes of execution is
the interest of the party against whom attachment is issued
in property belong to the estate of the decedent, whether as

Article
104

heir, legatee, or devisee, by serving the executor or


administrator
! Held: although the value of the land owned by the person
who wants to sell it is indeterminable at that point, it can still
be attached and sold.
o Note that attachment is subject to administration of the estate and
retains control of the properties and can sell them for payment of
debts of deceased
o Only after the liquidation that the property can be defined and
claimed and adjudged to them he remainder of the property
o Thus, specific properties cannot be donated by any co-heir prior to
liquidation and partition.
o Anderson v. Perkins: special administrator of the deceased spouse
sought to sell certain properties owned b deceased, SC: ordered to
stop the sale because its premature
CLAIM AGAINST ESTATE
o Upon death, ACP or CPG is terminated and no complaint for
collection of the indebtedness chargeable to the CP can be brought
to the surviving spouse
! *unless the surviving spouse has committed herself to be
solidarily liable for the claim against ACP or CPG
o If claim is brought to non-solidarily liable surviving spouse, and
judgment was rendered directing the spouse to pay " void
judgment.
o All debts chargeable against the computer must be claimed from the
estate proceedings of the deceased.
o Why? Because powers of administration ceases and passed to the
court who has jurisdiction over settlement case.
MANDATORY COMPLETE SEPARATION OF PROPERTY
st
o Applies when 1 marriage is terminated by death of 1 spouse and
NOT WHEN MARRIAGE WAS ANNULLED or DECLARED VOID
o If surviving spouse validly remarried without liquidation, manadatory
CSP
o ^^ the only exceptions to general rule which states that in the
absence of a marriage settlement providing for other types of regime
including the separation of property regime, the ACP shall govern
the marriage
st
nd
o To prevent confusion of the properties of 1 and 2 marriages
Whenever the liquidation of the community properties of two or more marriages
contracted by the same person before the effectivity of this Code is carried out
simultaneously, the respective capital, fruits and income of each community shall be
determined upon such proof as may be considered according to the rules of
evidence. In case of doubt as to which community the existing properties belong, the
same shall be divided between the different communities in proportion to the capital

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and duration of each. (189a)

2
3

SIMULTANEOUS LIQUIDATION
o Refers to at least 2 marriages contracted prior to August 3, 1988
and involves a situation where the CP of each marriage are to be
liquidated simultaneously
o Determination depends upon the proofs presented by claimants in
accordance with rules of evidence
o In case of doubt " shall be divided between or among the different
communities in proportion to the capital and duration of each
o 5 scenarios (Dael v. IAC)
Duration
Actual
Assets to be
Partition
assets
inventoried
Equal
Unknown
Known:
15,000 " divided equally by
Php15,000
heirs
1st marriage: P7500
nd
2 marriage: P7500
Not equal
Unknown
Known:
15,000 " 2/5 and 3/5
st
st
1 : 2 yrs
Php15,000
1 marriage: P6000
nd
nd
2 : 3 yrs
2 : P9000
Equal
Known but
Known:
Since durations are equal,
not equal
P15,000
cancel each other and prorating
1st: 1000
= based on amount of known
nd
2 : 2000
assets.
st
1 : 1/3 of P15,000 = P5000
nd
2 : 2/3 of P15000 = 10000
Not equal
Equal
Known
Since assets of each marriage
st
1 : 2 yrs
5,000 each P15,000
are equal, they cancel out.
nd
2 : 3 yrs
marriage
Prorating based on different
durations in rel. to the
inventoried assets at time of
liquidation " 2/5 and 3/5
st
1 : 6000
nd
2 : 9000
nd
(Just like 2 scenario)

Not equal
st
1 : 2 yrs
nd
2 : 3 yrs

Known but
not equal
st
1 : 1000
nd
2 : 2000

Known
P15,000

The durations will be related to


the assets for each year and the
prorated with the amount of
assets to be inventoried.
Duration x assets in the
marriage, then prorate with
assets to be liquidated " 2/8
and 6/8
st
1 : P3750
nd
2 : P11,250

o
o

It is expressly provided in the FC (Art. 92(3)) that excluded from the


ACP of a subsequent marriage is property (+ fruits and income
thereof) acquired before the marriage by either spouse who has
legitimate descendants by a former marriage
Law protects properties of the previous marriage from mixing with
nd
2 marriage w/n liquidation has already terminated by time of
nd
celebration of 2 marriage
st
If no legitimate descendants from the 1 marriage, but no liquidation,
st
st
and the 1 marriage was terminated because of death of the 1
spouse, the mandatory regime of complete separation of property
nd
will govern the property relation of the 2 marriage
If the termination is by nullity or annulment " co-ownership because
the subsequent marriage is void (art. 40, 52, 53)
! In co-ownership, property acquired before the marriage will
not be included in co-ownership

CHAPTER 4: CONJUGAL PARTNERSHIP OF GAINS


Section 1. General Provisions
Article
105

Article
106

In case the future spouses agree in the marriage settlements that the regime of
conjugal partnership gains shall govern their property relations during marriage, the
provisions in this Chapter shall be of supplementary application.
The provisions of this Chapter shall also apply to conjugal partnerships of gains
already established between spouses before the effectivity of this Code, without
prejudice to vested rights already acquired in accordance with the Civil Code or other
laws, as provided in Article 256. (n)
Under the regime of conjugal partnership of gains, the husband and wife place in a
common fund the proceeds, products, fruits and income from their separate
properties and those acquired by either or both spouses through their efforts
or by chance, and, upon dissolution of the marriage or of the partnership, the net
gains or benefits obtained by either or both spouses shall be divided equally
between them, unless otherwise agreed in the marriage settlements. (142a)
CONJUGAL PARTNERSHIP OF GAINS

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They will place in a common fund the fruits of their separate


properties and income from work
o Quitos v. Sheriff of Manila: It has been held that fruits of paraphernal
properties (separate property of wife) form part of the assets of the
CPG and are subject to payment of debts and expenses of the
spouses BUT NOT the personal obligation for the husband, unless it
is proved that the obligations redounded to the benefit of the family
o When a law likewise refers to those acquired by either of both of the
spouses through their efforts or chance, the word effort connotes an
activity or undertaking which may/may not be rewarded and chance
= gambling or betting
o Go v. Yamane: no unilateral declaration by 1 spouse can change the
character of a conjugal property. The conjugal nature of a property is
determined by law and not by will of the spouse. Proof of acquisition
of property during marriage suffice to render the statutory
presumption of conjugality to attach
o Upon dissolution " net gains or benefits shall be divided equally
between the spouses UNLESS they have stipulated another
proportion in their marriage settlement
o If prior to the effectivity of the FC on Aug. 3, 1988, the spouses were
already under CPG, property regime shall continue until Aug. 3,
1988 BUT it shall now be governed by the provisions on the CPG
under FC unless vested rights have already been acquired under
CC or other laws.
The rules provided in Articles 88 and 89 shall also apply to conjugal partnership of
gains. (n)
WHEN THE CP WILL COMMENCE
o Shall start at the precise moment when marriage ceremony is
celebrated
o What is considered is the hour, not the date of the marriage
PROHIBITION ON WAIVER
o No waiver of rights interests, shares, and effects of CPG can be
made during the marriage except upon JSP.
o Same rationale: avoid undue pressure and influence exerted upon
the weaker spouse who may be persuaded or coerced into parting
with his/her interests in the CP.
The conjugal partnership shall be governed by the rules on the contract of
partnership in all that is not in conflict with what is expressly determined in this
Chapter or by the spouses in their marriage settlements.(147a)
SPECIAL TYPE OF PARTNERSHIP
o Unlike ACP in which co-ownership rules apply suppletorily.
o CP will be governed by rules on contract of partnership in all that are
not in conflict with what is expressly determined in this Chapter or by
the spouses in their marriage settlements
o

Article
107

Article
108

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o
o
o
o

Homeowners Savings & Loan Bank v. Dailao (March 2005): in case


of conflict between CC on rules on partnerships and provisions of
FC on CPG rules, FC shall prevail.
Ex. Just like in normal partnerships governed by Title IX of the CC,
any stipulation which excludes the partners from any share of the
profits and losses of the partnership " VOID (Art. 1799 of CC)
Art. 1811: A partner is a co-owner with his other partner of specific
partnership property
Art. 1807: Every partner must account to the partnership for any
benefit and hold as trustee for it any profits derived by him without
the consent of the other partner from any transaction connected with
the formation, conduct, or liquidation of the partner OR from any use
by him/her of its property
Art. 1818: Without consent of the other partner, a partner cannot
assign the partnership property in trust for creditors or on the
assignees promise to pay the debts of the partnership, confess a
judgment, enter into a compromise concerning a partnership claim
or liability, submit a partnership or liability to arbitration and
renounce a claim of the partnership to person having knowledge of
the restriction
Art. 1822: Where, by any wrongful act/omission of any partner acting
in the ordinary course of the business of the partnership or with
authority of his co-partner, loss or injury is caused to any person, not
being a partner in the partnership, or any penalty is incurred, the
partnership is liable therefor to the same extent as the partner so
acting or omitting to act.
Carandang v. Heirs of Quirino A. De Guzman (Nov. 2006): Right of
one spouse to bring an action was assailed on the ground that the
spouse should have been made a party in the action. SC: Being coowners of the alleged credit, Quirino and Milagros de Guzman MAY
SEPARATELY bring an action for the recovery thereof.
! Baloloy v. Hular and Adlawan v. Adlawan: it was held that in
a co-ownership, co-owners may bring actions for the
recovery of co-owned property with the necessity of joining
all the other co-owners as co-plaintiffs. Why? Suit is
presumed to have been filed for the benefit of co owners.
! De Guia v. CA: Held that Art. 487 of the CC, provides that
any of the co-owners may bring an action for ejectment
covers all kinds of action for the recovery of the possession.
! In sum, ALL CO-OWNERS are real parties in interest. But
any one of them may bring an action (any kind of action) for
recovery of co-owned properties.
! Only 1 of the co-owners (the one who filed the suit for
recovery of the co-owned property) is the indispensible party

68%

thereto. Other co-owners are not indispensible parties. Not


even necessary. Complete relief can be accorded in the suit
even without their participation (as it is presume to be filed
for the benefit of all co-owners).
! Ruling: Milagros (wife of Quirino) not an indispensible party
in the recovery of loaned money to Carandang spouses.
She need not have been impleaded in the suit and dismissal
is not warranted just because she was not a party of the
case.
Section 2. Exclusive Property of Each House
Article
109

The following shall be the exclusive property of each spouse:


(1) That which is brought to the marriage as his or her own;
(2) That which each acquires during the marriage by gratuitous title;
(3) That which is acquired by right of redemption, by barter or by exchange with
property belonging to only one of the spouses; and
(4) That which is purchased with exclusive money of the wife or of the
husband. (148a)
PROPERTIES BROUGHT INTO THE MARRIAGE
o Under CPG, all properties brought into the marriage belong to each
of the exclusively.
o National Bank v. Quintos: Partnership does not produce the merger
of the properties of each spouse
o They can exercise all rights of dominion/ownership over these
exclusive properties
o Said properties cannot be encumbered, alienated nor disposed of by
the other spouse WITHOUT consent of the owner-spouse
o Nature of property as separate property shall remain unless contrary
is proved by positive and convincing evidence
! Del Mundo v. CA: testimony of Marcela Bernal was
corroborated by 2 witnesses about the sale of the property
was not rebutted by respondents. . See the rest of the
case on p. 502
o If property is asserted as separate property and title has been
issued under the name of the one asserting and acts have even
done to indicate that the property is separate owned without
opposition from the other party who knew of the acts of dominion of
those asserting the separate nature of the property, they cannot
belatedly claim the conjugal nature of the disputed property
! PNB v. CA: p. 503
o Plata v. Yatco: Also, in event that the property was purchased by a
spouse previous to the marriage and only after the marriage that the
property was registered under the name of owner-spouse but
together with the other spouse as co-owner, such property is still the
exclusive property of the spouse who bought it by his/her exclusive

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funds prior to the marriage and the registration after the marriage of
the certificate of title under the co-ownership of the spouses only
creates a trust necessitating the registration to the real-owner
spouse of the subject property upon liquidation
o Penanra v. Register of Deeds of Rizal: Where the title is afree patent
which is granted only to occupants for their continued occupation
and cultivation, SC: had the land been acquired by virtue of the joint
efforts of the H&W, the patent should have so indicated. But it is
granted to W only. Husband is presumed to NOT be a co-owner and
land was acquired through wifes occupation alone when she was
unmarried. Land was therefore considered as wifes exclusive
property.
o Exclusive properties brought into the marriage shall be used for
payment of personal debts NOT redounding to the benefit of the
family, contracted by the owner-spouse before the marriage that of
fines and indemnities imposed upon him/her, as well as support of
the illegitimate children of the owner-spouse.
o In event that assets of the CP would be insufficient to pay the
obligations of the partnership at time of liquidation, spouses shall be
solidarily liable for unpaid balance in accord with Art. 121(2).
PROPERTY ACQUIRED BY GRATUITOUS TITLE
o All things received by spouse by an act of liberality (e.g.
donation/gift) belong exclusively to spouse-recipient and will not be
part of CP.
o Includes moderate gifts given by spouse
o Santiago v. COA (July 1991): Honorarium may be included as
property acquired by gratuitous title because it is defined as
something not given as a matter obligation but in appreciation for
services rendered, a voluntary donation in consideration of service
which admit no compensation in money
o Villanueva v. IAC and Tan v. CA: If property were acquired by
lucrative/gratuitous title such as by way of succession, it is separate
property regardless of when it was acquired (before or after
marriage)
o In CP property regime, income and fruits of the property acquired by
gratuitous title is conjugal.
o Law does not include fruits and income received by gratuitous title
as separate property
o Different from ACP where property acquired by gratuitous title by
either spouse even the fruits and income shall be considered as
exclusive property unless donor says that it shall form part of it.
REDEMPTION, BARTER, EXCHANGE
o Redemption " property shall belong to spouse who has right to
redeem regardless of W/N he/she uses personal funds

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Santos v. Bartolome: When conjugal funds are used to effect


redemption, spouse making redemption through conjugal fund shall
be liable to CP for reimbursement of amount used to redeem his/her
exclusive property
o Alvarez v. Espiritu: CP shall have a lien for the amount paid by it. If
there is no right of redemption belonging to either of the spouse,
whoever buys something his own funds shall exclusively own the
purchase
o Right of redemption NOT THE SAME as right of successor in
interest in case of execution of judgment
! Rosete v. Provincial Sheriff of Zambales: 4 parcels of land
owned by CP were executed and sold to answer for
indemnity
PROPERTY PURCHASED WITH EXCLUSIVE MONEY OF EITHER
SPOUSE
o Property purchased using the exclysive money of 1 spouse will
belong to that spouse alone
o When property is purchased using exclusive money and title is taken
in the spouses names, it will depend on the circumstance if it will be
considered:
! As a gift from the spouse
! Or a trust in favor of the spouse
The spouses retain the ownership, possession, administration and enjoyment of their
exclusive properties.
Either spouse may, during the marriage, transfer the administration of his or her
exclusive property to the other by means of a public instrument, which shall be
recorded in the registry of property of the place the property is located. (137a, 168a,
169a)
ADMINISTRATION OF EXCLUSIVE PROPERTIES
o Spouses will retain ownership, administration, possession, and
enjoyment of his/her exclusive properties.
o Administration " contracts with use of the property, engaging in
litigation, collection of the fruits profits and income from there
o Owner-spouse may transfer the administration to spouse, but this
must be recorded in the civil registery
o Even when the other spouse is administering the property, ownerspouse may donate, encumber or alienate the property or even
transfer it to another without consent of spouse
o Naguit v. CA: exclusive property of the wife was sold upon execution
by the sheriff for the satisfaction of husbands obligation. SC: wife
rd
can annul the sale. Wife can be deemed a 3 person and can file an
action to vindicate her right of ownership.
Either spouse [a spouse of age] may mortgage, encumber, alienate or otherwise
dispose of his or her exclusive property, without the consent of the other spouse, and

appear alone in court to litigate with regard to the same. (amended by RA 10572)

Article
112

The alienation of any exclusive property of a spouse administered by the other


automatically terminates the administration over such property and the proceeds of
the alienation shall be turned over to the owner-spouse. (n)
TERMINATION OF ADMINISTRATION
o Any spouse who alinates his/her exlusive property will terminate the
admin of the other spouse and the proceeds shall be turned over to
owner-spouse
o When spouses are separated in fact: spouse can file petition to be
given authority to administer the separate property of the other
spouse and use the fruits to satisfy the absent spouse share when
the separate properties are held solidarily liable for obligation of
CPP in absence of sufficient property
o Owner-spouse cannot revoked the judicially approved administration
of the present spouse for his/her specific property
! And if owner wants to sell it, present spouse consent
needed OR approval of the court needed if former disagrees
Article
Property donated or left by will to the spouses, jointly and with designation of
113
determinate shares, shall pertain to the donee-spouses as his or her own exclusive
property, and in the absence of designation, share and share alike, without prejudice
to the right of accretion when proper. (150a)
Article
If the donations are onerous, the amount of the charges shall be borne by the
Article
114
exclusive property of the donee spouse, whenever they have been advanced by the
110
conjugal partnership of gains. (151a)
PROPERTY DONATED OR LEFT BY WILL TO SPOUSES
o A donor may donate or provide in a will property to the spouses
jointly and designate the determinate share of each spouse and if
theres no such stipulation " 50-50
o Donated property will be considered as complete separation of
property
ACCRETION IN CASE OF DONATION
o Accretion: incorporation of property to another property
o General rule in joint donation: one cannot accept independently of
his co-donee because no right of accretion unless expressly
provided
o Exceptions: joint donation is in favor of husband and wife
o Ex. Valid donation of to wife and to husband. Wife does not
accept. Accretion will set in favor of H. will go also to H,
particularly his separate property.
! Will apply even no determinate shares
! But will not apply if mon-determinate properties but like cars,
etc.
Article
ACCRETION IN CASE OF PROPERTY LEFT BY WILL
111
o If property was left by will, for accretion to apply: necessary for H &
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W be called to the same inheritance or same portion or pro indiviso


(not divided) and that one of the spouses dies before such
inheritance was renounced or one of the spouses becomes
incapacitated.
! Provided that terms that divide the shares do not identify it
as making one an exclusive owner shall not exclude the
right of accretion to the other spouse. In other words, in this
case, the surviving spouse will get also the deceaseds
share.
! Ex: W was given and H, . H dies before the testator. Or
renounces the inheritance. Or becomes incapacitated. Wife
will get 4/4.
! But if it was clearly identified that this property in Y will go to
H and property X will go to W and H dies, etc. Y will not go
to W.
PAYMENT USING CONJUGAL FUNDS
o If CPG fund was used for obligations from an onerous donation,
donee-spouse shall reimburse the CPG but property remains to be
his/her exclusive property
o This is because donated property is separate property of the spouse
o Taxes and expenses for mere preservation though is really
chargeable to CPG.
Retirement benefits, pensions, annuities, gratuities, usufructs and similar benefits
shall be governed by the rules on gratuitous or onerous acquisitions as may be
proper in each case. (n)
NATURE OF PENSIONS, ANNUITIES, GRATUITIES
o Are retirement benefits, pensions, annuities part of the CPG? It
depends on how it was obtained and circumstances.
o Mendoza v. Dizon: any amount given by the government because of
previous work is a gratuity and be considered as separate property.
o Annuity is not gratuity if the recipient is entitled to it as a matter of
right.
o Heirs of Berganon v. Imperial: govt teachers are by law granted
annuity, this is not a gratuity and hence IS part of the CPG.
o Pensions: compensation for services previously rendered and the
full compensation was not received yet (withheld payment to induce
long service) are not considered gratuities. Therefore, they are
CONJUGAL.
o Examples in the book:
! Martinez v. Moran: insurance was paid by communal funds
and thus proceeds were community estate
! In re: Stans Estate: insurance was paid from own salary
insurance money hence was community property and thus
wife is entitled to

BPI v. Posadas: even if the insurance is payable to his


estate, proceeds still CPG because it was paid out using the
CPG (but if it was just partly conjugal fund and partly
separate, the proceeds will also be proportionate)
! ***if theres no proof that it was paid using separate
money it is considered conjugal.
! Berciles v. GSIS: retirement premiums are conjugal
because theres no proof that it was paid using separate
properties
! Vda, De Consuegra v. GSIS: the insurance was intended for
the employee and thus only the beneficiary can claim it even
if he dies before he retired. If he forgot to state his
beneficiary, the benefits will go to the estate and given to
the legal heirs.
Section 3. Conjugal Partnership Property
!

Article
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All property acquired during the marriage, whether the acquisition appears to have
been made, contracted or registered in the name of one or both spouses, is
presumed to be conjugal unless the contrary is proved. (160a)
WHEN PRESUMPTION IS APPLICABLE
o Joscon v. CA: Party who invokes the presumption must first prove
that the property was acquired during the marriage.
o Proof of acquisition is a condition sine qua non for operation of the
presumption in favor of the conjugal partnership
o Maramba v. Lozano (June 1967): if theres no showing as to when
the property was acquired, the fact that the wifes name is in the title
is already determinative
o Torrens Title: phrase married to ______ is merely description of
civil status but does not prove that the land is conjugal
o Metropolitan Bank and Trust Company v. Tan: registration of
property is not proof of acquisition. Why? Property could have been
acquired while the owner was single and registered only after the
marriage ceremony
o Tan v. CA: for as long as acquisition is proven during the marriage,
presumption will apply
o Laperal v. Katigbak: In case where property is registered in both
spouses names, the presumption that it is conjugal arises.
o Wong v. IAC: For as long as it is proven that the property has been
acquiring during the marriage, the presumption applies even though
the spouses lived separately.
o Evidence must be clear to overcome the assumption. The controlling
factor is the source of the money utilized in the purchase.
o Belcodero v. CA: H paid for a property in installments and then
bigamously married another then named the property under the
other woman, SC: property is still conjugal.

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Plata v. Yatco: property of W was conveyed to another and it was


recoveyed back. SC: still not conjugal because there was no proof
that conjugal funds were used to pay out reconveyance.
o Villanueva v. CA: when proof of use of conjugal funds is shown,
presumption still holds even if property is named in just 1 of the
spouses
o Pintian-Anno v. Anno: tax declaration in the name of one spouse are
not evidence of acquisition and therefore not proof that funds used
are conjugal.
The following are conjugal partnership properties:
(1) Those acquired by onerous title during the marriage at the expense of the
common fund, whether the acquisition be for the partnership, or for only one of the
spouses;
(2) Those obtained from the labor, industry, work or profession of either or both of
the spouses;
(3) The fruits, natural, industrial, or civil, due or received during the marriage from the
common property, as well as the net fruits from the exclusive property of each
spouse;
(4) The share of either spouse in the hidden treasure which the law awards to the
finder or owner of the property where the treasure is found;
(5) Those acquired through occupation such as fishing or hunting;
(6) Livestock existing upon the dissolution of the partnership in excess of the number
of each kind brought to the marriage by either spouse; and
(7) Those which are acquired by chance, such as winnings from gambling or betting.
However, losses therefrom shall be borne exclusively by the loser-spouse. (153a,
154a, 155, 159)
ACQUISITION BY ONEROUS TITLE FROM COMMON FUND
o Zulueta v. Pan: That which is acquired with money of the CPG is
part of CPG, even if it was for only one of the spouses.
o Damages granted by courts in favor of the spouses from a contract
which was financed by the conjugal funds, will be part of the CPG.
o Damages from illegal detention of an exclusive property will still be
conjugal if the properties deprived the CPG from earning
o BUT: If damages were awarded to one of the spouses because of
physicial injuries, the damages will belong exclusively to the spouse.
PROPERTY ACQUIRED THROUGH INDUSTRY, LABOR, PROFESSION
AND THROUGH OCCUPATION
o Salaries and wages from work and/or hunting or fishing will be part
of the conjugal fund.
o In case of industry or work, one is sure to earn. But for fishing or
hunting, even if you work, sometimes the earnings are not always
commensurate with the work.
FRUITS AND EARNINGS FROM PROPERTIES
o Net fruits because fruits of the separate property will be applied
o

Article
117

Article
118

first to the expenses of administration of the separate property and


remaining balance will constitute the net fruits is conjugal.
HIDDEN TREASURE
o The law award to the finder or owner of the property where treasure
is found to the PCG.
o Hidden treasure artifacts or objects which have undergone
transformation from their original raw state (earrings, necklace, etc.)
o Gold nuggets, precious raw stones and oil are not treasures.
o Notes on my book which I dont understand:
! Deposit capital: mine; interest: CPG
LIVESTOCK
o Livestock existing upon dissolution in excess of the number of each
kind brought shall be conjugal.
o Ex. 40 cows at first. Became 60. 20 cows conjugal.
o But how to determine which will constitute 20 if cannot identify
anymore which one is which?
! They have to distinguish betweent he debtor and creditor.
The debtor is the CPG that will deliver the original 40. They
must now apply that the debtor cannot offer the worst not
can creditor demand the best.
o Note: When you catch a fish in your own lake, it is CPG.
CHANCE
o Situation in which the spouse engaging in gambling won a valuable
amount.
o Ex. H was given a sweepstake ticket by some person. Turns out to
be a winning ticket. Proceeds will be considered income and part of
CPG.
NOTES
o Generally, everything you acquire during marriage is cpg UNLESS:
! Prove its purchased using separate funds
! Prove that it is not advancement to shares.
o Ownership vests only
! On dissolution
! Once paid
Property bought on installments paid partly from exclusive funds of either or both
spouses and partly from conjugal funds belongs to the buyer or buyers if full
ownership was vested before the marriage and to the conjugal partnership if such
ownership was vested during the marriage. In either case, any amount advanced by
the partnership or by either or both spouses shall be reimbursed by the owner or
owners upon liquidation of the partnership. (n)
INSTALLMENT PURCHASES
o Situation when installment was initiated prior to the marriage and
ended during the marriage.
o If it was bought using partly exclusive money and partly conjugal,

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ownership depends on when the title is vested.


If vested before marriage " belongs to the class of properties
exempted from CPG under Art. 109.
o If after marriage " part of CPG (thus, spouse who purchased it has
the right to reimbursement from the CPG)
o Lorenzo v. Nicolas: woman bought properties before marriage
although some of the installments were paid for using conjugal funds
during marriage. Conjugal funds entitled to reimbursement of the
expense.
o Jovellanos v. CA: contract to sell a land by install, the ownership will
only best upon last payment. SC: since last installment was made
nd
during the valid 2 marriage, the property rightfully belongs to CPG
nd
of 2 marriage even though the first marriage partly funded the
property.
REIMBURSEMENT UPON LIQUIDATION OF PARTNERSHIP
o This is because there can be no absolute sharing until after
liquidation. There is voluntary reimbursement even before an issue
arises.
NOTES
o Usually personal partnerships. You immediately get possession at
time when you bought it.
o Ex. Land or condo " ownership vested when paid for
Whenever an amount or credit payable within a period of time belongs to one of the
spouses, the sums which may be collected during the marriage in partial payments
or by installments on the principal shall be the exclusive property of the spouse.
However, interests falling due during the marriage on the principal shall belong to the
conjugal partnership. (156a, 157a)
PAYMENT OF CREDIT IN FAVOR OF SPOUSE
o Situation when one spouse has a credit payable in installments, all
payments made during the marriage shall belong exclusively to the
spouse who owns the credit.
o Interest on the principal during the marriage shall belong the CPG
and is considered income.
The ownership of improvements, whether for utility or adornment, made on the
separate property of the spouses at the expense of the partnership or through the
acts or efforts of either or both spouses shall pertain to the conjugal partnership, or
to the original owner-spouse, subject to the following rules:
When the cost of the improvement made by the conjugal partnership and any
resulting increase in value are more than the value of the property at the time of the
improvement, the entire property of one of the spouses shall belong to the conjugal
partnership, subject to reimbursement of the value of the property of the ownerspouse at the time of the improvement; otherwise, said property shall be retained in
ownership by the owner-spouse, likewise subject to reimbursement of the cost of the
improvement.
o

Article
119

Article
120

In either case, the ownership of the entire property shall be vested upon the
reimbursement, which shall be made at the time of the liquidation of the conjugal
partnership. (158a)
SOURCE OF FUNDS USED FOR IMPROVEMENTS
o If value of improvement + Resulting increase in value > value of
separate property at time of improvement " that property becomes
part of the Conjugal Partnership
! But ownership will be vested upon reimbursement to ownerspouse
! Proof of time which the improvement was made PLUS the
source of the funds used " needed in order to determine
the character of the improvements
o Ferrer v. Ferrer (Nov 2006): Before husband died, sold his lot which
was improved by the Conjugal funds. Surviving spouse sought for
reimbursement of half of the improvement. SC: rejected. Art. 120
does not give a cause of action of the SS to claim from subsequent
buyers of husbands property. It only always claims from husband IF
HE IS STILL OWNER OF THE LOT UPON LIQUIDATION
USUFRUCTUARY
o The conjugal partnership may used both land and improvement, not
because it owns it but because of usufructuary rights
o Ownership remains the same until value of land is paid
o Such payment only demandable upon liquidation of the partnership
o Maramba v. Lozano: Before liquidation, owner-spouse owns it and
there it cannot be used for conjugal debt (unless the conjugal funds
are insufficient, in which case separate property are solidarily liable)
o In Re: Padilla: SC on nature of usufructuary relationship from Art.
1404 of CC, now Art. 120
! Ownership is retained by owners-pouse until reimbursed
during liquidation
! Mere construction using common funds does not transfer
the title from the owner-spouse to the conjugal partnership
! Using the land is only a simple exercise of usufruct
pertaining to the conjugal partnership over the ownerspouses land
! conjugal partnership not bound to pay rent during
occupation of wifes land
! if it was leased to a third person, the rent would belong to
the conjugal partnership
! before payment of land value from common funds, ownerspouse bears all increase/decrease of its value
! she can only demand payment during liquidation because it
is not appropriate to transfer the dominion to the conjugal
partnership

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If no reimbursement, ownership is retained by owner-spouse (still


subject to reimbursement for improvement costs)
o If property of owner-spouse is > improvement, entire improvement
" belongs to owner-spouse subject to reimbursement at time of
liquidation
COMPUTATION (p. 525)
o READ ME. UNDERSTAND ME.
o It explains the article and how to compute for reimbursement
Section 4. Charges Upon and Obligations of the Conjugal Partnership
o

Article
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The conjugal partnership shall be liable for:


(1) The support of the spouse, their common children, and the legitimate children of
either spouse; however, the support of illegitimate children shall be governed by the
provisions of this Code on Support;
(2) All debts and obligations contracted during the marriage by the designated
administrator-spouse for the benefit of the conjugal partnership of gains, or by both
spouses or by one of them with the consent of the other;
(3) Debts and obligations contracted by either spouse without the consent of the
other to the extent that the family may have benefited;
(4) All taxes, liens, charges, and expenses, including major or minor repairs upon the
conjugal partnership property;
(5) All taxes and expenses for mere preservation made during the marriage upon the
separate property of either spouse;
(6) Expenses to enable either spouse to commence or complete a professional,
vocational, or other activity for self-improvement;
(7) Ante-nuptial debts of either spouse insofar as they have redounded to the benefit
of the family;
(8) The value of what is donated or promised by both spouses in favor of their
common legitimate children for the exclusive purpose of commencing or completing
a professional or vocational course or other activity for self-improvement; and
(9) Expenses of litigation between the spouses unless the suit is found to
groundless.
If the conjugal partnership is insufficient to cover the foregoing liabilities, the spouses
shall be solidarily liable for the unpaid balance with their separate properties. (161a)
CHARGES AND OBLIGATIONS
o Same for except for No. 9 of Art. 94 (which is provided for in Art.
122)
o Liabilities " chargeable only to conjugal partnership if it benefits
said conjugal partnership
o CREDITOR has burden of proof that a debt was contracted for the
benefit of the conjugal partnership
o Benefit must be direct result of the obligation, not simply by-product
of the loan/obligation
o Ayala Investment and Development Corp. v. CA (Feb 1998): Indirect
benefits that might accrue to H in signing a surety agreement not in

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favor of family but of his employer-company, are not benefits that


can be considered as having direct advantage to the family.
Creditors cannot go against the CPP of H to satisfy obligation from
such agreement. To uphold otherwise would peril the CPP as it
would allow for its contents to be given/donated. Which is not
allowed.
! Ex. Prolonging his employment
! Ex. Increasing value of shares of stock of members in the
family
! Ex. Enhancing prestige in the corporation
Homeowners Savings and Loan Bank v. Daliao (Mar. 2005):
redounding to benefit of family must always be proven and cannot
be assumed. Burden of proof of benefit must always be on the
person claiming that the transaction benefited the family. The bare
accusation fo creditor that a load to finance housing units obtain by
1 spouse redouned to benefit of the family without evidence to prove
it cannot give rise to claim on the conjugal assets nor create any
conjugal liability
Cobb-Perez v. Lantin: SC said that debts incurred for a commercial
enterprise or exercise of profession from which the spouse
contributes to support the family " not exclusive / private debts.
conjugal partnership liable.
Luzon v. Surety Co. v. De Garcia: H as guarantor fro another
indemnity agreement " not act for benefit of conjugal partnership as
rd
it benefited 3 party; while by signing it H added esteem and earned
confidence of business community, such benefit is too remote to
come within expression provision of this provision
Ayala Investment and Development Corp. v. CA: what debts and
obligations contracted by 1 spouse alone are considered for benefit
of conjugal partnership and chargeable to the same?
! If H directly received money to be used for own business.
No actual benefit may be proved but enough that benefit to
the family is apparent at time of signing of contract. It is
immaterial that business does not succeed. Where husband
contracts obligations for the family business, it is presumed
that obligation will redound to the benefit of the conjugal
partnership
! If money/services are given to antoher person, H acted only
as surety, contract cannot be categorized as falling within
obligation for the benefit of the conjugal partnership
Contract of loan is for the benefit of the debtor, not family.
No presumption to be inferred. Proof must be shown to
establish benefit redounding to CP.
! Mere signing of person as guarantor does not make him

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automatically engaged in a profession such that any loss


would be chargeable to conjugal partnership. HOWEVER IF
BOTH SPOUSES SIGNED THE AGREEMNT, conjugal
partnership is liable.
OBLIGATION OF HUSBAND AND WIFE
o conjugal partnership liable for all obligations contracted by H & W.
o Ex. Creditor has claim against H & W for Php1000 which benefited
the family even only 1 contracted " conjugal partnership liable
! NOT CORRECT: Creditor to get Php500 each from H & W
from separate property
! NOT CORRECT: Creditor to think theyre solidarily liable
and get Php1000 from separate property of H only
Separate property only liable when conjugal
partnership is insufficient
o Carandang v. Heirs of Quirino A. De Guzman (Nov 2006): when
spouses are sued for enforcement of obligation, they are impleaded
in their capacity as representatives of the conjugal partnership and
not as independent debtors. Either may be sued for the whole
amount, like solidary liability, but it is chargeable to conjugal
partnership
o Pelayo v. Perez (June 2005): signature of wife as witnesss and not
party to contract showed implied consent of sale excecuted by
husband.
SOLIDARY OBLIGATION
o If conjugal partnership is insufficient, creditors may demand
payment from wither spouses from their separate properteies.
o The one who made the payment may claim the share with interest. If
payment is made before debt is due, no interest may be demanded
o Separate properties may be solidarily liable if both expressly made
themselves liable in such manner in any obligation for the benefit of
the ACP of CPG
INSOLVENCY OF SPOUSES
o Art. 2238 of VV: conjugal partnership existing " property not among
assets to be take by assignee for payment of insolvent debtors
obligations except as the latter have benefited the family
o Velayo v. Shell: insolvency proceeding filed court " assihnee is
appointed. He/she represents the insolvent and creditors, whether
voluntarily or not. He takes all properties of the insolvent and obtains
the title. He will speedily convert the estate into money for the
purpose of settling the debt
o The assignee takes all the properties of the insolvent person and
obtains title for it.
NOTES
o Chances are, if you dont have donation during marriage or no pre-

Article
122

nuptial, or illegitimate children, you have no separate property.


Except for those excluded, theres nothing for you. Thats why ACP
can pay
o Unlike ACP. In ACP there are combined properties. Unlike CPG, a
property before marriage stays with you. Thus, chances are you
have properties
o As long as it is benefitted the family ACP (exclusive); CPG did not
state; has to be paid because separate properties and fruits are
used by the family
o Whatever is in excess of separate property " CPG.
The payment of personal debts contracted by the husband or the wife before or
during the marriage shall not be charged to the conjugal properties partnership
except insofar as they redounded to the benefit of the family.
Neither shall the fines and pecuniary indemnities imposed upon them be charged to
the partnership.
However, the payment of personal debts contracted by either spouse before the
marriage, that of fines and indemnities imposed upon them, as well as the support of
illegitimate children of either spouse, may be enforced against the partnership assets
after the responsibilities enumerated in the preceding Article have been covered, if
the spouse who is bound should have no exclusive property or if it should be
insufficient; but at the time of the liquidation of the partnership, such spouse shall be
charged for what has been paid for the purpose above-mentioned. (163a)
DEBTS, FINES, PECUNIARY INDEMNITIES INCURRED BEFORE OR
DURING THE MARRIAGE
o For as long as the debts benefitted the family, it may be charged to
the CPG. (ex. Hospital expense)
o Benefit need not be quantified into peso or meters of real property.
Enough that the transaction results to advantage to the CPG,
directly or indirectly.
rd
o For the 3 paragraph to apply: must be shown that the obligations
under Art. 121 have been covered and that debtor-spouse has
insufficient or no exclusive properties to pay the debt.
o Lacson v. Diaz: General rule is that debts contracted by H or W
during marriage, are NOT chargeable to the CPG. However, it can
be enforced against the CPG if the responsibilities have already
been covered and obligor has no exlusive property or it is
insufficient.
o Fines and pecuniary indemnities imposed upon either spouses may
be charged against the partnership assets even before the
liquidation of the partnership
o But this must comply with Art. 122 but not so rigidly as to negate the
aggrieved creditors.

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Termination of the conjugal partnership is not prerequisite to allow


CPG to answer for the indemnities.
DIFFERENCE FROM THE ABSOLUTE COMMUNITY RULE
o The CPG is liable for personal debts, fines, and indemnities of either
spouse only after payment of all the liabilities of the CPG are
covered and when the separate property is insufficient
o In ACP, liabilities may be charged against the community only in
case the separate property is insufficient because spouses have
fewer exclusive properties.
o Spouses Buado v. CA: husband opposed the execution of conjugal
properties by the sheriff to satisfy damages incurred by his spouse
as a criminal liability. The issue here is w/n the husband can be
considered as third party so that he can file a claim against
execution. SC: In determining whther the husband is a stranger to
the suit, the character of the property must be considered. In this
case, it was deemed that the husband may file a suit as the property
is exclusive to the wifes. H in this case is a stranger.
! It has been held before that husband is not stranger to wife
for an obligation that redounded to the benefit of the CPG.
! It has also been held that a spouse is deemed a stranger
when the writ of execution was issued and justified in
bringing an independent action.
PERSONAL OBLIGATIONS OF SPOUSES DURING THE MARRIAGE
o Personal obligations incurred during marriage which do not redound
to the benefit of the family or do not have the consent of the other
spouse shall be borne only by the spouse-debtor and his/her
separate property.
o BA Finance v. CA: where evidence shows a spouse incurred the
obligation for sole benefit, it cannot be charged to the CPG.
o Personal obligations for which the debtor-spouse should only be
liable are not given by the law the same advance-reimbursement
mechanism.
o CPG has no duty to make payment in advance for the liability of the
spouse-debtor, which shall be reimbursed at time of liquidation.
o The law limits the application of this advance-reimbursement to
personal debts not redounding to the benefit of the family.
COMPUTATION
o See p. 538
Whatever may be lost during the marriage in any game of chance or in betting,
sweepstakes, or any other kind of gambling whether permitted or prohibited by law,
shall be borne by the loser and shall not be charged to the conjugal partnership but
any winnings therefrom shall form part of the conjugal partnership property. (164a)
GAME OF CHANCE
o Winnings are considered income.
o

Article
123

Section 5. Administration of the Conjugal Partnership Property


Article
124

Article
125

The administration and enjoyment of the conjugal partnership shall belong to both
spouses jointly. In case of disagreement, the husband's decision shall prevail,
subject to recourse to the court by the wife for proper remedy, which must be availed
of within five years from the date of the contract implementing such decision.
In the event that one spouse is incapacitated or otherwise unable to participate in the
administration of the conjugal properties, the other spouse may assume sole powers
of administration. These powers do not include disposition or encumbrance without
authority of the court or the written consent of the other spouse. In the absence of
such authority or consent, the disposition or encumbrance shall be void. However,
the transaction shall be construed as a continuing offer on the part of the consenting
spouse and the third person, 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. (165a)
Neither spouse may donate any conjugal partnership property without the consent of
the other. However, either spouse may, without the consent of the other, make
moderate donations from the conjugal partnership property for charity or on
occasions of family rejoicing or family distress. (174a)
IDENTITY OF PROVISIONS
o Same as 96 and 98, FC relative tot the ACP
o If MS provides for CPG as governing property relationship within a
marriage but stipulates that the sharing will not be equal upon
liquidation, such unequal sharing will not affect the jin administration
of the spouse during the marriage which places the spouses in
equal footing
o Also true with respect to ACP in MS was executed to define the
different sharing of spouse
o CPG shall belong equally to H&W, any alienation by H without
consent of wife prejudices her insofar as it includes a part or the
whole of the wifes half and is, to that extent, invalid
o The interest of each spouse is merely inchoate and cannot be
determined in definite and concrete specifications until and after the
liquidation of the same
o In case of disposition of property by the H over the objectification of
W, wife is given the right to file a case to nullify or annul, not only
such part of the contract as may prejducie her but the entire contract
as a whole " just like the rule in ACP if H without knowledge and
consent of the wife sells or encumbers CPG, such sale is void
o If sale was with knowledge but without approval of the wife, resulting
in disagreement, such sale is annullable at the instance of W who is
given 5 years from date of contract implementing the decision of the
H to institute the case
o In case it is an act of admin with knowledge but without the consent
of the wife, the contract is merely recissible at the instance of the

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wife and she can question the transaction in court w/in 5 years from
the implementation of the contract
o In case buyers also knew that the poerpety was CPG but they
bought it from the H only withtout consent of wife, SC sale was
totally void
o Sc said that consistent with doctrine of unjust enrichment, purchase
price has to be returned to the buyers with interest
o In case of incapacity of the other spouse or inability in the admin of
the CPG, same rule in ACP applies
o Any alientation or encumbrance by a capacitated spouse of any
CPG without the consent of he cinapciatedt spouse or without court
approval " VOID
o If contract is later approved by court or incapaciatetd house gives
his/her consent, there is no retroactive effect as contract thereby
perfected is an entirely new transaction
o Spouses Antonio v. CA: husband without consent of wife was was
unable
NATURE OF PROCEEDINGS
Section 6. Dissolution of Conjugal Partnership Regime
Article
126

The conjugal partnership terminates:


(1) Upon the death of either spouse;
(2) When there is a decree of legal separation;
(3) When the marriage is annulled or declared void; or
(4) In case of judicial separation of property during the marriage under Articles 134 to
138. (175a)
TERMINATION OF THE CONJUGAL PARTNERSHIP
o Same as 99
o Community might continue to exist between the SS and heirs of
deceased but it might be believed otherwise when:
i. When the marriage is dissolved, the cause that brought about the
community ceases, for the principles of an ordinary partnership are not
applicable to this community, which is governed by special rules.
ii. In the absence of the reasons that induced the legislator to establish it,
the provisions of law governing the subject should cease to have any
effect for the community of property is admissible and proper in so far
as it conforms to unity of life, to the mutual affection between husband
and wife, and serves as a recompense for the care of preserving and
increasing the property; all of which terminates by the death of one of
the partners.
iii. The partnership having been created by law, it has no object and it is
unsafe to extend it on the pretext of tacit consent
o Under FC, partnership rules apply in a suppletory manner abut not
upon dissolution of CPG
o x x x The community terminates when the marriage is dissolved or

o
o

Article
127

Article
128

annulled, or when during the marriage an agreement is entered into


to divide the conjugal property. The conjugal partnership exists
therefore so long as the spouses are legally united; the important
thing is not exactly the bond, the tie formed by the marriage, but the
existence in the eyes of the law of the life in common. It is this life in
common that creates common necessities and represents common
efforts, the result of which should be that both partners should share
in the profits
When, for any cause, the conjugal partnership establishes upon the
basis of community property is dissolved, all the provisions x x x
based upon the existence of that partnership cease to apply.
Consequently, whatever is acquired by the surviving spouse on the
dissolution of the partnership by death or presumption of death, or
by either of the spouse on termination of the partnership for other
reasons and when this latter no longer exists, whether the
acquisition be made by his or her labor, or industry, or whether by
onerous or lucrative title, it forms part of his or her own capital, in
which the other consort, or his or her heirs, can claim no share
(Nable Jose v. Nable Jose, 41 Phil. 713)

The separation in fact between husband and wife shall not affect the regime of
conjugal partnership, except that:
(1) The spouse who leaves the conjugal home or refuses to live therein, without just
cause, shall not have the right to be supported;
(2) When the consent of one spouse to any transaction of the other is required by
law, judicial authorization shall be obtained in a summary proceeding;
(3) In the absence of sufficient conjugal partnership property, the separate property
of both spouses shall be solidarily liable for the support of the family. The spouse
present shall, upon petition in a summary proceeding, be given judicial authority to
administer or encumber any specific separate property of the other spouse and use
the fruits or proceeds thereof to satisfy the latter's share. (178a)
EFFECT OF SEPARATION
o Same as Art. 100.
If a spouse without just cause abandons the other or fails to comply with his or her
obligation to the family, the aggrieved spouse may petition the court for receivership,
for judicial separation of property, or for authority to be the sole administrator of the
conjugal partnership property, subject to such precautionary conditions as the court
may impose.
The obligations to the family mentioned in the preceding paragraph refer to marital,
parental or property relations.
A spouse is deemed to have abandoned the other when he or she has left the
conjugal dwelling without intention of returning. The spouse who has left the conjugal
dwelling for a period of three months or has failed within the same period to give any
information as to his or her whereabouts shall be prima facie presumed to have no

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intention of returning to the conjugal dwelling. (167a, 191a)


ABANDONMENT
o Exactly the same as Art. 101
o Enriquez v. CA: both Art. 101 and 128 give an aggrieved spouse
who is co-owner of the properties the right to bring an action to
protect his/her interest and right even before the liquidation or
dissolution of the CPG or ACP
Section 7. Liquidation of the Conjugal Partnership Assets and Liabilities

Upon the dissolution of the conjugal partnership regime, the following procedure
shall apply:
(1) An inventory shall be prepared, listing separately all the properties of the
conjugal partnership and the exclusive properties of each spouse.
(2) Amounts advanced by the conjugal partnership in payment of personal
debts and obligations of either spouse shall be credited to the conjugal
partnership as an asset thereof.
(3) Each spouse shall be reimbursed for the use of his or her exclusive funds in
the acquisition of property or for the value of his or her exclusive property, the
ownership of which has been vested by law in the conjugal partnership.
(4) The debts and obligations of the conjugal partnership shall be paid out of
the conjugal assets. In case of insufficiency of said assets, the spouses shall be
solidarily liable for the unpaid balance with their separate properties, in accordance
with the provisions of paragraph (2) of Article 121.
(5) Whatever remains of the exclusive properties of the spouses shall thereafter be
delivered to each of them.
(6) Unless the owner had been indemnified from whatever source, the loss or
deterioration of movables used for the benefit of the family, belonging to either
spouse, even due to fortuitous event, shall be paid to said spouse from the
conjugal funds, if any.
(7) The net remainder of the conjugal partnership properties shall constitute the
profits, which shall be divided equally between husband and wife, unless a
different proportion or division was agreed upon in the marriage settlements or
unless there has been a voluntary waiver or forfeiture of such share as provided in
this Code.
(8) The presumptive legitimes of the common children shall be delivered upon
the partition in accordance with Article 51.
(9) In the partition of the properties, the conjugal dwelling and the lot on which it
is situated shall, unless otherwise agreed upon by the parties, be adjudicated to
the spouse with whom the majority of the common children choose to remain.
Children below the age of seven years are deemed to have chosen the mother,
unless the court has decided otherwise. In case there is no such majority, the court
shall decide, taking into consideration the best interests of said children. (181a,
182a, 183a, 184a, 185a)
LIQUIDATION OF PARTNERSHIP
o May be liquidated by extrajudicial settlement, ordinary action of
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partition or by testate/intestate proceedings


INVENTORY
o Same as 102.
o Its wrong to determine amount to be divided by adding up the profits
which has been made on each year of the communitys continuance
and saying that that is the amount.
o In appraising properties, its not the purchase price but the market
value or the assessed value at time of the liquidation that must be
taken into account
o If the proceedings take a long time and the values altered, there is
nothing to prevent a new valuation
CREDITS IN FAVOR OF PARTNERSHIP
o Any amount advanced during the marriage by the CPG in favor of
any of the spouses shall be credited to the CPG as asset
o Advances made by the CPG in paying support of the IL child of
either spouse, the personal debts contracted before the marriage
which did not redound to the benefit of the family and payments of
fines and pecuniary indemnities for which the spouse was made
liable and did not redound to the benefit of the family shall be
considered as assets.
o In case when property was bought in installments, the amount of
conjugal funds used for completing the sintalment shall be
considered as CPG asset
o Same for advances made by CPG involving charged relative to the
onerous donations in favor of a spouse
REIMBURSEMENT IN FAVOR OF SPOUSE
o If separate property was used to buy CPG, the amount will be
reimbursed to that spouse.
o CPG will reimbursed W for value of exlusive properties which was
vested by law in the CPG
o In re: Padilla: a property which was owned separately by W was torn
down to make new buildings owned by the CPG. The value of the
torn building should be paid by the CPG at time of liquidation.
PAYMENT OF DEBTS AND OBLIGATIONS OF PARTNERSHIP
o Partnership during its existence may have incurred debts and
obligations which should be paid.
o Under this provisions procedure, reimbursement of the sposues for
advances made in favor of the CPG or for the value of the separate
property which was vested to the partnership, has to be paid first
before paying the other debts and obligations of the CPG
o When CPG is terminated, it is said that the construction of the
tombstone shall be part of the funeral expenses and chargeable tot
the CPG if deceased is one of the spouses
DELIVERY OF SEPARATE PROPERTIES

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o Exclusive properties are owned by either of the spouses


DIVISION OF NET REMAINDER
o The interest of the parties is limited to the net remain which is the
profits of the CPG.
o Until a liquidation is made, it is impossible to say w/n there will be a
net remainder to be divided between he parties
o Sharing will be equal unless there is a different proportion or division
agreed upon in the marriage settlement or unless there has been a
voluntary waiver of such fair as provided for in the FC
o Waiver must be valid; if the waiver refers to those made during the
subsistence of the CPG, such waiver is invalid and ineffective
o A valid waiver can only occur upon judicial separation of property or
after marriage has been dissolved/annulled and must be in a public
instrument.
o In case of annulment of marriage, the CPG shall be dissolved and
liquidated but if either spouse contracted said marriage in bad faith,
his/her share of the net profits of the CPG shall be forfeited in favor
ot the CC, etc.
o Net profits as referred to above is computed as the increase in value
between the market value of the community property at time of
marriage celebration and market value at time of dissolution
o In case marriage is judicially nullified and when the informal civil
relationship is governed by Art. 147, and when only 1 on f the
parties is in good faith, share of bad faith party " forfeited in favor of
common children THEN descendants THEN innocent party
o In all cases, forfeiture takes place upon termination of cohabitation.
Will apply in cases of void marriages where proper relationship Art
148
o Will not apply to Art. 40 " the rule that will apply is Art. 50 which is
the forefiyure rule in case of liquidation of the CPG
DELIVERY OF PRESUMPTIVE LEGITIME
o Presumptive legitime is delivery only after the finality of a judicial
decree of annulment on ground in Art. 45 or Art. 40.
o Such delivery should only be in accordance with Art. 51 " refers to
the termination of marriage either by an annulment or nullity
judgment in the proper cases
o Delivery of presumptive legitme not needed for LS or in case of void
marriage because of Art. 40
o The children or their guardian may ask for the enforcement of the
judgement
CONJUGAL DWELLING
o Otherwise agreed upon by the parties in partition of properties, the
conjugal dwelling and lot shall be adjudicated to the spouse with
whom the majority of the children choose to remain

Kids below 7 years old goes to the mother unless court decides
otherwise
o If theres not such majority, the court shall decide by taking into
consideration the best interests of the children
Upon the termination of the marriage by death, the conjugal partnership property
shall be liquidated in the same proceeding for the settlement of the estate of the
deceased.
o

Article
130

If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate


the conjugal partnership property either judicially or extra-judicially within one year
from the death of the deceased spouse. If upon the lapse of the one-year period no
liquidation is made, any disposition or encumbrance involving the conjugal
partnership property of the terminated marriage shall be void.

Article
131

Article

Should the surviving spouse contract a subsequent marriage without compliance


with the foregoing requirements, a mandatory regime of complete separation of
property shall govern the property relations of the subsequent marriage. (n)
IDENTITY OF PROVISIONS
o Art. 130 relative to SPG and 103 relation to ACP are identical
o Estonia v. CA: SC ruled that the TCT statement which described the
owner as married to somebody else does not give rise to
presumption of conjugality. In absence of proof that property was
acquired during marriage, property shall be considered as owned by
the person state in the certificate despite a description that he/she is
married to someone
o It shall not be considered conjugal. Incase of death of the owner, the
exclusive property shall be co-owned by the SS and his heirs
o Creditors can only attach the share or interest of the surviving
spouse in the co- ownership and not the whole of the estate of the
deceased, because this will greatly prejudice the other heirs.
Whenever the liquidation of the conjugal partnership properties of two or more
marriages contracted by the same person before the effectivity of this Code is
carried out simultaneously, the respective capital, fruits and income of each
partnership shall be determined upon such proof as may be considered according to
the rules of evidence. In case of doubt as to which partnership the existing properties
belong, the same shall be divided between the different partnerships in proportion to
the capital and duration of each.(189a)
SIMULTANEOUS LIQUIDATION OF CP CONSTITUTED PRIOR TO FC
o Same as Art. 104
o Dael v. IAC example of case which applied this for a CPG marriage
o If there are 2 or mor CPG of 2 marriaged which have not been
nd
lqiudated, the 2 partnership cannot be liquidated without the
st
liquidation of the 1 one
The Rules of Court on the administration of estates of deceased persons shall be

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132

observed in the appraisal and sale of property of the conjugal partnership, and other
matters which are not expressly determined in this Chapter. (187a)
Article
From the common mass of property support shall be given to the surviving spouse
133
and to the children during the liquidation of the inventoried property and until what
belongs to them is delivered; but from this shall be deducted that amount received
for support which exceeds the fruits or rents pertaining to them. (188a)
ADVANCEMENT
o once a spouse dies, the surviving spouse and the children become
co-heirs of the estate left by the deceased.
o during liquidation they have a right to get certain amounts from what
they technically own to support themselves.
o Amount they get must at least be equivalent to the fruits/rents
arising from the share which they will eventually obtain after
liquidation
o If what they got exceeded the fruits of their share, the excess shall
be taken from the part of the prooerty which has been given to them
as their separate property after liqudation
o Advance from the common mass of property made during the
liqudation shall be paid first by the furits of their respective shares
o If fruits are insufficient because their advances exceeded the
amount of the fruits, the excess shall be taken from the particular
share delivered to them after liqudation
o The Allowances for support to the children and the spouse of the
deceased pending liquidation of the estate are subject to collation
and deductible from their share of inheritance insofar as they exceed
what they are entitled to as fruits or income
o Only the SS and the children are entitled to get the allowances for
support contemplated in Art. 133
! Other heirs such as grankids are no included.
! Children which are of age and employed or married, no
moment as these factors should not be taken into account in
relation to the determination of the rights of heirs.
o SC held that the expense of the maintenance and support of a
widow at time when the CPG has not yet been liquidated was
proeorty borne by the administrator of the deceased husband but
the expenditure was in the nature of mere advancement and is to be
deducted from the share pertaining to the heirs of the widow insofar
as it exceeds what they may have been eentitled to as fruits/income
o But there must be proof from which the funds are used for the
support of the widow were gotten. And if appears that the funds
came from the widows property, it cannot be charged against her
share
CHAPTER 5: SEPARATION OF PROPERTY OF THE SPOUSES AND ADMINISTRATION OF
COMMON PROPERTY BY ONE SPOUSE DURING THE MARRIAGE

Article
134

Article
135

In the absence of an express declaration in the marriage settlements, the separation


of property between spouses during the marriage shall not take place except by
judicial order. Such judicial separation of property may either be voluntary or for
sufficient cause. (190a)
JUDICIAL SEPARATION OF PROPERTY
o If H & W did not execute any marriage settlement that CSP will
govern their relation, they cannot alter their property without judicial
approval
o This is policy of discouraging a regime which is not in harmony with
family unity
o JSP is sought because spouses have already separated.
NOTES
o CSP
! Property regime in itself
! In ACP or CPG, for volunteary causes one can file for JSP
! In voluntary JSP, marriage still exist
! Prvisions on CSP shall apply
! 4 CASES
Marriage settlement
Declaration of presumptive death
Declaration of terminaition by death
Legal separation
o One can apply for JSP only 1 time voluntarily and the rest for cause.
Any of the following shall be considered sufficient cause for judicial separation of
property:
(1) That the spouse of the petitioner has been sentenced to a penalty which carries
with it civil interdiction;
(2) That the spouse of the petitioner has been judicially declared an absentee;
(3) That loss of parental authority of the spouse of petitioner has been decreed by
the court;
(4) That the spouse of the petitioner has abandoned the latter or failed to comply
with his or her obligations to the family as provided for in Article 101; *** These 4 are
court hearings so you lose also parental authority.*
(5) That the spouse granted the power of administration in the marriage settlements
has abused that power; and
(6) That at the time of the petition, the spouses have been separated in fact for at
least one year and reconciliation is highly improbable.
In the cases provided for in Numbers (1), (2) and (3), the presentation of the final
judgment against the guilty or absent spouse shall be enough basis for the grant of
the decree of judicial separation of property. (191a)
CIVIL INTERDICTION
o This accessory penalty deprives the offernder of his sentence, rights
or parental authority, guardianship either as to the person or
property, of marital authority, of right to manage his property and of

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the right to dispose such property by any act or conveyance inter


vivos
o Final decision of the court rendered against the erring spouse
embodying the penalty of civil interdiction is enough for the court to
approve a JSP
JUDICIAL DECLARATION OF ABSENCE (JDA)
o Absence may be declared2 years without news about th e sentee
or since the receipt of the last news OR 5 years in case the
absentee has left a person in charge of the admin of his property
o Who may ask for JDA?
! The spouse present,
! The heirs isntutitied in the will who may present an authentic
copy of the same
! Relative who may succeed by law of intestacy
! Those who may have over the property some right
subordinated by condition of his/her death
o JDA shall not take effect until 6 months after its publication of
general circulation
o JDA enough for court to approve a JSP in that case.
o NOTES
! Separate property you can ask someone else to sell it for
you through special power of authority
! When spouses deciede to separate in fact " justification for
JDA
! What kind of separation in fact?
At least for 1 yr w/out reconciliation
May ground na to file JSP
! Ground for permanent loss of authority (Art. 229, 231, 232)
! Separation in fact may give rise to JSP or NOT.
You need to satisfy debt
JSP Only when 1 yr is achieved and no recon
! What happens when JSP is granted? Art. 102 & 129.
LOSS OF PARENTAL AUTHORITY
o Refers to loss of authority over the
! Common child w/n legitimate
! Child of petitioner with another person w/n legitimate
o ACP and CPG is liable for support of the CC and legitimate children
of either spouse
o Subject to reimbursement from ACP and CPG are the support for
illegitimate children
o In event that loss of parental authority has been judicially declared
against the spouse, a common legit or illegit child with other spouse,
the latter spouse can seek for JSP so that his/her interest in the CP

can be allocated to him/her


Since relationship is damaged, need to protect his/her interest in the
assets by way of partition lest the guilty spouse undertakes an act
very prejudicial to the innocent spouses property rights in their
property
o In evenf of loss of parental authority was decreed against a spouse
in connection with his/jer legitimate child with another person, it is
prooert to allow the other spouse to ask for JSP so that his/her
share and interest can be immediately allocated to her, thereby
removing it from being further exposed to liability in favor of children
who are not even related to hi/her
o But to do this, the petitioner-spuse must shouw a prioer JD of loss of
parental authority of the other spouse
o How to terminate parental authority " Art. 229, 231, 232
o Grounds are only those provided by law.
o Final decision of court terminating parental authroty is enough for
court to approve a JSP when theres a sexually abused child
o What terminates parental authority?
! Malice
! Abuse
! Bad faith
! Culpable negligence
ABANDONMENT AND FAILURE TO COMPLY WITH OBLIGATIONS TO
THE FAMILY
o Same concept in Art. 101
ABUSE OF ADMINISTRATION
o Administration of peorperties may be granted to anyone of the
spouse in the marriage settlement entered into prior of the marriage
o Spouse abuses his/her powers of admin, JSP maybe availed of by
aggrieved spouse to avoid further depletion of his/jer interest
o Abuse to exist: not enough that spouse granted the power of admin
does something prejdiciial to other spouse.
! Nor is it sufficient that he/she commits acts injurious to the
proerpty because it may just be inefficient or negligent
administration
! Abuse connotes willful and utter disregard of the interest of
the partnership, evidenced by a reprition of deliberate
acts/omissions prejudicial
! Mere refusal or fail of husband as admin of CPG to inform
wife of progess " not abuse of admin
SEPARATION IN FACT
o At time of petition, separated for at ;east 1 year and no chance of
reconciliation
The spouses may jointly file a verified petition with the court for the voluntary
o

Article

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136

Article
137

dissolution of the absolute community or the conjugal partnership of gains, and for
the separation of their common properties.
All creditors of the absolute community or of the conjugal partnership of gains, as
well as the personal creditors of the spouse, shall be listed in the petition and notified
of the filing thereof. The court shall take measures to protect the creditors and other
persons with pecuniary interest. (191a)
VOLUNTARY SEPARATION
o May agree on separation of their ACP or CPG.
o But this must have a court approval; if not, it will be void
o They need not state any reson why they want to separate but if they
stated the reason and its against public policy, the court will reject
such agreement.
o Petition may even embody the scheme how it will be separated, if
not repugnant to the laws, then it will be granted
o The division of the ACP or CPG must be equal UNLESS there was a
different proportion in the marriage settlement (MS) or a VALID
WAIVER was made. Such valid waiver may be made upon JSP.
o The agreement for voluntary separation takes effect from time of
judicial order decreeing the separation of the properties NOT
FROM SIGNING OF THE AGREEMENT.
o Toda Jr. v. CA: Separation of property is not effected by mere
execution of the contract or agreement of the parties by by the
decree of the court which approved the same.
o All creditors of the CPG and their personal properties shall be listed
in the petition and notified of the filing of the JSP. The court must
take measures to protect the creditors
o In case of waiver of one of the spouses, the spouse who made the
waiver may petition the court to rescind the waiver to extent
sufficient to recover the amount (SEE ART. 89 AND 107)
o De Ugalde v. De Yasi: SC ruled that when the judgment by way of
compromise agreement dissolving the CPG of spouse has been
final and executory, the fact that creditors were not notified, will not
invalidate the judgment
o A judgment upon compromise agreement has the force and effect of
any other judgment and conclusive to; the parties and not binding to
other parties who are not parties to it
Once the separation of property has been decreed, the absolute community or the
conjugal partnership of gains shall be liquidated in conformity with this Code.
During the pendency of the proceedings for separation of property, the absolute
community or the conjugal partnership shall pay for the support of the spouses and
their children. (192a)
LIQUIDATION
o Process must be in accordance with 102 and 129.
o Presumptive legitime need not be complied with

o
o

Division of CP or CPG must be equal unless a different division was


agreed upon OR when theres a valid waiver
Maquilan v. Maquilan: partial voluntary separation of property
agreed pon by parties via compromise agreement duly approved by
the court prior tot the judicial declaration of nullity of marriage valid

NOTES
o How does the waiver affect the rights of the creditor?
! CP " dissolved
! If notified you can say you object to it
! If not notified, prejudiced
o Separation in fact does not affect the CP
o Presumptive legitime, applicable only to:
! Annullable marriages
! Void acc. To Art. 40, 52, 53
After dissolution of the absolute community or of the conjugal partnership, the
provisions on complete separation of property shall apply. (191a)
Whether voluntary or not, the mere filing of the petition to initiate the
proceeding shall not automatically result in the dissolution of the ACP or
PCG
Finality of the decision of the court decreeing the separation which involves
the same
It is only from that time that the CSP applies
Properties of each spouse may be have acquired or expenses each of them
may have incurred after the finality of JASP the same belong exclusively to
either of them independently of the community properties or the CPG
The petition for separation of property and the final judgment granting the same shall
be recorded in the proper local civil registries and registries of property. (193a)
The separation of property shall not prejudice the rights previously acquired by
creditors. (194a)
RIGHTS OF CREDITORS
o Recording in the civil registry of the petition of separation property
and the final judgment is to aid present and future creditors in
determining whether an asset is conjugal or really separate
o Separation of property shall not prejudice rights previously acquired
by creditors
o If there is waiver of one spouse relating to the property which is
sought to be liquidated, any creditor of the spouse who made such
waiver may petition the court to rescind the waiver to extent
sufficient
The spouses may, in the same proceedings where separation of property was
decreed, file a motion in court for a decree reviving the property regime that existed
between them before the separation of property in any of the following instances:
(1) When the civil interdiction terminates;
(2) When the absentee spouse reappears;

Article
138

139
140

141

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(3) When the court, being satisfied that the spouse granted the power of
administration in the marriage settlements will not again abuse that power,
authorizes the resumption of said administration;
(4) When the spouse who has left the conjugal home without a decree of legal
separation resumes common life with the other;
(5) When parental authority is judicially restored to the spouse previously deprived
thereof;
(6) When the spouses who have separated in fact for at least one year, reconcile
and resume common life; or
(7) When after voluntary dissolution of the absolute community of property or
conjugal partnership has been judicially decreed upon the joint petition of the
spouses, they agree to the revival of the former property regime. No voluntary
separation of property may thereafter be granted.
The revival of the former property regime shall be governed by Article 67. (195a)
REVIVAL OF PREVIOUS PROPERTY REGIME
o Termination of causes under Art. 135 for which an involuntary
separation of property has been decreed constitute the grounds to
revive the previous property regime
o Parties can file another petition for JSP once there are grounds
again to initate the same even if the ground invoked were the same
ground previously used
o The parties, however, can file another petition for judicial separation
of the properties once there are grounds again to initiate the same
even if the ground invoked were the same ground previously used.
o in case where the previous property regime was judicially separated
on the basis of the voluntary agreement of the parties, the parties
can revive the same upon petition in court (Article 142[7]).
o However, no voluntary separation of property may thereafter be
granted.
o If any one of the spouses gives cause for involuntary separation
under Article 135, the proper proceedings for judicial separation
invoking any of the grounds in Article 135 can be initiated and a
proper decree of separation granted.
The administration of all classes of exclusive property of either spouse may be
transferred by the court to the other spouse:
(1) When one spouse becomes the guardian of the other;
(2) When one spouse is judicially declared an absentee;
(3) When one spouse is sentenced to a penalty which carries with it civil interdiction;
or
(4) When one spouse becomes a fugitive from justice or is in hiding as an accused in
a criminal case.
If the other spouse is not qualified by reason of incompetence, conflict of interest, or
any other just cause, the court shall appoint a suitable person to be the
administrator. (n)

GUARDIAN
o When a spouse is judicially appointed a guardian of the spouse, he
may be constituted as the admin of thee state of the other spouse.
o Because he is already obliged to live and take care of the spouse
anyway
ABSENTEE AND CIVIL INTERDICTION
o Same grounds as Art. 135(1) and (2). Same explanations too,
FUGITIVE FROM JUSTICE
o It means someone who is accused of commiting a crime and is
absent to escape punishment because it is assumed that the person
is absent
OTHER PERSONS AS GUARDIAN
o Other spouse is not qualified because of incompetence, conflict of
interest or others, court will appoint another person
SEPARATION IN FACT
o Under Art. 100(3) and 127(3), provided that the separation in fact
between the spouses shall not affect the acp OR cpg except that in
absence of sufficient ACP/CPG, separate property of both spouses
shall be solidarily liable for the support of the family.
o Present spouse shall upon petition in a sumamru proceeding be
given judicial authority to administer or encumber any specific
separate property of the other spouse and use the fruits/proceeds
therof to satisfy the latters share.
CHAPTER 6: REGIME OF SEPARATION OF PROPERTY

143

144

Should the future spouses agree in the marriage settlements that their property
relations during marriage shall be governed by the regime of separation of property,
the provisions of this Chapter shall be suppletory. (212a)
SUPPLETORY CHARACTER
o If they want their property relationship to be CSP, they have to enter
into a valid marriage settlement prior to the marriage stipulating such
regime
o Marriage settlement shall govern the regime of separation of
property
o FC will be suppletory
NOTES
o Why would anyone want to use CSP? Based on distrust (LOL)
o ACP both own everything
o CPG both own everything except for some things
Separation of property may refer to present or future property or both. It may be total
or partial. In the latter case, the property not agreed upon as separate shall pertain to
the absolute community. (213a)
PROPERTIES INCLUDED
o Parites may agree on the extent of their separation property regime

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May involve present or future property or both


May be total or partial
Partial property not agreed upon as separarate shall pertain to
ACP
o Not valid for the contracting parties to agree in the marriage
settlement that the CPG or ACP only up to a certain time such as up
to the wedding anniversiary. Thereafter, the separation of property
regime shall commence and govern the marital property relationship
o This is because the provision on the separation of property regime
to commence on the anniversary is tantamount to dissolving the
ACP of CPG by virture of a cause or constingency not specifically
provided by law (Art. 99, 126)
145
Each spouse shall own, dispose of, possess, administer and enjoy his or her own
separate estate, without need of the consent of the other. To each spouse shall
belong all earnings from his or her profession, business or industry and all fruits,
natural, industrial or civil, due or received during the marriage from his or her
separate property. (214a)
146
Both spouses shall bear the family expenses in proportion to their income, or, in
case of insufficiency or default thereof, to the current market value of their separate
properties.
The liabilities of the spouses to creditors for family expenses shall, however, be
solidary. (215a)
CHAPTER 7: PROPERTY REGIMES OF UNIONS WITHOUT MARRIAGE
o
o
o

147

When a man and a woman who are capacitated to marry each other, live exclusively
with each other as husband and wife without the benefit of marriage or under a void
marriage, their wages and salaries shall be owned by them in equal shares and the
property acquired by both of them through their work or industry shall be governed
by the rules on co-ownership.
In the absence of proof to the contrary, properties acquired while they lived together
shall be presumed to have been obtained by their joint efforts, work or industry, and
shall be owned by them in equal shares. For purposes of this Article, a party who did
not participate in the acquisition by the other party of any property shall be deemed
to have contributed jointly in the acquisition thereof if the former's efforts consisted in
the care and maintenance of the family and of the household.
Neither party can encumber or dispose by acts inter vivos of his or her share in the
property acquired during cohabitation and owned in common, without the consent of
the other, until after the termination of their cohabitation.
When only one of the parties to a void marriage is in good faith, the share of the
party in bad faith in the co-ownership shall be forfeited in favor of their common
children. In case of default of or waiver by any or all of the common children or their
descendants, each vacant share shall belong to the respective surviving
descendants. In the absence of descendants, such share shall belong to the
innocent party. In all cases, the forfeiture shall take place upon termination of the
cohabitation. (144a)

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INFORMAL CIVIL RELATIONSHIP


o Theres no technical marital partnership between persons living as
husband and wife without being lawfully married or under a void
marriage, there is between thenm an informal civil relationship which
entitled them to some rights
o Art. 148 is a special kind of co-ownership
o To qualify for 147, the man and woman must
! Be capacitated to marry each other
! Live exclusively with each other as H & W
! Be without benefit of marriage or under a void marriage
o All these requirements must concur
o Absence of ay of these requisites will remove them from Art. 147
o Female/male 18 years above not under any of the impediments in
Art. 37-38
o Those listed under Art. 36, 44, 53 and void marriages with no
consent, authority of SO, marriage ceremony
o Structure of the property relationship:
! Salaries and wages shall be owned by them in equal
shares; and
! Property acquired by either of the parties exclusive- ly by his
or her own fund belongs to such party provided that there is
proof that he or she acquired it by exclusive funds;
! Property acquired by both of them through their work or
industry shall be governed by the rules on co-owner- ship.
Consequently, either spouse may alienate in favor of the
other his or her share in the property;
! Property acquired while they live together shall be
presumed to have been obtained by their joint efforts, work
or industry and shall be owned by them in equal shares. A
party who did not participate in the acquisition by the other
party of any property shall be deemed to have contributed
jointly in the acquisition thereof if the formers efforts
consisted in the care and maintenance of the family and of
the household;
! The fruits of the couples separate property are not included
in the co-ownership (Valdes v. RTC, 72 SCAD 967, 260
SCRA 221);
! Property acquired by any of the parties after separation shall
be exclusively owned by the party who acquired it;
! Neither party can encumber or dispose by acts inter vivos of
his or her share in the property acquired during cohabitation
and owned in common, without the consent of the other,
until after the termination of their cohabitation. However,
either spouse may alienate in favor of the other his or her

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148

share in the property co-owned. But no one can donate or


waive any interest in the co-ownership that would constitute
an indirect or direct grant of gratuitous advantage to the
other which is void pursuant to Article 87;
! When only one of the parties to a void marriage is in good
faith, the share of the party in bad faith in the co-ownership
shall be forfeited in favor of their common children. In case
of default of or waiver by any or all of the common children
or their descendants, each vacant share shall belong to the
respective surviving descendants. In the absence of
descendants, such share shall belong to the innocent party.
In all cases, the forfeiture shall take place upon termination
of the cohabitation.
o Valdes v. RTC: SC said that in avoid marriage, property regimes are
those in Art. 147 or 148. The liquidation of the co-ownership under
the CC which are no in conflict with Art. 147-148. Art. 50, 51, 52 in
rel. to 102 and 129 will not apply in liqudation and partition
o Art. 102(6) and 129(9) which provide that the parent whom the
majority of the children elects to go shall go the conjugal home are
not applicable in marriage judicially declared void
o Ina void marriage, conjugal home shall be equally co-owned by the
couple and divided equally during liquidation in accordance with
rules on co-ownership
o It also stated that Art. 43 relates only by explicit terms of Art. 50 to
voidable marriages under Art. 45 and exceptionally to void marriage
under Art. 40
o If void marriage involved is the subsequent void marriage that may
occur for non-observance of Art. 40, the bad faith spouse shall forfeit
only NET PROFITS to common children, or children of the bad faiths
spouse from another marriage, and then innocent party. But in Art.
147, it is ALL THE SHARES forfeited to common children, and in
case of default or waiver by any or all of the common children or
their descendants, it will go to the respective surviving descendants.
In absence of descendants, innocent party.
o If validly married to another, co-ownership shall accrue to the ACP
of CPG in the existing marriage but the bad faith spouse who is
married to another, his/her share shall be forfeited according to Art.
147
In cases of cohabitation not falling under the preceding Article, only the properties
acquired by both of the parties through their actual joint contribution of money,
property, or industry shall be owned by them in common in proportion to their
respective contributions. In the absence of proof to the contrary, their contributions
and corresponding shares are presumed to be equal. The same rule and
presumption shall apply to joint deposits of money and evidences of credit.

If one of the parties is validly married to another, his or her share in the co-ownership
shall accrue to the absolute community or conjugal partnership existing in such valid
marriage. If the party who acted in bad faith is not validly married to another, his or
her shall be forfeited in the manner provided in the last paragraph of the preceding
Article.
The foregoing rules on forfeiture shall likewise apply even if both parties are in bad
faith. (144a)
o PROPERTY REGIME UNDER ART. 148.
o Applies to relationships outside Art. 147.
o If any one of the requirements under Art. 147 is absent, 148 will
apply.
o Parties may be deemd to be co-owners of a property acquired
during cohabitiaton upon proof that each made ana ctual
contribution to its acquisition
o Wihtout proof of actual contrabituoon, co-ownershu under Art. 148
cannot arise.
o Fact that the other party administered the property is irrelevant in
proving co-ownership
o Relationships contemplated are:
! A man and a woman living together as husband and wife,
without benefit of marriage, but are not capacitated to marry;
! An adulterous relationship even if it occurred prior to the
effectivity of the Family Code (Atienza v. De Castro, G.R.
No. 169698, November 20, 2006, 508 SCRA 593).
! A bigamous or polygamous marriage;
! Incestuous void marriages under Article 37; and
! Void marriages by reason of public policy under Article 38.
o Structure of property regime, which is a limited co-ownership:
1. The salaries and wages are separately owned by the parties and if
any of the spouses is married, his or her salary is the property of the
conjugal partnership of gains of such legitimate marriage;
2. Property solely acquired by funds of any of the parties belongs to
such party;
3. Only the properties acquired by both of the parties through their
actual joint contribution of money, property, or industry shall be
owned by them in common in proportion to their respective
contributions;
4. The respective shares of the parties over properties owned in
common are presumed to be equal. However, proofs may be shown
to show that their contribution and respective shares are not equal.
Without proof of actual contribution by both parties, there can be no
presumption of co-ownership and equal sharing (Villanueva v. Court
of Appeals, G.R. No. 143286, April 14, 2004; Rivera v. Heirs of
Romualdo Villanueva, G.R. No. 141501, July 21, 2006, 496 SCRA

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135).
5. The rule and presumption mentioned above shall apply to joint
deposits of money and evidences of credit; and
6. If one of the parties is validly married to another, his or her share in
the co-ownership shall accrue to the absolute community or conjugal
partnership existing in such valid marriage. If the party who acted in
bad faith is not validly married to another, his or her share shall be
forfeited in the manner provided in the last paragraph of Article 147.
The foregoing rules on forfeiture shall likewise apply even if both
parties are in bad faith.
o Manila Surety v. Teodoro: spouses which are both Filipinos got an
absolute divorce then one of them got another marriage in HK, SC:
any liability of the spouse who remarried cannot be levied on the
fruits of the separate property of the new spouse considered that the
nd
said fruits were acquired by spouse prior to solemnization of the 2
bigamous marriage and the fruits therefore did not belong to the
relationship that resulting from the bigamous one
o Juaniza v. Jose: a woman who was in a bigamous relationship with
a married man was sought to be held liable for an accident involving
a vehicle driven by the bigamous husband and was registered under
him, SC: woman cannot be held liable as co-owner of the vehicle
because the vehicle must be considered the CPG of the bigamous
husband and legitimate spouse
o Husband bought the property in installments and thereafter left his
family to bigamously marry another woman and where said husband
had the property under the name of the said other woman after full
st
payment, held: property was the CPG of the 1 legitimate marriage
and which because all promperty of the marriage presumed to
belong to the conjugal partnership, unless it is proved that it pertains
exclusively to the H/W and this presumption
o In the FC, if the property was bough through joint contribution of
money, property or industry by both parties to the bigamous
relationship, share of bigamous husband shall accrue to the ACP
o Agapay v. Palang: SC ruled that a bigamous marriage Art. 148
applies when it was never shown that 1 of the spouses actually
contributed to the co-ownership. This is the case when the girl is a
young kabit who had the property named after her. She obviously
had no means to afford such property, so the property was given to
the CPG to the wife of the first marriage.
o Borromeo v. Descallar: title to an immovable property was registered
under the name of a Filipina wife considering that the foreigner
husband who acquired and fully financed the purchase during
cohabitation was prohibited from owning property, and it was found
out tat the woman was married to another before marriage to the
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o
o
o
o

foreigner, SC affirmed sale of the foreigner by ruling that the


registration under the name of the Filipina is not absolute ownership
convincing against evidence that the property was financed by the
Austrian
Nicdao Carino v. Carino: SC acknowledged that the previous
marriage was void for having been solemnized without a ML, stated
nd
that the 2 marriage was void and applied Art. 148
Better rule: exceptional subsequent void marriage under Art. 40
shall have either a CPG or ACP as the case may be and not Art.
148
nd
2 paragraph of Art. 148: rules on forfeiture of shares shall likewise
apply even if both parties ae in bad faith
if a spouse and his bigamous wife who happens to be a relative by
consanguinity within the first civil degree of the former, jointly
contribute to their co-ownership while living together, with the
husband contributing his salary and the bigamous-cousin-wife
likewise contributing her salary, the co-ownership shall be liquidated
as follows: the share of the spouse who is obviously in bad faith
shall accrue to the absolute community or conjugal partnership of
his existing valid marriage while the share of the bigamous-cousinwife who is also in bad faith shall be forfeited in favor of their
common children. In case of default of or waiver of any or all of the
common children or their descendants, each vacant share shall
belong to the respective surviving descendants and in the absence
of descendants, such share shall belong to the innocent party. Since
there is no innocent party in this case considering that the spouse is
also in bad faith, the share of the bigamous-cousin-wife shall be
given to the said bigamous-cousin-wife. In this regard and for
purposes of the share of the bigamous-cousin-wife only and
considering further that both the husband and the bigamous-cousinwife are in bad faith, they shall be considered as if they are both in
good faith and therefore the share of the bigamous-cousin-wife shall
go to her.

NOTES
o If there is an acquisition of property in 147 during cohabitation "
presumption of acquisition by joint efforts shall be cured in equal
shares
o 148 " you have to prove
! Joint acquisition if this was proven then.
! Proportion

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