San Beda Persons and Family

8/20/2019 San Beda Persons and Family

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San eda College of Law 1

MEMORY AID IN CIVIL LAW

CIVIL LAW COMMITTEE CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad EDP: Alnaiza Hassiman, Dorothy GayonSUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora

Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John StephenQuiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD),Ma. Ricasion Tugadi (Conflicts of Law)

PERSONS AND FAMILY RELATIONS

I. NEW CIVIL CODE took effect on August 30, 1950

Effectivity of lawsLaws take effect 15

days following the completion of itspublication

Unless otherwise providedby the law. This refers to the 15 dayperiod and NOT to the requirement ofpublication. (Tanada vs. Tuvera)

NOTE:Administrative rules and

regulations must also be published iftheir purpose is to enforce or implementexisting laws pursuant to a validdelegation. The publication must be in

full since its purpose is to inform thepublic of the contents of the law. (Phil.Int’l Trading Corp. vs. Angeles)

Ignorance of the law excuses no one considered a CONCLUSIVE

presumption and applies only tomandatory and prohibitory laws.

(Consunji vs. CA)

Non-retroactivity of lawsLaws have no

retroactive effect.(UCIPELT)

1.Unless the law otherwise provides2. Curative statutes3. Interpretative statutes4. Procedural/remedial5. Emergency laws6. Laws creating new rights7. Tax laws

1. Ex post facto laws2. Laws that impair obligation of

contracts

Acts Contrary To Law

Acts which are contraryto mandatory or prohibitory laws arevoid.

1. When the law itself authorizedits validity (ex. lotto,sweepstakes)

2. When the law makes the act onlyvoidable and not void (ex.voidable contracts whereconsent is vitiated)

3. When the law makes the actvalid but punishes the violator(ex. marriage solemnized by aperson without legal authority)

Waiver of rights Requisites: (EKI)1. Existence of a right2. K nowledge of the existence of a right3. Intention to relinquish the right

Rights can be waived.

1. If the waiver is contrary to law, public order, public policy,morals or good customs (LPPMG)

2. If the waiver is prejudicial to a

third party with a rightrecognized by law.

NOTE: A stipulation requiring therecipient of a scholarship grant to waivehis right to transfer to another school,unless he refunds the equivalent of hisscholarship in cash is null and void. Theschool concerned obviously understandsscholarship awards as a business schemedesigned to increase the businesspotential of an educational institution.Thus, conceived, it is not only

inconsistent with sound policy, but alsowith good morals. (Cui vs. ArellanoUniversity)

Laws applicable1. Penal laws and laws of public

security territoriality rule governs laws of the Philippines will

govern upon ALL those who liveor sojourn in it

2. Laws relating to family rights andduties, or to the status, condition

and legal capacity of persons


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2 2005 CENTRALIZEDB AROPERATIONS

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), JenniferAng(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-EDP), Anna Margarita Eres (VC-Logistics). Jonathan

Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law),Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (LegalEthics)

nationality rule applies laws of the Philippines will govern its

citizens, regardless of theirresidence

When a marriage betweena Filipino citizen and a foreigner isvalidly celebrated and a divorce isthereafter validly obtained abroad bythe alien spouse capacitating him or herto remarry, the Filipino spouse shalllikewise have the capacity to remarryunder Philippine law. ( Article 26(2)Family Code)

NOTE: domiciliary rule supplants thenationality rule in cases involvingstateless persons

3. Laws on property lex rei sitae applies real property, as well as

personal property is subject tothe law of the country where itis situated

4. Laws on forms and solemnities lex loci celebrationis applies

Rules on Personal Law

DOMICILIARYRULE

NATIONALITYRULE

Basis fordeterminingpersonal law of anindividual is hisdomicile

basis fordeterminingpersonal law of anindividual is hiscitizenship

LEXNATIO-NALII

LEX REISITAE

LEX LOCICELEBRA-

TIONISArt. 15,CC

Art. 16, CC Art. 17, CC

Citizenship is thebasis fordetermining thepersonallawapplicable

Law of theplacewhere theproperty issituated isthe basisfordetermining lawapplicable

Law of theplace wherethe contractwas executedis the basisfordetermininglaw applicable

Coversfamilyrights &duties,status,

condition& legalcapacity

Covers bothreal &personalproperty

Covers onlythe forms &solemnities(extrinsicvalidity)

Exception:Art. 26,par. 2 ofFamilyCode

Exceptions:(CIAO)1. Capacityto succeed2. Intrinsicvalidity ofthe will3. Amountofsuccessional rights

4. Order ofsuccession

Exceptions:1. Art. 26,par. 1 ofFamily Code(marriageinvolvingFilipinossolemnizedabroad, whensuch are voidin the

Philippines)2. Intrinsicvalidity ofcontracts

Renvoi Doctrine Where the conflict rules of the

forum refer to a foreign law, andthe latter refers it back to theinternal law, the latter (law ofthe forum) shall apply.

NOTE: If the foreign law refers it to athird country, the said country’s laws

shall govern, and is referred to as thetransmission theory .

Doctrine of Processual Presumption The foreign law, whenever

applicable, should be proved bythe proponent thereof;otherwise, such law shall bepresumed to be exactly the sameas the law of the forum.

Rule on Prohibitive LawsProhibitive laws

concerning persons, their acts orproperty and laws which have for theirobject public order, public policy orgood customs are not renderedineffective by laws, judgmentspromulgated or conventions agreed uponin foreign country.

Art. 26, par. 2 Family Code Example: Divorce law


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Human Relations Every person must, in the

exercise of his rights and in theperformance of his duties, act

with justice, give everyone hisdue, and observe honesty andgood faith. (Art. 19 of NCC)

NOTE: The elements of an abuse of rightunder Art. 19 are:

1. There is a legal right;2. Which is exercised in bad faith;3. For the sole intent of prejudicing

or injuring another. (AlbensonEnt. Corp. vs. CA)

The SC in Velayo vs. Shell held the

defendant liable under Art. 19 fordisposing of its property (a perfectlylegal act) in order to escape the reach ofa creditor. Likewise, in Globe MackayCable and Radio Corp.vs. CA, the employer corporation washeld liable for damages for an abusivemanner in dismissing an employee, aswell as for the inhuman treatment thelatter got from them.

Every person who, contrary tolaw, willfully or negligentlycauses damage to another, shallindemnify the latter for thesame. (Art. 20 of NCC)

Any person who willfully causesloss or injury to another in amanner that is contrary tomorals, good customs or publicpolicy shall compensate thelatter for the damage. (ART. 21of NCC)

NOTE: Art. 21 deals with acts contra

bonus mores, and has the followingelements:1. There is an act which is legal;2. But which is contrary to morals,

customs, public order;3. and it is done with intent to

injure.Arts. 19, 20 and 21 are related

to each other and, under these articles,an act whichcauses injury to another may be madethe basis for an award of damages.

There is a common element under Arts.19 and 21, and that is, the act must bedone intentional. However, Art. 20 does

not distinguish, the act may be doneeither “willfully” or “negligently.”(Albenson Ent. Corp. vs. CA)

The SC in Pe vs. Pe, applying Art.21 ruled that a married man had seduceda girl through an ingenious and trickyscheme, i.e. on the pretext of teachingher how to pray the rosary, to the extentof making her fall in love with him.Verily, he has committed an injury tothe girl’s family in a manner contrary tomorals, good customs and public policy.

However, in Tanjanco vs. CA,the SC denied the award of moraldamages based on the fact that for oneyear, from 1958-1959, the plaintiff, awoman of adult age, maintainedintimate sexual relations withdefendant, with repeated acts ofintercourse. Such conduct isincompatible with the idea of seduction.Plainly, there is here voluntariness andmutual passion; for had the plaintiffbeen deceived, had she surrenderedexclusively because of the deceit, artfulpersuasions and wiles of defendant, shewould not have again yielded to hisembraces, much less for one yearwithout exacting early fulfillment of thealleged promises of marriage and wouldhave cut short all sexual relations uponfinding that defendant did not intend tofulfill his promises. Hence, no case ismade under Art. 21 of Civil Code.

While a breach of promise to

marry is not actionable, it has been heldthat to formally set a wedding and gothrough and spend for all the weddingpreparation and publicity, only to walkout of it when the matrimony was aboutto be solemnized is a different matter.This palpably and unjustifiably contraryto good customs for which the defendantmust be held answerable for damages inaccordance with Art. 21 of the CivilCode. (Wassmer vs. Velez)


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The obligation of cohabitation ofhusband and wife is not enforceable bycontempt proceedings. In private

relations, physical coercion is barredunder the the old maxim – “Nemo potestpreciso cogi ad factum.” However, therefusal of the wife to perform her wifelyduties, her denial of consortium and herdesertion of her husband would certainlyconstitute a willful infliction of injuryupon her husband’s feelings in a mannerwhich is contrary to morals, goodcustoms and public policy for which Arts.21 and 2210 (10) of the CC authorize anaward for moral damages. (Tenchavezvs. Escano)

Prejudicial QuestionIf both criminal and

civil cases are filed in court, the criminalcase takes precedence.

When there is a prejudicialquestion or a question that arises in acase, the resolution of which is a logicalantecedent of the issue involved herein,and the cognizance of which pertains toanother tribunal. Requisites (Sec. 7, Rule 111,

Rules of Court)

a. Previously instituted civil actioninvolves an issue similar orintimately related to the issueraised in the subsequentcriminal action, and

b. The resolution of such issuedetermines whether or not thecriminal action may proceed

NOTE: The Civil Code has suppletoryapplication in matters governed byspecial laws

PERSONS

CIVIL PERSONALITY aptitude of being the subject,

active or passive, of rights andobligations

JURIDICALCAPACITY

CAPACITY TO ACT

Fitness to be thesubject of legalrelations

Power to do act withlegal effects

Passive Active

Inherent Merely acquired

Lost only throughdeath

Lost through deathand other causes

Can exist without

capacity to act

Cannot exist without

juridical capacityCannot belimited orrestricted

Can be restricted,modified or limited

THEORIES ON CAPACITY TO ACT

THEORY OFGENERAL

CAPACITIES

THEORY OFSPECIAL

CAPACITIESApplies tonatural persons

Applies to juridicalpersons

One has theability to do allthings with legal

effects exceptonly in thosespecific circum-stances wherethe capacity toact is restrained

This limits the powerof juridical personsonly to those that are

expressly conferredupon them or thosewhich can be impliedtherefrom orincidental thereto

Natural personsBirth determines

personality. The law considers the

conceived child as born for all purposesfavorable to it if born alive. Therefore,

the child has a presumed personality ,which has two characteristics:

1. limited; and2. provisional/conditional

(Quimiguing vs. Icao)

NOTES:

The presumption as to the child’spersonality applies only in casesbeneficial to the child.

The concept of provisionalpersonality CANNOT be invoked toobtain damages for and in behalf ofan aborted child. (Geluz vs. CA)

When is a Child Considered BornFor civil purposes, the

fetus is considered born if it is alive atthe time it is completely delivered fromthe mother’s womb.

If the fetus had anintrauterine life of less than 7 months, itis not deemed born if it dies within 24hours after its complete delivery from

the maternal womb.


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Presumption of survivorship Two or more persons, called to

succeed each other, shall be

presumed to have died at thesame time, subject to thefollowing conditions:

1. parties are heirs to one another2. no proof as to who died first3. with doubt as to who died first

NOTE: Article 43 applies when theparties are called to succeed each other.But if the parties are not called tosucceed each other, Rule 131, Sec. 3 (jj)of the Rules of Court applies. Both areto be applied only in the absence offacts.

Juridical persons

a. State and its politicalsubdivisions

b. Corporations, institutions andentities for public purpose orinterest

c. Corporations, partnership andassociations for private interest

EATED: For (a) and (b), by thelaws creating or recognizing them;private corporations are governed by BP68 and partnership and associations aregoverned by the provisions of this Codeconcerning partnerships.

NOTE: The Roman Catholic Church is acorporation by prescription, withacknowledged juridical personality,inasmuch as it is an institution whichantedated, by almost a thousand years,any other personality in Europe, andwhich existed when Grecian eloquencestill flourished in Antioch and when idols

where still worshipped in the temple ofMecca. (Barlin vs. Ramirez)

The estate of a deceased personshould be considered an artificial orjuridical person for the purposes of thesettlement and distribution of his estatewhich, of course, include the exerciseduring the judicial administrationthereof of those rights and thefulfillment of those obligations of hiswhich survived after his death. (Limjocovs. Intestate Estate of Pedro Fragrante)

Cessation of Civil Personality1. If natural persons: by death2. If juridical persons: by termination

of existence

CITIZENSHIP AND DOMICILE

RESIDENCE DOMICILEUsed to indicate aPLACE OF ABODE,whetherpermanent ortemporary

denotes a FIXEDPERMANENTRESIDENCE, whichwhen absent, onehas the intention ofreturning

There can beseveral places ofresidence

There can only beONE place ofdomicile

Elements of Domicilea. Physical presence in a fixed placeb. Intention to remain permanently

(animus manendi)

Kinds of Domicile1. Domicile of origin - received by a

person at birth.2. Domicile of choice - the place freely

chosen by a person sui juris.3. Constructive domicile - assigned to a

child by law at the time of his birth.

II. FAMILY CODE took effect August 3, 1988

MARRIAGE A special contract of permanent

union between a man and a womanentered into in accordance with lawfor the establishment of conjugaland family life. Its nature,consequences and incidents are fixedby law and cannot be the subject ofstipulation.

Essential requisites: (LC)1. Legal capacity of the contracting

parties, who must be a male and afemale

2. Consent freely given in the presenceof a solemnizing officer

Formal requisites: (ALM)1. Authority of the solemnizing officer2. Valid Marriage License3. Marriage ceremony where the

contracting parties appear before


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the solemnizing officer, with theirpersonal declaration that the takeeach other as husband and wife inthe presence of not less than two

witnesses of legal age

Effects:1. Absence of essential or formal

requisites the marriage is void ab initio

2. Defect in any of the essentialrequisites The is marriage voidable

3. Irregularity in any of the formalrequisites Does NOT affect the validity of

the marriage BUT will hold the

party responsible for suchirregularity liable

Persons Authorized To SolemnizeMarriages: (PMJCCC)1. priests, rabbis, and ministers of any

church2. municipal and city mayors3. members of the judiciary4. ship captains or air plane chiefs5. commanders of military unit, in the

absence of chaplain6. consul generals, consuls or vice-

consuls

Authorized Venues Of MarriageMust be solemnized

publicly, and not elsewhere, in the: 1. chambers of the judge or in open

court2. church, chapel or temple3. office of consul-general, consul or

vice-consul

1. marriage at the point of death(articulo mortis);

2. marriage in remote places3. marriage at a house or place

designated by the parties with thewritten request to the solemnizingofficer

Marriages Exempt From LicenseRequirement: (MOLAR) 1. among Muslims or members of ethnic

cultural communities, provided suchwere solemnized in accordance withtheir customs, rites and practices

2. solemnized outside the Phil. where

NO marriage license is required bythe country where they weresolemnized

3. of a man and a woman who have

lived together as husband and wifefor at least 5 years and without legalimpediment to marry each otherNOTE: The 5-year period should becomputed on the basis of acohabitation as husband and wifewhere the only missing factor is themarriage contract to validate theunion. This 5-year period should bethe years immediately before theday of the marriage and it should bea period of cohabitationcharacterized by exclusivity -

meaning no third party was involvedat any time within the 5 years andcontinuity - that is unbroken (Ninalvs. Bayadog, GR No. 133778 March14, 2000).

NOTE: In the case of Manzano vs.Sanchez (G.R. No. MTJ-00-1329,March 08, 2001), the Supreme Courtlaid down the requisites to avail theexemption under Article 34 of theFamily Code: a. The man and woman must have

been living together as husbandand wife for at least five yearsbefore the marriage;

b. The parties must have no legalimpediment to marry eachother;

c. The fact of absence of legalimpediment between theparties must be present at thetime of marriage;

d. The parties must execute anaffidavit stating that they havelived together for at least five

years [and are without legalimpediment to marry eachother; and

e. The solemnizing officer mustexecute a sworn statement thathe had ascertained thequalifications of the parties andthat he had found no legalimpediment to their marriage

4. in articulo mortis5. in remote places


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NOTE: A marriage license is valid onlyfor 120 days from date of issue, in anypart of the Philippines.

Foreign Marriages Validity of marriage:

Where one or bothparties to the marriage are citizens ofthe Philippines, the foreign marriage isvalid in this country if solemnized inaccordance with the laws of the countryof celebration.

Foreign marriages shallnot be recognized in the Philippines ifprohibited because: (MABB-PIP)

1. contracted by a national who isbelow 18 years of age

2. bigamous or polygamous (exceptas provided for in Art. 41, FC)

3. contracted through mistake ofone party as to the identity ofthe other

4. contracted following theannulment or declaration ofnullity of a previous marriagebut before partition

5. void due to psychologicalincapacity

6. incestuous7. void for reasons of

public policy

Validity of divorce:A divorce validly

obtained abroad by the alien spouse,capacitating him/her to remarry canallow the Filipino to remarry.

The rule will not apply ifthe divorce was obtained by the Filipinospouse.

NOTE: A Filipino wife remains the lawfulwife of the Filipino husband despite a

decree of divorce obtained abroad bythe wife. However, if the wife is alreadya foreigner at the time of the divorce,she ceases to be the lawful wife of theFilipino husband. This, notwithstanding,if at the time of the marriage the wifewas still a Filipino, and subsequentlyacquires citizenship of another country,thereby rendering her to have the legalcapacity to obtain a decree of divorce,the Filipino husband remains a spouse ofthe former. This situation is not coveredby Art. 26, par.2 which requires that, at

the time of the marriage, one of theparties is already an alien.

VOID MARRIAGES

A. Due to absence of any of theessential requisites: (BB-LAPIS)

1. contracted by any party below 18years of age even with parentalconsent

2. solemnized by any person not legallyauthorized to perform marriagesunless one or both of the partiesbelieved in good faith that thesolemnizing officer had the legalauthority to do so

3. solemnized without a license exceptas otherwise provided

4. bigamous or polygamous marriages5. marriages contracted through

mistake of one of the parties as tothe identity of the other

6. subsequent marriages that are voidunder Article 53 of the Family Code

7. contracted by a party who at thetime of the marriage waspsychologically incapacitated

B. Incestuous marriages, whether therelationship be legitimate or

illegitimate (Article 37):1. between ascendants & descendantsof any degree

2. between brothers & sisters whetherfull or half-blood

C. Those contrary to public policy(Article 38): (SCAPS-SAKA)

1. between collateral blood relativeswhether legitimate or illegitimate upto the 4th civil degree

2. between step-parents & stepchildren

3. between parents-in-law & children-in-law4. between the adopting parent & the

adopted child5. between the surviving spouse of the

adopting parent & the adopted child6. between the surviving spouse of the

adopted child & the adopter7. between an adopted child & a

legitimate child of the adopter8. between the adopted children of the

same adopter9. between parties where one, with the


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intention to marry the other, killedthe latter’s spouse, or his/herspouse.

NOTE: Under the FC, the following cannow marry each other:a. Brother-in-law and sister-in-law;b. Stepbrother and stepsister;c. Guardian and ward;d. Adopted and illegitimate child of the

adopter;e. Parties who have been convicted of

adultery or concubinage.

D. Subsequent marriages1. without judicial declaration of

nullity of previous void marriage

(Article 40)2. without judicial declaration of

presumptive death of absent spouse(Article 41)

3. where the spouse was presumeddead, and both the present spouseand would-be spouse were in badfaith in contracting marriage (Article44)

NOTE: Where there was failure to recordin the civil registry and registry ofproperty the judgment of annulment or

of absolute nullity of the marriage,partition and distribution of the propertyof the spouses and the delivery of thechildren’s presumptive legitimes it shallnot affect third persons (Articles 52-53).

NOTE: Even if a marriage is void, it mustbe declared void first because theparties cannot decide for themselves theinvalidity of their marriage.

VOID VOIDABLE

Decree of nullity Decree ofannulment

Never be ratified Ratified by freecohabitation

Attacked directly orcollaterally

Attacked directlyonly

Co-ownership ConjugalPartnership

Always void Valid until annulled

Action fordeclaration ofnullity does notprescribe

Action prescribes

Psychological Incapacity no exact definition but is restricted

to psychological incapacity “tocomply with the essential marital

obligations of marriage” involves a senseless, protracted and

constant refusal to comply with theessential marital obligations by oneor both of the spouses although he,she or they are physically capable ofperforming such obligations (ChiMing Tsoi vs. CA)

Essential elements: (MAVFFCCI)a. Mental conditionb. Applies to a person who is

maritally contracted to another

c. Marriage entered into withvolition

d. Failure to perform or complywith the essential obligations inmarriage

e. Failure to perform is chronicf. Cause is psychological in natureg. Cause is serious, with juridical

antecedence and must beincurable

h. Incapacity results in the failureof the marriage.

(Republic vs. Molina)1. burden of proof belongs to the

plaintiff2. root cause of the psychological

incapacity must be:a. medically or clinically identifiedb. alleged in the complaintc. sufficiently proven by expertsd. explained in the decision

3. incapacity must be existing at thetime of the celebration of marriage

4. incapacity must be permanent or

incurable5. illness is grave enough to bring about

disability to assume maritalobligations

6. marital obligations refer to Art. 68-71 of FC as well as Art. 220,221 and225 of the FC

7. interpretations of the NationalAppellate Matrimonial Tribunal ofthe Catholic Church of thePhilippines while not controllingshould be given great respect.

8. trial court must order the


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prosecuting attorney or fiscal andthe Solicitor General to appear forthe state.

JUDICIAL OF DECLARATION OF NULLITY The absolute nullity of a

previous marriage may beinvoked for purposes ofremarriage on the basis solely ofa final judgment declaring suchprevious marriage void.

NOTES:

For purposes of remarriage, the onlylegally acceptable basis for declaringa previous marriage an absolutenullity is a final judgment declaringsuch previous marriage void, whereas,for purposes other than remarriage,other evidence is acceptable.(Domingo vs. CA)

In a case for concubinage, theaccused need not present a finaljudgment declaring his marriage voidfor he can adduce evidence in thecriminal case of the nullity of hismarriage other than proof of a finaljudgment declaring his marriage void.Hence, the pendency of the civilaction for nullity of marriage does not

pose a prejudicial question in acriminal case for concubinage.

Parties to the marriage should not bepermitted to judge for themselves itsnullity, for the same must besubmitted to the judgment of thecompetent courts and only when thenullity of the marriage is so declaredcan it be held as void, and so long asthere is no such declaration, thepresumption is that the marriageexists for all intents and purposes.Therefore, he who cohabits with a

woman not his wife, before thejudicial declaration of nullity of themarriage, assumes the risk of beingprosecuted for concubinage. (Beltranvs. People, June 20, 2000)

BIGAMOUS MARRIAGES

A marriage contractedby any person during the subsistence of aprevious valid marriage shall be null andvoid.(Gomez vs. Lipana)

When the followingconditions concur, the subsequentbigamous marriage shall be valid:

1. absence of the other spouse

must have been for fourconsecutive years, or two yearswhere there was danger of death

2. well-founded belief of thepresent spouse that absentspouse was already dead

3. judicial declaration ofpresumptive death

EFFECTS OF TERMINATION OFSUBSEQUENT MARRIAGE: (ICADI)1. Children of the subsequent marriage

conceived prior to its termination

shall be considered legitimate;2. The absolute community or conjugal

partnership shall be dissolved andliquidated. If either spouse acted inbad faith, his/her share in the netprofits shall be forfeited:a. in favor of the common children;b. if none, in favor of the children

of the guilty spouse by previousmarriage; or

c. in default of children, in favor ofthe innocent spouse;

3. D

onations by reason of the marriageremain valid except if the doneecontracted the marriage in badfaith;

4. The innocent spouse may revoke thedesignation of the spouse in badfaith as the beneficiary in anyinsurance policy; and

5. The spouse who contracted thesubsequent marriage in bad faithshall be disqualified to inherit fromthe innocent spouse by testate orintestate succession.

NOTE: The above effects apply invoidable bigamous marriages. Except for(1), the above effects also apply tomarriages which are annulled ordeclared void ab initio under Art. 40 ofthe Code.

DECLARATION OF PRESUMPTIVE DEATH Requisites: (MR-BF) 1. That the absentee spouse has been

missing for 4 consecutive years or 2consecutive years if thedisappearance occurred where there


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is danger of death undercircumstances laid down in Art.391of the NCC

2. The present spouse wishes to

remarry;3. The present spouse has well-foundedbelief that the absentee is Dead;

4. The present spouse f iles a summaryproceeding for the declaration ofpresumptive death.

NOTE: The present spouse mustestablish that he had a well-foundedbelief required by law that his absentwife was already dead that would sustainthe issuance of a court order declaringpresumptive death. In the case of RP vs.

Nolasco, The SC believed thatrespondent Nolasco failed to conduct asearch for his missing wife with suchdiligence as to give rise to a “well-founded belief” that she is dead. Whenhe arrived in San Jose, Antique afterlearning of his wife’s departure, insteadof seeking the help of local authoritiesor of the British embassy, he securedanother seaman’s contract and went toLondon, a vast city of many millions ofinhabitants, to look for her there. (RPvs. Nolasco)

Effect of Reappearance of AbsentSpouse:

The subsequentbigamous marriage under Article 41remains valid despite reappearance ofthe absentee spouse.

If the reappearance wasmade in a sworn statement recorded inthe civil registry, the subsequentmarriage is “automatically terminated.”

If therewas a previous judgment annulling or

declaring the first marriage a nullity, thesubsequent bigamous marriage remainsvalid.

VOIDABLE MARRIAGES Grounds: (UP-FAVS)1. Age of the party in whose behalf it is

sought to have the marriageannulled was 18 years of age or overbut below 21, and the marriage wassolemnized without the consent ofthe parents, guardian or personexercising substitute parental

authority over the party, in thatorder, and both lived together ashusband and wife;

2. Unsound mind of either party

3. Fraudulent means of obtainingconsent of either party4. Vitiated consent of either party

through force, intimidation or undueinfluence

5. Physical incapability of either partyto consummate the marriage withthe other, and such incapacitycontinues and appears to beincurable

6. Sexually-transmissible disease ofeither party found to be serious andappears to be incurable

NOTE: Mode of ratification for Nos. 1-4is COHABITATION. In Nos. 5 & 6, there isno ratification to speak of since thedefect is permanent. The latter can beconvalidated only by prescription, i.e. 5years from the date of marriage.Specifically, in no.5, the healthy spousemay still annul the marriage within 5yrs.after celebration.

Circumstances amounting to Fraud

under Article 46: (SPND)1. Non-disclosure of a previous

conviction by final judgment of theother party of a crime involvingmoral turpitude;

2. Concealment by the wife of the factthat at the time of the marriage, shewas Pregnant by a man other thanher husband;

3. Concealment of a Sexuallytransmissible disease, regardless ofits nature, existing at the time ofthe marriage; and

4. Concealment of Drug addiction,habitual alcoholism, homosexualityor lesbianism existing at the time ofthe marriage.

NOTES:

Misrepresentation as to character,health, rank, fortune or chastity isnot a ground for annulment.

The enumeration in Article 46 isEXCLUSIVE. ( Anaya vs. Palaroan)


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Ground(F2I2NS)

PersonsWho May

Sue

Prescriptive Period

1.Force,

intimidation, or undueinfluence

Injured party w/in 5

years fromthe timethe force,intimidation, or undueinfluenceceased

. Fraud Injured party w/in 5years fromthe dis-covery offraud

3. incapabi-lity to

onsum-mate

Injured party w/in 5years after

thecelebrationof themarriage

. Insanity (a) sanespouse whohas noknowledge ofthe insanity(b) relatives,guardians orpersons ha-ving legalcharge of theinsane(c) insanespouse

(a) anytimebefore thedeath ofeitherparty(b) anytimebefore thedeath ofeitherparty(c) duringlucidinterval orafterregainingsanity

5. Non-consent

(a) parent/legalguardianhaving chargeof the “no-consent”party(b) ”no

consent “party

(a) anytimebefore the“noconsent”partyreaches 21(b) w/in 5years after

reaching 21

6. STD Injured party w/in 5years afterthecelebrationof themarriage

NOTE: In Nos. 1, 2, 4, and 5, whencohabitation takes place after the defectceases to exist, the prescriptive period isrendered moot and academic. Whichever

comes first may convalidate themarriage: Cohabitation or Prescription.

Requisites for annulment due to

Impotence under Art.45(5) (CUPIN)a. Impotence exists at the time of the

celebration of the marriageb. The impotence is permanentc. incurabled. The impotence is unknown to the

other spousee. The other spouse must not also be

impotent

Doctrine of Triennial Cohabitation presumption that the husband is

impotent should the wife still remaina virgin after 3 years of livingtogether with her husband.

Requisites for annulment due toDisease under Article 45(6) (ICSIIF)1. Either party is inflicted with a

sexually transmissible disease (STD)

ADDITIONAL REQUIREMENTS FORANNULMENT OR DECLARATION OFNULLITY

1. Prosecuting attorney or fiscalshould:a. Take steps to prevent collusion

between the partiesb. Take care that evidence is not

fabricated or suppressed2. The following must be

accomplished:a. Partition and distribution of the

properties of the spousesb. Delivery of the children’s

presumptive legitimesc. Recording of the judgment of

annulment or absolute nullity.

NOTES:

There will be collusion only if theparties had arranged to make itappear that a ground existed or hadbeen committed although it was not,or if the parties had connived tobring about a matrimonial case evenin the absence of grounds therefore.(Ocampo vs. Florenciano)

A grant of annulment of marriage orlegal separation by default is fraught


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with danger of collusion. If thedefendant spouse fails to answer thecomplaint, the court cannot declarehim or her in default but instead,

should order the prosecutingattorney to determine if collusionexists between the parties.

However, petitioner’s vehementopposition to the annulmentproceedings negates the conclusionthat collusion existed between theparties. Under these circumstances,the non-intervention of aprosecuting attorney to assure lackof collusion between the contendingparties is not fatal to the validity ofthe proceedings in the trial court.

(Tuason vs. CA, GR 116607, April 10,1996)

RULE ON DECLARATION OF ABSOLUTENULLITY OF VOID MARRIAGES ANDANNULMENT OF VOIDABLE MARRIAGES (A.M. 00-11-01-SC) took effect on March 15, 2003 this Rule shall govern petitions for

declaration of absolute nullity ofvoid marriages and annulment ofvoidable marriages under the FamilyCode of the Philippines.

the Rules of Court has suppletoryapplication

for a more comprehensive discussionon the procedural aspects of theRule, please refer to the RemedialLaw Memory Aid.

LEGAL SEPARATION Grounds: (SAMBA-LIPAD)1. repeated physical violence or grossly

abusive conduct directed against thepetitioner, a common child, or achild of the petitioner

2. attempt of the respondent tocorrupt or induce the petitioner, acommon child, or a child of thepetitioner, to engage inprostitution, or connivance in suchcorruption or inducement

3. attempt by the respondent againstthe life of the petitioner

4. final judgment sentencing therespondent to imprisonment of morethan 6 years even if pardoned

5. drug addiction or habitualalcoholism of the respondent

6. lesbianism or homosexuality of therespondent

7. abandonment of the petitioner bythe respondent without justifiable

cause for more than 1 year8. physical violence or moral pressureto compel petitioner to changereligious or political affiliation

9. contracting by respondent of asubsequent bigamous marriage; and

10. sexual infidelity or perversion.

NOTES:

Cooling-off Period – 6 monthsperiod designed to give the partiesenough time to further contemplatetheir positions with the end in view

of attaining reconciliation betweenthem.

The enumeration in Article 55regarding legal separation isEXCLUSIVE. (Lacson vs. San Jose-Lacson)

Grounds for denial of petition:(CCCC-MP-DR)a. Condonation -NOTE: failure of the

husband to look for his adulterouswife is NOT condonation to wife'sadultery. (Ocampo vs. Florenciano)

b. Consentc. Connivanced. Collusione. Mutual Guiltf. Prescriptiong. Death of either party during the

pendency of the case (Lapuz-Sy vs.Eufemio)

h. R econciliation of the spouses duringthe pendency of the case

Effects of filing petition:

a. The spouses shall be entitled to liveseparately from each other.b. The husband shall have no more

right to have sexual intercourse withhis wife.

c. In the absence of an agreementbetween the parties, the court shalldesignate the husband, the wife, ora 3rd person to manage the absolutecommunity or conjugal partnershipproperty.


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Effects of decree of legal separation:a. The spouses shall be entitled to live

separately from each other but themarriage bond is not severed.

b. The absolute community or conjugalpartnership shall be dissolved andliquidated.

c. The custody of the minor childrenshall be awarded to the innocentspouse subject to the provisions ofArt. 213 of the Code.

d. The offending spouse shall bedisqualified from inheriting from theinnocent spouse by intestatesuccession and the provisions infavor of the offending spouse madein the will of the innocent spouse

shall be revoked by operation of law.e. The innocent spouse may revoke the

donations made by him/her in favorof the offending spouse, as well asthe designation of the latter asbeneficiary in any insurance policy,even if the designation beirrevocable.

Effects of Reconciliation of theSpouses:a. The legal separation proceedings, if

still pending, shall thereby beterminated at whatever stage.

b. The final decree of legal separationshall be set aside, but the separationof property and any forfeiture ofshare of the guilty spouse alreadyeffected shall subsist, unless thespouses agree to revive their formerproperty regime.

RULE ON LEGAL SEPARATION(A.M. 02-11-11-SC) took effect on March 15, 2003

this Rule shall govern petitions forlegal separation under the FamilyCode in the Philippines; the Rules ofCourt shall apply suppletorily

please refer to the Remedial LawMemory Aid for the proceduralprovisions of the Rule

MARITAL RIGHTS AND OBLIGATIONS(JL-FORM)1. live together2. observe mutual love, respect &

fidelity

3. render mutual help & support4. f ix the family domicile5. joint responsibility for the support of

the family

6. management of the household

Exercise of ProfessionHusband & wife

can engage in any lawful enterprise orprofession without the consent of theother.

Upon objection of theother spouse only on valid, serious andmoral grounds, may the former’s consentbe necessary.

Property Relations Between Husband &Wife Governed by:1. marriage settlements executed

before the marriage or antenuptialagreements

2. provisions of the Family Code3. local customs (when spouses

repudiate absolute community)

MARRIAGE SETTLEMENTS It is a contract entered into by the

future spouses fixing thematrimonial property regime thatshould govern during the existence.

Requisites:1. made before celebration of marriage2. in writing (even modifications)3. signed by the parties4. not prejudice third persons unless

registered in the civil registry5. to f ix terms and conditions of their

property relations6. additional signatories

a. 18-21: parents

b. civil interdictees & disabled:guardian

Not applicable when:1. both spouses are aliens, even if

married in the Philippines2. as to extrinsic validity of contracts3. contrary stipulation

DONATIONS BY REASON OF MARRIAGE Requisites: (COBB)1. made before celebration of marriage2. in consideration of marriage


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3. in favor of one or both futurespouses

BASES DONATIONS

PROPTERNUPTIAS

ORDINARY

DONATIONS

Formalities Governed by therules on ordinarydonations exceptthat if futureproperty isdonated, it mustconform withformalities of wills

Governedby rules ondonations(Arts. 725-773, NCC)

PresentProperty

ay be donated butup to 1/5 ofdonor’s presentproperty

No limitexcept thatdonor shallleavepropertyenough for hissupport

Futureroperty

ay be includedprovided donationis mortis causa

Cannot beincluded

roundsor

revocation

rt. 86, FC Arts. 760,764, & 765,NCC

Rule on Donation Between SpousesDuring Marriage

VOID, either direct orindirect donation

1. moderate gifts on occasions offamily celebrations

2. donations mortis causaNOTE: This rule also applies tocommon-law spouses. ( Article 87, FamilyCode)

Grounds for Revocation (VIRAL-CN)1. marriage Not celebrated or declared

Void ab initio except those made in

marriage settlements2. marriage without parental Consent3. marriage is Annulled and donee is in

bad faith4. upon Legal separation, the donee

being the guilty spouse5. complied R esolutory condition6. donee commits acts of Ingratitude

SYSTEM OF ABSOLUTE COMMUNITY (AC) The property regime of the spouses

in the absence of a marriagesettlement or when the marriage is

void. This is so because it is more inkeeping with Filipino culture.

Community propertyshall consist of all property owned by the

spouses at the time of the marriage oracquired thereafter.EXCEPTIONS: (BEG)

1. property acquired before themarriage by either spouse whohas legitimate descendants by aformer marriage

2. property for personal andexclusive use except jewelry

3. property acquired during themarriage by gratuitous title,except when the donor, testatoror grantor expressly provides

otherwiseNOTE: No waiver of rights allowedduring the marriage except in case ofjudicial separation of property. Thewaiver must be in a public instrument.

Administration of the communityproperty

It shall belong to bothspouses jointly.

1. In case of disagreement,husband’s decision shall prevail.

2. In case one spouse isincapacitated or unable toparticipate in the administrationof the common properties, otherspouse may assume sole powers.NOTE: These powers do notinclude:a. Dispositionb. encumbrance

NOTE: Any alienation or encumbrance isvoid if without the written consent ofthe other spouse

Rule on Game of Chance LOSS: Shall be borne by the loser-

spouse and shall not be charged tothe community property

WINNINGS: Shall form part of thecommunity property

Steps in Liquidation of AC: (IP-DDP)1. Inventory

a. Inventory of Community Propertyb. Inventory of separate property of

the wife


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c. Inventory of separate property ofthe husband

2. Payment of Community Debts First, pay out of community assets, if not

enough, husband and wife are solidarilyliable

3. Delivery to each spouse his/herseparate property if any

4. Division of the net community assets5. Delivery of presumptive legitimes, if

any, to the children

CONJUGAL PARTNERSHIP OF GAINS (CP)

It is that formed by a husband andwife whereby they place in acommon fund the fruits of theirseparate property, and the income

from their work or industry, thesame to be divided between themequally (as a general rule) upon thedissolution of the marriage or thepartnership.

Conjugal Partnership Property: (LC2

FONT)1. obtained from labor, industry, work

or profession2. acquired by chance3. acquired during the marriage with

conjugal funds

4. f ruits of the conjugal property5. acquired through occupation6. net fruits of their exclusive property7. share of either spouse in hidden

treasure

Exclusive Property Of Each Spouse:(OGRE)1. that which is brought to the

marriage as his/her own2. acquired during the marriage by

gratuitous title3. acquired by right of redemption,

barter or exchange with propertybelonging to either spouse

4. purchased with exclusive money ofeither spouse

Rules In Cases Of Improvement OfExclusive Property1. Reverse Accession – if the cost of the

improvement and the plus value ismore than the value of the principalproperty at the time of theimprovement, the property becomes

conjugal

2. Accession – if the cost of theimprovement of the plus value isequal to or less than the value of theprincipal property at the time of the

improvement, the entire propertybecomes the exclusive property ofthe spouse.

Steps In Liquidation Of CP: (DIRDO-DIP)1. Inventory of the Conjugal

Partnership of Gains assets2. R estitution of advances made to

each spouse3. Payment of debts to each spouse4. Payment of obligations to third

parties5. Delivery of exclusive properties6. Payment of losses and deterioration

of movables belonging to eachspouse

7. Delivery of presumptive legitimes8. Division of the net conjugal

partnership properties

NOTE: Property bought on installmentspaid partly from exclusive funds of thespouses and partly form conjugal funds:

a. If full ownership was vestedbefore the marriage – it shallbelong to the buyer-spouse

b. If full ownership was vestedduring the marriage - it shallbelong to the conjugalpartnership

Charges Upon and Obligations Of ACand CP:1. Support for family except for

illegitimate children of eitherspouse;

2. Debts and obligations which musthave been contracted:

a. by administrator-spouse for thebenefit of the family;b. by both spouses; orc. by one spouse with the consent

of the other;3. Debts and obligations without

marital consent provided the familywas benefited;

4. All taxes, liens, charges andexpenses including major or minorrepairs upon the community orconjugal property;


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NOTE: However, in conjugalpartnership, actual use need not beproved because it is presumed .

5. All taxes and expenses for mere

preservation made during themarriage upon the exclusiveproperty of either spouse used bythe family;

6. Expenses for education or self-improvement of either spouse;

7. Ante-nuptial debts of either spouseinsofar as they have redounded tothe benefit of the family;

8. The value of what is donated orpromised by both spouses in favor oftheir common legitimate children foreducation or self-improvement; and

9. Expenses of litigation betweenspouses unless found to be groundless.

NOTES:

The separate properties shall besolidarily and subsidiarily liable forthe obligations if the community orconjugal properties are insufficient.

The absolute community propertyshall also be liable for ante-nuptialdebts mentioned above, support ofillegitimate children, and liabilitiesincurred by either spouse by reasonof a crime or quasi-delict in case ofinsolvency of the exclusive propertyof the debtor-spouse. Payment ofwhich shall be advanced by theabsolute community property,subject to deduction from the shareof the debtor-spouse.

The conjugal partnership propertyshall likewise be liable for thepayment of the personal debts ofeither spouse insofar as they haveredounded to the benefit of the

family. Indirect benefits that might accrue

to a husband in his signing a suretyor guarantee agreement not in favorof the family but in favor of hisemployer corporation are not thebenefits that can be considered asgiving a direct advantage accruing tothe family. Hence, the creditorscannot go against the conjugalpartnership property of the husbandin satisfying the obligation subject ofthe surety agreement. A contrary

view would put in peril the conjugalpartnership property by allowing itto be given gratuitously as in casesof donation of conjugal partnership

property, which is prohibited. (AyalaInvestment Corp. vs. CA)

Grounds For Termination Of AbsoluteCommunity And Conjugal Partnership:(LADS)1. decree of legal separation2. annulment or declaration of nullity

of marriage3. death of either spouses4. judicial separation of property

REGIME OF SEPARATION OF PROPERTY

Causes: (CLAAPS) a. petitioner’s spouse has been

sentenced with a penalty whichcarries with it civil interdiction;

b. loss of parental authority of thepetitioner’s spouse as decreed bythe court;

c. petitioner’s spouse has beenjudicially declared an absentee;

d. abandonment by the petitioner’sspouse and failure to comply withthe obligations to the family;

e. spouse granted power of

administration in marriagesettlement abused such power; and

f. at the time of the petition, spousesare separated in fact for at least 1year and the possibility forreconciliation is highly improbable.

NOTE: The spouses contribute to thefamily expenses proportionately withtheir income and the value of theirproperties. However, the liability of thespouses to the creditors for familyexpenses is solidary .

PROPERTY REGIME OF UNIONSWITHOUT MARRIAGE

Art. 147 Art. 148Applica-bility

1. Withoutlegalimpediment tomarry2. Voidmarriages dueto absence offormalrequisite

1. With legalimpediment tomarry2. Adulterousrelationships3. Bigamous orpolygamousmarriages4. Incestuous


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void marriagesunder Art. 375. Voidmarriages by

reason ofpublic policyunder Art. 38

Salaries &Wages

Owned inequal shares

Separatelyowned by theparties

PropertyAcquiredExclusivelyby EitherParty

Belongs to suchparty providedthere is proofthat he/sheacquired it byexclusive funds

Belongs tosuch party

PropertyAcquiredby BothParties

Governed bythe rules onco-ownership

Owned bythem incommon inproportion totheirrespectivecontributions

Presump-tion ( prima

facie)

Presumptionof jointacquisitionand equalsharing as topropertyacquired

while theylivetogether.

Nopresumptionof jointacquisition.When there isevidence ofjoint

acquisition butnone as to theextent ofactualcontribution,there is apresumptionof equalsharing.

Forfeiture When onlyone of theparties is ingood faith,the share ofthe party inbad faith inthe co-ownershipshall beforfeited:a. in favorof theircommonchildren; orb. in defaultof or in case

If one of theparties isvalidly marriedto another,his/her sharein the co-ownershipshall accrue tothe absolutecommunity orconjugalpartnershipexisting insuch validmarriage.If the partywho acted in

of waiver byany or all ofthe commonchildren or

theirdescendants,in favor ofthe innocentparty.

bad faith isnot validlymarried toanother or if

both partiesare in badfaith, suchshare shall beforfeited inthe mannerprovided inthe lastparagraph ofArticle 147.

NOTE: Under Art. 148, only the properties acquired by both of the parties through their actual joint

contribution of money, property orindustry shall be owned by them in

proportion to their respectivecontributions. It must be stressed thatactual contribution is required by this

provision, in contrast to Art. 147 whichstate that efforts in the care andmaintenance of the family andhousehold, are regarded as contributionsto the acquisition of common propertyby one who has no salary or income orwork or industry. If the actualcontribution of the party is not proved,

there will be no co-ownership and no presumption of equal shares. (Agapayvs. Palang). Hence, mere cohabitationwithout proof of contribution will notresult in a co-ownership. (Tumlos vs.Fernandez).

THE FAMILY Basic social institution which public

policy cherishes and protect hence,no suit between members of thefamily shall prosper unless thecompromise between the partieshave failed

1. between husband and wife2. between parents and children3. among ascendants and

descendants4. among brothers and sisters

whether full or half-blood


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FAMILY HOME The family home is

exempt from execution, forced sale orattachment.

(PLMN) 1. debts incurred prior toconstitution

2. debts due to laborers,mechanics, architects, builders,material men and others whohave rendered service orfurnished materials for theconstruction of the building

3. debts secured by mortgages4. non-payment of taxes

Guidelines:

1. deemed constituted from time ofactual occupation as a familyresidence

2. must be owned by personconstituting it

3. must be permanent4. rule applies to valid and voidable

and even to common-law spousesunder Articles 147 and 148

5. continues despite death of one ormore spouses or unmarried head ofthe family for 10 years, or as long asa minor beneficiary lives

6. can constitute one (1) family homeonly

PATERNITY AND FILIATION

Rule on Children Conceived as a Resultof Artificial Insemination Status is legitimate child , provided

both husband and wife authorized orratified the insemination in a writteninstrument which they executed andsigned before the birth of the child

Legitimate Children Only those who

are conceived or born during a validmarriage

(CAVALAC)Those children who are

1. Conceived as a result of artificialinsemination

2. Born of a voidable marriagebefore decree of annulment

3. Conceived or born beforejudgment of annulment orabsolute nullity under Art. 36

has become final & executory4. Conceived or born of subsequent

marriage under Art. 535. Of mothers who may have

declared against its legitimacy orwas sentenced as an adultress6. Legally adopted7. Legitimated, conceived and born

outside of wedlock of parentswithout impediment at the timeof conception and hadsubsequently married

Illegitimate ChildrenThose conceived and

born outside a valid marriage areillegitimate.

Children who are:1. born of marriages which are

void ab initio such as bigamousand incestuous marriages andmarriage was declared void forbeing contrary to law and publicpolicy

2. of voidable marriages born afterthe decree of annulment

Rules on Impugning LegitimacyA. Grounds (PBA)1. physical impossibility of the husband

to have sexual intercourse with hiswife within the 1st 120 days of the300 days immediately preceding thechild’s birth, due to: a. physical incapacity of the

husband;b. husband and the wife were living

separately; orc. serious illness of the husband

which absolutely preventedsexual intercourse

2. biological or scientific proof that thechild could not have been that of the

husband; and3. written authorization or ratification

of either parent for artificialinsemination was obtained throughmistake, fraud, violence,intimidation or undue influence.

B. Prescriptive periods1. one year , from knowledge of birth or

recording in the civil register, ifhusband or heirs lives in the SAMEcity/municipality

2. two years, if resides in the Phils.


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3. three years, if abroad

C. PartiesOnly the husband may

impugnThe heirs, if the husband

dies before the end of the prescriptionof the action, or after filing complaint,or child was born after death

NOTE: The question of legitimacy cannotbe collaterally attacked, it can beimpugned only in a direct action.

Rule on the Status of Children bornafter 300 days following Termination ofMarriageA. Requisites (TS-WBN) 1. first marriage terminated2. mother contracted subsequent

marriage3. subsequent marriage was contracted

within 300 days after termination ofprevious marriage

4. child was born5. no evidence as to status of child

B. Rules as to whom the child belongs1. to first marriage, if child was born

before the lapse of 180 days aftercelebration of 2nd marriage providedborn within 300 days aftertermination of the 1st marriage.

2. to second marriage, if child was bornafter 180 days following celebrationof 2nd marriage whether born within300 days after termination of 1st marriage or afterwards.

Proof of Filiation: Filiation of legitimate

(or illegitimate) children is established

by any of the following:1. The record of birth appearing in thecivil registrar or a final judgment2. An admission of legitimate (orillegitimate) filiation in a publicdocument or a private handwritteninstrument and signed by the parentconcerned.

: In the absence of any ofthe foregoing evidence, such legitimateor illegitimate filiation shall be provedby:

1. Open and continuous possession of thestatus of a legitimate or illegitimatechild;2. Any other means allowed by the Rules

of Court and special laws.

NOTES:

Continuous does not mean that theconcession of status shall continueforever but only that it shall not beof an intermittent character while itis continuous. The possession of suchstatus means that the father hastreated the child as his own, directlyand not through others,spontaneously and withoutconcealment though withoutpublicity. There must be a showingof permanent intention of thesupposed father to consider the childas his own by continuous and clearmanifestation of paternal affectionand care. (Mendoza vs. CA). Thepaternal affection and care must notbe attributed to pure charity. “Suchacts must be of such a nature thatthey reveal not only the convictionof paternity, but also the apparentdesire to have and treat the child as

such in all relations in society and inlife, not accidentally, butcontinuously.” (Jison vs. CA)

The SC in Lim vs. CA, ruled thatpetitioner was the father of hisillegitimate children because theevidences convincingly show this.Hence, it was the petitioner whopaid the bills for the hospitalizationof the mother when she gave birth.He was the one who caused theregistration of the name of the childusing his surname in the birth

certificate. He also wrotehandwritten letters to the motherand the child stating his promise “tobe a loving and caring husband andfather to both of you.” There werealso pictures of the petitioner onvarious occasions cuddling the child.

In view of the fact that filiation maybe proved by “any means allowed bythe Rules of Court and special laws”this may consist of baptismalcertificate, a judicial admission, afamily bible in which his name has


20/26




been entered, common reputationrespecting his pedigree, admissionby silence, the testimony ofwitnesses and such other kinds of

proof admissible under Rule 130 ofRC. (Mendoza vs. CA) For a baptismalcertificate to be proof of filiationunder the Rules of Court, it must beshown that the father thereinparticipated in the preparation ofthe same. A birth certificate notsigned by the alleged fatherindicated in said certificate is notcompetent evidence of paternity.(Fernandez vs. CA)

Proof of filiation of petitioners tothe late Enrique Baluyut is not

sufficient to confer upon them anyhereditary right in the estate of thedeceased. What is necessary to beestablished by an illegitimate notnatural child in order that he may beentitled to successional rights underArt 887 of NCC, is not the fact of hisbare filiation but a filiationacknowledged by the putativeparent.(Baluyut vs. Baluyut)

Rights of the Children

LEGITIMATE ILLEGITIMATEUse of father &mother’s surname

Use of mother‘ssurnameNOTE: However, RA9255 amendedArticle 176, FC

Receive supportfrom parents

Receive supportaccording to FC

Entitled to thelegitime & othersuccessional rights

Legitime is ½ of thelegitime of alegitimate child

R.A. No. 9255 An Act Allowing Illegitimate Children

to use the surname of their Father,amending for the purpose Article 176of EO No. 209, otherwise known asthe "FAMILY CODE OF THEPHILIPPINES":

Approved February 24, 2004

Illegitimate children may use thesurname of their father if:1. their filiation has been expressly

recognized by the father through therecord of birth appearing in the civilregister, or

2. when an admission in a publicdocument or private handwritteninstrument is made by the father

LEGITIMATION Requisites: (NIM)a. The child is illegitimateb. The parents at the time of the

child’s conception are notdisqualified from marrying eachother

c. There is a valid marriage subsequentto the child’s birth

ADOPTION A. Domestic Adoption Act of 1998

(R.A. NO. 8552)

Who may adopt: (LPG-CANE)1. Filipino Citizen:

a. of legal ageb. in a position to support and care

for his/her children in keepingwith the means of the family

c. good moral characterd. in possession of full civil

capacity or legal rightse. at least 16 years older than the

adoptee, except when:1) adopter is the biological

parent of the adoptee2) adopter is the spouse of the

adoptee’s parent f. has not been convicted of any

crime involving moral turpitudeg. emotionally and psychologically

capable of caring for children

2. Alien:a. same qualifications as a Filipinob. country has diplomatic relations

with the Phil.c. has been living in the Phil. for at

least three (3) continuous yearsprior to the application foradoption and maintains suchresidence until the adoptiondecree is entered, except when1) former Filipino citizen who

seeks to adopt a relativewithin the 4th degree ofconsanguinity or affinity

2) one who seeks to adopt thelegitimate or illegitimatechild of his/her Filipinospouse


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3) one who is married to aFilipino citizen and seeks toadopt jointly with his/herspouse a relative within the

4th degree of consanguinityor affinity of the Filipinospouse

d. certified to have legal capacityto adopt by his/her diplomatic orconsular office

e. certified by said office that hisgovernment allows the adopteeto enter his/her country ashis/her adopted child

3. Guardian – with respect to the wardafter termination of the guardianship

and clearance of his/her financialaccountabilities

Pre-Adoption Services the DSWD shall provide for the

following services:a. counselling services for the

biological parents, prospectiveadoptive parents and prospectiveadoptee

b. exhaust all efforts to locate thebiological parents, if unkown

Rule on Adoption by SpousesThe husband and the

wife shall JOINTLY adopt.

1. one spouse seeks to adopt thelegitimate child of the other

2. one spouse seeks to adopthis/her own illegitimate child

3. the spouses are legally separated

Who may be adopted:1. any person below 18 years of age

who has been voluntarily committedto the DSWD under P.D. 603 orjudicially declared available foradoption

2. legitimate stepchild3. illegitimate stepchild4. qualified adult, who, prior to the

adoption, has been consistentlyconsidered by the adopter as his/herown child since minority;

5. child whose adoption has beenpreviously rescinded

6. child whose biological or adoptive

parents have died, provided that noproceedings shall be initiated within6 months from the time of death ofsaid parents

Consent in Adoption (BAILAS)

is required in the following cases:1. the adoptee, if 10 years of age or

over2. biological parents or government

instrumentality3. the legitimate/adopted children, 10

years old or over, of the adopter andadoptee

4. the illegitimate children, 10 yearsold or over, of the adopter if living

with the adopter and the latter'sspouse

5. spouse of the adopter and adoptee

Effectivity of Decree of Adoption

a decree of adoption shall beeffective as of the date the originalpetition was filed. It applies also in casethe petitioner(s) dies before the issuanceof the decree of adoption to protect theinterest of the adoptee.

NOTE: Where the petition for adoptionwas granted after the child had shot andkilled a girl, the SC did not consider theretroactive effect to the decree ofadoption so as to impose a liability uponthe adopting parents accruing at thetime when the adopting parents had noactual or physical custody over theadopted child. Retroactive effect mayperhaps be given to the granting of thepetition for adoption where such isessential to permit the accrual of some

benefit or advantage in favor of theadopted child. To hold that parentalauthority had been retroactively lodgedin the adopting parents so as to burdenthem with liability for a tortious act thatthey could not have foreseen and whichthey could have prevented would beunfair and unconscionable. (Tamargo vs.CA 209 S 518)

Effects of Adoption: (SAL)1. Severance of legal ties between the

biological parents and the adoptee


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and the same shall be vested in theadopters.

if the biological parentis the spouse of the adopter

2. Adoptee shall be considered as alegitimate child of the adopter(s) forall intents and purposes.

3. In legal or intestate succession, theadoptee and the adopter(s) shallhave reciprocal rights of successionwithout distinction from legitimatefiliation. However, if there is a will,the rules on testamentary successionshall be followed.

Rescission of Adoption Grounds: (ASAR)

1. attempt on the life of the adoptee2. sexual assault or violence3. abandonment and failure to comply

with parental obligations4. repeated physical or verbalmaltreatment by the adopter

NOTES:

Only the adoptee is given the rightto rescind the decree of adoption

The adopter can NOT rescind thedecree of the adoption but he or shemay disinherit the adoptee.

Effects:a. Parental authority of adoptee’sbiological parents or legal custody ofDSWD shall be restored if adoptee is stilla minor or incapacitated.b. Reciprocal rights and obligationsof the adopter(s) and the adoptee toeach other shall be extinguished .c. The amended certificate of birthof the adoptee shall be cancelled and itsoriginal shall be restored.

d. Succession rights shall revert toits status prior to the adoption, butvested rights shall not be affected.

B. Inter-Country Adoption Act of 1995(R.A. No. 8043)

Inter-Country Adoption The socio-legal process of adopting aFilipino child by a foreigner or a Filipinocitizen permanently residing abroadwhere the petition is filed, thesupervised trial custody is undertaken,and the decree of adoption is issued

outside the Philippines.

Who may be adopted:a. Only a “legally-free child” may be

the subject of inter-country adoptionNOTE: “Legally - free Child” - a childwho has been voluntarily or involuntarilycommitted to the DSWD of thePhilippines, in accordance with the ChildYouth and Welfare Code.b. No child shall be matched to aforeign adoptive family unless it issatisfactorily shown that the childcannot be adopted locally.

Who may adopt: Any alien or Filipino citizen

permanently residing abroad mayfile an application for inter-countryadoption of a Filipino child if he/she:

1. is at least 27 years of age and atleast 16 years older than the childto be adopted, at the time of theapplication unless the adopter is theparent by nature of the child to beadopted or the spouse of suchparent

2. if married, his/her spouse mustjointly file for the adoption

3. has the capacity to act and assume

all rights and responsibilities ofparental authority under hisnational laws, and has undergonethe appropriate counselling from anaccredited counsellor in his/hercountry

4. has not been convicted of a crimeinvolving moral turpitude

5. is eligible to adopt under his/hernational law

6. is in a position to provide theproper care and support and to givethe necessary moral values and

example to all his children,including the child to be adopted

7. agrees to uphold the basic rights ofthe child as embodied underPhilippine laws, the U.N.Convention on the Rights of a Child,and to abide by the rules andregulations issued to implement theInter-Country Adoption Act

8. comes from a country with whomthe Philippines has diplomaticrelations and whose governmentmaintains a similarly authorized and


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accredited agency and thatadoption is allowed under his/hernational laws

9. possesses all the qualifications and

none of the disqualifications underthe Inter-Country Adoption Act andother applicable Philippine laws

Inter-Country Adoption Board acts as the central authority in

matters relating to inter-countryadoption.

The Board shall ensure that allpossibilities for the adoption of thechild under the Family Code havebeen exhausted and that inter-country adoption is in the best

interest of the child.

Trial Custody: 6 months from the time of

placement1. starts upon actual physical transfer

of the child to the applicant who, asactual custodian, shall exercisesubstitute parental authority overthe person of the child.

2. the adopting parent(s) shall submitto the governmental agency orauthorized and accredited agency,which shall in turn transmit a copyto the Board, a progress report ofthe child’s adjustment.

NOTES:

If the pre-adoptive relationship isfound unsatisfactory by the child orthe applicant or both, or if theforeign adoption agency finds thatthe continued placement of the childis not in the child’s best interest,said relationship shall be suspended

by the Board and the foreignadoption agency shall arrange forthe child’s temporary care.

If a satisfactory pre-adoptiverelationship is formed between theapplicant and the child, the Boardshall submit the written consent tothe adoption to the foreign adoptionagency within 30 days after receiptof the latter’s request.

A copy of the final decree ofadoption of the child, includingcertificate of

citizenship/naturalization wheneverapplicable, shall be transmitted bythe foreign adoption agency to theBoard within 1 month after its

issuance.

NOTE: For a comprehensive discussion ofthe procedural aspects of adoption,please refer to A.M. No. 02-06-02-SC orthe Remedial Law Memory Aid

SUPPORT everything indispensable for

sustenance, dwelling, clothing,medical attendance, education andtransportation in keeping with thefinancial capacity of the family

Kinds: (LJC)1. Legal – that which is required or

given by law2. Judicial – required by the court to be

given whether pendente lite or in afinal judgment

3. Conventional – given by agreement

Characteristics: (PIN-ERV)1. Personal2. Intransmissible3.

Not subject to waiver or

compensation4. Exempt from attachment or

execution5. R eciprocal on the part of those who

are by law bound to support eachother

6. Variable

Persons obliged to support each other: 1. spouses2. legitimate ascendants and

descendants

3. parents and their legitimate childrenand the legitimate and illegitimatechildren of the latter

4. parents and their illegitimatechildren and the legitimate andillegitimate children of the latter

5. legitimate brothers and sisterswhether full or half-blood

NOTE: Support shall be in proportion tothe resources or means of the giver andto the necessities of the recipient.


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2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS Maricel Abarentos (Over-all Chairperson), Ronald Jalman

Documents

San Beda Persons and Family