Professional Documents
Culture Documents
Article 2
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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Article 8
Article 9
Article
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Article
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Article
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Article
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If months are designated by their name, they shall be computed by the number of
days which they respectively have.
Article
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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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Article
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Article
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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
15
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
!
Article
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Article
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Article
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Article
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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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Article
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Article
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Article
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Article
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Article
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Article
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Article
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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.
Article
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Article
32
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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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.
Article
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Article
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Article
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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
Article
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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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Article
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Article
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Article
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Article
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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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Article
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Article
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Article
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(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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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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Article 2
Article 3
Article 4
Article 5
Article 6
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Article 7
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Article 8
Article 9
Article
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Article
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Article
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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
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Article
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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
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Article
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Article
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Article
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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
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Article
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Article
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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
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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
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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
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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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Article
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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
28%
o
o
Article
37
Article
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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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Article
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Article
40
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st
Article
41
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
32%
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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Article
45
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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Article
47
Fraud
Vitiated
consent
Article
48
Article
49
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Injured party
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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Article
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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
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Article
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Article
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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
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Article
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Article
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Article
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Article
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Article
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Article
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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
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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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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
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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
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Article
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Article
72
Article
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!
!
!
!
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!
!
!
Article
78
Article
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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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80
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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
!
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Article
87
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.
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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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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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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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Article
97
Article
98
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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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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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
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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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Article
103
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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
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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
o
o
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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Article
107
Article
108
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o
o
o
o
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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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appear alone in court to litigate with regard to the same. (amended by RA 10572)
Article
112
Article
115
Article
116
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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Article
117
Article
118
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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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Article
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Article
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Article
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Article
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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
o
o
Article
127
Article
128
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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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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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
Article
131
Article
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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
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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
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
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139
140
141
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142
(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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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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148
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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J.%Odulio%|%Block%1C%SY%2014P2015%|%with%notes%from%Atty.%Amparita%Sta.%Marias%lectures%
o
o
o
o
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
86%