HANDBOOK ON

THE
FAMILY CODE
OF THE
PHILIPPINES
by:

ALICIA V. SEMPIO-DIY, LL.B., LL.M.

Retired Associate Justice, Court o f Appeals

Former Commissioner, National Commission on Women
Member, Civil Code Revision Committee a t the U.P.
Law Center, U.P. Law Complex, that drafted the
Family Code
Form er Assistant Solicitor General
Former JDRC Judge o f Caloocan City
Former Judge, RTC o f Caloocan City
Professor, San Sebastian and Lyceum Colleges o f Law
Bar Reviewer, various law schools
Bar Examiner in Civil Law, 1999 and 2003
Professor II, Department o f Civil Law, Philippine Judicial
Academy
/
/

C opyright 1988, 1995

by
ALICIA V. SEMPIO-DIY

Reprint December 2 0 0 6 , w ith additional

jurisprudence and new legislation

A n y copy of this book not bearing a number and

the signature o f the author on this page shall be
denounced as proceeding from an illegal source.

No.
ALL RIGHTS RESERVED
iy t h e ^ u f h o r

JOER PRINTING SERVICES

5 Zinnia S t., Roxas D istrict
Quezon C ity, Philippines
 PREFACE TO THE 1 9 9 5 EDITION

A fte r the Family Code w e n t into e ffe c t on A u g u st 3,

1988, several special law s have been passed by Congress
a ffe c tin g som e provisions o f the Code, no ta b ly Rep. A c t
6 8 0 9 re d u cin g th e age o f m a jo rity to 18 and Rep. A c t
8 0 4 3 on Inter-C ountry A doption.

Likewise, the Supreme Court has decided several cases

in t e r p r e t in g c e r ta in p r o v is io n s o f th e F a m ily C o d e ,
specifically A rt. 36 w h ich allow s a marriage to be declared
null and void because o f the psychological incapacity of one
or even b o th o f the spouses, and the p ro v is io n s o f the
Code on adoption o f Filipino children by aliens.

Hence, the necessity o f this new edition, w herein the

aforementioned special laws have been made appendices for
the convenience o f those w h o w o u ld use th is Handbook,
and w h ic h a ls o in c lu d e s th e re c e n t d e c is io n s o f th e
S u p re m e C o u rt in te r p r e tin g fo r th e f ir s t tim e c e rta in
p ro visio n s o f the Code. Some de cisio n s o f the C o u rt o f
Appeals have also been included in this new edition.

THE AUTHOR

Quezon City
June, 1995
 DEDICA TiO N

To m y b e lo v e d children^

Lisa a n d B u d d y , a n d m y g ra n d c h ild Kyle^

m y j o y a n d m y in sp ira tio n ,

th is w o rk

is a ffe c tio n a te ly dedicated.

IV
 F O R E W O R D

Judge A licia Sem pio-Diy has published a m ost tim e ly

study o f the new Family Code that w ill come into e ffe ct on
A u g u s t 3, 1 9 8 8 , one year a fte r p u b lica tio n o f its te x t in
the M anila C h ro n icle on A u g u s t 4, 1 9 8 7 {1 9 8 8 being a
leap year). In th is H andbook on the Fam ily Code o f the
Phifippines, the author, w ho was a very active m em ber o f
the UP Law Center Com m ittee for the Revision o f the Civil
Code, has taken pains to explain not only the te x t o f the
Family Code but the reasons fo r the changes introduced
by the new Code in the corre sp o n d in g p ro visio n s o f the
1 9 5 0 C ivil Code o f th e P h ilip p in e s ; a n s w e rs q u e s tio n s
raised in connection w ith the new provisions and concepts;
and supplies research materials to explain and clarify doubts
concerning the app lication o f the new law . No d o u b t the
Handbook w ill prove to be a very valuable c o n trib u tio n to
the study and understanding o f the new Family Law.

25 July 1988
 P R E F A C E

T h e Fam ily Code o f th e P h ilippines w ill go in to e ffe c t

on A u g u s t 3, 1 9 8 8 , or in less th a n tw o m o n th s , and
s till, no te x tb o o k on th e Code is a va ila b le to la w
s tu d e n ts and la w p ro fe s s o rs . The u n d e rsig n e d and her
s tu d e n ts realized th is pressin g need fo r a te x tb o o k on
the N ew Code w h en th e y had to s tu d y th e sam e la st
schoo l year o n ly on the basis o f its codal p ro v is io n s and
th e le c tu re s o f th e und e rsig n e d (w h o is a m em ber o f th e
C ivil Code R evision C o m m itte e th a t d ra fte d th e Code)
on th e im p o rta n t changes in tro d u c e d by Code to th e
C ivil Code o f th e P h ilip p in e s and P.D. 6 0 3 (the C hild
and Y o u th W e lfa re C ode). It is fo r th is reason th a t th e
und e rsig n e d decided to prepare a te x tb o o k on th e Code
th is sum m e r, and th e re su lt is th is m o d e st han d b o o k.

Intended p rim a rily as a te x tb o o k fo r la w s tu d e n ts

and la w p ro fe s s o rs , th is h an dboo k re s ta te s th e
provisior5S of the Code in as sim ple a m anner as
p o ssible and e xp la in s th e basic c o n c e p ts em bodied
th e re in ; p o in ts o u t and d iscu sse s th e changes m ade by
th e Code in th e c o rre s p o n d in g p ro v is io n s o f th e C ivil
Code o f th e P h ilippines and P.D. 6 0 3 ; m akes k n o w n th e
reasons o f th e C o m m itte e in m aking such chan ges and
cite s re fe re n ce s to m in u te s o f C o m m itte e m e e tin g s
w h e n e v e r th e sam e Is deem ed nece ssa ry; reveals
in fo rm a tio n receive d by th e C o m m itte e fro m e x p e rts
c o n s u lte d by th e m on n e w m a tte rs covered by th e
Code; a n sw e rs som e im p o rta n t q u e s tio n s th a t have
been raised, and even c e rta in c ritic is m s th a t have been
"nade, on new p r o v i s i o n s o f th e Code; and also in clu d e s
some research materials on new concepts introduced in the
Code such as psychological incapacity as a ground for the
declaration o f n u llity o f m arriage and children by a rtificia l
insem ination.

A cknow ledgm ent is hereby made of the great help and

a s s is ta n c e d ra w n by the u n d e rsig n e d fro m the b rillia n t
com m entaries on the law on Persons in the Civil Code of
the Philippines o f form er Senator A rtu ro Tolentino, Justice
Edgardo Paras o f the Supreme C ourt, and the late Justice
Desiderio P. Jurado of the Court of Appeals, as w ell as the
brief but concise outline on the same subject authored by
no less than the Chairm an and Vice Chairman o f the Civil
Code Revision C om m ittee, form er Ju stice Jose B.L. Reyes
o f the Supreme C ourt and form er Justice Ricardo C. Puno
o f the C ourt o f Appeals.

T h is h u m b le w o rk ' is fa r fro m p e rfe c t and can be

greatly improved w ith more time for preparation, study, and
research. It is also a lm o st c e rta in th a t C ongress w o u ld
make changes in and am endm ents to the Code w h ich w ill
call for a revision o f this Handbook. M eanwhile, if it w ould
p ro v e o f s o m e v a lu e n o t o n ly to la w s tu d e n ts and
p ro fessors b u t also to law p ra c titio n e rs , m em bers o f the
bench, and all other Filipinos w ho w ould like to know and
stu d y the Fam ily Code and its far-reaching e ffe cts on our
fam ily and social lives, the undersigned w ould already feel
am ply rewarded fo r her labours and pains in preparing the
same.

June 1988

THE AUTHOR
 TABLE OF CONTENTS
Page
T itle Page ............................................................................................................. i
D e d ic a tio n ............................................................................................................ iv
F o re w o rd .............................................................................................................. v
P r e f a c e .................................................................................................................vi
Table of C o n te n ts ............................................................................................. viii
Intro du ction .................................................................................................... xxx

T A B L E 1. M A R R IA G E
C H A P T E R 1. R E Q U tS lT IE S O F M A R R IA G E
Art. 1 ............................................... ;................................................................... 1
Amendnnents to Art. 52 of the Civil Code ............................................... 1
Two Aspects of M a rria g e............................................................................ 2

Art. 2 .................................................................................................................... 3
Legal Capacity Explained............................................................................ 3
Consent of the Contracting Parties Explained.......................................... 4

Art. 3 ................................................................................................................... 4

Art. 4 ................................................................................................................... 5
Examples of Void Marriages because of Absence
of Essential R e q u isite s................................................................... 6
Absence of legal ca p a city........................................................................... 6
Absence of consent of^.contracting p a r t ie s ............................................... 6
Examples of Void Marriages because of
Absence of Formal R e q u isite s....................................................... 6
Absence of authority of solemnizing o fficer.......................... 7
Absence of a valid marriage lic e n se ......................................7
Absence of marriage cerem ony..............................................7
Effect of Defect in any of Essential R e q u isite s........................................ 8
Effect of Irregularity in any Formal Requisite.......................................... 8

Art. 5 .................................................................................................................... 9

Art. 6 ................................................................................. ................................ 10

A rt. 7 .................................................................................................................. 10
List of Persons Authorized to Solem nize Marriages E xclusive.............. 11
Members of the Ju d ic ia ry .........................................................................12
Priests, Rabbis, Ministers of Any C hu rch ................................................ 12
Ship Captains or Airplane C h ie fs............................................................. 14
Military Comm anders of a U n it............................................................... 14
Consuls-general, Consuls, or V ice-consuls..............................................15

Art. 8 ...................................................................................................................15
Art. 9 ................................................................................................ ................. 15
Art. 10 ................................................................................................................16
Art. 11 ................................................................................................................15
Art. 12 ................................................................................................................18
Art. 13 ................................................................................................................19
Art. 14 ................................................................................................................19
Art. 15 ................................................................................................................21
Art. 16 ................................................................................................................22
Art. 17 ................................................................................................................ 23
Art. 18 ................................................................. .............................................. 24
Art. 19 ................................................................................................................25
Art. 20 ................................................................................................................25
Art. 21 ...............................................................................................................2 5
A rt. 22 ................................................................................................................26
Art. 23 ................................................................................................................28
Art. 24 ................................................................................................................29
Art. 25 ............................................................................................................... 29
Art. 26 ............................................................................................................... 39
Foreign Marriages of F ilip in o s..................................................................30
Effect of Divorce obtained abroad by an Alien
from his or her Filipino S p o u s e ................................................. 31

CHAPTER 2. MARRIAGES EXEMPT

FROM THE LICENSE REQUIREMENT

Preliminary Statem ent.............................................................................. 33

Art. 27 ....................................................................... ........................................ 33

Art. 28 ................................................................................................................34
Art. 29 ................................................................................................................35
Art. 30 ................................................................................................................35

Art. 31 ................................................................................................................ 36
Art. 32 ...................................... .........................................................................36

Art. 33 ................................................................................................................ 36

Art. 3 4 ................................................................................................................. 37
ix
 Requisites for Application of A rtic le ........................................................ 37
Reasons for Provision ............................................................................... 37
Effect of False Affidavit of the Parties ....................................................38

C H A P T E R 3. V O ID A N D V O ID A B L E M A R R I A G E S

Void and Voidable M arriages D istin g u ish e d ................................................. 39

Art. 35 ..............................................................................39
Contracted by Parties below 18 y e a r s ....................................................40
Solemnized by Person with No A u th o rity ............................................... 40
Bigamous or Polygamous M arriage..........................................................41
Contracted through Mistake of One Party
as to Identity of the O th er..........................................................41
Enumeration of Void Marriages in this
Article Not E x c lu siv e .................................................................... 42

Art. 36 ................................................................................................................ 42
Provision is New and taken from Canon L a w ........................................ 42
Psychological Incapacity Distinguished from Vice of C o n se n t.............. 43
Psychological Incapacity Distinguished from In s a n ity ........................... 44
Why Were No Examples of Psychological Incapacity
Given in this Article? ................................................................... 44
Psychological Incapacity Must be Present
at the Time of the M a rria g e.......................................................44
Is the Psychological Incapacitated Person
Barred from Marrying A gain?...................................................... 45
Guides to Interpretation of term Psychological In ca p a city ...................45
Who can File the Action to Declare the Marriage V o id .........................47
Does the Action to Declare Lhe Marriage Void
under this Article Prescribe?....................................................... 47
Action for Annulment of Marriage May Also
Be Filed in Proper C a s e s ............................................................. 47
What is the Status of the Children under this A r tic le ..........................48
Recent Jurisp ruden ce................................................................................ 48

A rt 37 ......................................................... ....................................................... 54

Art. 38 ................................................................................................................55
This Article Amends Arts. 80 (6), 80 (7)
and 81 of the Givi! C o d e .............................................................55
Reasons Why Marriages under Art. 38 are
Against Public P o lic y .................................................................... 56
Relationships outside Arts. 37 and 38 are not
Impediments to M a rria g e ............................................................59

Art. 39 ................................................................................................................ 59

Art, 40 : ■ ! [ . . ........................ eo
X
Art. 41 .........................................................................e i
Kinds of Bigamous Marriages under this Article ................................62
Above Article Compared with Art. 83 of the Civil C o d e ...................62
Meaning of "Absent Spouse" under this Article .................................... 64

Art. 42 .................................................................................... 65
Rule under the Civil C o d e ........................................................................65
Rule under the Family C o d e .................................................................... 66

Art. 43 ......................................................... 67

Art. 44 ......................................69

Art. 45 ...................................................................... 70
Art, 85 of the Civil Code and Above Article C o m p a re d....................... 71
Grounds for Annulment of Marriage Explained ..................................... 72
Lack of parental co n se n t.......................................................................... 72
Insanity of one of the p a rties..................................................................72
Fraud ...................................................................................................... 73
Force, intimidation, or undue influence...................................................73
Im p o te n c y ..................................................................................................75
Sexually Transmissible Disease Found to be
Serious and which Appears Incurable........................................76
How may Voidable Marriages be Ratified or C o n va lid a ted ...................77

Art. 46 ......... !vf...................................................................................... 77

Provisions of Art. 86 of the Civil Code and
Above Article C o m p a re d .............................................................. 78
Concealment of a Sexually-Transmissible Disease as Fraud
under Art. 46 Distinguished from Affliction with a
Sexually-Transmissible Disease as a Ground for
Annulment of Marriage under Art. 45(6) .................................. 80
Concealment of Conviction of a Crime Involving Moral
Turpitude Constituting Fraud that may be a
Ground for Annulment of M arriage.............................................80
Concealment of Fact that Wife was Pregnant by
Another Man Constituting Fraud that would be a
Ground for Annulment M arriage................................................. 81

Art. 47 ......... i . ...................................................................... 82

Diagram showing parties entitled to file Annulment, Period
of Filing, and whether Marriage can be R a tifie d ...................... 84
Periods of Prescription under Art. 87 of the Civil C o d e ....................... 84

Art. 48 ........................................." ....................................85

Art. 49 ......................................................86
Art. 50 ..... ........................................................................ 87
Art. 51 ... i . v k ............................... 89
Art. 52 ................................................... 90
Art. 53 .................................................................•...91
Art. 54 ................................................................................ 91

T IT LE I I. L E G A L S E P A R A T IO N

Legal Separation Distinguished from D iv o rc e ........................................ 93

Brief History of Divorce and Legal Separation
in the Philippines.................... ......................................................93
Are Foreign Divorces Obtained by Filipino
Valid in the P h ilip p in e s?..............................................................94
Legal Separation Distinguished from Separation of Property .............. 94
Legal Separation Distinguished from Separation de F a c to ...................95
Legal Separation Distinguished from Annulm ent of M a rria g e .............. 95

Art. 5 5 ...........................................................96
Grounds for Legal Separation in the Civil Code
and in the Family Code C o m p ared.............................................96
Repeated Physical Violence or Grossly Abusive C o n d u c t..................... 97
Physical Violence or Moral Pressure to
Compel the Petitioner to Change Religion
or Political A ffilia tio n .................................................................... 97
Attem pt to Corrupt Petitioner or Child to
Engage in Prostitution..................................................................97
Final Judgment Sentencing Respondent to More
Than Six Years' Im p riso nm ent.................................................... 98
Drug Addiction or Habitual A lco ho lism ....................................................98
Lesbianism or H om osexuality................................................................... 98
Contracting by One Spouse of Another M arriage......... ........................ 99
Sexual Infidelity or Perversion.................................................................99
Attem pt of One Spouse against the Life of the O t h e r ...................... 100
Abandonment of One Spouse by the Other for
More than One Y e a r .................................................................. 100
Reference to "Child" in this Article Includes Adopted C h ild .............. 101

Art, 56 ............ loi

Defenses to Legal Separation the same in the Civil C o d e ................ 101
Defenses D isc u sse d ................................................................................ 102
C o ndonation............................................................................................. 102
C o n s e n t.................................................................................................... 103
C o n n iv a n c e .............................................................................................. 103
Mutual g u ilt.............................................................................................. 104
C o llu sio n ................................................................................................... 104
Prescription of the A c tio n ........................................ .............................. 105

Art, 57 ................................................................. 106

This Article Amends Art. 102 of the Civil C o d e .................................. 106

xii
Art, 58 .......................................................................... 107
Art 59 ......................................................................... 107
Art! 60 ...................................................................os
Legal Separation Cannot be Granted on Stipulation
of Facts or Confession of Ju d g m e n t...... '................................. 108
Intervention of Trial F isc a l..................................................................... 109

Art. 61 ............iV;............................................................ y................................ 109

Effects of Filing of Petition for Legal Separation*:................................ 110

Art, 62 ...................................................................... 110

Provisions of Art. 49 Shall Apply during the Pendency of the
Action as to support of the Spouses and Custody
and Support of C hild ren...................■ ........................................ 110
Effect of Death of Plaintiff or Petitioner during
Pendency of A c tio n .................................................................... I l l

Art. 63 ....... ^/.................................................................................................. ill

Effects of Legal Sep aration.................................................................... 112
Support Between the Spouses in Legal Separation............................ 114
Can the Wife Drop the Name of Her Husband after
the Decree of Legal S e p a ra tio n ............................................... 114

Art. 64 ............................................................................................................. 114

Donations Propter Nuptias between the Spouses ............................... 115
Insurance Policies with Guilty Spouse as B e n eficia ry......................... 115

Art. 65 .................................................................................... U 6
Art. 66 . .......................................................117
Art. 67 ....................................117
Effects of Reconciliation of the S p o u s e s .............................................. 117
On their personal rela tion s.................................................................... 117
On the proceedings for and decree of legal separation .................... 118
On the property relations of the Sp ou ses........................................... 118

T IT L E I I I . R IG H T S A N D O B L IG A T IO N S
B E T W E E N H U S B A N D A N D W IF E
Art. 68 .............................................. 122
Duty to Live Together............................................................................ 122
Duty to Observe Mutual Love, Respect and Fidelity........................... 124
Duty to Render Mutual Help and S u p p o rt........................................... 125

Art. 69 ........................................................................... 126

Rule in the Civil C o d e ............................................................................ 126
Rule under the Above A rticle ................................................................. 126

Art. 70 ........................................................................127
Rule in the Civil C o d e ............................................................................ 128
xiii
 Rule under the Above A rtic le ................................................................. 128

Art. 71 ......................................................................................... 128

Art. 72 ..............................................................................129

Art. 73 ..................................................... m
Rule under the Civil C o d e ..................................................................... 130
Rule under the Above Article of the Family C o d e ............................... 131
Right to object is m u tu a l...................................................................... 131
In case of disa g re em e nt........................................................................ 132

TITLE IV . PROPERTY RELATIONS BETWEEN

HUSBAND AND WIFE

CHAPTER I . GENERAL PROVISIONS

Art. 74 ..... ........................................................................................................ 134
Theory of the Law on Property Relations of S p o u s e s ........................ 134
Art. 118 of the Civil Code and Above Provision
of the Family Code C o m p a re d ................................................. 134
Meaning of "Marriage Settlem ent"........................................................ 135

Art. 75 ............................................................................................................. 135

Property Regimes that may be Agreed upon in
the Marriage Settlem ent.................................... ....................... 135
What if the Marriage Settlem ent is Completely V o id ? ....................... 136
Suppose the Parties did not Enter into a Marriage Settlem ent?....... 137
Examples of Provisions in the Marriage
Settlem ent that are V o id ........................................................... 137
Suppose Some Provisions of the Marriage Settlem ent
are Void and Som e are Valid. What is the Effect?................ 137

Art. 76 ............................................................................................................. 137

Art. 77 ...................................................................... ...................................... 138

Form of the Marriage S ettle m e n t.......................................................... 138
Reason for Registration in order to Affect Third Persons................... 139
Can Either Party Compel the Other to Reduce the
Marriage Settlem ent into a Public D ocum ent?........................ 139
Form under the Civil C o d e .................................................................... 139

Art. 78 ..............................................................................................................139

Art. 79 .............................................................................................................. 140

Art. 80 .............................................................................................................141
Philippine Law Applies to Property Relations of Filipino
Spouses, Irrespective of the Place of the Celebration
of their Marriage, their Residences, and the Location
of their Properties ...................................................................... 141
xiv
 Exceptions to the Application of the Philippine
Laws where there is Conflict of L a w s...................................... 142
Art, 124 of the Civil Code Abandoned................................................. 142

Art. 81 ............................................................................................................. 142

CHAPTfeR 2. DONATIONS BY REASON OF MARRIAGE

Art. 82 ............................................................................................................. 144

Requisites of Donations Propter N u p tia s.............................................. 144
Donations E x c lu d e d ................................................................................ 144
Donations Propter Nuptias Distinguished-from
Ordinary D on ations.................................................................... 145

Art. 83 ............................................................................................................. 145

Form of Donations Propter N u p tia s ...................................................... 145

Art. 84 ............................................................................................................. 146

Limitation to Donation of Present P ro p e rty ......................................... 146
Donations of Future Property Allowed ................................................. 146

Art. 85 ...................................... ^................................................................ . 147

Art. 86 ............................................................................................................. 147

Grounds for Revocation of Donations Propter N u p tia s ...................... 148
Prescriptive Periods for Fifing Actions for
Revocation of D onations............................................................ 149

Art. 87 ............................................................................................................. 150

Donations Void under A r tic le ................................................................ 150
Reasons for Prohibition of Donations between
Spouses during the M arriag e.................................................... 150
Who May Question Validity of D onation............................................... 151
Prohibition Applies to Parties Living Together
without W e d lock......................................................................... 151
; Exceptions to Prohibition........................................................................ 152

CHAPTER 3. SYSTEM OF ABSOLUTE COMMUNITY

SECTION 1. GENERAL PROVISIONS

Art. 88 ............................................................................................................. 153

Regime of Absolute Community E xplained.......................................... 153
When System of Absolute Community between the
Spouses B e g in s.......................................................................... 155
Art. 89 ................................ ............................................................................. 155
Art. 90 ..............................................................................................................157

SECTION 2. WHAT CONSTITUTES COMMUNITY PROPERTY

Art. 91 ..............................................................................................................158
XV
Art. 92 ............................................................................................................. 158
Properties Excluded from the C o m m u n ity ........................................... 159

Art. 93 ............................................................................................................. 161

S E C T IO N 3. C H A R G E S U P O N A N D O B L IG A T IO N S
O F T H E A B S O L U T E C O M M U N IT Y

Art. 94 ............................................................................................................. 162

Obligations of the Absolute Community Property................................ 163
S u p p o r t.................................................................................................... 163
Debts and Obligations Contracted during the M a rria g e ..................... 164
Debts Contracted by One Spouse without the
Consent of the O th e r................................................................ 164
Taxes, Liens, Repairs on Community Property........ ........................... 164
Taxes and Expenses for Mere Preservation of
Separate Properties of the S p o u s e s ........................................ 165
Expenses for Professional, Vocational or Self-Im provem ent
Course of Either Spouse ........................................................... 165
Antenuptial Debts that Benefited the F a m ily ....................................... 166
Donations by Both Spouses to Common Legitimate
Children for Them to Commence or Finish
Professional, Vocational or Self-Im provem ent C o u rse............ 166
Ante-Nuptial Debts not Falling under Par. (7); Support of
Illegitimate Children, Liabilities of Either Spouse
arising from a Crim e or a Q uasi-D eilct....................... ........... 166
Expenses of Litigation between the S p o u se s....................................... 167
Spouses are Solidarily Liable to Creditors with
their Separate Properties ......................................................... 168

Art. 95 ............................................................................................................. 168

S E C T IO N 4. O W N E R S H IP , A D M IN IS T R A T IO N , E N JO Y M E N T
A N D D IS P O S IT IO N O F C O M M U N IT Y P R O P E R T Y

Art. 96 ............................................................................................................. 169

Adm inistration of Comm unity P ro p e rty ................................................ 169
Disposition or Encumbrance of Community Property.......................... 172

Art. 97 ............................................................................................................. 172

Art. 98 ............................................................................................................. 173

S E C T IO N 5. D IS S O L U T IO N O F A B S O L U T E
C O M M U N IT Y R E G IM E

Art. 99 .......................................................................................................... 174

Grounds for Termination or Dissolution of the
Absolute Community R e g im e .................................................... 174
Applicable Rules for Each Ground of Termination
of Absolute C om m unity............................................................. 175
xvi
Art. 1 0 0 ............................................................................................................ 175
Meaning of Separation in Fact or Separation De F a c to ..................... 175
Separation De Facto Distinguished from A ban donm ent..................... 176
Rules Applicable to Separation De Facto between the S p o u s e s....... 176

Art. 1 0 1 ............................................................................................................ 177

Remedies of Present Spouse in Case of Abandonment
by the Other S p o u s e ................................................................ 177
Presumption of Abandonm ent............................................................... 178

S E C T IO N 6. L IQ U I D A T I O N O F T H E A B S O L U T E C O M M U N IT Y A
A S S E T S A N D L IA B IL IT IE S

Art. 1 0 2 ............................................................................................................ 178

Procedure in Liquidating the Absolute Community
Assets and Liabilities.................................................................. 179

Art. 1 0 3 ............................................................................................................ 180

Rules in Case of Termination of Marriage by Death of
One of the S p ou ses................................................................... 181
Effects if the Community Property is not Liquidated
as Above P re scrib e d .................................................................. 181

Art. 1 0 4 ............................................................................................................ 182

Procedure in the Liquidation of Community
Properties of Two M a rria g e s..................................................... 183

C H A P T E R 4. C O N J U G A L P A R T N E R S H I P O F G A I N S

S E C T IO N 1. G E N E R A L P R O V I S I O N S

Art. 1 0 5 ............................................................................................................184
When the Regime of Conjugal Partnership of Gains A p p lie s............. 184

Art. 1 0 6 ............................................................................................................ 185

Concept of Conjugal Partnership of G a in s........................................... 185
Conjugal Partnership Distinguished from System
of Absolute C o m m unity............................................................. 185
Conjugal Partnership Distinguished from Ordinary Partnership......... 187
Each Spouse has Mere Inchoate Right over Conjugal
Property during the M arriage.................................................... 187

Art. 1 0 7 ............................................................................................................ 188

Art. 1 0 8 ............................................................................................................ 188

S E C T I O N 2. E X C L U S I V E P R O P E R T Y O F E A C H S P O U S E

Art. 1 0 9 ............................................................................................................ 189

Kinds of Exclusive Property of Each S p o u s e ....................................... 189
Each Kind of Property E xplained........................................................... 190
Property Brought to the M a rria g e ........................................................ 190
xvii
 Property Acquired During the Marriage by Gratuitous Title .............. 190
Property Acquired by Right of Redemption, Barter, or
Exchange with Exclusive P ro p e rty ........................................... 191
Property Purchased with Exclusive Money of Either S p o u s e ............. 191

A--t. 1 1 0 ............................................................................................................ 191

Art, 1 1 1 ............................................................................................................ 193
Art. 1 1 2 ............................................................................................................ 193
Art. 1 1 3 ............................................................................................................ 193
Art. 1 1 4 ............................................................................................................ 194
Art, 1 1 5 ............................................................................................................ 195

S E C T I O N 3. C O N J U G A L P A R T N E R S H I P P R O P E R T Y

Art. 1 1 6 ............................................................................................................ 196

Art. 1 1 7 ............................................................................................................ 196
Each Kind of Conjugal Property E x p la in e d .......................................... 197
Properties Acquired by Onerous Title during the
Marriage at Expense of Connnnon F u n d ................................... 197
Special Rules on Insurance ................................................................... 198
Properties Acquired through the Labor, Industry,
Work, Profession of Either or both S p o u se s........................... 200
Fruits from Common Property, and Net Fruits of
Exclusive Property of Each Sp ou se.......................................... 200
Share of Either Spouse in Hidden Treasure whether as
Finder or as Owner of Property where Treasure is fo und..... 201
Properties Acquired through Occupation such as Fishing, Hunting 202
Livestock Existing at Dissolution of Partnership in Excess
off What Is Brought by either Spouse to the
Marriage (Art. 117 (6)): ........................................................... 202
Properties Acquired by Chance, such as Winnings from
Gambling or Betting .................................................................. 203
Special Cases not Included in Art. 1 1 7 ............................................... 203

Art. 1 1 8 ............................................................................................................ 204

Art. 1 1 9 ............................................................................................................ 206
Art, 1 2 0 ............................................................................................................ 206
This Article Changes Radically the Rules in Art. 158
of the Civil C o d e ........................................................................207
Rule under the above A rtic le ................................................................. 207

S E C T IO N 4. C H A R G E S U P O N A N D O B L I G A T I O N S O F T H E
C O N JU G A L P A R T N E R S H IP

Art. 1 2 1 ............................................................................................................ 210

 Art. 1 2 2 ............................................................................................................ 213
Art. 1 2 3 ............................................................................................................214

SECTION 5. A D M IN IS TR A TIO N OF THE CONJUGAL

PARTNERSHIP PROPERTY
Art. 1 2 4 ............................................................................................................ 215
Art, 1 2 5 ............................................................................................................216

SECTION 6. DISSOLUTION OF CONJUGAL

PARTNERSHIP REGIME

Art. 1 2 6 ............................................................... ............................... ■

............216
Art. 1 2 7 ............................................................................................................217
Art. 1 2 8 ............................................................................................................ 217

SECTION 7. LIQ U ID A TIO N OF THE CONJUGAL

PARTNERSHIP ASSETS AND L IA B IL IT IE S
Art. 1 2 9 ............................................................................................................ 218
Art. 1 3 0 ............................................................................................................ 221
Art. 1 3 1 ............................................................................................................ 221
Art. 1 3 2 ............................................................................................................ 222
Art. 1 3 3 ............................................................................................................ 222

CHAPTER 5. SEPARATION OF PROPERTY OF THE SPOUSES AND

A D M IN IS T R A T IO N OF COMMON PROPERTY BY ONE SPOUSE
DURING THE MARRIAGE
Art. 1 3 4 ............................................................................................................ 224
Art. 1 3 5 ............................................................................................................ 225
Valid Causes for Judicial Separation o f Pro perty................................. 225

Art. 1 3 6 ............................................................................................................ 226

Art. 1 3 7 ............................................................................................................ 226
Art. 1 3 8 ............................................................................................................ 226
Art. 1 3 9 ............................................................................................................ 226
Procedure in Voluntary Agreement for Separation of Property......... 227
Effects of Separation of Property between the S p ou ses.................... 228
Does the law Require Specific Reasons to Justify the
Court in Approving the Parties' Voluntary
Agreem ent for Separation of P ro p e rty .................................... 228

A rt. 1 4 0 ............................................................................................................ 228

xix /
Art. 1 4 1 ............................................................................................................ 229
When May the Former Property Regime between the
Spouses be R e vive d ?................................. ............................... 229
What Rules shall Govern the Revival of the Former Property
Regime of the Spouses? ...........................................................230
But Reconciliation between the Parties does not mean
Automatic Revival of their Former R e g im e ........................... . 230
Special Rule in case of Revival of Voluntary
Separation of Property between the S p o u se s.........................231

Art. 1 4 2 ............................................................................................................ 231

CHAPTER 6. REGIME OF SEPARATION OF PROPERTY

Concept of Regime of Separation of P ro p e rty .....................................233

Advantages of the R e g im e .................................................................... 233
Disadvantages of the R e g im e ............................................................... 233

Art. 1 4 3 ....................................................................................................... 234

Art. 1 4 4 ............................................................................................................ 234

Kinds of Separation of P ro p erty............................................................235

A rt. 1 4 5 ............................................................................................................ 235

Art. 1 4 6 ............................................................................................................ 235

Liability of Spouses for Family E x p e n se s.............................................235

CHAPTER 7. PROPERTY REGlKiE OF U N IO N S W ITH O U T MARRIAGE

Art, 144 of the Civil Code and Arts. 147 and Art. 148 of the
Family Code C o m p a re d ............................................................. 237

Art. 1 4 7 ............................................................................................................ 237

Unions Governed by this A rticle ............................................................ 238
Rules Governing the Property Relations of the
Unions under this A rtic le ........................................................... 239
Special Rules Applicable to Void Marriages under this A r tic le ...........242

Art. 1 4 8 ............................................................................................................. 242

TITLE V. THE FAMILY

CHAPTER 1. THE FAMILY AS AN IN S T IT U T IO N

Constitutional policies on Family (1987 C onstitution ).........................245

Juridical Concept of Fa m ily.................................................................... 245
Importance of the F a m ily.......................................................................246

Art. 1 4 9 ............................................................................................................ 246

XX
A rt. 1 5 0 ............................................................................................................ 246
Family Relations, According to this A r t ic le .......................................... 247
Rules to Remember on Family Relations..............................................247

A rt. 1 5 1 ............................................................................................................ 247

Reason for A rtic le ................................................................................... 248
Above Article A p p lie d ............................................................................. 248
Rule not applicable to Matters that Cannot be C o m p ro m ised...........249

CHAPTER 2. THE FAMILY HOME

Underlying Principles in the Establishment of the Family H o m e ....... 251

Provisions of the Family Code Changes Ixodes of

Establishment of the Family Home in the Civil C o d e ............252

Art. 1 5 2 ............................................................................................................ 252

Definition of Family H o m e ......................................................................252
Who may Constitute a Family H o m e .................................................... 252
Can the Beneficiaries Constitute a Family H o m e ? ...............................253
Can the Family Home be Constituted on a House
Constructed on Land Belonging to A n o th e r? .......................... 253
Limitations on Constitution of Family H o m e ........................................ 253
Family Home must Actually be Used as Residence of the Fam ily.....253

Art. 1 5 3 ............................................................................................................ 254

How a Family Home is Constituted under the Family C o d e .............. 254
How would Creditors Know Whether a House and Lot is a
Family Home or n o t ? ................................................................. 254
What is the Family Home Exempt f r o m ? .............................................254
When does the Exemption of the Family Home
Start and up to When does it L a st?........................................ 255

Art. 1 5 4 ............................................................................................................ 255

Beneficiaries of the Family H om e..........................................................255
Are in-law Relatives of Husband or Wife Beneficiaries
of the Family ho m e?..................................................................256

Art. 1 5 5 ............................................................................................................ 256

Exceptions to the Exemption of the Family Home from
Execution, Forced Sale, or A ttachm ent................................... 256

Art. 1 5 6 .............................................................. ............................................. 258

What Properties can be Constituted as the Family H o m e ? ............... 258
Can a Family Home be Constituted on Property Bought on
Installment and which has not yet been Fully Paid for? ......258

Art. 1 5 7 ............................................................................................................ 259

xxi
 Art. 1 5 8 ............................................................................................................ 260
May the Family Home be Sold, Alienated, Donated,
Assigned, or Encumbered by the Owner or O w n ers?............261
Suppose the Family Home, being Insured, is Completely
Burned or Lost, What Happens to the Indemnity? ............... 261
What about if the Family Home is E xp ro p ria te d ?.............................. 261

Art. 1 5 9 ............................................................................................................ 261

Is the Family Home Dissolved by the Death of the Spouses
or the Head of the Family Who Constituted the S a m e ? ....... 262

Art. 1 6 0 ............................................................................................................ 262

Right of Unpreferred Creditor if the Value of the
Family home is More than that Fixed in Art. 1 5 7 ................. 263

Art. 1 6 1 ............................................................................................................ 264

Art. 1 6 2 ............................................................................................................ 265

TITLE V I. PATERNITY AND F IL IA T IO N

Concepts.................................................................................................. 267
Kinds of Paternity and F ilia tio n ............................................................. 267
Kinds of Children under the Family C o d e ........................................... 267
Major Changes made by the Family Code in Law on
Paternity and Filiation in the Civil C o d e .................................. 268

CHAPTER 1. LEGITIMATE CHILDREN

Art. 1 6 3 ..........................;................................................................................. 269

Art. 1 6 4 ............................................................................................................ 269

Definition of "Legitim ate" C h ild re n ....................................................... 269
Definition of "Legitim ate" Children A pp lied.......................................... 270
Children by Artificial Insem ination....................................................... 270
What is Artificial Insem ination?............................................................. 271
Why has the Family Code included therein a Provision on
the Status of Children Born of Artificial Insem ination?......... 272
Other Points to Remember in Connection with Children
Born of Artificial Insemination ................................................. 272

Art. 1 6 5 ............................................................................................................273

Art. 1 6 6 ............................................................................................................ 274

Rule under the Civil C o d e ..................................................................... 274
Rule under the Family C o d e ..................................................................275
Grounds for Impugnation of the Legitimacy of a Child Explained .... 276

A rt. 1 6 7 ............................................................................................................ 280

Reasons for the R u le ............................................................................. 280

xxii
Art. 1 6 8 ............................................................................................................ 280

Art. 1 6 9 ........................................................................................................... 283

Art. 1 7 0 ............................................................................................................ 283

Legitimacy of a Child must be Attacked in a Direct
Action for the Pu rp o se ...... ........................................................284
Periods for Filing A c tio n ........................................... .............................284
Points to Remember in Connection with Action to Impugn
Legitimacy of C h ild .................................................................... 284

Art. 1 7 1 ............................................................................................................ 286

CHAPTER 2. PROOF OF F IL IA T IO N

Art. 1 7 2 ............................................................... ............................................ 288

Art. 1 7 3 ............................................................................................................ 291

When Can the Child Bring an Action to Claim His Status
as Legitimate or Prove his Filiation as s u c h ? .........................291
Can the Heirs Bring the Action for the Child
After the Latter's D eath?...........................................................292

Art. 1 7 4 ............................................................................................................ 292

Rights of Legitimate Children ............................................................... 293
Is it Obligatory for the Legitimate Child
to Use his Father's Surnam e?...................................................293
What is the Legitime of a Legitimate C h ild ......................................... 293

CHAPTER 3. ILLEG ITIMATE CHILDREN

Art. 1 7 5 ................................................................................ ............................ 294

Art. 1 7 6 ............................................................................................................ 296

Rights of Illegitimate C h ild re n .............................................................. 296
Who Exercises Parental Authority over the litegitimate C h ild ? ......... 296

CHAPTER 4. LEGITIMATED CHILDREN

Concepts...................................................................................................298

Art. 1 7 7 ............................................................................................................ 298

Who can be legitim ated?........................................................................298

Art. 1 7 8 ............................................................................................................ 300

How does Legitimation take p la c e ? ...................................................... 300
Does the Annulm ent of the Marriage of the
Parents Affect the Legitimation of the C h ild ? ......................... 300

Art. 1 7 9 ............................................................................................................ 301

Art. 1 8 0 ............................................................................................................ 301

xxiii
Art. 1 8 1 ............................................................................................................301
Legitimation takes Effect or Retroacts
to tlie Time of the Child's B ir th ...............................................301

A rt. 1 8 2 ............................................................................................................ 302

Who may Impugn the Legitimation of a C h ild ? ..................................302
On what Grounds may Legitimation be Im pugned?........................... 302
Within what Period may the Impugnation
of the Legitimation be M a d e ? .................................................. 302

TITLE V I I . ADOPTION
Sources of our Law on A d o p tio n .................................................................303

Concept and Rationale of Adoption ............................................................304

N ature of Adoption P ro c e e d in g s.................................................................. 305

Who m ay A d o p t? ........................................................................................... 306

Adoption by Filipino C itize n s.................................................................. 308

Adoption by A lie n s ................................................................................. 310
Adoption by Husband and W if e ............................................................313
Adoption by G uardians........................................................................... 315

Who m ay be Adopted? ................................................................................. 315

(1) Why adoption of aliens is not a llo w e d .......................................... 316

(2) Reasons for adoption of A d u lts ...................................................... 317
(3) Meaning of person "administratively or judicially
declared available for adoption"............................................... 317

C o nsents necessary for adoption ............................................................... 319

(1) Consent of child to be adopted......................................................319

(2) Consents of children of the a d o p te r.............................................. 319
(3) Consent of the parent by nature of adopted c h ild ...................... 320

Legal effects of adoption ............................................................................. 321

(1) Parenal a u th o rity ..............................................................................321

(2) Status of adopted c h ild ...................................................................322
(3) Successional rights of adopted c h ild .............................................. 322

Art. 190, Family C o d e ............................................................... 323

Points to remem ber under the foregoing
provision of the Family C o d e ......................................... 324

XXIV
Rescission of the A d o p tio n ........................................................................... 324
(1) Under the Ramily C o d e ................................................................... 324
(2) Under Rep. Act 8552 ...................................................................... 325

Effects of Rescission of Adoption ................................................................326

The Crim e of Sinnulation of B ir t h ................................................................326

O ther C rim es reiating to Adoption ............................................................. 328

O ther provisions of Rep, A ct 8552 on A d o p tio n ...................................... 328

T IT L E V I I I . S U P P O R T

Art. 1 9 4 ............................................................................................................ 329

Concept of S u p p o rt................................................................................329
Kinds of S u p p o rt.....................................................................................330
Characteristics of S u p p o rt..................................................................... 331
Concepts of Support in the Civil Code and in the
Family Code C o m p a re d ............................................................. 331

Art. 1 9 5 ................... ;....................................................................................... 333

Persons Obliged to Support Each Other to the
Whole Extent Set Forth in Art. 194 ........................................ 333
Above Provision A p p lie d ......................................................................... 333
Mutual Support between the S p o u s e s ................................................. 333
Mutual Support between Parents and Legitimate
Children, and the Legitimate and Illegitimate
Children of the L a tt e r ............................................................... 335
Legitimate Brothers and Sisters, whether of the
Fulf or Half-Blood ...................................................................... 336

Art. 1 9 6 ............................................................................................................ 337

Art. 1 9 7 ............................................................................................................ 338

Properties Liable for the Support of Relatives
Mentioned in Art. 195 ............................................................... 339

Art. 1 9 8 ............................................................................................................ 340

Art. 1 9 9 ............................................................................................................ 341

Art. 2 0 0 ............................................................................................................ 341
If Two or More Persons are Obliged to Give S u p p o rt........................ 342
Order of Payment of Support if Two or More Olsligees
Claim from same Persons ........................................................ 342

Art. 2 0 1 ............................................................................................................ 343

A rt. 2 0 2 ............................................................................................................ 343

XXV
Art. 2 0 3 ............................................................................................................ 344
When and How should Support be Paid .............................................. 344

Art. 2 0 4 ............................................................................................................ 345

Art. 2 0 5 ............................................................................................................ 346

A rt. 2 0 6 ............................................................................................................ 346

This Provision is Based on Q uasi-C on tract.......................................... 346
Requisites for Application of P ro visio n ................................................. 347

Art. 2 0 7 ............................................................................................................ 347

This Provision is Likewise Based on Q uasi-Contract........................... 347
Reason for the P ro visio n ........................................................................348
Requisites for Application of Pro visio n ................................................. 348

Art. 2 0 8 ..................................... ...................................................................... 348

Special Rules on Conventional S up po rt................................................ 349

T IT L E I X . P A R E N T A L A U T H O R I T Y

C H A P T E R 1. G E N E R A L P R O V I S I O N S

Concept of Parental A u th o rity ............................................................... 350

Evolution of the C o ncep t........................................................................350
Purpose of Parental /Authority............................................................... 350
Characteristics of Parental A u th o rity..................................................... 351

Art. 2 0 9 ............................................................................................................ 351

Parental Authority includes "Parental R espo nsib ility"..........................351
What Parental Authority Includes under this A rtic le ...........................351

Art. 2 1 0 ............................................................................................................ 352

Art, 2 1 1 ............................................................................................................ 353

Both Parents Exercise Joint Parental Authority over their Children... 353
Father's Decision Prevails in case of Disagreement, unless
there is Judicial Order to the C o n tra ry ................................... 353
Duties of Children Towards their Paren ts.............................................354
Art. 2 1 2 ................................. .......................................................................... 354

Art. 2 1 3 ............................................................................................................ 355

Who Exercises Parental Authority in case of Absence,
• Death or Remarriage of Either Parent or
Sep3ration of the Parents?....................................................... 355
What are the "Compelling Reasons” that would justify
Court in taking Child Away from M o th er?.............................. 356

xxvi
Art. 2 1 4 ............................................................................................................ 357
Who shall Exercise Parental Authority In case of Death,
Absence, or Unsuitability of Both Parents?............................. 357

A rt. 2 1 5 ............................................................................................................ 358

C H A P T E R 2. S U B S T I T U T E A N D S P E C I A L P A R E N T A L A U T H O R I T Y

A rt. 2 1 6 ............................................................................................................ 359

Who Exercises Substitute Parental Authority over C h ild re n ? ............. 359

Art. 2 1 7 ............................................................................................................ 360

Art. 2 1 8 ............................................................................................................ 360

Concept of Special Parental A u th o rity...................................................361
Who Exercises Special Parental A u th o rity?.......................................... 361
Authority A p p lie d .....................................................................................361

A rt. 2 1 9 ............................................................................................................ 362

Liability of Those Exercising Special Parental A u th o rity ..................... 362

C H A P T E R 3. EFFEC T O F P A R E N T A L A U T H O R IT Y U P O N TH E
P E R S O N S O F TH E C H ILD R E N

A rt. 2 2 0 ............................................................................................................ 363

A rt. 2 2 1 ............................................................................................................ 364

Liability of Parents for Torts Committed by Minor C hild ren............... 364

A rt. 2 2 2 ............................................................................................................ 365

A rt. 2 2 3 ............................................................................................................ 365

A rt. 2 2 4 ............................................................................................................ 366

Measures to Assist Parent in Imposing Discipline on C h ild ............... 366

C H A P T E R 4. EFFEC T OF P A R E N T A L A U T H O R IT Y
U PO N TH E P R O P E R T Y OF TH E C H ILD R E N

Art. 2 2 5 ............................................................................................................ 368

Father and Mother are now Joint Guardians of the
Child's Property or In co m e ....................................................... 369
Special Rule in case Market Value of Property or Income of
Child Exceeds P 5 0 ,0 0 0 .............................................................. 370
Rules prescribed for Parents as Legal Guardians of Child's
Property and Income not Applicable to other P e rso n s......... 371

Art. 2 2 6 ............................................................................................................ 372

What "Property" of the Child Inclu des................................................. 372
Parental Usufruct has been A b o lis h e d ................................................. 372

xxvii
 Purposes for which Parents may use Fruits and
Income of Child's P ro p e rty ....................................................... 373

Art. 2 2 7 ....................................................................... .................................... 373

Rules if Parent Entrusts Management of any of his
Property to a C h ild .................................................................... 373

C H A P T E R 5. S U S P E N S I O N O R T E R M I N A T I O N O F
P A R E N T A L A U T H O R IT Y

Art. 2 2 8 ............................................................................................................ 375

Permanent Termination of Parental Authority ......................................375

Art. 2 2 9 ............................................................................................................ 375

Termination of Parental Authority which can be
Revived by Final Judgm ent....................................................... 376

Art. 2 3 0 ............................................................................................................ 376

Civil Interdiction of Parent Suspends Parental A u th o rity.................... 377

Art. 2 3 1 ............................................................................................................ 377

Suspension of Parental A u th o rity .......................................................... 378

Art. 2 3 2 ............................................................................................................ 378

Case When the Parent Shall be Permanently
Deprived of Parental Authority................................................. 379

Art. 2 3 3 ............................................................................................................ 379

T IT L E X . E M A N C I P A T I O N A N D A G E O F M A J O R I T Y
(A s A m e n d e d by Rep. A ct 6 8 0 9 )

A rt. 2 3 4 ............................................................................................................ 380

How Emancipation Takes P la c e ............................................................. 380

A rt. 2 3 5 ............................................................................................................ 380

Art. 2 3 6 ............................................................................................................ 381

A rt. 2 3 7 ............................................................................................................ 382

T IT L E V I . S U M M A R Y J U D I C I A L P R O C E E D I N G S
IN THE F A M IL Y LA W

C H A PT ER i . SCO PE O F A P P L IC A T IO N

Art. 2 3 8 .................!..........................................................................................383
Why the Family Code includes Provisions in
Sum m ary Judicial Proceedings................................................. 383
 Characteristics of Sum m ary Proceedings in the Family Code ......... 383

A rt. 2 3 9 ............................................................................................................ 384

A rt. 2 4 0 ............................................................................................................ 385
Art. 2 4 1 ............................................................................................................ 385
Art. 2 4 2 ............................................................................................................ 386
A rt. 2 4 3 ............................................................................................................ 386
Art. 2 4 4 ............................................................................................................ 386
Art. 2 4 5 ............................................................................................................ 386
Art. 2 4 6 ............................................................................................................ 387
Art. 2 4 7 ............................................................................................................ 387
Art. 2 4 8 ............................................................................................................ 387

CHAPTER 3. IN C ID EN TS IN VO LVIN G PARENTAL AUTHORITY

Art. 2 4 9 ............................................................................................................ 388

Art. 2 5 0 ............................................................................................................ 388
A rt. 2 5 1 .................................................... ........................................................ 388
A rt. 2 5 2 ............................................................................................................ 388

CHAPTER 4. OTHER MATTERS SUBJECT TO

SUMMARY PROCEEDINGS

Art. 2 5 3 ............................................................................................................ 389

Art. 2 5 4 ............................................................................................................ 389
Art. 2 5 5 .................... ....................................................................................... 390
A rt. 2 5 6 ............................................................................................................ 390
A rt. 2 5 7 ............................................................................................................ 393
Appendix "A" - Inter-Country Adoption L a w ........................................ 394
Appendix "B" - New Domestic Adoption Law ......................................406
Appendix "C " - Recent Jurisprudence on Family Law ........................422

X XIX
 INTR O D UCTIO N

Brief History of the Family Code of the Philippines:

A draft of a revision of Book I of the Civil Code of the

Philippines was first prepared by the Family Law Revision
Committee constituted by the Integrated Bar of the' Philippines
with former U.P. Law Center Director and now Associate Justice
of the Supreme Court Flerida Ruth Romero as Chairperson, which
held meetings at the U.P. Law Center from September, 1979 to
March, 1984 or for a period of more than four years. The draft
prepared by said Committee was thereafter turned over to the
Civil Code Revision Committee of the U.P. Law Center chaired by
the late Honorable Jose B.L. Reyes, retired Justice of the
Supreme Court , which went over and revised said draft for a
period of more than three years, or up to May, 1987, Members
of the former Family Law Revision Committee who also sat in the
Civil Code Revision Committee were Justice Jose B.L. Reyes,
Justice Eduardo Caguioa, Justice Leonor Ines Luciano, Special
Presidential Assistant Flerida Ruth Romero, and Judge Alicia V.
Sempio-Diy. Other members of the Civil Code Revision Committee
were Justice Ricardo C. Puno as Co-Chairman, Justice Irene C.
Cortez, Dean Fortunato Gupit, Jr., Prof. Ruben F. Balane, Prof.
Esteban B. Bautista, Prof. Araceli T. Baviera, former Assistant
Secretary Flora C. Eufemio of the Department of Social Welfare
and Development, and former U.P. Law Dean Bartolome S.
Carale.
In short, the draft of the New Family Code was completed
after extensive work done by the aforesaid two Committees for a
period of seven years and eight months, during which the two
Committees held 182 meetings. The Code would have been
sponsored in the former Batasang Pambansa by all the lady
mambabatas, but the draft had not yet been finished by that
time, and then it was overtaken by the February Revolution of
1986. The draft of the Code was, however, finished on May 4,
1987 and submitted by the Committee to then President Corazon
C, Aquino on May 13, 1987, who referred the same to the
Cabinet Assistance Systems (CAS) for study. The CAS held
several meetings on the Code, attended by Justice J.B.L. Reyes,
Judge Diy, and Prof. Bautista of the Committee. Suggestions
XXX
were submitted to the Committee by the CAS for certain
modifications or additions to the draft, some of which were
adopted by the Committee and incorporated in a second draft,
which it again submitted to the President. The second draft was
actually signed by President Aquino as Executive Order No. 209
on July 6, 19 8 7 . However, at a cabinet meeting held in
Malacanang on July 8, 1987, still some amendments to the Code
were approved, notably the second paragraph of Art. 26 of the
Code. Hence, the President promulgated another Executive Order,
No. 227 dated July 17, 1987, embodying said amendments.

Effectivity of the Family Code;

Art. 257 of the Family Code provides that it "shall take

effect one year after the completion of its publication in a
newspaper of general circulation as certified by the Executive
Secretary, Office of the President." The Code was completely
published in the Manila Chronicle issue of August 4, 1987, and
such publication was duly certified by then Executive Secretary
Joker P. Arroyo. Hence, the Family Code took effect over one
year after that date, or on August 3, 1988, considering that
1988 was a leap year, (See Memorandum Circular No. 85 dated
November 7, 1988 of the Office of the President, Appendix "B"
of this Handbook; also Modequillo v. Breva, GR86355, May 31,
1990).

Reasons for the Enactment of the Family Code:

There can be no better statement of the reasons for the

drafting of the Family Code of the Philippines than those
contained in the brief submitted by the Civil Code Revision
Committee to former President Corazon C. Aquino, together with
the draft of the Family Code of the Philippines, to wit:
"Close to forty years of experience under the Civil
Code adopted in 1949 and changes and developments in all
aspects of Filipino life sinco then have revealed the
unsuitability of certain provisions of that Code, implanted
from foreign sources, to Philippine culture; the unfairness,
unjustness, and gaps or inadequacies of others; and the
need to attune them to contemporary developments and
trends.
xxxi
 In particular - to cite only a few instances - <1) the
property regime of conjugal partnership of gains is not in
accord with Filipino custom, especially in the rural areas,
which is more congenial to absolute community of property;
(2) there have considerably been more grounds for
annulment of marriage by the Church than those provided
by the Code, thus giving rise to the absurd situation of
several marriages already annulled under Canon Law but still
considered subsisting under the Civil Law and making it
necessary to make grounds for annulment under both laws
to coincide; (3) unequal treatment of husband and wife as
to rights and responsibilities, which necessitates a response
to the long-standing clamor for equality between men and
women now mandated as a policy to be implemented under
the new Constitution; {4} the inadequacy of the safeguards
for strengthening marriage and the family basic social
institutions recognized as such by the New Constitution; {5}
recent developments have shown the absurdity of limiting
the grounds for legal separation to the antiquated two
grounds provided under the Civil Code; (6) the need for
additional safeguards to protect our children in the matter of
adoption by foreigners; and (7) to bring our law on paternity
and filiation in step with or abreast of the latest scientific
discoveries."

Provisions of the 1987 Constitution implemented by the Family

Code"

Sec. 12. ART. II. "The State recognizes the sanctity of

family life and shall protect and strengthen the family as a basic
autonomous social institution, xxx"
Sec. 1. ART XV. "The State recognizes the Filipino family
as the foundation of the nation. Accordingly, it shall strengthen
its solidarity and actively promote Its total development."
Sec. 2. ART. XV. "Marriage, as an inviolable social
institution, is the foundation of the family and shall be protected
by the State."
Sec.’ 14. ART, II. "The State recognizes the role of women
in nation-building, and shall ensure fundamental equality before
the law of women and men."

xxxii
 M ALACAN AN G
Manila

EXECUTIVE ORDER NO. 209

THE FAMILY OF THE PHILIPPINES

WHEREAS, alm ost four decades have passed since the

adoptio?! o f the Civil Code of the Philippines;

W HEREAS, e xp e rie n ce und er said Code as w e ll as

p e rva sive changes and d e v e lo p m e n ts have n e ce ssita te d
revision of its provisions on marriage and fam ily relations to
bring them close to Filipino custom s, values and ideals and
reflect contem porary trends and conditions;

W H E R E A S , th e re is need to im p le m e n t p o lic ie s
embodied in the new C onstitution th a t strengthen marriage
and th e fa m ily as basic s o c ia l in s titu tio n s and e nsu re
equality betw een men and w om en;

N O W , TH ER E FO R E, 1, C O R A Z O N C. A Q U IN O ,
President of the Philippines, by virtue of the pow ers vested
in me, do hereby order and prom ulgate the Family Code of
the Philippines, as fo llo w s:

XX X II I
TiOo / - M arrio g o A rt. 1

T IT L E
MARRIAGE

C H A P TE R I
REQUISITIES OF MARRIAGE

Art. 1. Wlarriage is a special contract of permanent

union between a man and a woman entered into in
accordance with law for the establishment of conjugal and
family life. It is the foundation of the family and an
inviolable social institution whose nature, consequences,
and incidents are governed by law and not subject to
stipulation, except that marriage settlements may fix the
property relations during the marriage within the limits
provided by this Code (52a).

Amendments to Art. 52 of Civil Code:

The above article improves on the definition of

marriage in A rt. 52 of the Civil Code of the Philippines by
stating that:
(1) Marriage is a "special" contract.
(2) It is a “ perm anent" union.
(3) The union is "betw een a man and a w om an".
(4) The union m ust be "entered into in accordance
w ith la w ."
(5) The purpose of marriage is "the establishment of
conjugal and fam ily life."

As to the purpose o f marriage, while the m ost

im portant object of marriage is procreation or to have a
fam ily, the Com m ittee believes that marriage may not
necessarily be for procreation or for the parties to have
children, but it may also be only for com panionship, as
1
2 i Art. 7

when parties past the age of procreation still get married.

Hence, the w ords "fo r the establishm ent of conjugal and
fam ily life " were used in stating the/purpose of marriage'.
I
T w o Aspects o f Marriage

Marriage has tw o aspects:

(1) As a contract: and
(2) As a status.

As a contract, marriage differs from other contracts in

that;
(1) Only a man and a wom an can enter into the
contract o f marriage.
(2) Marriage is a permanent contract; that is, it can
only be dissolved by the death of one of the
parties, unless it is annulled or declared null and
void for legal causes by the court.
(3) In ordinary contracts, the agreement of the parties
has the force of law between them, while in
marriage, the rights and duties of the parties are
fixed by law and not subject to stipulation, except
in marriage settlem ents where the parties may fix
^ their property relations to a certain extent.
(4) Breach of an ordinary contract gives rise to an
action for damages, w hile breach of the
obligations of husband and w ife does not give rise
to such an action, but the law prescribes penal
and civil sanctions therefor, like criminal actions
for adultery or concubinage, legal separation,
action for support, e tc /

Once there is a valid contract of marriage, the status

of marriage or of "being m arried" is created between the
parties. And as a status:

(1) Marriage is no longer just a contract but an

ir'violable social institution, which is the

(x) Reason is g iven by th e S up rem e C ourt in T y v. C .A ., G .R . 1 2 7 4 0 6 , N ov. 2 7 ,

2 0 0 0 . See p. 9 2 h e re o l.
Art. 2 3

foundation of the fam ily, so that the C onstitution

provides that it should be protected by the State
(Sec. 2; A rt. XV, 1987 Constitution}.
(2) It being an institution of public order or policy, its
nature, consequences, and incidents are governed
by law and not subject to stipulation.
(3) It carries w ith it im plications in tw o fields: the
realm of personal rights and obligations of the
spouses, and the realm of property relations.
Generally, the first field is a personal m atter
between husband and w ife and w ill not ordinarily
be interfered w ith by the courts; in the second,
there are several judicial sanctions applicable.

Art. 2. No marriage shall be valid, unless these

essential requisites are present:
(1) Legal capacity of the contracting parties who
must be male and female: and
(2) Consent freely given in the presence of the
solemnizing officer. (53a)

Again, the Family Code improves on the Civil Code by

distinguishing the essentia! requisites of marriage from its
form a! requisites, and expressly stating, in its Art. 4, the
effect o f the absence or total lack o f the essential and
formal requisites, as a distinguished from defect in the
essential requisites and irregularity in the formal requisites.
Under this A rticle, there are only tw o essential
requisites of marriage:
(1) Legal capacity of the contracting parties, who
m ust be male and female; and
(2) Consent {of the parties) freely given in the
presence o f the solemnizing officer.

Legal Capacitv Explained:

Legal capacity is further defined in Art. 5 of the Code.

It is again made clear in this A rticle, however, that the
parties m ust be male and female, or of different sexes, a
4 Art. 3

requisite that is dictated by biological law, since procreation

cannot be realized by tw o persons o f the same sex, if
through deceit or fraud, a marriage is celebrated between
tw o males or tw o females, therefore, the marriage is void
and inexistent, and the party guilty o f fraud is liable to pay
the other damages.

Consent of the Contracting Parties Explained:

The second essential requisite - consent freely given in

the presence o f the solemnizing officer - is the consent of
the contracting parties and not parental consent. "Freely
given" means that the consent is real and not vitiated or
rendered defective by any o f the vices o f consent under
Arts. 45 and 46 of the Code, like fraud, force, intim idation,
undue influence, etc. And the parties m ust personally
appear before the solemnizing officer during the marriage,
w hich requirement excludes "com m on law marriages"
(when the parties ju st live together as husband and w ife
w ith o u t the celebration of marriage between them) or a
marriage by proxy {when one or both parties do not appear
personally before the solemnizing officer but are merely
represented by other persons). The appearance o f the
parties before the solemnizing w ill also give the party w ho
is merely being forced, intimidated, or unduly pressured
into the marriage an opportunity to inform the solemnizing
officer of such fa ct so th a t the marriage ceremony may be
suspended or stopped.

Art. 3. The formal requisites of marriage are:

{1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases
provided for in Chapter 2 of this Title; and
(3) A marriage ceremony which takes place with the
appearance of the contracting parties before the
solemnizing officer and their personal declaration
that they take each other as husband and wife in
the presence of not less than tw o witnesses of
legal age. (53a, 55a).
Aft. 4 5
This A rticle makes it clear that:
(1) the authority of the solemnizing o n ict;i,
^ (2) the marriage license, and
(3) the marriage ceremony where the contracting
parties appear before the solemnizing officer, are
only forma! requirements or requisites as to the
form of the marriage; i.e., requisites that affect
the extrinsic validity, not the intrinsic validity, of
the marriage.

Art. 4. The absence of any of the essential or formal

requisites shall render the marriage void ab initio, except as
stated in Artlcte 35 (2).
A defect in any of the essential requisites shall render
the marriage voidable as provided in Article 45.
An irregularity in the formal requisites shall not affect
the validity of the marriage but the party or parties
responsible for the irregularity shall be civilly, criminally and
administratively liable, (n)

Absence of Essential or Formal Requisites Distinguished

from Defect in an Essential Requisite and irregularity in a
Formal Reauisite:

W hile Arts. 2 and 3 enumerate the essential and

form al requisites o f marriage, this A rticle explains the
effects of the absence or absolute lack of such essential
and form al requisites, in that it renders the marriage void
ab initio, except for A rt. 35 (2}
On the other hand, according to this Article, a defect
in an essential requisite renders the marriage merely
voidable, w hile an irregularity in a formal requisite would
not even a ffe ct the validity of the marriage, subject to the
civii, criminal, or adm inistrative liability of the party or
parties responsible for such irregularity.
According to Justice Eduardo P. Caguioa, a member
of the Com m ittee that drafted the Family Code, a defect is
an irregularity but not every irregularity is a defect, and
th a t defects apply to essential requisites of marriage and
6 Art. 4

irregularities, to form al requisites. Hence, the Comm ittee

agreed that irregularities in form al requisites should not
a ffect the validity o f the marriage, while defects in the
essential requisites w ill render the marriage voidable or
defective.

Examples of void marriages because of absence of essential

requisites:

Absence o f Legal capacity:

(1) A marriage between a 14-year old girl and a 16-
year old boy, even if both have parental consent,
since under Art. 5 of the Code, the minimum age
for marriage is 18.
(2) A marriage between a boy o f 18 and a girl of 16,
both w ith parental consent. The girl here still has
no legal capacity to get married.
(3) A marriage between tw o girls, or between tw o
boys: Parties of the same sex cannot get married.
(4) A marriage between parties w ho have legal
impediments to get married under Arts. 37 and
38 of the Code, like first cousins.

Absence o f consent o f contracting parties:

(1) Marriage in jest w ith no intention on the parties
to be bound.
(2) Marriage in the movies or in a TV or stage play.
(3) M istake of one party as to the identity of the
other (Art. 35(5)).

Examples of Void Marriages Because of Absence of Formal

Reguisltes:

Absence o f a u th o rity o f solemnizing officer:

(1) Marriage solemnized by a judge w ho has already
retired;
Art. 4 7

(2) Marriage solemnized by a judge outside his

territorial jurisdiction/"'*
(3) Marriage solemnized by a person who only
pretended to be a judge or a priest;
(4) Marriage solemnized by a priest w ho has no
authority from his church to solemnize marriages,
or w ho is not registered w ith the Office of the
Civil Registrar General under Art. 7 (2).

Remember, how ever, th a t under Art. 35(2), the

marriage is still valid even if sol 'mnized by a person not
legally authorized to perform marriages, provided either or
both parties had believed in good faith that the solemnizing
officer had the authority to do so.

Absence o f a vafid marriage license:

(1) A marriage w ith no license, unless it falls under
Arts. 27 to 34; (See Carino v, Carino, GR
102569, Feb. 2, 2001).
(2) A marriage w ith an expired license.
(3) Certificate of Local Civil Registrar that he could
not find alleged license in his records proves that
no such license was issued (Rep. v. CA., 236
SCRA 257).

Absence o f marriage cerem ony:

(1) Com m on-law marriages where the parties ju st live
together as husband and w ife w ith o u t a marriage
ceremony (Eugenio v. J. Velez, GR 8 5 1 40, May
17, 1990.)
(2) A marriage by proxy, where one or both parties
are merely represented by other persons.

See Navarro v. D om og toy, 2 5 9 SCRA 1 2 9 , ruling by w a y of ob ite r d ictu m that

th e ju d g e 's h a vin g s o le m n iz e d a m arriag e o u ts id e his ju ris d ic tio n is a m ere
irre g u la rity th a t do es n o t re n d e r th e m a rria g e v o id . T h is a u th o r, h o w e v e r,
respectfully disagrees v\/ith this ruling since il is obvious that if a judge solemnizes
a marriage outside his territorial jurisdiction, he does so v^ithout authority and the
marriage is, therefore void.
8 Art. 4

Is there such thing as a secret marriage?

None. A secret marriage is a legally non-existent

phrase that ordinarily applies to a civil marriage celebrated
w ith o u t the knowledge o f the relatives or friends of the
spouses. (Republic v. C.A. and Castro, 236 SCRA 257)

Effect of Defect in anv of Essential Requisites:

A defect in the essential requisites may be:

(1) A defect in the legal capacity o f either party, as
when a girl or a boy between 18 and 21 years of
age (i.e., below 21 years) gets married w ith o u t
parental consent; or
(2) A defect in the consent o f either party, w hich
means that such consent was given under any of
the circum stances that vitiate consent under Arts.
45 and 46 o f the Code.

A defect in any essential requisite does not render the

marriage void but makes it only voidable', i.e., valid until
annulled.

Effect of Irregularity in anv Formal Requisite:

An irregularity in any form al requisite o f marriage does

not affe ct its validity, but the party or parties responsible
for the irregularity are civilly, crim inally, and adm inistratively
liable. Examples of such irregularity are:
(1) The marriage license was not applied for in the
place specified in A rt. 9.
(2) The marriage license was signed by a mere
employee of the office of the proper local civil
registrar, but w ith the letter's authority.
If the employee was not authorized by the
local civil registrar to sign for the license, the
marriage w ill be void for lack o f a valid license.
(3) The 10-day posting o f the application for marriage
license was not complied w ith , but a license was
nonetheless issued.
Art. 5 9

(4) The parties did not actually declare to the

solemnizing officer that they freely take each
other as husband and w ife.
(5) The parties did not com ply w ith the requirements
o f parental advice {Art. 15), marriage counselling
(Art. 16), or fam ily planning seminar under P.D.
965, but they were still able to get a license.
(6) There were no witnesses to the marriage.

Art. 5. Any male or female of the age of eighteen

years or upwards not under any of the impediments
mentioned in Articles 37 and 38, may contract marriage.
(54a)

The minimum ages for marriage under A rt. 54 of the

Civil Code of the Philippines are 14 for the girl and 16 for
the boy, w hich ages are based on the capacity of the girl
and the boy for reproduction (or their having already
reached the age of puberty) and not on their m aturity and
freedom of judgm ent.
Experience under the Civil Code, and records of our
courts show , however, that im m aturity o f the parties or
teenage marriages is the main cause o f marriage break-ups,
since the parties are too young to understand and are not
yet prepared for the lifelong relationship o f marriage w ith
its attendant responsibilities. Hence, the Family Code raises
the minimum age o f marriage to 18 for both male and
female.
Some quarters have criticized the raising of the age
for marriage by the Family Code to 18 years in that it
m ight result in live-in relationships between young people
w ho cannot w a it to be 18 years before they elope and get
married, and in their having illegitim ate children. But these
young couples can still get married upon reaching 18 years
w ith parental consent, if they still like to do so, and if they
do, this author believes that their children begotten before
their marriage w ould be legitimated. On the other hand, the
mistake o f these young people w ill 6e com pounded if they
are allowed to legally marry at such an early age or when
10 Art, 6 and Art. 7

they are still too young to understand w h at marriage is,

only for them to realize later their mistake and eventually
break up or separate.

Art. 6. No prescribed form or religious rite for the

solemnization of the marriage is required. It shall be
necessary, however, for the contracting parties to appear
personally before the solemnizing officer and declare in the
presence of not less than two witnesses of legal age that
they take each other as husband and wife. This declaration
shall be contained in the marriage certificate which shall be
signed by the contracting parties and their witnesses and
attested by the solemnizing officer.
In case of marriage in articulo m ortis, when the party
at the point of death is unable to sign the marriage
certificate, it shall be sufficient for one of the witnesses to
the marriage to write the name of said party, which fact
shall be attested by the solemnizing officer. (55a)

(1) It is only the appearance of the contracting

parties before the solemnizing officer required by
this Article that is a formal requisite o f marriage
under Art. 3(3), so that in the absence of such
appearance, the marriage is void.
(2) The other requirements in this article w ill not
render the marriage void even if they are totally
lacking like:
(a) there were no witnesses to the marriage;
(b) the parties did not orally declare before the
solemnizing officer that they take each other
as husband and w ife; or
(c) there was no marriage certificate or contract.

Failure to com ply w ith the above requirements are

mere irregularities that do not affect the validity of the
marriage.

Art. 7. Marriage may be solemnized by:

(1) Any incumbent member of the judiciary within the
court's jurisdiction;
Art. 7 77

(2) Any priest, rabbi, imam, or m inister of any church

or religious sect duly authorized by his church or
religious sect and registered w ith the civil registrar
general, acting w ith in the lim its of the w ritte n
authority granted him by his church or religious
sect and provided that at least one o f the
contracting parties belongs to the solemnizing
o ffice r's church or religious sect;
(3) A ny ship captain or airplane chief only in the
cases m entioned in Article 31;
(4) Any m ilitary commander of a unit to w hich a
chaplain Is assigned. In the absence of ttie latter,
during a m ilitary operation, likewise only In the
cases mentioned in Article 32; or
(5) Any consul-general, consul or vice-consul In the
case provided In Article 10. {56a}

NOTE: The Family Code rem oved the authority o f

mayors to solemnize marriages, since experience has
show n that m ost violations o f the la w on marriage were
com m itted by these politicians in their desire to please their
constituents. Several bills were later filed in Congress to
restore said authority to mayors, but the Civil Code
Revision Com m ittee had always opposed those bills, and
none o f them became a law. However, in the Local
Government Code, such authority was "sm uggled" in Sec.
4 4 4 as to m unicipal m ayors and Sec. 4 5 5 as to city
mayors. Hence, m ayors have again the authority to
solemnize marriages.

List of Persons Authorized to Solemnize Marriage

Exclusives:

Those not listed in this article, no m atter how high

their positions in the government are, like ambassadors,
senators, congressmen, etc., cannot solemnize marriages,
Inclusio unios est exclusio alterius: W hat the law does not
include, it excludes.
12 ....... An. 7

Members of the kidiclarv:

The different courts under our judicial system today

pursuant to B.P. 129, the “ Judiciary Reorganization A c t of
1 9 8 0 ", are:

(1) The Supreme Court;

(2) The Court of Appeals;
(3) The Regional Trial Courts {there are 13 judicial
regions all over the Philippines, including the
National Capital Judicial Region com prising Metro
Manila); and
(4) The M etropolitan Trial Courts in each m etropolitan
area established by law (like M etro Manila),
Municipal Trial Courts in each city or m unicipality,
and Municipal Circuit Trial Courts in each circuit
of cities and municipalities grouped together by
law.

The Sandigang Bayan created by the Constitution and

the Court o f Tax Appeals created by a special law are also
courts under our judicial system.

The jurisdiction of the members of the Supreme Court,

the Court of Appeals, the Sandigang Bayan, and the Court
of Tax Appeals to solemnize marriages is the entire
country, w hich is their territorial jurisdiction.

The jurisdiction o f the regional trial court judges and

judges o f inferior courts to solemnize marriages is their
territorial jurisdiction as defined by the Supreme Court.
Thus, an fiTC judge o f Manila cannot solemnize a marriage
in Quezon City, and a municipal trial court judge in Marilao,
Bulacan cannot solemnize a marriage in Malolos, Bulacan.

Priests, rabbis, ministers of any church:

(1) In order to validly solemnize a marriage, the

priest, rabbi, imam, or m inister of any church or
religious sect m ust be:
Art. 7 13

(a) duly authorized by his church or religious

sect; and
(b) registered w ith the O ffice of the Civil
Registrar General.
Otherwise, the solemnizing officer has no authority to
solemnize a marriage, subject to the exception of Art. 35,
par. (2) that considers the marriage valid if the parties or
one of them had believed in good faith that the priest had
authority.
The priest w ho solemnizes a marriage w ith o u t proper
authority w ill, however, be crim inally liable under the old
Marriage Law (Art. 352, Revised Penal Code).
(2) The priest or minister has the duty to present his
authority to the parties if so requested by them.
(3) This Article amends A rt. 92 o f the Civil Code that
requires priests, ministers, etc. to register w ith the
director of the proper governm ent office (meaning,
the Bureau o f Public Libraries). Registration was
transferred by the Family Code to the O ffice of
the Civil Registrar General because it is necessary
for such official to have supervision and control
over priests and ministers o f the gospel for
purposes of the preparation and proper execution
of documents attendant to the celebration of
marriages and their proper submission to the Civil
Registrar General under the rules and regulations
that he w ill promulgate in connection therew ith,
(4) It is required th a t at least one of the contracting
parties belongs to the solemnizing o ffice r's church
or religious sect, and the religion o f the parties
m ust be stated in their marriage contract in
accordance w ith A rt. 22(2).

This requirement is intended by the Code to prevent

parties w ho are in a hurry to get married from approaching
alleged m inisters o f questionable religious sects w ith offices
around the C ity Hall o f Manila and other places w ho make
a business out of solemnizing marriages, usually instant
ones (i.e., w ith o u t the required marriage license by making
74 Art. 7

it appear that the parties had already cohabited for at least

5 years even if such is not the fact).

Ship captains or airplane chiefs:

' “ ■■■■(I-)--These persons can solemnize marriages only in

articulo m ortis between passengers or crew
members under A rt. 31.
(2} The marriages may be solemnized not only while
the ship is at sea or the plane is in flig ht but also
during stop over at ports of call, because the
authority is given during the voyage and in such
cases, the voyage is not yet terminated.
(3) Not every ship officer or airplane pilot can
solemnize marriages under this article. He m ust be
the captain of the ship, or the chief pilot o f the
airplane.

Military commanders of a unit:

(1) The m ilitary commander m ust be a commissioned

officer (Art. 32), not a mere a corporal o;
sergeant.
(2) He can solemnize a marriage only if it is in
articulo m ortis between persons w ith in the zonu
of m ilitary operations, w hether members of the
armed forces or civilians.
(3) He can solemnize a marriage in articulo m ortis
only in the absence of the chaplain.
(4) The unit of the m ilitary commander, according to
the Comm ittee, m ust be a battalion, not just a
company.
(5) The Com m ittee considers the situation one of
emergency, w hich includes m ilitary maneuvers,
police actions, declared or undeclared wars, civil
war, or rebellion.
(6) Jurisprudence, according to the Committee, can
also define the phrase "m ilitary operation" more
clearly.
Art. 8 and Art. 9 75

Consuls general, consuls, or vice-consuls:

(1) Only in the case provided in Art. 10 may they

solemnize marriages; i.e., marriages between
Filipinos abroad in the foreign assignments of
these officials,
(2) Consuls on home assignment in the Philippines
cannot solemnize marriages.

Art. 8. The marriage shall be solemnized publicly in

the chambers of the judge or in open court, in the church,
chapel or temple, or in the office of the consul-general,
consul or vice-consul as the case may be, and not
elsewhere, except in cases of marriages contracted at the
point of death or in remote places in accordance with
Article 29 of this Code, or where both of the parties
request the solemnizing officer in writing in which case the
marriage may be solemnized at a house or place designated
by them in a sworn statement to that effect. (57a)

(1) This provision is only directory, not m andatory, so

that non-compliance therew ith wid not invalidate
the marriage.
(2) Can the marriage be solemnized by a judge on a
Sunday, which is not an office day? No,
according to Gabriel v. Gabriel, C.A., 56 O.G.
355 5.
(3) The requirement of public solemnization of the
marriage in this article is based on the premise
th a t the more people w itness the marriage, more
people can n o tify the solemnizing officer if they
know o f any impediments to said marriage.

Art. 9. A marriage license shall be issued by the local

civil registrar of the city or municipality where either
contracting party habitually resides, except in marriages
where no license is required In accordance with Chapter 2
of this Title. (58a)

(1) This provision is useful in small communities where

16 Art. 10 and Art. 11

the people know one another, because the names

of the applicants for marriage license are posted by
the local civil registrar under Art. 17, and any one
who knows of an impediment to an intended
marriage may inform him about it.
(2) A violation o f this provision w ill not, however,
invalidate the marriage license, but the party who
falsified his or her application for marriage license
by stating that he or she is a resident of the
place where the license was applied for, is
crim inally liable.
(3) The solemnizing officer is not required to
investigate w hether or not the license was issued
in the place required by law (People v. Jansen, 54
Phil. 176).

Art. 10. Marriages between Filipino citizens abroad

may be solemnized by a consul-general, consul or vice-
consul of the Republic of the Philippines. The issuance of
the marriage license and the duties of the local civil
registrar and of the solemnizing officer with regard to the
celebration of marriage shall be performed by said consular
official. (75a)

(1) See also com m ents under A rt. 7, on consuls-

general, consuls or vice-consuls.
(2) In these marriages, a marriage license is still
required, to be issued by the consular official who
w ill solemnize the marriage.
(3) The marriage m ust be between Filipino citizens
abroad; if one o f the parties is a foreigner, this
article cannot apply.
(4) By "Filipino citizens abroad" may mean Filipinos
permanently residing abroad or w h o are mere
transients or vacationists there.

Art. 11. Where a marriage license is required, each of

the contracting parties shall file separately a sworn
Art. 11 17

application for such license with the proper local civil

registrar which shall specify the following:

(1) Full name of the contracting party:

(2) Place of birth;
(3) Age and date of birth;
(4) Civil status;
(5) If previously married, how, when and where the
previous marriage was dissolved or annulled;
(6) Present residence and citizenship;
(7) Degree of relationship of the contracting parties;
(8) Full name, residence and citizenship of the father;
(9) Full name, residence and citizenship of the
mother; and
(10) Full name, residence and citizenship of the
guardian or person having charge, in case the
contracting party has neither father nor mother
and is under the age of twenty-one years.
The applicants, their parents or guardians shall not be
required to exhibit their residence certificates in any formality
in connection with the securing of the marriage license. (59a)

(1) The application for marriage license is required to

be under oath so that the applicants would tel!
the truth in their applications. If they lie regarding
any detail therein, they w ill be com m itting perjury.
(2) The oath to the application shall be administered
by the local civil registrar w ith w hom the
application fo r license is filed.
(3) The tw o parties to the intended marriage are
required to file separate or individual sw orn
applications because the data that they will state
under oath are different.
(4) Even if the parties falsify the inform ation given in
their marriage applications, such as their age, civil
status, absence o f relationship w ith each other.
75 A rt. 12

etc., the marriage license w ill still be valid if

issued by the local civil registrar of the place
where the application is filed, but the party who
gave wrong inform ation w ould be civilly,
crim inally, and adm inistratively liable.
(5) If the local civil registrar, know ing the falsity of
the inform ation in the applications, still issues the
license, he shall be civilly, crim inally, and
adm inistratively liable, but a marriage solemnized
pursuant to said license w ill still be valid.

Art. 12. The local civil registrar, upon receiving such

application, shall require the presentation of the original
birth certtficates or, in default thereof, the baptismal
certificates of the contracting parties or copies of such
documents duly attested by the persons having custody of
the originals. These certificates or certified copies of the
documents required by this Article need not be sworn to
and shall be exempt from the documentary stamp tax. The
signature and official title of the person issuing the
certificate shall be sufficient proof of its authenticity.
If either of the contracting parties is unable to
produce his birth or baptismal certificate or a certified copy
of either because of the destruction or loss of the original,
or if it is shown by an affidavit of such party or of any
other person that such birth or baptismal certificate has not
yet been received though the same has been required of
the person having custody thereof at least fifteen days
prior to the date of the application, such party may furnish
in lieu thereof his current residence certificate or an
instrument drawn up and sworn to before the local civil
registrar concerned or any public official authorized to
administer oaths. Such instrument 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
Art. 13 19

their default, persons of good reputation in the province or

the locality.
The presentation of the birth or baptismal certificate
shad 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)

(1) The best proof of one's age is his birth certificate

or, if the same is not available, is baptismal
certificate.
(2) If the foregoing documents cannot be presented,
the applicant may ju st present his current
residence certificate or the affidavit of tw o
w itn esses. N earest kin are preferred.
(3) The parents o f the parties may just accompany
them to the office of the local civil registrar and
certify to their ages.
(4) The local civil registrar may, however, be satisfied
as to the ages of the parties in proper cases by
ju st looking at them.

Art. 13. 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)

(1) If the death certificate of one's deceased spouse

cannot be presented, an affidavit executed by the
20 Art. 13 and Art. 14

appiicant as to the facts o f the death of his or

her spouse w ould do, '
(2) If the applicant ha& had a marriage that had been
annulled or declared null and void, or he has been
divorced under the old law or under the second
par. of Art. 26 of this Code, he shall present the
decree o f annulnnent, nullity o f marriage, or
divorce.

Art. 14. 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 tw o witnesses and
attested before any official authorized by law to administer
oaths. The personal manifestation shall be attached to said
applications. (61a)

(1) If a marriage is solemnized w ith o u t the parental

consent required in this article, the marriage is
voidable.
(2) Parental consent is required if the girl or boy is
18 and above but below 21 years of age.
(3) If the applicant had already been previously
emancipated by a previous marriage, although still
below 21 years, he or she does not need parental
consent.
(4) The parental consent may be in the form o f a
sw orn statem ent acknowledged in the presence of
tw o witnesses before any official authorized to
adm inister oaths, or the parents or guardian may
appear personally before the local civil registrar
and accom plish the w ritte n consent before him.
Art. 15 21

(5) The parental consent m ust be for the child to

marry a "specific" person; it cannot be consent to
marry anyone,

Art. 15. Any contracting party between the age of

twenty-one and twenty-five shall be obliged to ask their
parents or guardian for advice upon the intended marriage.
If they do not obtain such advice, or if it be unfavorable,
the marriage license shall not be Issued till after three
months following the completion of the publication of the
application therefor. A sworn statement by the contracting
parties to the effect that such advice has been sought,
together with the written advice given, if any, shall be
attached to the application for marriage license. Should the
parents or guardian refuse to give any advice, this fact
shall be stated in the sworn statement. (62a)

(1) This Article amends A rt. 62 o f the Civil Code by

requiring parental advice if the parties are 21 and
above but below 25 years of age. The Faniily
Code has made the requirement uniform for ho:ti
parties. Under the Civil Code, the requirement of
parental advice applies to a male who is 20 and
above but below 25, and a female w ho is 18 and
above but below 23.
(2) The Com m ittee has decided to retain the
requirement of parental advice in ki^cping w ith
Philippine tradition of honoring one's [parents (fili I
respect) by seeking their guidance or inform ing
them about his or her intended marriage.
(3) The lack of parental advice or an unfavorable
parental advice does not bar the marriage from
taking place, but the requirement is a vehicle to
induce further and more mature reflection by the
parties on the decision to get married during the
3-m onth period that they are required to w a it
before they are issued a license.
(4) The 3-m onth period is com puted from the
com pletion of the 10-day publication of the
application for marriage license.
22 Art. 16

"" If the parties get married without a license, their

"m arriage is void. If, however, they were able to
g et'a. license without the required parental advice,
the marriage is still valid, but they will be liable
criminally and civilly for falsifying their applications
for marriage license.

Art. 16. In the cases where parental consent or

parental advice Is needed, the party or parties concerned
shall, in addition to the requirements of the preceding
articles, attach a certificate issued by a priest, imam or
minister authorized to solemnize marriage tinder Article 7 of
this Code or a marriage counsellor duly accredited by the
proper government agency to the effect that the
contracting parties have undergone marriage counselling.
Failure to attach said certificate of marriage counselling
shafl suspend the issuance of the marriage license for a
period of three months from the completion of the
publication of the application. Issuance of the marriage
license within the prohibited period shall subject the issuing
officer to administrative sanctions but shall not affect the
vaHdity of the marriage.
Should only one of the contracting parties need
parental consent or parental advice, the other party must
be present at the counselling referred to in the preceding
paragraph, (n)

(1) Marriage counselling is a new requirement for the

issuance ©f a marriage license under the Family
Code in cases where the parties need parental
consent or parental advice (i.e., they are 18 and
above but below 25 years).
(2) The purpose of the requirement is to enable the
parties to find out if they are compatible before
they get married. Psychological incapacity as
defined in Art. 36 of the Code on the part of
either party may also be discovered through
marriage counselling.
(3) Experience has shown that many marriages,
especially teen-age marriages, have failed because
Art. 17 23

o f the lack of pre-marital counselling to the

parties- W hile some members o f the Com m ittee
believe that this requirement does not accord w ith
the custom s of the Filipinos and may just be
disregarded, the m ajority o f the members think it
is a wise requirement and should be included in
the Family Code, since law should be an
instrum ent of change for the better.
(4) The effect of the lack of the certificate or
marriage counselling is the same as the lack of
parental advice; i.e., the issuance of the marriage
license is suspended for three m onths.
(5) If only one of the parties needs parental consent
or parental advice, the other party m ust be
present at the counselling.
(6) W ho will do the counselling? The priest or
m inister of the church or religious sect to w hich
the party concerned belongs, or a marriage
counsellor accredited by the proper governm ent
agency.
NOTE; A noth er requirement fo r the issuance o f a
marriage license is attendance o f the fam ily planning
sem inar required by P.D. 965, w ith certain exceptions.

Art. 17. The local civil registrar shall prepare a notice

which shell 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 impediments to the marriage to advice the local civil
registrar thereof. The marriage license shall be issued after
the completion of the period of publication. (63a)

(1) The posting o f the application for marriage license

under this Article is indispensable to the issuance
of the license.
24 Art. IS

(2) If, however, a license is issued w ith o u t com plying

w ith this provision and a marriage is solemnized
on the basis o f such license, the marriage is still
valid. However, the local civil registrar w ho did
not com ply w ith this provision w ill be liable
crim inally, civilly, and adm inistratively.
(3) The reason for the required posting of the
application for marriage license is to inform the
public of the intended marriage so that if they
know of any legal im pedim ent thereto, they may
inform the local civil registrar about it. While such
requirement may be of no practical value in big
cities and com m unities, it is very useful in small
to w n s and municipalities where practically
everybody know s every one else.

Art. 18. 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 a marriage license, but shall nonetheless
issue said Trcense after the completion of the period of
publication, unless ordered otherwise by a competent court
at his own instance or that of any interested party. IMo
filing fee shall be charged for the petition nor a bond
required for the issuance of the order. (64a)
Under A rt. 64 of the Civil Code, the local civil
registrar is given quasi-judicial authority to investigate any
inform ation he receives of any legal im pedim ent to an
intended marriage, and may w ithhold the issuance of the
marriage license if he is convinced that such im pedim ent
exists, unless otherw ise ordered by a com petent court.
The Family Code has amended the above article of
the Civil Code in that the local civil registrar, w ho may not
be a lawyer or have no legal knowledge, is no longer given
quasi-judicial pow er to investigate an alleged legal
im pedim ent to an intended marriage. W hat he is required to
do, if he receives inform ation as to an alleged im pedim ent,
is to note it on the application for marriage license and
Arts. 19, 20 and 21 25

then refer the m atter to the com petent court if he thinks

such action Is warranted. But he should still issue the
marriage license, unless ordered by a com petent court at
the instance of an interested party or even at his ow n
instance.

A rt. 19. The local civil registrar shall require the

paym ent o f 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 o f said license. It shall, however, be
issued free of charge to indigent parties, that is, those w ho
have no visible means of income or whose income is
insufficient for their subsistence, a fact established by their
a ffidavit or by their oath before the local civil registrar.
(65a)

A rt. 20. The license shall be valid in any part o f the

Philippines for a period o f one hundred tw e n ty days from
the date of issue, and shall be deemed autom atically
cancelled at the expiration o f said period if the contracting
parties have not made use o f it. The expiry date shall be
stamped In bold characters on the face o f every license
issued. (65a)
(1} The marriage license may be used anywhere in
the Philippines but not in foreign countries.
(2} The license is good for only 120 days. It is not
subject to extension and once it has expired, it is
deemed cancelled and cannot be used anymore. If
the parties still w ant to get married after the
expiration of the license, they m ust apply for a
new license.
(3) The Family Code requires that the expiry date of
the license must be stamped in bold characters on
its face, so that parties w ill be fully aware o f its
expiration date.

A rt. Z1. W hen either or both o f the contracting

parties are citizens o f a foreign country, it shall be
26 Art. 2 7 and Art. 22

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 such capacity to contract marriage. (66a)

(1) The capacity o f a foreigner to get married i,n the

Philippines is governed by his national law, a
foreign law, so that our governm ent offices and
courts cannot take judicial notice of said law.
Hence, if he applies for a marriage license to be
able to get married in the Philippines, he is
required to present a certificate o f legal capacity
to contract marriage from the embassy or consular
office of his country in the Philippines, since they
are the ones w ho know the national law of said
foreigner and whether he has capacity to marry
under said law.
(2) A divorced foreigner can be issued a marriage
license to marry again in the Philippines provided
he can present the certificate above mentioned,
which means that his divorce is recognized by his
ow n country.
(3) If the foreigner is stateless or a refugee from
another country, so that there is no embassy or
consular office from which he can get the above*
mentioned certificate, it is enough that he
executes an affidavit stating the circum stances
show ing his capacity to contract marriage.

Art. 22. The marriage certificate, in which the parties

shall declare that they take each other as husband and
wife, shall also state:
{1) The full name, sex and age of each contracting
party;
(2) Their citizenship, religion and habitual residence;
Art. 22 27

(3) The date and precise time of the celebration of

the marriage;
{4) That the proper marriage license has been issued
according to law, except in marriages provided for
in Chapter 2 of this title;
(5) That either or both of the contracting parties have
secured the parental consent In appropriate cases;
(6) That either or both of the contracting parties have
complied with the legal requirement regarding
parental advice in appropriate cases; and
(7) That the parties have entered Into marriage
settlements, if any, attaching a copy thereof.
(67a)

(1) Under A rt. 67 o f the Civil Code, the parties are

required to state in their marriage certificate or contract
their full names, domiciles, and ages; the fact th a t they
have been issued the proper marriage license; and that they
have the consent or advice of their parents in the cases
where these are required.
This A rticle of the Family Code, however, requires the
marriage certificate to state the follow ing additional
inform ation:
(a) The sex, citizenship, and religion o f each party;
(b) The date and precise time of the celebration of
the marriage; and
(c) A statem ent that the parties have entered into a
marriage settlem ent, if any, attaching a copy
thereof to the marriage certificate.
(2) The marriage certificate is not an essential or formal
requisite of marriage w ithout which the marriage will be void
(Madridejo v, De Leon, 55 Phil. 1). An oral marriage is,
therefore, valid, and failure of a party to sign the marriage
certificate (De Loria v. Felix, 104 Phil. 1) or the omission of
the solemnizing officer to send a copy of the marriage
certificate to the proper local civil registrar (Pugeda v. Trias,
Mar. 31, 1962, 4 SCRA 49; People v. Borromeo, 133 SCRA
106) does not invalidate the marriage. Also, the mere fact
28 A rt. 2 3

that no record ot the marriage can be found, does not

invalidate the marriage provided all the requisites for its
validity are present (Mariatequi v. C.A., 205 SCRA 337;
Tenebro v. C.A., Feb. 18, 2004, GR 150158).
(3) The marriage certificate is, how ever the best
evidence that a marriage does exist.

A rt. 23. It shall be the duty of the person solemnizing

the marriage to furnish either o f the contracting pai ties, the
orlgtnal of the marriage certificate referred to in Article 6
and to send the duplicate and triplicate copies of the
certificate not later than fifteen days after the marriage, to
the local civil registrar of the place where the marriage was
solemnized. Proper receipts shall be issued by the local civil
I?
registrar to the solemnizing officer transm itting copies of |
the marriage certificate. The solemnizing officer shall retain
In his file the quadruplicate copy o f the marriage certificate,
the original of the marriage license and, in proper cases,
the affidavit of the contracting party regarding the
solemnization of the m a rria g e In a place other than those
mentioned in Article 8. {68a}

While Art. 68 of the Civil Code requires that the

marriage certificate should be in three copies, this Article
requires that the certificate should be in four copies, to be
distributed as follow s:
(1) The original shall be given to either of the
contracting parties;
(2} The duplicate and triplicate shall be sent not later
than 15 days after the marriage to the local civil
registrar o f the place where the marriage was
solemnized; and
(3) The quadruplicate shall be retained by the
solemnizing officer, together w ith the marriage
license.

Remember that even if no one receives a copy of the |

marriage certificate, the marriage is still valid (Jones v. j
Hortiguela, 64 Phil. 179). I
Arts. 24, 2 5 and 26 29

Art. 24. 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 t^e
exempt from documentary stamp tax. (n)

The preparation o f documents and adm inistration o f

oaths by the local civil registrar in connection w ith mar­
riages are all free from fees and docum entary stamp tax.

Art. 25. 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.

This Article requires all applications for marriage

license to be entered in the registry book strictly in the
order in w hich they are received; that is, chronologically or
in accordance w ith the dates of application. This means,
too, that the applications should be duly numbered, to
avoid the bad practice in offices of the local civil registrars
of leaving certain numbers in the registry book o f
applications for marriage licenses blank, and then selling
these blank spaces to couples w ho w a n t instant licenses
(i.e., w ith o u t com plying w ith the 10-day posting) by
antedating the dates of their applications for marriage
license.
The registry book above-mentioned should also record
the names o f the applicants, the date on which the marriage
license was Issued, and other necessary data.

Art. 26. 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), 36, 37
and 38 (71a)
30 Art. 26

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 likewise
have capacity to remarry under Philippine law. (n) (as
amended by E.O. No. 227, dated July 17, 1987)

Foreign Marriages of Filipinos

This Article retains the rule in A rt. 71 of the Civil

Code th a t marriages solemnized abroad, if valid in the I
country where celebrated, are also in the Philippines (the |
rule of /ex lo ci celebrationis). j
The same A rticle, however, amends Art. 71 of the |
Civil Code as to the exceptions to the rule of lex lo ci I
celebrationis. For w hile A rt. 71 of the Civil Code excepts |
therefrom only bigamous, polygamous, and incestuous |
marriages as determined by Philippine law, the above |
A rticle excepts all those void under Articles 35(1), (4), (5), I
and (6), 36, 37, 38 and applies the rule of lex lo ci |
celebrationis only to foreign marriages solemnized in |
accordance w ith the form al requirements o f the countries |
where they were celebrated but otherwise valid under the |
Family Code. |
In other words, a foreign marriage, although valid in |
the country of celebration, w ill still be void in the |
Philippines if: |
(1) Either or both parties did not have the legal |
capacity to get married {Art. 35(1)). |
(2) The marriage is immoral for being bigamous or |
polygamous (Art. 35(4)). |
(3) Consent of one party is lacking because o f |
m istake as to the identity o f the other (Art. |
35(5)). I
(4) One of the parties w as psychologically |
incapacitated at the tim e of the marriage to |
com ply w ith the essential marital obligations (Art. I
36)); ^ ^
(5) The marriage is incestuous (Art. 37); or
 A rt 26 31

(6) The marriage is void by reason of public policy (Art.

38.)

A rt, 26 on the v a lid ity o f fo re ig n m arriages applies,

however, only to Filipinos. Foreign marriages of foreigners or of
a Filipino and a foreigner are governed by the rules on Conflict
of Laws.

Effect of divorce obtained abroad bv an alien from his or her

FiltDlno spouse:

Under the second paragraph of the above Article, where a

Filipino is married to a foreigner and the latter thereafter obtains
a valid divorce abroad capacitating him or her to remarry, the
i Filipino spouse shall likewise have the capacity to remarry under
Philippine law.
This provision was not originally approved by the Civil Code
Revision Committee, but it was presented and approved at a
Cabinet meeting after Pres. Aquino had already signed the Family
Code as Exec. Order No. 209. Hence, the President promulgated
another Executive Order - No. 227 - amending Art. 26 of the
Code by including this provision as a second paragraph therein.
The idea of the amendment is to avoid the absurd situation
of a Filipino as being still married to his or her alien spouse,
although the latter is no longer married to the Filipino spouse
because he or she had already obtained a divorce abroad which
is recognized by his or her national law.
The new provision is also Intended to solve the problem of
many Filipino wom en w ho, under the Civil Code, were still
considered married to their alien husbands even after the latter
had already validly divorced them under their (the husbands')
national laws and perhaps have already married again.
Note, however, that the above provision does not apply to
a divorce obtained by a Filipino abroad from his or her Filipino
spouse, which divorce is void because divorce is not allowed in
this coun try, and a Filipino is governed by his national law
wherever he goes (Art. 15, Civil Code).
Neither was this provision intended to apply to divorces
obtained by Filipino citizens abroad after they have become
naturalized in foreign countries, for to do so would open the
32 Art. 26

door to wealthy Filipinos' obtaining naturalization abroad only to

be able to divorce their Filipino spouses.

Effects of foreign divorces obtained by alien spouses of Filipinos.

(1) In Van Dorn v. Romillo, 139 SCRA 159 (1 9 8 5 ),

Richard Upton, Am erican husband of Alice Reyes,
obtained a divorce from Alice in Nevada, U.S.A. Later,
he came back to the Philippines and claimed that a
business w hich he and Alice acquired during their
cohabitation was conjugal and that the latter should
render an accounting thereof which he should then be
allowed to manage. The Supreme Court held that the
divorce obtained by Upton from Alice released the
latter from their marriage, and that Upton had no legal
s ta n d in g to sue A lic e as he w as no lo n g e r her
husband.
(2) Sim ilarly, in PHapH v. Ibay-Somera, 174 SCRA 653
(1989 ), the High Court held th a t the alien husband
had no legal standing to charge his former Filipino wife
w ith adultery after he had divorced the latter abroad,
for their marital bond had already been severed by said
divorce so th a t he could no longer be an offended
spouse.

R ecent decisions on fo rm e r F ilipinos w h o , a fte r becom ing

naturalized citizens abroad, divorced their Filipino spouses:

(1) Llorente v. C.A. and Llorente. GR 124371, Nov, 23,

2000
Llorente, then Filipino, joined the U,S. Navy in
1927, In 1937, he married Paula in the Philippines. In
1943, he was naturalized a U.S. citizen. On his return
to the Philippines, he found Paula pregnant and living
with his own brother. When he went back to the U.S.,
he divorced Paula and later m arried A licia . When
Llorente died in 1985, Paula claimed to be his widow
and heir, alleging that the divorce obtained by Llorente
abroad was void.
The Supreme Court, how ever, applied the Van
Dorn and Pilapil decisio ns (id.) and held th a t as
Art. 26 32 (a)

Llorente was no longer a Filipino when he divorced

Paula, the nationality principle did not apply to him
anymore and that we should already recognize said
divorce as a matter of comity.
(2) Republic v. Orbecido. GR 154380, Oct. 5, 2005
Orbecido and his w ife, Filipinos, got married in
Ozamis City in 1981. In 1986, Orbecido's wife left for
the United States with their only son and a few years
later was naturalized an American citizen. Thereafter,
she married again in California.
Learning of his w ife 's divorce and remarriage in
the U.S., Orbecido filed with the trial court a petition
for authority to remarry, invoking Art. 26, par. 2, of
the Family Code. The petition was granted, but the
Republic through the OSG appealed directly to the
Supreme Court on a question of law, claiming that the
second paragraph of A rt, 26 of the Family Code
applies only to a mixed couple.
The Supreme Court, conceding that the provision
in question on its face does not appear to govern the
case at hand and seems to apply only to cases where
at the time of the celebration of the marriage, the
parties were a Filipino and a foreigner, and that the
deliberations of the Committee on the Family Code
show ed th a t it was intended to avoid the absurd
situation where a Filipino spouse remains married to
the alien spouse, who after obtaining a divorce, is no
longer married to the Filipino spouse, HELD, however,
th a t taking into consideration the legislative intent
behind said provision and applying the rule of reason,
said provision should be interpreted to allow a Filipino
citizen who has been divorced by a spouse who had
acquired foreign citizenship and rem arried, also to
remarry.

(3) Ren, v. Ivov. GR 152577, Sept. 21, 2005

In this Cose, the Filipino wife obtained a divorce
from her Filipino husband in the U.S., then acquired
U.S. citizenship, after which she remarried an American
in the U.S. On the question of whether the Philippines
32 (b) Art. 26

should recognize said divorce under Art, 26 par, 2 of

the Family Code, the Supreme Court held categorically
that the provision in question, by its plain and literal
in te rp re ta tio n , ca n n o t be applied to the d ivo rce
obtained by a Filipino wife from her Filipino husband
while she was still a Filipino and thus governed by
Philippine laws, which do not recognize divorce.

(4) Author's comments on the above-quoted decisions:

The undersigned author was the one who drafted
the provision in question, having been asked by the
C om m ittee to do so because she was (and is) a
professor of Conflict of Laws. Indeed, said provision
was intended to solve the case of Filipino wives who,
after having been abandoned by their alien husbands
and divorced by them abroad, were still considered
married under our law because we do not recognize
divorce. With this provision, they may now also marry
again.
W ith all due respect to the Supreme Court, the
undersigned author does not agree with Its decision in
the Orbecido case above-cited. She would also allow
Orbecido to remarry after his former Filipino wife had
left him, became naturalized as an American, and even
remarried, but not under the second paragraph o f Art,
2 6 w h ic h was in te n d e d to a p p ly on ly to m ix e d
couples. The Supreme Court should have sustained
Orbecido's right to remarry under the rules in Conflict
o f Law s, since to recogn ize the fo re ig n d ivo rce
obtained by his former Filipino wife against him would
do justice to him as she was no longer married to him
and is no longer governed by Philippine law. In Conflict
of Laws, if the foreign law and the foreign judgment
would give justice to a Filipino citizen and there is no
express provision in our law to the c o n tra ry, we
should recognize the foreign law and foreign judgment
by way of com ity. The Supreme Court should have
followed the Llorente decision in this case, rather than
apply a provision of the Family Code that clearly and
literally, is not applicable to this case.
Art. 27

CH APTER 2

MARRIAGES EXEMPT FROM THE

LICENSE REQUIREMENT

Preliminary Statement:

The marriages covered by this Chapter are the so-

called "exceptional marriages" under Arts. 72 to 79 of the
Civil Code o f the Philippines. Such marriages are not really
"exceptional" in the sense o f being extraordinary, how ever,
because w h a t makes them different from other marriages is
only the fa ct that they are exempted from the required
marriage license. To correct the misnomer, the Family Code
refers to them as "marriages exem pt from the license
requirem ent", w hich is actually w h a t they are.

Art. 27. In case either or both of the contracting

parties are at the point of death, the marriage may be
solemnized without the necessity of a marriage license and
shall remain valid even if the ailing party subsequently
survives. (72a)

(1) The marriage referred to in this A rticle is the

marriage in articu/o mortis) i.e., one or both o f the
contracting parties are dying or at the point of
death. In such case, there is no need for a
marriage license because obviously, the dying
party w ould already be dead by the tim e the
license is issued.
(2) W hat happens if the dying party survives or
recovers? A rt. 72 o f the Civil Code, w h ich is the
source o f this Article, does not provide for such a
situation. The above Article, however, expressly

33
34 Art. 28

provides that the marriage remains valid even if

the ailing or dying party survives or does not die.
(3) The marriage in this case may be solemnized by a
priest or a minister of any religious sect, a judge,
or any of the persons referred to in Arts. 21 and
32 in the special cases covered by said Articles.
(4) "At the point of death" must be distinguished
from "in danger of death". A member of the army
who takes part in a military operation against the
NPAs or the Muslim insurgents may be "in danger
of death" but not "at the point of death."
>
Art. 28. If the residence of either party is so located
that there is no means of transportation to enable such
party to appear personally before the local civil registrar,
the marriage may be solemnized without the necessity of a
marriage license. (72a)

This Article covers marriages In remote or distant

places formerly governed by Art. 72 of the Civil Code.

Art. 72 of the Civil Code has, however, been

amended by this Article as follows:
(1) While Art. 72 of the Civil Code applies only if the
female resides more than 15 kilometers from the
municipal building, the above Article applies
whether it is the male or the female who lives in
a remote or distant place.
(2) The above article does not specify the distance of
the residence of either party from the municipal
building. All that is required is that the residence
of either party be so located that there is no
means of transportation to enable such party to
appear before the local civil register.
(3) Art. 72 of the Civil Code requires that there
should be no railroad or provincial or local
highways between the party's residence and the
municipal building. The above Article has
Art. 29 and Art. 30 35

eliminated this requirement and provides instead

that there must be no means o f transportation to
enable a party to personally go to the office of
the local civil registrar, which is usually in the
municipal building. In other words, if such party
can reach the municipal building by boat or cart
or even by just riding on an anima) like a horse,
carabao, or cow, he or she is not exempt from a
marriage license although there may be no roads
or railroad in their place.

Art. 29. In the cases provided for in the two

preceding articles, the solemnizing officer shall state in an
affidavit executed before the local civil registrar or any
other person legally authorized to administer oaths that the
marriage was performed in articulo m ortis or that the
residence of either party, specifying the barrio or barangay,
is so located that there is no means of transportation to
enable such party to appear personally before the local civil
registrar and that the officer took the necessary steps to
ascertain the ages and relationship of the contracting
parties and the absence of a legal impediment tc the
marriage. (72a)

Art. 30. The original of the affidavit required in the

last preceding article, together with a legible copy of the
marriage contract, shall be sent by the person solemnizing
the marriage to the local civil registrar of the municipality
where it was performed within the period of thirty days
after the performance of the marriage. (73a)

(1) The affidavit of the solemnizing officer required by

this Article takes the place of the marriage license
and constitutes an assurance that the parties are
of the proper ages and that there is no
impediment to their marriage.
(2) But lack of this affidavit does not invalidate the
marriage in articulo m ortis (Loria v. Felix, June 20,
1958, 104 Phil. 1). .
56 Arts. 31, 32 and 33

(3) No particular form of the marriage in articulo

m ortis is required. The law as much as possible
intends to give legal effect to the marriage. (Cruz
V. Catandes. CA, 39 O.G. No. 18, p. 324).
The failure of the solemnizing officer to
comply with this requirement will not also
invalidate the marriage.

Art. 31. A marriage in articulo m ortis between

passengers or crew members may also be solemnized by a
ship captain or by an airplane pilot not only while the ship
is at sea or the plane is in flight, but also during stopovers
at ports of call. (74a)

See comments under Art. 7, supra, on ship captains

or airplane chiefs.

Art. 32. A military commander of a unit who is a

commissioned officer, shall likewise have authority to
solemnize marriages in articulo m ortis between persons
within the zone of military operation, whether members of
the armed forces or civilians. (74a)

Also see comments under Art. 7, supra, on military

commanders of a unit.

Art. 33. Marriages among Muslims or among members

of the ethnic cultural communities may be performed validly
without the necessity of a marriage license, provided that
they are solemnized in accordance with their customs, rites
or practices. (78a)

The similar provision of the Civil Code (Art. 78

thereof) requires that the Muslims or pagans should live in
"non-Christian provinces" before the provision could apply.
But this Article eliminates such requirement in order not to
limit the application of the provision. In other words, as
long as the parties are Muslims or members of other
cultural minorities, their marriages are exempt from the
requirement of a marriage license if performed in
 Art. 34 37

accordance with their customs or practices even if such

marriages are held outside non-Christian provinces.

Art. 34. No license shall be necessary for the

marriage of a man and a woman who have lived together
as husband and wife for at least five years and without
any legal Impediments to marry each other. The contracting
parties shall state the foregoing facts in an affidavit before
any person authorized by law to administer oaths. The
solemnizing officer shall also state under oath that he
ascertained the qualifications of the contracting parties and
found no legal impediments to the marriage. (76a)

Requisites for Application of Article:

(1) The man and woman must have been living

together as husband and wife for at least five
years before the marriage;
(2) The parties must have no legal impediment to
marry each other (for example, they are not first
cousins).
(3) The fact of absence of legal impediment between
the parties must be present at the time of the
marriage.
(4) The parties must execute an affidavit stating that
they have lived together for at least 5 years.
(5) The solemnizing officer must also execute a
sworn statement that he had ascertained the
I qualifications of the parties and that he had found
I no legal impediment to their marriage.
I
I Reason for the Provisions:
%
j The reason for the above provision is the same reason
I behind Art. 76 of the Civil Code; i.e., that "the publicity
I attending the marriage license may discourage such persons
I from legalizing their status" {Report of Code Com., p. 80).
j Besides, the marriage of the parties will result in the
I legitimation of natural children born to them during their
I cohabitation.
38 Art. 34

Effect of False Affidavit of the Parties:

If the parties falsify their affidavit in order to have an

instant marriage, although the truth is that they have not
been cohabiting for five years, their marriage will be void
for lack of a marriage license, and they will also be
criminally liable.

Ninal v. Bavadoa. GR 1 3 3 7 7 8 . March 14. 2000:

(1) In the above decision, the Supreme Court held

that cohabitation for five years under Art. 34
should be in the nature of a perfect union that is
valid under the law but rendered imperfect only
by the absence of the marriage license. Since the
husband had a subsisting marriage at the time he
started cohabiting with respondent, such
cohabitation cannot be as "husband and wife" and
they were not, therefore, exempt from a marriage
license when they got married.
This author begs to disagree with the above
ruling, because the reason for the exemption from
the marriage license in Art. 34 of the Family Code
(which was taken from Art. 76 of the New Civil
Code) is only to save the parties from the
publicity attendant the application for marriage
license, as it might discourage them to legalize
their union. Hence, it is enough that the parties
had no legal impediment at the time of the
marriage. {See Report of the Code Commission, p.
80; I Tolentino, Civil Code of the Philippines, p.
269).
(2) The Supreme Court likewise held in the foregoing
case that the death of the husband did not
preclude the heirs of the first marriage to declare
their father's second marriage null and void. The
reason is because the action to declare a marriage
void does not prescribe.
Art, 35

CHAPTER 3

VOID AND VOIDABLE MARRIAGES

Void and Voidable Marriages distinguished:

Void Mgrrigfle V fiidab le M arriaufl

1. As to nature: Inexistent from tim e Valid until annulled by

of perform ance com petent court.

2 . As to suscep­ Cannot be Can be convalidated either

tibility of convalidated. by free cohabitation or
convaiidation. prescription.

3 . As to effect No com m unity Absolute com m unity exists

on property: property; only co- unless another system is
ownership {Art. 1 4 7 ) agreed upon in marriage
settlem en t.

4 . As to effe c t Children are illegi­ Children are legitim ate if

on children: tim ate under Art. 1 65 conceived before decree of
(subject to exceptions) annulm ent.

(a) M ay be attacked (a) Cannot be attacked

directly or collaterally, collaterally, only directly:
but for purpose of i.e, there m ust be decree
5, As to how
rem arriage, there must of annulm ent.
marriage may
be judicial declaration
be impugned:
of nullity. (A rt. 4 0 ).
(b) Can still be (b) Can no longer be
impugned even after impugned after death of
death of parties. one of the parties.

Art. 35. The folio wing marnages shall be void from

the beginning:
(1) Those contracted by any party below eighteen
years of age even with the consent of parents or
guardians:

39 Vi-\
40 Art. 3 5

(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 a license, except those
covered by the preceding Chapter;
(4) Those bigamous or polygamous marriages not
falling 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.

Marriage of Parties Below 18 Years:

(1) The marriage Is void even if the parties had

parental consent because the essential requisite of
legal capacity of the contracting parties (Art. 2
(1)) is lacking.
(2) The marriage is void whether only one or both of
the parties are below 18.

Solemnized bv Person with No Authority:

(1) Refer to comments under Arts. 7, 10, 31 and 32.

(2) The marriage is, however, valid If either or both
contracting parties had believed in good faith that
the solemnizing officer had legal authority.
(a) The belief of one party would suffice.
(b) "Good faith" means after reasonable inquiry and
investigation.

Solemnized Without A Marriage License:

This Is subject to the exceptions in the preceding

chapter of this Code.
r-

Art, 35 47

Riqamous or Polygamous Marriage:

(1) An exception is the bigamous, voidable marriage

under Art. 41 (where one of the spouses is an
absentee).
(2) Here, the good faith of either party is immaterial,
unlike in Art. 69 of the Civil Code of Spain which
was never enforced in the Philippines but which
was applied by Supreme Court in several old
cases (Inestate Estate of Benito Marcelo, 60 Phil.
442; Pisalbon v. Bejec, 74 Phil. 88; Lao v. Dee
Tim, 45 Phil. 739; Sy L o g Lieng v. Sy Quia, 16
Phil. 137).

Contracted Through Mistake of One Party as to identity of

the Other

(1) Under the Civil Code, this constitutes fraud and is

a ground only for annulment of marriage {Art. 86
(1)), so that the marriage is still valid until
annulled. The Committee is of the belief, however,
that if there was a mistake on the part of one
party as to the identity of the other, there was
really no consent to the marriage on the part of
that party and the marriage is thus void ab initio.
(2) Examples:
(a) A was in love with B and the two decided to
get married. At the wedding ceremony,
however, it was C, the twin brother of 8,
who appeared and who actually got married
to A without the latter's knowledge, The
marriage is void.
(b) A and B agreed to get married but at the
wedding ceremony, another woman who was
heavily veiled appeared and actually got
married to A. The marriage is also void.
(3) In other words, the mistake here is with regard to
the physical identity of one of the parties and not
with regard merely to the character, health, rank,
42 Art. 3 6

fortune, or chastity of one party to the marriage.

That is, there was a substitution of another party
for the party who agreed to the marriage, without
the knowledge of the other contracting party.

Enumeration of Void Marriages in this Article Not Exciusive:

The enumeration of void marriages in this Article is

not, however, intended to be exclusive, as there are
marriages which lack any of the essential or formal
requisites of marriage under Arts. 2 and 3 and are void
even if this Article does not include them, like marriages in
jest, common-law marriages, marriages by proxy, etc. A
second marriage without complying with Art. 52 (delivery
of the presumptive legitimate of the children of the
annulled marriage or the marriage that was declared void
ab initio) is also null and void under Art. 53.

Art. 36. A marriage contracted by any party who, at

the time of the celebration, was psychologically
incapacitated to comply with the essential marital
obligations of marriage, shall likewise be void even if . such
incapacity becomes manifest only after its solemnization,
(n) (as amended by E.O. No. 2 2 7 , dated July 17, 1987).

Provision is New and Taken from Canon Law:

This Is a new provision which was taken by the

Committee from par. 3 of Can. 1095 of the New Code of
Canon Law which took effect on November 21, 1983,
reading:
"M atrim onial C onsent"
Can. 1095. The following are incapable of contracting
marriage:
1. Those who lack sufficient use of reason;
2. Those who suffer from a grave lack of
discretionary judgment concerning the essential
matrimonial rights and obligations to be mutually
given and accepted;
 Art. 3 6 43

3. Those who, because of causes of a psychological

nature, are unable to assume the essential
obligations of marriage."

The Committee decided to adopt the third paragraph

of the above provision of the New Code of Canon Law as
a ground for declaration of nullity of marriage for the
following reasons:
(1) As a substitute for divorce. Divorce being very
ii:
controversial and would surely be strongly
opposed by the Catholic Church, it was decided
to draw from Canon Law Itself on a ground that
ISl does not conflict with the traditional civil law
concept of voidable marriages.
(2) As a solution to the problem of Church-annulled
ii marriages: There are many marriages that have
already been annulled by the Catholic Church but
still exist under the civil law. This provision would
give many parties to church-annulled marriages a
cause of action to have their marriages declared
void by the civil courts.
(3) As an additional remedy: The provision would also
give a remedy to parties who are imprisoned by a
marriage that exists in name only as they have
long separated because of the inability of one of
them to perform the essential obligations of
marriage.

Psvcholoatcal tncapacitv Distinguished from Vice of

Consent:

Psychological Incapacity has nothing to do with

consent to marriage. A person might have given free and
voluntary consent to a marriage (that is, his m ind knew
what marriage is all about and all the rights and obligations
arising therefrom), but his will may not be capable of
fulfilling such rights and obligations. Hence, psychological
incapacity is not a question of defective consent but a
question of fulfillment of a valid consent.
44 Art. 36

Psychological Incapacity Distinguished from Insanity:

Mental incapacity or insanity of some kind, like

physical Incapacity, is a vice of consent, while
psychological incapacity is not a species of vice of
consent. As already stated a person might have given valid
consent to a marriage, but because of a psychological
disorder in his make-up, he is unable to assume the
essential obligations of marriage.

Furthermore, insanity or mental incapacity:

(1) May be of varying degrees;

(2) Is curable, being an illness; hence, the marriage is
capable of ratification or convalidation;
(3) Has lucid intervals;
(4) Is a ground only for annulment of marriage in
many countries.

Why Were No Examples of Psychological Incapacity Given

in this Article?

The Committee did not give any examples of

psychological incapacity for fear that the giving of
examples would limit the applicability of the provision under
the principle of ejusdem generis. Rather, the Committee
would like the judge to interpret the provision on a case-to-
case basis, guided by experience, the findings of experts
and researchers in psychological disciplines, and by
decisions of Church tribunals which, although not binding
on the civil courts, may be given persuasive effect since
the provision was taken from Canon Law.

Psychological Incapacity Must be Present at the Time of

the Marriage:

To be a ground for declaration of nullity of marriage,

the psychological incapacity of either party to comply with
the essential marital obligations must already be present at
the time of the marriage, although it might have become
manifest only after the marriage.
A ft 36 45

Father Gerard Healy, S.J., whom the Committee

consulted on this matter, gave the example of a man or a
woman who, after the marriage and after having a child,
cracks up under the heavy responsibility of being a parent.
Father Healy said that this proves that the psychological
weakness or disorder in that person's character or make-up
has always been there all the time, for if having children
would cause a person to crack up, this world would be
filled with disturbed people.

Is the Psvcholoqicallv Incapacitated Person Disaualified from

Marrvinq Again?

According to Father Healy, the Church does not

impose an absolute prohibition for a person proven to have
a psychological defect to marry again because he or she
ryiay get the right partner who understands his problem. He
says that a person with psychological incapacity may be all
right for B but not for C because the former relationship
compensates while the latter aggravates the problem.
The Committee also believes that there is no need to
disqualify the psychologically incapacitated from contracting
another marriage because the fact of his psychological
incapacity for marriage would be revealed anyway when he
applies for a marriage license for the second marriage and
the other party is thus placed on guard to conduct discreet
investigation about the matter.

Guides to interpretation of term "Psvcholoqical Incapacity"

Dr. Gerardo Ty Veloso, former presiding judge of Br, 1

of the Metropolitan Marriage Tribunal of the Catholic
Archdiocese of Manila, in his booklet on the accepted
grounds for church annulment of marriage, states that
aside from the already classical neuroses, psychoses, and
other personality disorders known to psychologists that
render a person psychologically unfit to assume and
perform the roles of marriage, the following grounds may
be mentioned as more familiar to laymen:
46 Art. 36

(1) homosexuality in men or lesbianism in woman

{attachment to the same sex for sexual
fulfillment);
(2) satyriasis in men or nymphomania in women
(excessive and promiscuous sex hunger);
(3) extremely low intelligence,
(4) immaturity; i.e., the lack of an effective sense of
rational judgment and responsibility, otherwise
peculiar to infants {like refusal of the husband to
support the family or excessive dependence on
parents or peer group approval);
(5) epilepsy, with permanently recurring mal-adaptive
manifestations;
(6) habitual alcoholism, or the condition by which a
person lives for the next drink and the next drink
and the next drink; and
(7) criminality, or the condition by which a person
consistently gets in trouble with the law or with
socially established norms of conduct.

Furthermore, based on dialogues with Father Healy

and another expert on church annulments, Archbishop
Oscar Cruz, the Committee gathered the information that
psychological incapacity to discharge the essential
obligations of marriage may also be made manifest:

(1) by refusal of the wife to dwell with the husband

after the marriage without fault on the part of the
latter or to have sex with the husband or to have
children;
(2) when either party or both of them labor under an
affliction that makes common life as husband and
wife impossible or unbearable such as compulsive
gambling or unbearable jealousy on the part of
one party or other psychic or psychological causes
of like import and gravity; and
(3) in manifestations of sociopathic anomalies in
husbands like sadism or infliction of physical
violence on the wife, constitutional laziness or
 ■ cn! Hindolence, drug dependence: or; addiction^ ior soma
D h -Hr-kind; of psychosexual anomalY. ci . ; ■ > : ^

As to the general characteristics. of,, psychioj^

incapacity, Dr. Veloso adds that it must exhibit gr/'awi/,
antecedencer and inP^K^bilip/hWK^vlty^, uf th e ;subject^.car)f)ot
carry out the normal and ordinary duties of marriage and
farriily ishouldered ■by any average^ couple existing* under
ordinary'^cirbumstahce^>6f^ lif e - work; - a/7fetecye/7Cei; if
thW‘roots of the trbuble can be ^traced ^t^ history of the
subject- before rnarriagie althbugh its ^overt manifestations
appear only after the wedding; ^ n d incurability^
treatments required exceed the ordinary means of the
Subjedtr'br involve time ^^anb expens^^^^
the subject.

Who Can File the Action Declare the liilarrlade Void?

" Eith'e^^^ l^ a rtY r'''’iVe^ - ' eveh ' psychologically

incapacitated can file' th e ' actibh; ' ' ., : / r

Does thiei "Actibri to Declare the Marriage Void under this

Article Prescribe?

Like any action for declaration of nullity of marriage,

thetaction Under nhis vArticle does rnot prescribe. While an
annendmeht Ctb' the cFarriily Goder^made by; E .0 . 277 for
rharriages solemnized before :uthe:;(effectivity of this Code
provided'th^t the action : or?: defensej^for the declaration of
nullity 'of marriage under ithis Article prescribed in ten years
after this Cbde became: effective:,on August 3, 1988 {Art.
39)!'still latet;^ R.A. :8 5 3 3 nowortiakes all actions under this
Article imprescriptible.'

Action for Annulment of Marriaae Mav Also Be Fifed in

Propei* Case's:

If the case can be made to fall under any action for

annulment of marriage and such action has not yet
prescribed/an action for annulment of marriage may be filed
instead of an action for declaration of nullity of rnarriage
48 A n. 36

under this Article. Such an action would be more

advantageous to the aggrieved spouse, as the marriage,
being considered valid until annulled, will have all the
effects of a valid marriage.

W hat is the Status of the Children Under this Article?

The children conceived or born before the decree of

nullity of marriage are considered legitimate (Art. 54). This,
together with children born of the subsequent marriage
under Art. 53, are exceptions to Art. 165 defining
Illegitimate children.

How Should the Properties acquired bv the Parties be

Disposed of After the Marriage is Nullified?

The "family home" and all their common property shall

be divided between them in equal shares, since the
liquidation and partition of said properties are governed by
the provisions on co-ownership, not by Arts. 50, 51, 52,
in relation to Arts. 102 and 129, of the Family Code
{Valdes V. RTC of Q.C., GR 122 749, July 31, 1996)

Existing Jurisprudence under Art. 36:

(1) In the case of Leouef Santos v. C.A. and Julia

Rosario Bedia-Santos, GR No. 1 1 2 0 1 9 , decided
by the Supreme Court e/? banc on January 4,
1 995 (J. Vitug, ponente), Art. 36 of the Family
Code was Interpreted by the High Court for the
first time. After quoting this author on the
reasons why the Committee did not give examples
of psychological Incapacity, the High Court among
other things held:
(a) The jurisprudence under Canon Law on the
subject prevailing at the time of the Code's
enactment cannot be dismissed as impertinent
for Its value as an aid to the Interpretation or
construction of the coda! provision.
 Art. 3 6 49

(b) Looking at the authorities cited (by the High

Court) and the deliberations o f the Code
Revision Com m ittee on the subject, the use of
the phrase "psychological incapacity" In Art.
36 o f the Code -

'has not been meant to comprehend all such

possible cases of psychoses as, likewise
mentioned by some ecclesiastical authorities,
extremely low intelligence, tmmaturity, and like
circumstances xxx. Article 36 of the Family Code
cannot be taken and construed independently of,
but must stand in conjunction with, existing
precepts In our law on marriage. Thus correlated,
'psychological incapacity' should refer to no less
than a mental (not physical) incapacity that causes
a party to be truly incognltive of the basic marital
covenants that concomitantly must be assumed
and discharged by the parties to the marriage
which, as so expressed by Article 68 of the
■ Family Code, include their mutual obligations to
live together, observe love, respect and fidelity,
and render help and support. There is hardly any
doubt that the intendment of the law has been to
confine the meaning of 'psychological incapacity'
to the most serious cases of personality disorders
clearly demonstrative of an utter insensitivity or
inability to give meaning and significance to the
marriage, xxx"
Until further statutory and jurisprudential
parameters are established, every circumstance
that may have some bearing on the degree,
extent, and other conditions of that incapacity,
must, in every case, be carefully examined and
evaluated so that no precipitate and indiscriminate
nullity is peremptorily decreed. The well-considered
opinions of psychiatrists, psychologists, and
persons with expertise in psychological disciplines
might be helpful or even desirable."
50 Art. 36

■'Ji" ( c ) ' \ T H U s ; - ' fa c t' ^Hat respondeht -^ left her

: :n; j '^husband^and 'baby two years after her marriage to
fo : ■>'woirk-'Ws^ a^'nurse irt'the U.S. and-never returned,
' ^nd •that^'h^r-'husbahd' desj3erat6ly to locate
her in the U.S. but -all his efforts to find her
failed, were considered by the High Court not
' ’ ^uf^icifertt'^ ’ fdr ^'th¥' wife to / ‘be considered
/'psycholb^ic^^ in'capacitated" Under Art. 36 of
!! ! ' ^he ^ recognized that
"" „ '' '‘ petltbW^'r '■husband ' Had b'eeri' aiggrieVed, but held
' V ‘ th^’f factual" setting of hife’ case does not come
' ' " 'cld^e' ^ retjuire^ to declare a nullity
of "ttiafi^i'^fe:’^''"’'' '■
;(2)i J h e abpY,^ decision,of,the^^ Court,was followed by
Ming^iXspi i!y,.;i;:'CjA.],.3 nd:, La-Tsoi, GR No.
k a1 T9:1^Q/iJan.o\1i6yQl>097> .vyherein the Court held that
byfr>:j>^Jthe;^^senselessi;anduprotracted refusal of one of the
:.p: hi^artifes" ^Of ^sexual ^cooperation ,foriithe procreation of
^thifdren'-is'eqUfvalent toepsycho!ogicaI incapacity. In
^^'!th[is-'casd/‘^here''vvas - nG^^Siexual^^boh^ between the
'■^‘ ""•paftii^s'Since'tK^ bn ’ May 22' 1988 up to
vr;o for^aimbst
0; n:-!30 wjiii ofij VO ■;r;9'T!br;i;i.fni yri? :h:. r:] ?ds.-:;;b
'viicBC}^;ani ’nhe>HighvGpurt alsO;;rw!:edj,in thisfipase that either
aiabicspousfe^'may} flleathe) action^ tOj-declarei the marriage
V•:vdid>-evenithe psyGhologically-ineapacitated.

(3) Later, in Republic v. jwo/ma,^. Feb. 13,

1,9 9 ^ ,,26§.,SC R ^ Court found from
ioa-/ith£;i^vid,^n^^ psychological
;^o,p-incapjaci]:y o /ijth ^ husband but
,viioi-!:ro.Qre a;,Tdifticui^"J^,nptou^^ or "neglect"
briB !:innthe.perform.anc©jofySpme,.r^ duties,:and that the
:>;r^r Jrrevldericie'mereJV'jshpws; that thes parities .could not get
by ;e>;i.aiong^^vwlth . eachobotheriirnHence, yjthe: petition for
‘ decl^r^tion-of nullity-ofa rnarriagenfiledo by petitioner-
•'^'■^‘■<vi^e‘wbs’' d e n i e d . n & q - : -no:V:
'' .0;di': :'L: r-OV'• >0 ;
 ||S
M Art. 3 6 51
t
f (4) Still later, in Marcos, v. KlVlarcos,; GP; 136 4 9 0 ,
* O ctoben.19,, 20 0 0 , 343 SCRA 755, while the
High Court , was sufficiently b,convinced that
respondent husband failed to , provide material
support to the .family ; and might <h ^ e resorted to
physical abuse andv.abandpnment, jt held that the
totality of his acts did not-lead to the conclusion
. of psYcbqIpgical incap^ci^Y on^ his part. The Court
.^.3 / v^IsO; rujed. that there,. ;y^as absolutely no showing
- that tfie hMsband's-"defeiGts", present
at the inception of the marriage;: pr> that they were
, incurable. ,

Gijideiines in applying ain'd ihtei^Ijretmg AVtl 36:

(1) W hether one- 3 uj;spousev.J ’is : psychologically

f ; .. - incapacitated should^ be im m ediately deterrnined as
^f ’^t[^ere the
i.'i =r o f th e .^ e tiiiq n and rp r^ agony
‘V w ^ d d e d ^ ' right to
J " ^ a ’ IxepewecI bljss^^ in the
■; r " . ' j co m l& n y ' o f each ^^otHec (SaiitaV v^ Mag'tolis, 233

(2 ) Wher6'^ the ;,x?sRP^ the

), ,,, 'p e iitip n j'b u f ^ was

Ir \ 1 -vX ^ f^^orneY'tp
.!■I j , ! ppt
r . ' ‘ {'' 'fa ta l' to'/fhe i v;ali'd\ty' of 1th e ' proceedings jh th e ’ trial
court (Tuason v. Court o f ..Appeals, 256 SCRA

,; oO\0f3 ) <|y^V^ p^^ b y '' Uustice

Panganiban, certain’ ' guida^ were ' also' set,
„. ^ among, them b,eing;-.i;hat .. .c.... ;
(aj
The root cause o f thiaif>syeh^(Qgic^
m ust be: (a) medically or cjinically identified,
:ri; bisr! {|jp^allfegedn-lh thi^'-bbrriplainty’V{c) ^sufficiently
i;na v^Mrsoijfi j3f5Veii^^by‘^fexfjert§;'’and- clearly explained in
snj !0:' !^>^-‘‘i^'the^deCisibhi^ : oi / c or.;
52 Art. 36

(b) The incapacity must be shown to be

medically or clinically permanent or incurable,
and relevant to the assumption of marriage
obligations. The illness must also be grave
enough to bring about the disability to assume
the essential obligations of marriage (Arts. 68
to 71 and 220, 221, and 225 , Family Code),
and the non-complied marital obligation(s)
must be stated in the petition, proven by
evidence, and included in the text of the
decision.
(c) Interpretations given by the National Appellate
Tribunal of the Catholic Church, while not
controlling or decisive, should be given great
respect by our courts.
(4) However, in the succeeding case of M arcos v.
M arcos, also penned by Justice Panganiban,
supra, the Supreme Court held categorically that
psychological incapacity "may be established by
the totality of evidence presented" and that "there
is no requirement that the respondent should be
examined by a physician or a psychologist as a
cond ition sine qua non for such declaration."
The Supreme Court also pointed out that Article 36 of
the Family Code should not be confused with a divorce
that cuts the marital bond at the time the causes therefor
manifest tnemselves, or with legal separation in which the
grounds as enumerated in Art. 55 of the Family Code need
not be rooted in psychological incapacity.

Note: For other recent Jurisprudence on this subject,

see A ppendix "F " o f this Handbool<.

Is the intervention of the Solicitor General necessary in

cases filed under Art. 36?

(1) In Republic v. MoHna, supra, it was held that the

trial court must order the prosecuting attorney and
the Solicitor General to appear as counsel for the
Art. 36 S3

State: that no decision shall be handed down

unless the Solicitor General issues a certification,
which will be quoted in the decision, briefly
stating therein his reasons for his agreement or
opposition, as the case may be, to the petition;
and that the Solicitor General and the prosecuting
attorney shall submit such certification within 15
days from the date thfe case is submitted for
resolution of the court.
(2) However, on March 4, 2003, the Supreme Court
promulgated a Resolution (effective March 15,
2003) approving the proposed Rule on Declaration
of Nullity of Void Marriages and Annulment of
Voidable Marriages, providing in te r alia as follows:
(a) The petitioner shall serve a copy of the
petition on the OSG and the Office of the
City or Provincial Prosecutor within 5 days
from its filing and submit to the court proof
of such service within the same period (Sec.
5, par. (4));
(b) The trial court may require the parties and the
public prosecutor, in consultation with the
Office of the Solicitor-General, to file their
respective memoranda in support of their
claims within 15 days from the date the trial
is terminated. The court may require the OSG
to file its own memorandum If the case is of
significant interest to the State. (Sec. id.).
(c) Once the case is decided, the OSG shall also
be served with copy of the decision (Sec. 19,
par. (2)).
(d) The decision becomes final upon the
expiration of 15 days from notice to the
parties, and entry of judgment shall be made
if no motion for reconsideration or new trial
or appeal is filed by any of the parties, the
public prosecutor, or the Solicitor-General
(Sec. 19, par. (3)).
 54 A rt, 37

,(e);-AnY aggrieved; party r or the; Sphcitpr General

may appeal from the decision,;by filing a
Notice of,Appeal within 15 days;from notice
of denial of the motion for reconsideration or
: I; new tripl {Sep,,;20»;;Par.i;(2)^ ivjr-n

. Art. Marriages, .betyyeep;;^ are

ince;stupusi: , andi void, fi^ptrielhe .b^ginriing,w hether the
relationship between the parjties be. I.egi^icnate jpr illegit

( i) 'Between aSidWhdahts^ M of any

(21' Betw^rV brother^* and srstei^sV W he^^ the full-

uk A/ ro lo
oB Qrn’jivok.! v
;, . (a) ; This .Article ;;^i^endS:-i^rt>.;;,81 ,:.of^^^ Code
y,l; void only
V ? ii^.r^3;;riages v.cb^tyyem .lascendants ^ and
i; . ; , ;;,j ^ ; d^sc6ncj3fits, of(;.3ny,;1(J6Qf^6 , ( 2 ) brothers
' of the
parties is legitimate or/Jllegitimate, since what
...... Js i ; , . .important
; ^
is>. V ' - th
>l ^
^ i.J U .the . parties.;
iv.J ib :!; i I0
are
, > close
(b) Under A rt., Bilv o f the .Civil Code, incestuo
^ , _,,^arriages^,|!ncl,ud^^^^^ collateral
. ’ ,,i . . . relatives , by ‘ >blood y . f o u r t h civil
V
.:,.>Cv.^
degree.,
h l j ; ' t ; ' i ! J
T he...above
5 !.! ; .
jA rtic e..does
b i I f! i .
not consider
, .. . , ^>\such^n[]arn^ge^s,,J^ (follpyving the trend
•. ,oO rI , , 'in'....' otheH O wf;l
‘"L..‘countries .1 wf^erein
' J .) . - r e ' K ; H : i i I t ! il
incestuous
marriages .extend only to those, between

‘
' d^hsidered vbid^ by' reaspo ^ public policy
under Art. 38.^ , ';' ''
^'"^'(c) 1ndestudU^‘marriage^''are^^^ almost
'*ijnlv^^ally''^'^ \^ r^ 6 H \'H c o n tra bonos
; :Ki " ^^>77ip/^y‘af^d’'V61d‘ ‘as^'|they''’^c human
' '' ' ’ hatijjre’; ''‘"'def^ad^ th 0'‘-^fiarnify/‘ and offend
-d^cfehcy‘and'-Vnbr^ls."!'
 Art 38 55
I' vq ; Art. 3 8; The; following marriages shalL be; void from
I
the beginning for ^reasons of public: policy : i ^ q :v
(1) Between collateral blood relatives, whether
;; A iegitirrrate ' or'illegitiriiateV up ' to the fourth civil
degree;-' A'' -
'0' (2) - Between step-|!>ar6nts-and
' (3) Between parehfs-iri'faw- and children-in-law;
(4)^ Betweeni tlie ' adbptirig- parent and • the adopted
child; ;v'iiri!nB va ;o "....n
9iij i (5) Bieiweert tHe^^^iirViving spouse of the adopting
gn ioo n oparerit'and the a d o f^ ^ i ;
jri; ' (6)' Bietvvfeen^ thy*'surviving^ spb the adopted
h O ;o thild^ ahd' the 'addJp^^ rl sj fo oj
(7) Between an adopted clitid and a l^gitirh^ child
Vof ^ t h ^ ^ a d b p t e i ^ ; - - v (j ;t;
(8) Between adopted Nchildi^eh of'^^'^ adopter;
^aovifoi^^i l;V!3;5f!00 (:0;:Uvnx) (;-0
wh ('9) i Bet ween'parties wh^re w ith ‘^he intention to
marry ih6 t^hefr/ killed that'otheV’ p^ spouse
orif; ^ or his-’Oirher ovvn spouse. (82^) ' ^
bru; 88 .hA) v/Gl-rii-rtn-.biirio
This Article , amends. Arts. >80. (6); 8 0 (7), and 81 of the
Civil Code: i;gi vvc;

marriages that are considered void by reason of 7pMblic

policy are the following:
' ' ^5‘'{fp''tRds0^'^h'e^ both''bontractiiig have
been found guilty of ■th¥''killth^ ' o f ^ of
^^^ither:,of_..the^„(/^rt. 80^(^));,^ ,
, ,ri (2) Those^-.between , stepbrothefs" and,,stepsisters {Art.
o'is, 8 a 4 p ; : , , o t e V ' ... ................
aThose D between aiStepfatherS’ andibistepdaughters,
?;uchejr:i9:andvstepmotherisjandi^tep9or)sii(vf^rt.o8:2jj(;1));
?:A :(;4) 5^THose; between il;he :adopting;'fa[therj or I mother and
Y^i bru> thiB'^dopted, bietweenJ^the' latter'iarifeikthe surviving
?rHs;,:cspous:^ ofy thea formei^irand between;'the former
ni jluas’and ii'the; survivingisspbusiBi of:> the latter: {Art. 82
n(2));f‘and -:o riO-,bi;rio -:M;r;erK;p;:;o
56 Art. 38

(5) Those between the legitimate children of the

adopter and the adopted (Art. 82 (3)).

The above Article of the Family Code amends Arts.

80, pars. (6) and (7), and 82 of the Civil Code.:
(1) by eliminating altogether the prohibition for
stepbrothers and stepsisters to marry {Art. 80 (7)
of the Civil Code), since they are not related
either by blood or by affinity;
(2) by transferring marriages under Art. 80 (6) of the
Civil Code (those where one or both contracting
parties have been found guilty of the killing of the
spouse of either or them) to par. (9) of the
Code's Article 38; and
(3) by adding to the list of void marriages by reasons
of public policy the following:
(a) marriages between collateral blood relatives,
whether legitimate or illegitimate, up to the
fourth civil degree (Art. 38 (1));
(b) marriages between parents-in-law and
children-in-law (Art. 38 (3)); and
(c) marriages between adopted children of the
same adopter (Art. 38 (8)).

Reasons W hy IVlarriaqes under Art. 38 are Against Public

Policv:

(1) Marriages between collateral blood relatives up to

the 4th civil degree;

Although these marriages are no longer

considered incestuous under Art. 37 for the
reason already stated before, they are still
considered void by the Family Code as against
public policy because of the known deleterious
effects of such marriages on the offsprings. As
established by scientific researches and by
experience, marriages between first cousins or
other close blood relatives usually result in
degenerate children or children born with organic
 57

defects like weak or retarded minds, deafness or

deaf-mutism, near-sightedness, etc., which births,
if occurring to a great extent, would weaken the
race {35 Am. Jur. pp. 256-2 66).

(2) Marriages between parents-in-law and children-in-

law:
While these marriages are not prohibited by
the Civil Code, the Committee believes that they
should not be allowed by reasons of public policy
because:
(a) It is offensive to one's sensibilities that a
father-in-law would marry a daughter-in-law
and a mother-in-law would marry a son-in-
law.
(b) It is scandalous for parents-ln-law to marry
their children-in-law because the custom
among Filipinos is to treat children-in-law just
like one's own children and the latter treat
I ' their parents-ln-law just like their own parents.
I-
(c) When there is a grandchild, there is a
confusion in the relationship between the child
of the father-in-law and that of the former's
son, as the children have the same mother.
(That is why in American law, the prohibition
arises only when there are grandchildren).
(d) It is a family tradition in the Philippines that
parents live with their children, unlike in the
U.S. where parents usually do not live with
their children.

(3) Marriages between adopting parent and adopted

child, between the latter and the surviving spouse
of the former, and between the former and the
surviving spouse of the latter:
These marriages are against public policy
because adoption creates the relationship of
parent and child by legal fiction, so that the
58 Art. 38

, ; , reasons prohibiting a, parent /from rnarrying a child,

; and a parent-in-law from marrying a child-in-law,
:;;;Vyill iapply. n O; vI

(4) Marriages between the leg^ child of the

. adopter and an^adppted chiW /c^
th e reason is again because adoption results
in , the legitimate child of the adopted and the
' 7 ’ ’ adopted phild b^ by legal
V ; .Besides, .these, 9N up
together under the same roof and.Jn^ same
fannily, so that it is immoral , and . scandalous that
^th^";shbuld b ^ ’allowed"td'm'arry;'ea^ after
vvG1-r; I ^^ tHfng the hriarri^geat)le ; ^ e ;'' '''; '

(5) Marriages between adopted children i of the same

■yiir^rn o : i a d o p t e r : - S ' id)
srii The reasohs are’ the^ s^mi^:ias No; (4) above.

i;;D!i ^ ^ 3 * ''iia g e s •iibetvyeen.. parties pwhere- one, with the

nQarry^v/^he ;,Qth^ ;Hi|l6d the other
' person's spouse dr his or her own.spouse:
PI iVjifSnprurTn a; ^'r'^n-r [0}

o'y; stating
’ 7 ‘’',expf-(5ss)y^ tnat^^ of killing

' marry the

o t h e r w h i'c ii reqiiirement does not appear in
Tsrii Ksniqqiliyilft ngi;) f'(6 y’b f ‘te'CiyiP^dodei'^lH^ o tfe words,
f ’* e^i!'ri5Ja Jsim^|e> Hbmicidey'' ribt' coHlHected with the
ri?;w ovii ^C'<mai^na^ei‘- w o i j[ d - b a r " '^ s u c h y marriage. In
fact, if the surviving ■’spouse 'of ^the victim of
K.>:.. ^ ,- f. I-agrees „tp, ..ipoarry.. .th ekiller, the
; to • navje^. latter,
"V ' whb'o'n his part can m a ^ for his
eriT O/'ii,- l e r r r i Q l s m ' o ;!i i
crime to the yvidow.and, children ,o f.h is victim .
V.-);!,.,,-. |^);,^Mnder„Art. {9^,ot,thje Family Code, there
r '' j:; case of
‘.’7 , fact^ killing
^ A rt? ^9 59

" cbmmitted’^iby^ parties to the

•10 a no ^^marna^^can-^tiie'Proved fhj^''civil case. Under
yjiihjri '^ ^ rtv ''8 0 f ' thef^^Civ however,
to o£ . '" cbhvlctibh-in a: criminal cds^ -iW* necessary.

Rfilattonships outside Arts. 37 and 38 Are Not Impediments

n O K i l V i . ; sc- '>f i I V i,K )^ X::v cir Vv-..!i

noiai\Otheribrelati6nsihipS^^notMnblu^efd in -A rts ;' 3 7 and 38

are’ not impe'diftientsiftt) rrt^friagep like:- of ir. riri •) ,;
io T '^ o t h ^ M h - la w '! a n ^ '^ s ^ ^
.u , j ^ '. gtepbVother' and stepsister;''' . ' '' ^
1 ry^I rt and
(3) Guardian -artW ward; *

00sh M ) I ^jdoptedi and^JJle,9 i^tinr^at§;rchi|d:, p f a d o p t e r ; . ,

ei?^sd(5);!)AdoptediYiSomi ?the:i rhusbahdiuj^andn adopted
epsir;^rri daughter df!itheoVVife^;^b Ini^rru^bA.ii io
(6) Parties who have been convicted of adultery' or
concubinage.
si ]! .oboD v/lijTii-jH orij ni ^iOi^ivo■iq vv:;)n i { ■/
j uj0 CArtii ^39.! tThe ^action- br j disfehisie-^ foi^' the declaration of
absolute ;nullitvn i of i i a i marriage^!'shall> hot pirescribe, (As
amended by Rep. Act Nb.i 8 5 3 3 approved bn February 23,
1998).bi':;:n aiorii iu6 v'MiMM'i ^'n
o K in c q Vjtli 5 ' i o t s f j io o i' d O ii i; iO ;'iOi7G iG io o b in io H )'J t
yQcirC/lO * ThisoArticlb, before Ito w as iam6nded by-Rep. Act
S 1>r ,'/V 8533;- >cincludedQ = ' provision' ' that'^ fdr^ ' 'marriages
V£ . Bi2i:Ge!ebrated ’obefofe the bffectivlty o f' the Family
, Sa a £ t r Cbde , (i iei:v - those^^ belebra tesd under tfre -^IVJe w C ivi I
s!!): bio ?CGde)i}?the;-‘actibn^'brid6fensei fbr* the dbbiiaration of
0j; rnon nullity >it>f aPnriiarrlagei^^Under A rt.'-^36' by"< reason of
o; v^;>;;;v theripsycholbgrcal!! iirtdisipfacity of-eithei^^spbuse shall
ihi"; c9 prescribe' in ten:jiyearsi'iafter^ thd bffbctivity of the
CodeCih 19B 800f .nr:OBiA ,v -iqcos
br;6 ^ ;:sk; b;iGonstdenrig, hbwevdfp thjat'^'mahy spouses
bi'j vX/ho could^'haW’ ia^cause'of Art. 36
y ]o’ > of th e'G b d e had failed to file-said action within
v f) aforementioned period of ten years, and to
: b !v!d give said spouses the opportunity to still file said
60 \ Art. 40

action, Congress passed Rep. Act 8 5 3 3 (approved

on February 23, 1998) making all actions ""or
defenses for the declaration of the absolute nullity
of a marriage, including those based on Art. 36 of
the Code, im prescriptible.
(2) Be it noted that Art. 39 of the Code as it reads
now is exactly the same as the original provision
thereof as drafted by the Civil Code Revision
Committee before it was amended by E.O. No.
227 of former Pres. Aquino after her approval of
the original draft of the Family Code under E.O.
209 dated July 6, 1987.

Art. 4 0 . The absolute nullity of a previous marriage

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

(1) This is a new provision In the Family Code. It is

in line with recent decisions of the Supreme Court
to the effect that although the marriage may be
null and void, the parties are not allowed to
assume its nullity but that there is need of a
judicial declaration of such fact before the parties
can marry again; otherwise, the second marriage
will also be void (Wiegel v. Sempio-Dly, 143
SCRA 499; Vda. de Conseguera v. GSIS, 37
SCRA 315; also Carino v. Carino, GR 132 569,
Feb. 2,, 2001). This provision changes the old rule
that where a marriage is Illegal and void from its
performance, no judicial decree is necessary to
establish its invalidity (People v. Mendoza, 95 Phil.
843; People v. Aragon, 100 Phil. 1033).
(2) However, if the second marriage took place and
all its children were born before the Wiegel case
and the Family Code, there is no need for a
judicial decree of nullity of the first marriage (Ty
V . C.A., GR 127 406, Nov. 27, 2000). But this
 A rt. 47 67

I Article applies to remarriages under the Family

Code; that is, it is retroactive (Atienza v. J.
I Brillantes, 243 SCRA 32).
(3) Thus, as held by the Supreme Court in Bobis v
f Bobis, 138 5 0 9 , July 31, 2 0 0 0 , and Landicho v.
Relova, 22 SCRA 731, parties to a marriage are
I not permitted to judge for themselves its nultity;
only competent courts have such authority. Prior
to such declaration, the validity of the first
marriage is beyond question. A party v\/ho
contracts a second marriage then assumes the
risk of being prosecuted for bigamy.
I (4) A marriage void for lack of a marriage license sti
( needs a judicial declaration of such fact under the
Family Code: even for purposes other than
remarriage {Rep. v. C.A. and Castro, 236 SCRA
257; Domingo V. C.A., 226 SCRA 572).
: . (5) Where a party marries again on the mere belief
that his/her spouse is already dead without filing
the summary proceeding required in this Article,
the second marriage is bigamous and void
(Navarro v. Domogtoy, 259 SCRA 29);
(6) indeed, this Article protects the spouse who,
believing that his/her spouse is already dead or
that his/her marriage is null and void, marries
again. VVith the judicial declaration of the nullity of
his/her marriage, the party who niarries again
cannot be charged with bigamy.
(7) For other recent jurisprudence on this subject, see
Appendix “F" of this Handbook.

Art. 41. A marriage contracted by any person during

the subsistence of a previous marriage shall be null and
void, unless before the celebration o f the subsequent
marriage, the prior spouse had been absent for four
consecutive years and the spouse present had a well-
founded belief that the absent spouse was already dead, in
case of disappearance where there is danger of death
 62 An>^
\
urider^ the circumstances- set foVth In Ithe provisions of
Article 391 bf the Civil Code, an absence of only two
years shall be sufficient. ^ A HO • > - v -in lu:
V : For r the icplirpose [I of ^ contracting scthe rSubsequent
marriage under; the 'preceding 'paragraph;; the spouse present
must; institute a ;summary iproceedirig provided in this isis
Code 1 for Iheio declaration opf [presumptive>qdeath of the
absentee; ; vvithout
prejudice too the neffectcof reappearance
of if he absent spouse. (83a) ; olhn: loob ri:
A . nr ; b Do y o d ci s;}rAnr;rn
Kindseof i Bigamous Marriages under sthis Article:: >

There are two kinds of biaamous marriages this

' ji ' ‘ iU -'lOl-’ l ii .'t [}!U V ;-i! j i ' ’ T ! ;
. .I--...,.
(1) The ypid bigamous marriage^ ^ is Contracted
j ;V‘ by a person^'during or her
preyipus m a r r i a g e o f the
party who mafnes' ^gain is immatei'iai; the second
;' "'hnarriag^'; wd^ b e' voi^:^'On th'e’ other hand,
/ ' ''tHe person ^ h o ’%arrie:s' 'ag^^^ is even
” cHm inaiiy'liable for''big^hhly^ and*'^ ^ ‘ ;
(2) The ypidable;;;:bigarri9 us.^r is
, . ppm , by ,a perspn,^ w spouse , has, been
. J atisent for ,f,our!' cpnse^ ordinary
■ .n absence) p r tw o years , (In e x tr^ rd absence
r,'^ ’ !;;i| , / under Art. . 391 of the ‘ Civil Code), said person
. I ^hiaving, ‘a well-founded belteV m his o( her absent
spouse w^as 'afready dead,^ a^ the
,latter judicially' declared^ dead in a
' isunimary' prbceedih ^'s; prbVided by the Code.

Above Article Comoared with Art. 83 of the Civil Code:

hn ^ J'd) Uhde^f^Art^;83:^of the^sCivii Code, ;:the>rsubsequent

marriage; is voidable: >• ^ ^ oH- >KAiK:
’ {a} '" Wheri''tiTe absent spouse Has nof been heard
of for seven consecutive years;
(b) when, although absent for less than seven
years, the absentee is generally considered as
Art. 41 63

dead and believed to be so by the present

spouse; and
(c) when the absent spouse is presumed to be
dead after four years from the occurrence of
any of the events enumerated in Art. 391 of
the Civil Code.

Under the above Article of the Family Code, however,

the period of 7 years (which is ordinary absence under Art.
3 9 0 of the Civil Code) is reduced to 4 years, and the
period of 4 years under Art. 391 of the Civil Code
(extraordinary absence) is reduced to 2 years, the reason
being that it is now much easier to receive news about
what is happening in other parts of the country or even
abroad because of modern means of communication and
transportation.
(2) Under the Civil Code, there is no need for the
missing spouse to be judicially declared an absentee before
the present spouse can marry again. It is enough that the
required period of absence has passed. This was the ruling
of the Supreme Court in Jones v. Hortiguela, 64 Phil. 179,
wherein it was held that for the purpose of a second valid
marriage of the present spouse, all that was necessary was
that the absent spouse be unheard of for seven
consecutive years at the time of the second marriage, and
that the only purpose of declaration of absence was the
proper administration of the estate of the absentee. This
ruling was reiterated in In Re Sztraw, 81 Phil. 4 6 1 , and
Lukban v. Rep., 52 O.G. 1441, wherein the Supreme Court
held that unless the case involved the distribution of
property, a declaration of presumptive death would not be
made by the court because such presumption is already
made in the law, the judgment will remain a presumption
and will never be final, and such declaration might lead the
present spouse to believe that she could get married again.
Such rulings, however, conflict with Art. 349 of the Rev.
Penal Code providing that the present spouse must first
ask for a declaration of presumptive death of the absent
spouse in order not to be guilty of bigamy in case he or
64 Art. 41

she marries again.

The above Article of the Family Code--^novr" cl early
provides that for the purpose.._,.of- thC present spouse
contracting a second marriage, he or she must file a
summary proceeding as provided In the Code for the
declaration of the presumptive death of the absentee,
without prejudice to the latter's reappearance. This
provision is intended to protect the present spouse from a
criminal prosecution for bigamy under Art. 349 of the Rev.
Penal Code because with the judicial declaration that the
missing spouse is presumptively dead, the good faith of the
present spouse in contracting a second marriage is already
established.

Meaning of "Absent Spouse" under this Article

By "absent spouse" means that the other spouse has

been missing for at least four years, it being unknown
whether or not he or she is still alive, and the present
spouse having a vyell-founded belief that the missing
spouse is already dead.
The period of four (4) years is, however, reduced to
tw o (2) years if in the disappearance of the missing
spouse, there was danger of death as provided in Art. 391
of the Civil Code namely:
(1) The missing person was on board a vessel lost
during a voyage, or an aeroplane which is
missing:
(2) The missing person was in the armed forces and
had taken part in war; or
(3) The missing person was in danger of death under
other circumstances.
In the above cases, the two-year period of absence is
computed from the occurrence of the event from which
death is* presumed.
"Vessel" in the first case includes all kinds of
watercraft, and "aeroplane", all kinds of aircraft. Taking
part in "war" in the second case includes all military
operations or undertaking involving armed fighting, and
Art. 42 6S

does not only apply to soldiers but also to those employed

In the armed forces like nurses and doctors, reporters, and
cameramen, etc. "In danger of death" in the third case
includes such events as earthquakes, fires, explosions,
dangerous expeditions, landslides, volcanic eruptions, etc.
Note: For recent jurisprudence on this subject, see
A ppendix “ C " o f this Handbook.

Art. 4 2 . 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)

Rule under the Civil Code:

Under Art. 83 of the Civil Code, the second marriage

contracted by a person with an absent spouse remains
valid until annulled by a competent court upon the
reappearance of the missing spouse, which action for
annulment may be filed, according to Art. 87, by the
returning spouse during his or her lifetime, or by either
spouse of the subsequent marriage of the present spouse,
during the lifetime of the other. This, however, gives rise
to the anomalous situation, if nobody files said action for
annulment, of the present spouse having two husbands or
tw o wives (the returning spouse and the second spouse),
both entitled to exercise conjugal rights. The Civil Code
offers no solution to this situation.
To solve the above problem, many authorities believe
that the first marriage and all its effects with respect to
the personal and property relations of the parties should be
considered suspended by the celebration of the second
66 X ' Art, 42

marriage and as long as the latter subsiists {see 1

Tolentino, Civil Code of the Phil., 1983 ed / p . 275 -2 76; 1
Paras, Civil Code of the Phil., 1984 ed.,. pp. 321 -3 22). The
effects on the first marriage would "be similar to legal
separation in which the marripge"^subsists but the rights
and obligations of the parties to each other, as well as the
conjugal partnership, are extinguished, to be revived only in
case of the return of the missing spouse and annulment of
the second marriage of the present spouse.

Meanwhile,
(1) The absent spouse who returns cannot get
married again because he or she is still married to
the present spouse.
(2) The present spouse cannot have sexual relations
with both the returning spouse and his or her
second spouse.
(3) Properties acquired by the absent spouse during
his or her absence or after his or her return do
not become part of his or her conjugal partnership
with the present spouse.
(4) If a child is born of the returning spouse and the
present spouse, the child Is illegitimate.

Rule under the Familv Code

The above Article of the Family Code solves all the

above problems unsolved by Art. 83 of the Civil Code by
providing as follows:
(1) The subsequent marriage referred to in Art. 41
shall be automatically terminated by the recording
of an affidavit of the reappearance of the absent
spouse In the office of the local civil registrar of
the residence of the parties to the second
marriage.
(2)‘ The affidavit of reappearance may be recorded by
the returning spouse or by any interested person.
(3) Due notice of the recording of the affidavit of
reappearance must be sent to the spouses of the
subsequent marriage.
A rt 43 67

(4) The fact of reappearance may, however, be

referred to the courts in a proper action it such
fact is disputed.
(5) The automatic termination of the second marriage
will not apply if the previous marriage of the
present spouse and the returning spouse has been
annulled or declared void by the courts.

Some have criticized the above solution offered by the

Family Code in that it may be unduly harsh and oppressive
to the spouses of the second marriage who may really love
each other and would like to stay married, just as it might
constitute an undue imposition on the present spouse to
live with the returning first spouse even if he or she does
not want to do so. The Committee is of the opinion,
however, that the automatic termination of the second
marriage upon the return of the absent spouse is the better
solution because if the solution is left to the present
spouse, he or she may decide to keep both marriages. On
the other hand, the absent spouse who returns cannot
marry again If his or her spouse decides to stick to the
second marriage. Or the returning spouse can even
blackmail the spouses to the second marriage by
threatening to annul their marriage if they do not pay off.
The second marriage, on the other hand, w ill remain
insecure and hanging, because it may be annulled by either
of the parties during each other's lifetime. Finally, the
automatic termination of the second marriage upon the
reappearance of the absent or missing spouse Is a risk that
the parties to said marriage knew they were taking when
they entered into such marriage, so that if it does happen,
they have no reason to complain.

Art. 4 3 . The termination of the subsequent marriage

referred to in the preceding Article shall produce the
following effects:
(1) The children of the subsequent marriago
conceived prior to its termination shall be
68 Art. 43
/
considered legitimate, and tlieir custod y/ and
support in case of dispute shall be decided by the
court In a proper proceeding; /
(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/m 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 a
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)

Unlike the Civil Code which does not provide for the
effects of the termination of the subsequent marriage under
its Art. 83, the Family Code expressly provides for the
effects of the automatic termination of the subsequent
marriage under Art. 41 as follows:
(1) The children of the subsequent marriage
conceived before its termination shall be
considered legitimate, and their custody and
support shall be decided by the courts in the
proper proceeding in case of dispute in
accordance with the Code's provisions on custody
of children and support.
- t e
■
Art. 44 69

(2) The absolute community of property or conjugal

partnership of the second marriage shall be
dissolved and liquidated, but if one of the parties
to the marriage was in bad faith, his or her share
in the net profits shall be forfeited in favor of the
common children or, if none, the children of the
guilty spouse by a previous marriage, or in default
of such children, the innocent spouse.
(3) Donations by reason of marriage shall remain
valid, but such donations in favor of the guilty
spouse are revoked by operation of law.
(4) The innocent spouse may revoke the designation
of the guilty spouse as beneficiary in any
insurance policy, even if such designation be
stipulated as irrevocable. And
(5) The spouse in bad faith shall be disqualified to
inherit from the innocent spouse by testate or
intestate succession.

Art. 44. if both spouses of the subsequent marriage

acted in bad faith, said marriage shall be void ab in itio and
all donations by reason of marriage and testamentary
disposition made by one in favor of the other are revoked
by operation of law. (n)

(1) By the spouses having acted "in bad faith" under

this Article means that both spouses to the
subsequent marriage knew that the absent spouse
was still alive when they entered into said
marriage.
(2) The spouses to the subsequent marriage being in
bad faith, their marriage is, as provided In the
above article, void ab initio, and they may even
be prosecuted for bigamy.
(3) Again, the subsequent marriage being void ab
initio, its effects on the personal and property
relations of the spouses as well as their children
will be those of marriages that are null and void
and not those of voidable marriages.
70 Art. 4 5

(4) Donations by reason of marriage and testamentary

dispositions made by one in favor of the other
are, under the above Article, revoked by operation
of law.

Art. 4 5 . A marriage may be annulled for any of the

following causes, existing at the time of the marriage;
(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 ordei/,
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)
Art. 4 5 71

Art. 8 5 of the Civil Code and Above Article Compared:

Under Art. 85 of the Civil Code, there are six grounds

for annulment of marriage, namely:

(1) Lack of parental consent in cases where the

parties needed the same;
(2) The existing prior marriage of a person who,
because of the absence of his or her spouse,
marries again;
(3) Insanity of one of the parties;
(4) Fraud vitiating the consent of one of the parties;
{5} Violence or intimidation that vitiated the consent
of one of the parties; and
{6) Impotency (physical incapacity to copulate) of one
of the parties.

Under the above Article of the Family Code, however,

the following changes have been made to Art. 85 of the
Civil Code:
(1) The ground of prior existing marriage (par. 2 of
Art. 82 of the Civil Code) has been eliminated
because under Art. 42 of the Family Code, there
is no need to annul the second marriage of the
present spouse upon the reappearance of the
absent spouse, since said second marriage is
automatically terminated by the recording of the
absent spouse's reappearance in the office of the
local civil registrar.
(2) “Undue influence" has been added as a ground
for annulment of hnarriage.
(3) The Family Code makes both absolute and relative
impotency (physical incapability of consummating
the marriage with the other spouse) as grounds
for annulment of marriage. And
(4) Another ground for annulment of marriage has
been added: if either party is afflicted with a
sexually-transmissible disease found to be serious
and appears to be incurable.
72 Art. 45

Grounds for Annuiment of Marriage Explained:

1. Lack of parental consent:

(a) This applies to parties who, being 18 years and

above but below 21 years of age, get married
without parental consent. '
(b) The marriage may, however, be rati^fieci if the
parties freely cohabit with each-'other upon
reaching 21 years of age,..-Mere transient sexual
intercourse is not sutfieieht.
(c) May the parents' who did not give consent ratify
the marriage by giving consent after the marriage?
Tolentino believes that the parents may ratify the
marriage before the child reaches the proper age,
since parental consent is all that the law requires,
so that it is immaterial whether that consent is
given in advance or after the marriage by
ratification. Besides, the parents can ask for the
annulment of the marriage before the child
reaches the age when he or she can already get
married without parental consent, and this right of
the parents can be waived. (1 Tolentino, id.,
280),
(d) See also comments under Art. 14, supra.

2. Insanity of one of the parties:

(a) For distinction between insanity and psychological

incapacity under Art. 36 which is a ground for
the declaration of nullity of marriage, see
comments under Art. 36, supra.
(b) The marriage can be ratified by the sane party's
cohabitation with the other after the latter's
insanity has been cured (i.e., the latter has
returned to reason), because insanity is sometimes
curable.
(c) Mere mental weakness that does not necessarily
deprive a party of the capacity to understand the
consequences of the step he or she is taking.
ili Art. 4 5 73

unless it amounts to psychological incapacity to

perform the essential marital obligations under Art.
36, in which case the marriage may even be
declared null and void.
(d) Intoxication which results in lack of mental
capacity to give consent is equivalent to insanity;
so is somnambulism.
(e) The insanity of one party must exist at the time
of the marriage, not prior or subsequent thereto.
(f) Since the presumption of the law is generally in
favor of sanity, the burden of proof is on the
party who alleges the insanity of the other.

3. Fraud:

(a) Not all kinds of fraud will justify the annulment of

marriage, but only those enumerated in Art. 46 of
the Code,
(b) See comments under Art. 46.
(0 The marriage maybe ratified by free cohabitation
between the parties after full knowledge of the
fraud.

4. Force, intimidation, or undue influence:

(a) The definitions of "violence", "intimidation", and

"undue influence" are found in Arts. 1335 to
1337 of the Civil Code.
"Art. 1335. There is violence when in order
to wrest consent, serious or irresistible force is
employed.
There is intimidation when one of the
contracting parties is compelled by a reasonable
and well-grounded fear of an imminent and grave
evil upon his person or property, or upon the
person or property of his spouse, descendants or
ascendants, to give his consent.
To determine the degree of the intimidation,
the age, sex, and condition of the person sh*an Be
borne in mind.
74 Art. 4 5

A threat to enforce one's claim through

connpetent authority, if the claim is just or legal,
does not vitiate consent."
"Art. 1336. Violence or intimidation shall
annul the obligation, although it may have been
employed by a third person, who did not take
part in the contract."
"Art. 1337. There is undue influence when a
person takes improper advantage of his povve_r_
over the will of another, depriving the latter of a
reasonable freedom of choice. The following
circumstances shall be considered: the
confidential, family, spiritual and other relations
between the parties, or the fact that the person
alleged to have been unduly influenced was
suffering from mental weakness, or was ignorant
or In financial distress."
(b) The threat to ^enforce a legal claim, like a threat
to file a case for immorality against a bar
candidate if he does not marry a girl with whom
he had carnal knowledge, does not vitiate consent
to a marriage (Ruiz v. Atienza, CA, 40 0,G .
1903).
(c) The threat or intimidation must be of such a
nature as to prevent the victim from acting as a
free agent. Thus, where a man was threatened
with armed demonstrations by the brothers of the
woman in order to marry the latter, the marriage
was held annulable (Tiongco v. Matig-a, 44 O.G.
No. 1, p. 96).
(d) Where a man rapes a girl and then forces her to
marry him in order that he may not be prosecuted
- for rape, but he had no intention to live with the
girl, the marriage is annullable {People v. Santiago,
51 Phil. 68).
(e) The Committee added undue influence as a
ground for annulment of marriage becatJse while
Art. 4 5 75

the fear that induces a person to enter into a

marriage may not strictly be founded on any
threatened physical, material, or rtiorai harm, he
may be compelled to enter into a marriage out of
reverential fear, },e ., fear of causing distress,
disappointment or anger on the part of one whom
a persori has been conditioned to revere, respect,
. or obey out of a special debt of gratitude, like his
„- parents, grandparents, godparents, employer, etc.

5. fmpotency:

(a) This refers to lack of power to copulate, not to

mere sterility.
(b) The InTipotency of one party must be present at
the time of the marriage, must be continuous, and
must appear incurable. Thus, where the impotency
can be removed by surgical operation, the
marriage is not annullable (Sara v. Guevarra, C.A.,
4 0 O.G. (1st Sup,) 263).
(c) Only the potent spouse can file the action for
annulment and he or she must not have been
aware of the other's impotency at the time of the
marriage.
(d) if both spouses are Impotent, the marriage cannot
be annulled because neither spouse is aggrieved
by the other.
(e) Impotency due to old age is not a ground for
annulment, since one who marries an old person
takes a calculated risk that the latter may be
impotent.
(f) Potency is presumed, and the party who alleges
that the other is impotent has the burden of
proving his allegation (JFmenez v. Canizarez, L-
1 2 7 90, Aug. 31, I9 6 0 .).
(g) Although the general rule is in favor of potency,
there is a doctrine applied in England and by
some U.S. courts called the doctrine of "triennial
76 Art. 4 5

cohabitation" to the effect that if the wife still

remains a virgin after living together with the
husband for 3 years, the latter is presumed
impotent, and he will have to present evidence to
overcome this presumption (Tompkins v.
Tompkins, 92 N.J. eg. 113, 111 Atl. 599).
(h) Can the court assume that the wife is impotent
and annul the marriage upon complaint of her
husband if she refuses to submit to a physical
examination to determine her potency? No. The
refusal of the wife to be examined does not
create a presumption of her impotency because
Filipino girls are inherently shy and bashful. The
trial court must order the physical examination of
the girl, because without proof of impotency, she
is presumed to be potent. To order her to submit
to a physical examination does not infringe on her
constitutional right against self-incrimination
(Jimenez v. Canizares, L-12790, Aug. 31, 1960).

NOTE: I f the g irl refuses to be examined a fte r having

been ordered by the court to do so, she can be held g u ilty
o f contem pt and ordered confined in ja il u n til she complies
w ith the order o f the court.

(I) Relative Im potency: This may now be invoked as

a ground for annulment under the Family Code;
i.e., the physical incapability of one party to
consummate the marriage with the other.

The Committee has decided to include relative

impotency of one party as a ground for annulment of
marriage because there are cases where a person is
impotent with respect to his spouse but not with other
men or women. For example, a man may not be able to
harness - penile erection with his wife but can do so with
other women; or a man's genitals are too big that he
cannot have intercourse with the genitals of his wife but
can do so with a woman who, having also abnormal
genitals, matches his functionally for coitus.
^n. 4 6 77

(6) Affliction of sexually-transmissible disease found to be

serious and which appears incurable.
See comments on pp. 74-75.

How May Voidable Marriages be Ratified or Convalidated?

A voidable marriage may be ratified or convalidated by

cohabitation and by prescription.

Certain marriages, however, cannot be ratified or

convalidated by free cohabitation; namely:
(1) Those vitiated by a prior subsisting marriage,
since the cause for annulment of marriage exists
as long as the absent spouse is alive. Besides, to
allow its ratification would result in the anomalous
situation of one person having two living spouses;
(2) Those vitiated by the impotency of one spouse,
since the cause for annulment does not cease to
exist as long as such impotency of the spouse
remains; and
(3) Those vitiated by the affliction of one spouse of a
sexually-transmissible disease found to be serious
and appears to be incurable, since like impotency, ^
the cause for annulment remains as long as the
sick spouse remains so afflicted.
The action to annul a marriage on grounds (2) and (3)
above, however, prescribes within_ 5 years after the
marriage (Art. 47 (5)).

Art. 46. Any of the following circumstances shall

constitute fraud referred to in number 3 of the preceding
Article:
(1) Non-disclosure of a previous conviction by final
judgment of the other party of a crime involving
moral turpitude.
{2} Concealment by the wife of the fact that at the
time of the marriage, she was pregnant by a man
other than her husband;
 78 Art, 46

(3) Concealment of a sexually-transmissible disease,

regardless of its nature, existing at the time of the
marriage; or
(4) Concealment of drug addiction, habitual
alcoholism, homosexually or lesbianism existing at
the time of the marriage.

No other misrepresentation or deceit as to character,

health, rank, fortune or chastity shall constitute such fraud
as will give grounds for action for the annulment of
^ marriage. (86a)

Provisions of Art. 86 of the Civil Code and Above Article

Compared:

Under Art. 86 of the Civil Code, the frauds that

constitute grounds for annulment of marriage are only the
following:
(1) Misrepresentation as to the Identity of one of the
contracting parties;
(2) Non-disclosure of the previous conviction of the
other party of a crime Involving moral turpitude,
and the penalty imposed was imprisonment for
tw o years or more; and
(3) Concealment by the wife of the fact that at the
time of the marriage, she was pregnant by a man
oti.er than her husband.

The above Article of the Familv Code amends Art. 86 of

the Civil Code as follows:

(1) Mistake of one of the contracting parties as to

the Identity of the other has been Included as a
ground to declare the marriage void under Art.
35, the reason being that If one party Is mistaken
as to the Identity of the other, whether through
the other's fraud or for any other reason, the
former did not really give consent to the marriage,
and the marriage is void for lack of valid consent
Art. 4 6 79

on the part of the party mistaken. If the other

party is guilty of fraud, however, he Is criminally
and civilly liable.
(2) The above Article of the Family Code has eliminated
the requirement that the penalty imposed should be
"imprisonment for tv^o years or more" in the fraud
of one party consisting of his non-disclosure of a
previous conviction of a crime involving moral
turpitude. Under the above Article, all such non­
disclosures of a previous conviction of a crime
involving moral turpitude constitute fraud that can
justify the annulment of a marriage, irrespective of
the penalty imposed, since the important thing is
that the party guilty of such non-disclosure is
lacking in good moral character, and the other party
did not know about it.
(3) The above Article adds two other concealments
(in addition to concealment by the wife of the
fact that at the time of the marriage, she was
pregnant by a man other than her husband) as
also constituting fraud that can be a ground for
annulment of marriage, namely:
(a) Concealment of a sexually-transmissible
disease regardless of its nature, existing at
the time of the marriage; and
(b) Concealment of drug addition, habitual
alcoholism, homosexuality or lesbianism
existing at the time of the marriage.
(4) To the other misrepresentations that do not
constitute fraud that give ground for annulment of
marriage in Art. 86 of the Civil Code, namely,
misrepresentations as to character, rank, fortune,
or chastity, the above Article of the Family Code
adds misrepresentation as to "health". In other
words, concealment by one party that he is
seriously ill because of cancer, heart trouble, high
blood pressure, diabetes, etc. does not constitute
a ground for annulment of marriage.
80 Art. 46

Concealment of a Sexualtv-Transmissible Disease as Fraud

Under Art. 46 Distinguished from Affliction with a Sexuallv-
Transmissible Disease as a Ground for Annulment of
Marriage under Art. 45 (6)).

In Art. 45 (6), the fact that one party is afflicted with a

sexually-transmissible disease found to be serious and appears
to be incurable is a ground for annulment of marriage,
whether such fact was concealed or not from the other
party, as long as the disease was present at the time of the
marriage. The sick party might not even have known of his
own illness at the time of the marriage, but once the illness
is discovered, the other party is entitled to annul the
marriage, on the theory that if she or he had known about it,
she or he would not have consented to the marriage. The
healthy party, because of love and compassion for the sick
party, might not after all annul their marriage, but he or she
should be given the right to annul the same, considering the
seriousness of the other's illness, which may not only be
transmitted to the healthy spouse but may even have serious
effects on their offspring. (Examples: AIDS, herpes)

In Art. 46 (3), however, the concealment of a sexually-

transmissible disease by the sick party from the other party
which constitutes fraud that would justify the annulment of
their marriage refers to any kind of sexually-transmissible
disease, regardless of its nature; i.e., whether serious or not,
or incurable or not. For example, one party is sick with
syphilis or gonorrhea, both of which are curable, at the time
of the marriage but did not inform the other party about it,
■nd the latter discovers such fact only on the night after the
idding. The healthy party can annul the marriage on the
grru.jnd of fraud.

Concealment of Conviction of a Crime Involving Moral

Turpitude as Constituting Fraud that may be a Ground for
Annulment of IVtarriane:

As already stated, while Art. 86 of the Civil Code

provides that the penalty for the previous conviction of one
 Art. 4 6 81

party of a crime involving moral turpitude that he or she

did not disciose to the other party should be "Imprisonment
for tw o years or more", the above Article of the Family
Code does not mention any penalty, so that as long as the
crime of which one party was convicted involved moral
turpitude and such fact was concealed from the other
party, the latter can ask for annulment of their marriage on
the ground of fraud.
Commenting on Art. 86 (2) of the Civil Code limiting
the penalty of the crime involving moral turpitude
committed by one party to the marriage to at least two
years of imprisonment, Tolentino has the following apt
remarks to make;
"The wisdom of this provision is very doubtful.
This is really a deceit as to character, and has no
essential bearing upon the marital relations of the
parties. The concealment of a wom an o f a previous
life of prostitution would be a more serious fraud than
mere conviction for theft or estafa with a penalty of
tw o years or more; and yet; while the former fraud as
to character would not be a ground for annulment,
the latter is made so by this article. Besides, there are
serious offenses involving moral turpitude under
special statutes, for which either fine or imprisonment
may be imposed in the discretion of the court; if the
court Imposes a penalty of fine of, say P I 0,000,
instead of a possible imprisonment of ten years, the
concealment of this conviction would not constitute
fraud under this article." (1 Tolentino, id., 289-290).
I-
Art. 46 (!) of the Family Code would cure the defect
in Art. 86(2) of the Civil Code pointed out by Tolentino.

Conceaiment of Fact that Wife Was Pregnant bv Another

Man as Constituting Fraud that would be a Ground for
Annulment of Marriage:

(1) This is a very serious fraud that goes to the very

essence of marriage, for one of the most
important objects of marriage is procreation of
children, and "a husband has the right to require
82 Art. 4 7

that his wife shall not bear to his bed aliens to

his blood and lineage" (Tolentino, id., p. 290).
(2) But where the wife was already at an advanced
stage of pregnancy at the time of the marriage,
the husband can no longer invoke fraud as the
condition of his wife was already patent to him
when they got married (Buccat v. Mangahas, 72
Phil. 19).
(3) The fact that the wife was formerly a prostitute
or has delivered a child by another man before
her marriage does not constitute a ground for
annulment of marriage on the ground of fraud, for
it is not included in Art. 46(2). The husband
should have investigated his wife's background
before he married her.

Art. 47. The action for annulment of marriage must

be filed by the following persons and within the periods
indicated herein:
(1) For causes mentioned in number 1 of Article 4 5 ,
by the party whose parent or guardian did not
give his or her consent, within five years after
attaining the age of twenty-one; or by the parent
or guardian or person having legal charge of the
minor, at any time before such party reaches the
age of twenty-one;
(2) For causes mentioned in number 2 of Article 4 5 ,
by the sane spouse who had no knowledge of the
other's insanity; by any relative, guardian or
person having legal charge of the insane at any
time before the death of either party; or by the
insane spouse during a lucid interval or after
regaining sanity;
(3) For causes mentioned in number 3 of Article 45,
by the injured party, within five years after the
discovery of the fraud;
 Art. 4 6 and Art, 4 7 83

(4) For causes mentioned in number 4 of Article 4 5 ,

by the injured party, within five years from the
time the force, intimidation or undue influence
disappeared or ceased:
(5) For causes mentioned in numbers 5 and 6 of
Article 45, by the injured party, within five years
after the marriage, (87a)

Under this Article, in relation to Art. 45, the following

diagram shows the parties entitled to file the action for
p annulment under each ground, the corresponding period of
J prescription of action, and whether the defective marriage
can be ratified or not:

&

i--
84 Art. 4 7

G ro u n d for P erio f of C o n v a lid s tic n or

W ho can file action
A n n u lm en t P re scrip tio n R atification

W ithin 5
(1) F^aiiy under age y e a rs after
Lack of
attaining 21
F re e co hab itation
parental
(2) Parent or B efore child after rea ch in g 21
c o n se n t
guardian re a c h e s 21

Insanity of (1} Ttie sa ne B efore F re e co tiabitation

one parly s p o u se death of after in sa n e
other party. reg a in s saniiy.

(2) G u a rd ia n of - do -
in san e sp o u se

During lucid
interval c r after

(3) in s a n e sp o u se regaining sanity,

also before death
of other party.

Frau d The injured W ithin 5 y e a rs F re e co hao itstion

party. from d isco v e ry of afifcr know ledge
fraud of fraud

Force , Intim i­ The injured W ithin 5 years F re e cohabitation

dation, or U ndue psrly. from ce ss a tio n of after c a u s e has
Influence cau se. disa p p e a re d

Im potence of The potent W ithin 5 y ears C a n n c l be ratified,

one parly party. alter m arriage. but action prescrib es.

S e rio u s sexu ally T he healthy W ithin 5 y ears C a n n o t be ratified,

tra n sm issib le party. after m arriage. but action prescrib es.
d is e a s e o f one
party

Periods of Prescription under Art. 87 of the Civil Code:

Note that under Art. 87 of the Civil Code, the periods

of prescription for the filing of the action for annulment of ;
marriage are different from those prescribed in the above
Art. 47 of the Family Code, to w it

(1) tn case of lack of parental consent, the period of

prescription for the fifing of the action for
annulment by the minor whose parent did not
Arl. 48 85

give parental consent is within four years after

reaching 18 for the girl and 20 for ihe boy.
(2) In case of fraud, the period of prescription is
within 4 years from the discovery of the fraud.
(3} In case of violence or intimidation, the period of
prescription is within 4 yeas from the cessation of
the violence or intimidation; and
(4) In case of impotency of one of the parties, the
period of prescription is within 8 years from the
date of the marriage.

Art. 48. 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 oa
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)

The above Article requires that in all cases of

annulment of marriage or declaration of 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 the evidence is not fabricated or suppressed.

Under Art. 88 in relation to Art. 101, par. 2 of the

Civil Code, it is only when the defendant does not appear
that the court is required to order its fiscal to appear in
behalf of the State after ascertaining that there was no
collusion between the parties. Under the above Article,
however, the trial or prosecuting fiscal of the court shall be
ordered to appear..y^hether the defendant appears or not.
The reason for the ihtferver'ition of the trial fiscal of the
court at the trial of any case involving the annulment or
declaration of nullity of a marriage is because marriage is
86 Art. 49

not just a contract between the parties but a social

institution in the preservation of which the State is
interested.
The above also the reason why the second
paragraph of the above Article provides that no judgment
annulling a marriage or declaring it void ab initio shall be
based upon a stipulation of facts or a confession of
judgment. The purpose of this provision, which is also
found in Art. 88 of the Civil Code, is to prevent collusion
between the parties in obtaining a decree of annulment or
declaration of nullity of their marriage.
If, inspite of the above safeguards, the parties still
succeed in obtaining a decree of annulment or declaration
of nullity of marriage through collusion, the decree is
absolutely void.

Art. 49. 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 for in Title IX. It shall also provide for
appropriate visitation rights of the other parent, (n)

{1} During the pendency of the case for annulment of

marriage or declaration of nullity of marriage, the
court shall provide for the support of the spouses
and the custody and support of their common
children, unless the parties have already agreed in
writing on such matters, which agreement the
court will then enforce.
(2) The support of the spouses and the children
during the pendency of the case shall of course
come from the absolute community or conjugal
properties of the spouses.
(3) After the annulment or declaration of the nullity of
the marriage, support between the spouses shall
An. 50 87

already cease, since they are no longer husband

and wife and have no more duty to support each
other, but they shall continue to support their
children.
(4) As to custody of the children, the court should be
guided by the best interests and welfare of said
children, taking into account all relevant
considerations, as well as the choice of the child
over seven years of age as to the parent he
would like to live with, unless the parent chosen
is unfit {Art. 213, first par).
(5) No child under seven years old shall, however, be
separated from the mother, unless the court finds
compelling reasons to order otherwise (Art. 213,
second paragraph). This provision amends Art. 17
Of P.D. 603 (the Child and Youth Welfare Code)
stating that in case of separation of parents, no
child under five years of age shall be separated
from his mother, unless the court finds compelling
reasons to do so, and reverts to Art. 363 of the
Civil Code providing that no mother shall be
separated from her child under seven years of
age, unless the court finds compelling reasons for
such measure.
The Committee agrees with the Civil Code
that a child below seven years Is still a baby who
needs the loving care of his or her mother, and
no one in the world can take better care of a
child than the mother.
(6) The Court shall also provide for appropriate
visitation rights of the other parent.

Art. 50. The effects provided for in paragraphs (2),

(3), (4) and (5) of Article 4 3 and in Article 4 4 shall also
apply in proper cases to marriages which are declared void
a b in itio or annulled by final judgnnent under Articles 4 0
and 4 5 .
The final judgment in such cases shall provide for the
liquidation, partition and distribution of the properties of the
88 Art. SO

spouses, the custody and support of the common children

and the delivery of their 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.
Jn 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.

(1) The provisions of Art. 43, pars. (2) to (5), and

Art. 44, shall also apply in proper cases to
marriages declared void ab initio or annulled under
Arts. 40 and 45 hereof. Thus, in the liquidation of
the absolute community or conjugal partnership
properties of the annulled marriage, the following
rules shall apply:
(a) The share of the party who acted in bad faith
in the net profits shall be forfeited in favor of
the common children or, if none, the children
of the guilty spouse by a previous marriage,
or in default of such children, the innocent
spouse.
(b) Donations by reason of marriage shall remain
valid, but donations in favor of the guilty
spouse shall be revoked by operation of law.
(c) The designation by the innocent spouse of
the guilty spouse as beneficiary in any
insurance policy may be revoked even if such
designation is stipulated as irrevocable.
(d) The spouse in bad faith shall be disqualified
to inherit from the innocent spouse by testate
or intestate succession.
(e) If both spouses are guilty, donations by
reason of marriage and testamentary
dispositions made by one in favor of the other
shall be revoked by operation of law.
 57 53
Note that if the marriage is declared void ab in itio , the
parties would not have an absolute community or conjugal
partnership of property, and the rules in Arts. 147 and 148
on "Property Regime of Unions Without Marriage" would
apply. (See comments under said Article).
(2) The final judgment of annulment or declaration of
nullity of marriage 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 the presumptive
legitimes of said children, unless such matters had
already been adjudicated in previous proceedings.
(3) All creditors of the spouses as well as of their
absolute community or conjugal partnership shall
be notified of the proceedings for liquidation and
should be allowed to intervene to protect their
interests.
(4) In the partition, the conjugal dwelling and the lot
on which it is situated shall be adjudicated in
accordance with Arts. 102 and 129, i.e.,
(a) Said house and lot shall be adjudicated to the
spouse with whom the majority of the
common children should choose to remain.
(b) Children below 7 years are deemed to have
chosen the mother, unless the court decides
otherwise.
. (c) In case there is no majority (of the common
children), the court shall decide, taking into
account the best interests of the children.

Art. 51. 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.
90 Art. 52

The deJivery of the presumptive legitimes herein

prescribed shall in no way prejudice the ultimate
successlonal rights of the children accruing upon the death
of either or 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)

(1) In the partition of the net profits of the absolute

community or conjugal properties between the
spouses, the value of the presumptive legitimes of
their common children, computed as of the date
of the final judgment of the court, shall be
delivered to them in cash, property, or sound
securities, unless the parties have already provided
for such matters and their agreement has been
approved by the court.
(2) If the delivery of the children's presumptive
legitimes is not made although ordered by the
court, the children, or their guardians , or trustees,
may ask the court to enforce said judgment.
(3) The delivery of the presumptive legitimes of the
children shall be considered as advances on their
legitimes and shall not prejudice their ultimate
successional rights accruing to them upon the
death of either of their parents.

Art. 52. The judgment of annulment or of absolute

nullity of the marriage, the partition and distribution of the
properties of the spouses, and the delivery of the children's
presumptive legitimes shall be recorded in the appropriate
civil registry and registries of property; otherwise, the same
shall not affect third persons, (n)

(1) The judgment of annulment or absolute nullity of

marriage, the partition and distribution of the
properties of the spouses, and the delivery of the
children's presumptive legitimes shall be recorded;
 /irt. 53 and Art. 54 97

(a) in the appropriate civil registry; and

(b) in the registries of property of the places
where the real properties distributed and
delivered are located.
(2) Third persons will not be affected and prejudiced
I,;. by the aforesaid judgment unless the recording
aforementioned is complied with.

■ Art. 53. Either of the former spouses may marry again

after complying with the requirements of the immediately
preceding Article, otherwise, the subsequent marriage shall
be null and void.

(1) Either of the former spouses may marry again

after complying with the requirements of the
i immediately preceding article.

■
(2) If any of them marries again without complying
! with such requirements, the subsequent marriage
shall be null and void.

Art. 54. Children conceived or born before the

judgment of annulment or absolute nullity of the marriage
under Article 36 has become final and executory, shall be
considered legitimate. Children conceived or born of the
■
subsequent marriage under Article 53 shall likewise be
legitimate.

I (1} Children conceived or born of the subsequent

marriage under the Immediately preceding article
’ shall, however, be legitimate, although said
subsequent marriage is null and void. The
Committee does not want the children to suffer
because of the fault of their parents.
(2) Children conceived or born before the judgment of
annulment of marriage under the preceding
provisions shall be considered legitimate. This is
because voidable or annullable marriages are valid
until annulled.
92 Art. 54

(3) Children of marriages that are judicially declared

null and void or void ab initio are, however,
illegitimate (Art. 165), except for children born of
the void marriages under Art. 36 and under the
immediately preceding Art. 53.

(4) Note that there are no more natural children by

legal fiction under the Family Code, which
classifies children only as legitimate or illegitimate
(Arts. 164 and 165).

Can moral damages be awarded to the prevailing party in

actions for annulment or declaration of nullity of marriage
or legal separation between husband and wife?

No, because the guilty spouse will have to pay the

damages from the common or conjugal fund. Hence, the
application of the law will be absurd and illogical. Our laws
do not comprehend an action for damages between
husband and wife for mere breach of marital obligations.
There are other remedies. (Ty v. C.A., GR 1 27 406, Nov.
27, 2000)
Titlo If * Logaf Separation Art. 54

TITLE H

LEGAL SEPARATION

Leqai Separation Distinguished from Divorce:

Absolute divorce (a vinculo m atrim onii} dissolves the

marriage and the parties can marry again.
Legal separation or relative divorce (a mensa e t thoro)
is only separation from bed and board but the parties
remain married.

Brief Historv of Divorce and Legal Separation in the

Philippines:

(1) During the Spanish regime, the law on divorce in

the Philippines was the Siete Part/das which
allowed only legal separation. The provisions of
the Civil Code of Spain on divorce were among
those suspended by Gov. Gen. Weyler on
December 29, 1989 and had never been in force
since then.
(2) On March 11, 1917, Act. 2 7 1 0 was passed by
the Philippine Legislature repealing the Siete
Partidas by allowing absolute divorce but only on
two grounds; adultery on the part of the wife and
concubinage on the part of the husband, and
previous conviction was necessary to prove the
aforementioned offenses.
(3) During the Japanese occupation, a new law on
absolute divorce (E.O. No. 141) was promulgated
providing for ten grounds for divorce. This law
was effective until October 23, 1944, when Gen.
Douglas MacArthur reestablished the
Commonwealth Government by proclamation
93
94 Art. 54

which in effect repealed E.O. No. 141 and revived

Act 2710.
(4) Act 2 7 1 0 was repealed by the Civil Code of the
Philippine which allows only iegal separation. The
draft of the Code, had provisions on absolute
divorce, but during the discussions of the Code in
Congress and with the strong opposition fronri the
Catholic population of the country, absolute
divorce was eliminated and substituted with legal
separation.
(5) The Family Code also does not allow divorce
(except a divorce obtained by the alien spouse of
a Filipino citizen abroad under Art. 26, sec. par.),
but it has expanded the grounds for legal
separation into ten.

Are Foreign Divorces Obtained bv Filipinos Valid in the

Philippines?

No, because divorce Is not allowed in the Philippines,

and Filipinos cannot evade Philippine law by going abroad
and getting divorces there. Under Art. 15 of the Civil Code
of the Philippines. Philippine law governs the status of
Filipinos wherever they may be and even if they are
abroad.

Legal Separation Distinguished from Separation of Property:

(1) In legal separation, the common life of the

spouses is suspended, both as to person and as
to properties.
In separation of property, only the property
relations of the spouses are suspended; that is,
they may still be living together, but their absolute
community of property or conjugal partnership is
dissolved.
(2) Legal separation cannot be granted on mere
agreement of the parties (Art. 60).
Ari. 54 95

Separation of property can be effected by

agreement of the parties, subject to court
approval (Arts. 134 and 136)
(3) Legal separation always involves separation of
property.
There can be separation of property without
legal separation.

Legal Separation Distinguished from Separation De Facto:

(1) Legal separation can be effected only by decree

of court, while the parties can separate at any
time without court order.
(2) Legal separation necessarily results in the
dissolution of the parties' absolute community of
property or conjugal partnership, the guilty party
can no longer inherit from the innocent party, and
the former's share in the net profits of the
absolute community of property or conjugal
partnership is forfeited, in separation de facto, the
property relations of the spouses remain and they
are still heirs of each other, no matter how guilty
one spouse is, unless the innocent spouse
disinherits the guilty in his or her will.

Legal Separation Distinguished from Annulment of Marriage:

(1) In legal separation, the marriage is not defective;

in annulment, the marriage is defective.
{2) In legal separation, the grounds arise after the
marriage; in annulment, the grounds must exist at
the time of or before the marriage.
(3) In legal separation, the parties are still married to
each other and cannot remarry; in annulment, the
marriage is set aside and the parties can marry
again.
 96 A r t 55

Art. 55. A petition for legal separation may be filed

on any of the following grounds:
(1) Repeated physical violence or grossly abusive
conduct directed against the petitioner, a common
child, or a child of the petitioner.
(2) Physical violence or moral pressure to compel the
petitioner to change religious or political affiliation;
(3) Attempt of respondent to corrupt or induce the
1/ 11' petitioner, a common child, or a child of the
f:. petitioner to engage in prostitution, or connivance
/ ^ in such corruption or inducement;
/ ( io (4) Final judgment sentencing the respondent to
imprisonment of more than six years, even if
^ ^ pardoned;
(5) Drug addiction or habitual alcoholism of the
respondent;
(6) Lesbianism or homosexuality of the respondents;
(7) Contracting by the respondent of a subsequent
bigamous marriage, whether in the Philippines or
abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the
petitioner; or
(10) Abandonment of petitioner by respondent without
justifiable cause for more than one year.
For purposes of this Article, the term "child" shall
nclude a child by nature or by adoption. (97a)

Grounds for Legal Separation in the Civil Code and in the

Family Code Compared:

In the Civil Code, there were only two grounds for

legal separation:
(1) Adultery of the wife and concubinage of the
husband, both as defined in the Revised Penal
Code, although criminal conviction was not
necessary; and
 Art. 55 97

(2) Attempt by one spouse against the life of the

other (attempted or frustrated parricide), and
again, criminal conviction was not necessary (Art.
97).

In the Family Code, however, there are ten grounds

for legal separation, thus answering the long-standing need
to broaden the grounds for legal separation which the Civil
Code limits to only two. These grounds will be discussed
^ as they appear in the above article.

Repeated Phvsical Violence or Grossly Abusive Conduct

,
(Art. 55 (D ):

(1) This may be directed against the petitioner, a

common child, or a child of the petitioner.
(2) This ground will give relief to wives who are
often maltreated or grossly insulted by their
husbands. But even wives can also be guilty of
grossly abusive conduct against their husbands,
like constant nagging of the husband by the wife.

Phvsical Violence or Moral Pressure to Compel the

Petitioner to Change Religion or Political Affiliation (Art. 55
1211:

This ground was included because there are known

cases of husbands inflicting violence or using force on their
wives to compel the latter either to follow their religion or
political affiliation.

Attempt to Corrupt Petitioner or Child to Engage in

Prostitution (Art. 55 (3)).

(1) The one whom respondent has attempted to

corrupt may be his wife, their own daughter, a
daughter of his wife by a former ^marriage, or his
own natural child.
(2) Connivance in such attempt to corrupt or induce
into prostitution is also included.
98 Art. 55

(3) This is particularly important in recent times

because of the proliferation of child prostitution,
sometimes with the knowledge and consent of
parents.

Final Judgment Sentencing Respondent to iVlore Than Six

Years' Imprisonment {Art. 55 (4)).

(1) This presupposes a conviction.

(2) The penalty imposed must have been more than
six years (which means that the crime is serious
and not probationable, since probation is allowed
only in cases where the penalty imposed is not
more than six years).

Drug Addiction or Habitual Alcoholism (Art. 55 (5))

(1) This is a very common situation (especially

habitual alcoholism of one spouse), and the
aggrieved spouse should be given the remedy of
at least legal separation if life has become
unbearable.
(2) If the drug addiction or habitual alcoholism of one
spouse was present at the time of the marriage
and has deprived him or her of the capacity to
perform the essential obligations of marriage, it
can even amount to psychological incapacity
under Art. 36 which is a ground for declaring the
marriage null and void.
(3) If the drug addiction or habitual alcoholism was
concealed from the other spouse, it also
constitutes fraud which is a ground for annulment
of marriage if present at the time of the marriage.

Le sb ia ni sm or Homosexuality (Art. 55 (6)):

(1) This means attachment by one spouse to the

same sex for sexual fulfillment,
(2) If it was already present at the time of the
wedding, it can be a ground either for declaring
Art. 5 5 99

the marriage void under Art. 36 (psychological

incapacity) or for annulment of the marriage, if it
was concealed from the other spouse {Art. 46
(4)).

Contracting bv One Spouse of Another IVIarriaae (Art. 55

m il
(1) This Is a ground for legal separation, whether the
second marriage was contracted in the Philippines
or abroad.
(2) If a Filipino gets a foreign divorce from his or her
Filipino spouse and marries again, the second
marriage is bigamous; hence, it is a ground for
legal separation, and also for prosecution for
bigamy, if the second marriage was contracted in
the Philippines.
(3) If the husband did not contract a second marriage
but Is only iiving with another woman, the ground
will be "sexual infidelity" under par. (8) of this
Article.

Sexual Infidelity or Perversion (Art. 55 (8)):

(1) This ground takes the place of the ground of

adultery on the part of the wife and concubinage
on the part of the husband in the Civil Code. This
change answers the demands of Filipino women
for the elimination of the double standard between
men and women since concubinage on the part of
the husband is very hard to prove (the man
usually just keeps a mistress In another place but
goes home to his wife every evening), while one
sexual intercourse with another man is already
adultery on the part of the wife.
(2) The ground of "sexual infidelity" also gives the
court leeway to determine whether the
unfaithfulness of the husband or the wife is
sufficient to justify an action for legal separation
by the other spouse.
100 Art. 5 5

(3) As to "sexual perversion", the Code does not also

define the same to provide the court leeway in
determining whether the ground does exist or not,
which may be determined on a case-to-case basis.

Attempt bv One Spouse Against the Life of the Other (Art.

(1) This implies intent to kill: i.e., attempted or

frustrated parricide.
(2) Mere infliction of physical Injuries is not enough.
However, it if is repeatedly done, it can fall under
par. (1) of this Article. On the other hand, if the
guilty spouse is convicted and the penalty Is more
than six years, it would fail under par. (4) of this
Article.
(3) If the act of the respondent spouse is justified, as
when a husband catches his wife in the act of
adultery, there is no ground for legal separation.
(4) Likewise, if the respondent spouse acts in self-
defense or in defense of a child against the
unlawful aggression of the other spouse, there is
no ground for legal separation.
(5) There is no need for criminal conviction for the
ground to be invoked.
(6) If the act is the result of criminal negligence, the
ground does not exist since there is no intent to
kill.

Abandonment of One Spouse bv the Other for More Than

One Year (Art. 55 (10)):

(1) Abandonment is not mere separation, but when

one spouse leaves the family and the . conjugal
dwelling with no intention of returning (Art. 101,
this Code). Hence, there is a complete cessation
of marital relations between husband and wife,
both personal and property, as well as parental
relations with the children.
Art. 5 6 101

(2) The abandonment must be without justifiable

cause.
(3) The abandonment must be for more than one
year.
(4) If there is only physical separation between the
spouses, but they still support each other and
also support and maintain the children, there is no
abandonment.

Reference to "Child" in this Article Includes Adopted child.

By express provision of the last paragraph of this

Article, all references therein to "child" includes a child by
nature (whether legitinnate or illegitimate) or a child by
adoption.

Art. 56. The petition for legal separation shall be

denied on any of the following grounds:
(1) Where the aggrieved party has condoned the
offense or act complained of:
(2) Where the aggrieved party has consented to tho
commission of the offense or act complained of:
(3) Where there is connivance between the parties in
the commission of the offense or act constituting
the ground for legal separation;
(4) Where both parties have given ground for legal
separation;
(5) Where there is collusion between the parties to
obtain the decree of legal separation; or
(6) Where the action is barred by prescription. (100a)

Defenses to Legal Separation the Same as in Civil Code:

This Article provides for the same defenses to an

action for legal separation as those in the Civil Code,
except that the Family Code has simplified the provisions
102 Art. 56

of the Civil Code on these defenses by putting them all in

one Article.

Defenses Discussed:

(1) Condonation (Art. 56 (1)):

(a) Condonation is the forgiveness or pardon of the
guilty spouse by the aggrieved spouse.
(b) Condonation may be express or implied; as
sleeping together with the unfaithful vylfe after full
knowledge of her infidelity (GInez v. Bugayong,
100 Phil. 616).
(c) Condonation comes after, not before, the
commission of the offense (People v.
Schneckenburger, 73 Phil. 413).
(d) While there may be implied condonation if the
innocent spouse has voluntary sexual intercourse
with the guilty spouse after full knowledge of the
offense, there is no condonation if the reason for
the sexual intercourse was to save the marriage
and maintain harmony (Keezer, Marriage and
Divorce, p. 557) or for the purpose of attempting
a reconciliation but the attempt was unsuccessful
(Hawkins v. Hawkins, 286 Pac. 747).
(e) Each sexual intercourse by the wife with another
man is a separate act of adultery. Therefore,
condonation of one act by the husband does not
necessarily imply condonation of the other acts.
(People V. Zapata and Bondoc, L-3047, May 16,
1951).
(f) If the wife leaves the conjugal home after her
adulterous acts were discovered, the fact that the
husband does not actively look for her is not
condonation. It Is not the duty of the husband to
search for the wife; on the other hand, it is the
duty of the wife to return home (De Ocampo v.
Fiorencio, L-13553, Feb. 23, 1960).
Art. 56 103

(2) Consent {Art, 56 (2)):

(a) Consent may be express or implied.
(b) Consent is prior to the act; condonation, after the
act. (People v. Schneckenburger, supra; Matubis
V . Praxedes, Oct. 25, 1960, 109 Phil. 709}.

(c) Where the spouses entered into an agreement

that each could (ive with and have carnal
knowledge with other persons without interference
from each spouse, the agreement is null and void
being contrary to law and morals, but it may be
considered consent which bars an action for
legal separation (People v. Schneckenburger,
supra). This is an example of express consent.
(d) Example of implied consent: The husband was
abandoned by the wife who later lived with
another man. The husband took no action against
the wife but even went to Hawaii. After 7 years,
the husband returned and filed and action against
the wife for adultery. The wife was acquitted on
the ground that the husband's conduct warranted
the inference that he had consented to the
philandering of his wife. (People v. Sansano and
Ramos, 69 Phil. 73).

(3) Connivance (Art. 56 (3)):

(a) A husband who actively connives in the adultery
of his wife by luring her into adultery cannot ask
for legal separation on the ground of connivance.
It is the duty of the husband to protect is wife
from temptation and not connive in her downfall,
(I Tolentino, id., 313)
(b) Thus, a husband who hires a detective to spy on
his wife and tells the latter to have sexual
intercourse with her in order to have evidence, is
a case of connivance (Keezer, Marriage and
Divorce, pp, 550-551).
(c) But connivance must be distinguished from
entrapment. Where a husband tells the wife that
104 Art. 56

he is going out of town but does not really go

away but goes to their conjugal home at midnight
to catch the wife with a lover and later surprises
the wife in an act of adultery, there is no
connivance (See Robbins v. Robbins, Am. Rep.
448).
(d) In view of the new grounds for legal separation
under the above Article of the Family Code, there
can be other cases of connivance not yet
presented to the courts for decision.

(4) Mutual Guilt (Art. 55 (4)):

(a) Where both parties have given ground for legal
separation, neither can file an action for legal
separation.
(b) The guilt may be of the same ground (like sexual
infidelity), or a different ground (like homosexuality
on the part of the husband and sexual infidelity
on the part of the wife).
(c) This defense is based on the principle that a
person must come to court with clean hands. It
matters not whether it was the petitioner or the
respondent who committed the first offense, or
one is more guilty than the other.
(d) The parties being both guilty, there is no offended
spouse who deserves to file the action, and this
is true even if one spouse has been pardoned by
the other spouse, but the latter has not been
pardoned (Benedicto v. De La Rama, 3 Phil. 34)

(5) Collusion (Art. 55 (5)):

(a) This is collusion between the spouses to obtain
the decree of legal separation.
(b) This means that the spouses agree to make it
appear in court that one of them has committed a
ground for legal separation, or to suppress
evidence of a valid defense to such action, for the
 Art. 56 105

purpose of enabling the other to obtain a decree

of legal separation. For example, one spouse files
a case for legal separation on the ground of the
infidelity of the other, and the other spouse
agrees not even to answer or deny the charge,
and does not also appear in court at all.
(0 Under Art. 60 of the Code, legal separation cannot
■ be decreed on a stipulation of facts or a confession
of judgment (which can imply collusion between the
parties), and the court shall order its prosecuting
fiscal to take steps to prevent collusion between the
parties and to take care that the evidence presented
by either of them is not fabricated.
■

(6 ) Prescription of the Action (Art. 55 (6)):

(a) If the action is already barred by prescription
under Art. 57, it will not prosper.
(b) Even if prescription is not alleged, the court can
take cognizance thereof for purposes of dismissing
the action, since such action involves public policy
§ ' and it is the policy of the law that no decree of
BteS legal separation be issued if there is a legal
^1 obstacle thereto appearing in the record (Brown v.
Yambao, 102 Phil. 168).
(0 In the case of adultery by the wife, each act of
sexual intercourse is a separate act of adultery.
Hence, the prescriptive period shall be computed
from the last act of adultery, unless there was
condonation or consent (Ocampo v. Florenciano,
L-13553, Feb. 23, 1960).
(d) Where the wife heard rumors of her husband's
infidelity but did not discuss the matter with her
husband, and it was only later that she
confronted him and he admitted the act, the
period of prescription must be computed from
such admission and not from her receipt of
hearsay information about her husband's infidelity
(Contreras v. Macaraig, 33 SCRA 222).
106 Ar(. 57

Art. 57. An action for legal separation shall be filed

within five years from the time of the occurrence of the
cause. (102a)

This Article Amends Art. 102 of the Civil Code:

Under Art. 102 of the Civil Code, there are two

periods to consider in determining whether the action for
legal separation has prescribed, namely:
(1) The action must be filed within one year after
knowledge of the cause;
(2} The filing of the action must be within five years
from the occurrence of the cause.

The lapse of either period will bar the action, even if

the other period has not yet expired.

Thus, where the husband came to know of the

adultery of his wife in August 1950 but filed the action for
legal separation only in February, 1953, it was held that
the action has prescribed (Juarez v Turon, 51 Phil. 736).

Under the above Article of the Family Code, however,

the first period in the Civil Code (of one year from
knowledge) has been eliminated since the experience of our
courts shows that many aggrieved spouses (mostly wives)
could not comply with such period (which is too short)
since they still resorted to other means (like consulting with
their families, friends, or spiritual advisers, or prayers)
before filing the 'actions for legal separation.

The period for prescription under the above Article of

the Family Code is now "within five years from the time of
the occurrence of the cause", which is long enough for
any aggrieved spouse to discover the cause and to bring
the matter to court. If he or she still does not file the
action within said period of five years, he or she is deemed
to have waived the right to file the same or to have
preferred not to file the action.
 /^rt. 58 and Art. 59 707

Art. 58 An action for legal separation shall in no case

be tried before six months shall have elapsed since the
filling of the petition. (103)

This article is Intended to give the spouses a

chance to reconcile. The 6-nnonth period after the
filing of the action is a cooling-off period given by
law to the spouses during which their passions
may subside, the offended spouse may forgive the
offending spouse, and reconciliation between them
may take place.

(2) Even during this period of 6 months, however,

the court must still provide for the support of the
spouses and the children as well as the custody
of the children (Araneta v. Concepcion and
Benitez Araneta. L-9667, July 31, 1956, 52 O.G.
5165):

Art. 59. No legal separation may be decreed unless

the court has taken steps toward the reconciliation of the
spouses and is fully satisfied, despite such efforts, that
reconctliation is highly improbable, (n)

(1) Like all cases involving spouses and members of

the same family, the court is enjoined to take steps toward
the reconciliation of the spouses and must be fully satisfied
that, despite such efforts, reconciliation is highly
improbable.

(2) Again the purpose of this Article is to see to it

that all avenues for reconciliation are exhausted to prevent
the break-up of the marriage, before legal separation is
granted. The Court must use its moral influence over the
parties and its persuasive powers to try to reconcile them.
Many parties in fact go to court in the heat of anger and
passion, without even talking to each other about their
problem, so that the Court must give them opportunities
for communication as well as provide them with counselling
108 Art. 60
before it should hear the case on the merits. Thus, it is the
practice of family courts to set the case for legal
separation for reconciliation conferences many times, and
only when they do not succeed in reconciling the spouses
that they set the case for hearing on the merits.

Art. 60. No decree of legal separation shall be based

upon a stipulation of facts or a confession of judgment.

In any case, the court shall order the prosecuting

attorney or fiscal assigned to it to take steps to prevent
collusion between the parties and to take care that the
evidence is not fabricated or suppressed. (101a)

Legal Separation Cannot be Granted on Stipulation of Facts

or Confession of Judgment.

(1) There must be proof of the ground for legal

separation, not a mere stipulation or agreement of
the parties that such ground exists, or a
confession of judgment on the part of the
respondent or defendant spouse. This rule Is
intended to prevent collusion between the parties.
(2) Rule 19 of the Revised Rules of Court also
requires that in actions for annulment of marriage
or legal separation, the material facts alleged must
be proved and a judgment on the pleadings is not
allowed.
(3) A decree of legal separation based on a mere
stipulation of facts of the parties, without proof of
such facts, is void and of no effect.
(4) Proof of the facts may be either direct or
circumstantial, and mere preponderance of
evidence is enough, unlike in criminal cases where
there must be proof beyond reasonable doubt.
(5) If the defendant does not answer the complaint or
appear at the trial, the plaintiff or petitioner must
still present his or her evidence.
 Art. 61 109
(6) Even if the defendant admits the allegations of
the petition or the complaint, if there is evidence
of the ground for legal separation Independently of
such admission, the decree is still valid. What the
law prohibits is a judgment based solely on the
defendant's confession. (Ocampo v. Florenciano,
107 Phil. 35).

Intervention of Trial Fiscal:

Under Art. 101, sec. par., of the Civil Code, the court
is required to order the prosecuting attorney to inquire
whether collusion exists between the parties only in case
of non-appearance of the defendant, and if there is no
collusion, the prosecuting attorney shall intervene for the
State in order to take care that the evidence for the
plaintiff is not fabricated.
Under the above Article of the Family Code, however,
the court is required in every case to order its trial fiscal to
take steps to prevent collusion between the parties and to
take care that the evidence is not fabricated or suppressed.
* In other words, whether the defendant answers the
complaint or not, and appears at the trial or not, the trial
fiscal must always be present at the trial in representation
of the State, and may cross-examine the witnesses and
study the documentary evidence presented to prevent the
presentation of false evidence or the suppression of the
true evidence. The fiscal can also oppose the complaint or
petition through the presentation of his own evidence If in
his opinion, the proof presented by the plaintiff or the
petitioner is insufficient, dubious or fabricated.

Art. 61. After the filing of the petition for legal

separation, the spouses shall be entitled to live separately
from each other.
The court, in the absence of a written agreement
between the spouses, shall designate either of them or a
third person to administer the absolute community or
110 Art. 62

conjuga! partnership property. The administrator appointed

by the court shall have the same powers and duties as
those of a guardian under the Rules of Court. (104a)

Effects of FKinq of Petition for Legal Separation:

(1) After the filing of the petition for legal separation,

the spouses are already entitled to live separately
from each other. Hence, the wife can already
have a domicile or residence of her own
independently of her husband.
(2) Since the parties are already entitled to live
separately, the husband has no more right to have
sexual intercourse with his wife and if he forces
himself upon her, he can be charged with rape.
(3) In the absence of an agreement between the
parties, the court shall designate the husband or
the wife to manage the absolute community or
conjugal partnership property.
(4) The court may even designate a third person to
administer the properties of the couple.
(5) In every case, the administrator appointed by the
court shall have the same powers and duties as a
guardian under the Rules of Court. He or she
cannot, therefore, alienate or encumber any
property of the spouses without court authority.

Art. 62. During the pendency of the action for legal

separation, the provisions of Article 4 9 shall likewise apply
to the support of the spouses and the custody and support
of the common children, (105a)

Provisions of A rt. 4 9 shall A p p Iv during the Pendency of

the Action as to Support of Spouses and Custody and
Support of Children:

See comments under Art. 49.

I
Art. 63 7 77

Effect of Death of Plaintiff or Petitioner During Pendency of

Action:

(1) An action for legal separation is purely personal

between the spouses. Hence, the death of one
party causes the death of the action itself and the
action must be dismissed. (Lapuz Sy v. Eufemio,
43 SCRA 177).
(2) In one case, the wife brought an action for legal
separation against her husband on the ground of
concubinage committed by the latter, and prayed
that the husband's share in their conjugal
partnership profits be forfeited. During the
pendency of the case, the wife died, and the
court dismissed the case. The wife's father, who
was her sole heir, appealed.
It was held that the action did not survive
the death of the wife. Even if the action involved
property rights of the deceased wife, these rights
were intransmissible, mere effects of legal
separation and mere rights in expectation before
the finality of the decree. Hence, they cannot
survive if the plaintiff dies prior to the decree.
(Lapuz Sy v. Eufemio, supra)

Art. 63. The decree of legal separation shall have the

following effects:
(1) The spouses shall be entitled to live separately
from each other, but the marriage bonds shall not
be severed:
(2) The absolute community or the conjugal
partnership shall be dissolved and liquidated but
the offending spouse shall have no right to any
share of the net profits earned by the absolute
community or the conjugal partnership, which
shall be forfeited in accordance with the
provisions of Article 43 (2);
(3) The custody of the minor children shall be
awarded to the innocent spouse, subject to the
provisions of Article 2 1 3 of this Code; and
 TT2 Art, 63

(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 Legal Separation:

(1) Spouses are entitled to live separately, but marriage

bonds are not severed:
(a) Parties cannot get married again to others
because they are still married. If either party gets
married again, he or she commits bigamy (U.S. v.
Joanino, 27 Phil. 477).
(b) Although the parties have the right to live
separately from each other, the obligation of
mutual fidelity remains. Hence, the wife may be
convicted of adultery or the husband of
concubinage if either commits any of such crimes.
(c) Since the right to cohabit or live together has
ceased, the husband cannot insist in having
sexual intercourse with his wife. If he forces her,
he will be guilty of rape.
(d) The wife can already establish a domicile separate
from her husband.

(2) Absolute community or conjugal partnership between

the parties is dissolved:
(a) The absolute community or conjugal partnership
between the parties is dissolved, but the offending
spouse shall have no right to any share of the net
profits, which shall be forfeited in accordance
with Art. 43(2) in favor of the common children
of the spouses, if any, or the children of the
guilty spouse by a previous marriage, if any, or
the innocent spouse.
(b) In the Civil Code (Art. 106(3) in relation to Art.
176), there is no forfeiture if the conjugal
Art, 63 113

partnership property came mostly or entirely from

the work or industry, or the wages and salaries,
or the fruits of the separate property, of the guilty
spouse. In the Family Code, the forfeiture of the
share of the guilty spouse is without exceptions.

{3} Custody of minor children shail be awarded to the

innocent spouse, subject to the provisions of Art.
213.

See comments under Arts. 213 and 49.

(4) Offending spouse is disqualified from inheriting from

innocent spouse by intestate succession, and
provisions in his favor in the will of the latter are
revoked by operation of law.
(a) In short, the offending spouse cannot inherit from
the innocent spouse in both testate and intestate
succession.
(b) The offending spouse is not even entitled to the
legitime.
(c) Even if the offended spouse forgets or fails to
revoke a will in favor of the offending spouse, the
will becomes ipso ju re revoked.
(d) If, however, the offended spouse executes
another will in favor of the offending spouse after
the decree of legal separation, the will shall be
valid.
(e) The conviction of the wife of adultery does not
disqualify her to inherit from the offended
husband, if there is no decree of legal separation
between them, for Art. 1032 of the Civil Code
does not make such act one of unworthiness that
would render the guilty spouse incapable of
succeeding from the innocent spouse. To
disqualify the wife from inheriting from the
offended husband, the latter must file a case of
legal separation against the former. This is also
provided in Art. 1002, Civil Code, which states
that "in case of a legal separation, if the surviving
114 Art. 64

spouse gave cause for the separation, he or she

shall not have any of the rights granted in the
preceding articles" (meaning the right to inherit by
Intestate succession).

Support between the Spouses in Legal Separation:

(1) During the pendency of the proceedings, the

spouses and the children shall be supported from
the properties of the absolute community or the
conjugal partnership (Art. 198).
(2) After the decree of legal separation, the obligation
of mutual support between the spouses ceases
(/c/).
(3) The court may, however, order the guilty spouse
to support the innocent one, specifying the terms
of such order, if the latter needs such support
{id.), considering that they are still married.

Can the Wife Drop the Name of Her Husband after the
Decree of Leoal Separation?

No, because they are still married. And this is true

whether she is the guilty party or not.
As held in Laperal v. Republic 6 SCRA 3 5 7 (Oct. 30,
1962), the wife who has been granted legal separation
cannot petition to be allowed to revert to her maiden name
for the Civil Code prevails over the Rules of Court.
To allow the wife to revert to her maiden name after
the legal separation would also give the impression that
she is no longer a married woman when in truth, she is
still married to her husband.

Art. 64. 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 a 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
Art, 64 115

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 has become final. (107a)

Donations Prooter Muptias between the Spouses:

{1} After the finality of the decree of legal separation,

the innocent spouse may revoke donations made
by him or her in favor of the offending spouse
within five (5) years from such finality.
(2) The revocation shall be recorded in the registries
of property in the places where the donated
properties are located.
(3) Alienations, liens and encumbrances registered in
good faith before the recording of the complaint
for revocation in the registries of property shall be
respected.
(4) Note that donations propter nuptias to the guilty
spouse are not automatically revoked after the
decree of legal separation. The innocent spouse
has to file an action to revoke, and if he or she
does not do so within the prescriptive period, the
action cannot be filed anymore. Furthermore, if
the innocent spouse dies without filing the action,
the donation subsists.
(5) Note also that while the prescriptive period for
revocation of the donation is four (4) years under
Art. 107 of the Civil Code, it is five (5) years
under the above provision.

Insurance Policies with Guilty Spouse as Beneficiary:

(1) Under the above Article, the innocent spouse may

also revoke any insurance policy where the guilty
^16 Art. 65

spouse has been designated as a beneficiary after

the decree of legal separation has become final.
(2) The right to revoke exists even if the designation
of the guilty spouse as beneficiary in the
insurance policy is stipulated to be irrevocable.
(3) But the revocation shall take effect only upon
written notification thereof to the insured.
(4) There is no prescriptive period for the innocent
spouse to revoke insurance policies in favor of the
guilty spouse. He or she may do so as long as
the policy is effective.
(5) The above rule on insurance policies supersedes
the decision of the Supreme Court in Gercio v.
Sun Life Assurance Co. of Canada, 48 Phil. 53,
that a wife who has been named irrevocable
beneficiary in the insurance policy of the husband
gets the Insurance indemnity after his death, even
if she had committed adultery and the husband
had obtained legal separation from her.

Art. 65. If the spouses should reconcile, the

corresponding joint manifestation under oath duly signed by
them shall be filed with the court in the same proceeding
for legal separation, (n)

This is a new provision in the Family Code. There is

no provision in the Civil Code expressly requiring the
parties to the case of legal separation to notify the court if
they had reconciled. Thus, there are cases where after the
decree of legal separation, the court does not even know
that the parties have already reconciled and the decree of
legal separation. In effect, has ceased to be effective.

The above provision of the Family Code now requires

the spouses, should they reconcile, to file a joint
manifestation under oath duly signed by both, in the same
proceeding for legal separation. And this is true whether
the proceeding is still pending or it has already been
terminated by a decree of legal separation.
/\rt. 66 and Art. 67 117

Art. 66. The reconciliation referred to in the

proceeding Article shall have the following consequences:
(1) The legal separation proceedings, if still pending,
shall thereby ba terminated In 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 order containing the foregoing shall be

recorded in the proper civil registries. (108a)

Art. 67. 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 separate properties of
each spouse; and
(3) The names of all their known creditors, their
addresses and the amounts owing to each.
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 measures to protect the
interest of creditors and such order shall be recorded in the
proper registries of property.
The recording of the order 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)

Effects of Reconciliation of the Spouses:

(1) On their personal relations:

118 Art. 67

(a) Reconciliation means resumption of cohabitation and

marital relations.
(b) It is a bilateral act requiring the common consent of
the spouses, express or implied.
(c) M ere frien d ly relations b e tw een the spouses,
w ithout actual living together as before, is not
sufficient to constitute reconciliation.
(d) After reconciliation, if one of the spouses commits
a n o th e r act c o n s titu tin g a ground fo r legal
separation, the innocent spouse can file another
action for legal sep aration based on th e new
ground.
(2) On the proceedings for and decree of legal separation:'*’
(a) If the proceedings are still pending, they will be
terminated in whatever stage.
(b) If there is already a Decree of Legal Separation, it
will be set aside by a court order, and the court
shall issue a Decree of Reconciliation.
(c) It is upon the issuance of the D e cree of
Reconciliation that the Decree of Legal Separation
becomes ineffective. In the Civil Code, there is no
such requirem ent, so th a t the court and third
persons do not know e x a ctly w hen the legal
separation between the spouses has ended.
(d) The Decree of Reconciliation shall be recorded in
the proper civil registries and in the NSO.
(3) On the property relations of the spouses:
(a) Under the Civil Code, the reconciliation of the
spouses results in the autom atic revival of their
conjugal partnership or other property regime that
prevailed between them prior to the legal separation
(Art. 108, sec. par.)., without oreiudice to acts and

Special Rule on Legal Separation promulgated by the Supreme

Court which became effective on March 15, 2003.
Art. 67 119
c o n t r a c t s e x e c u t e d by th e s p o u s e s d u r in g tn e ir
separation (Art. 1 9 5 ).’'*’
Under th e a bove A rt. 6 7 of the Family Code,
h o w e v e r, th e s e p a ra tio n of p ro p e rty b e tw e e n the
spouses and any forfeiture of the share of the guilty
s p o u s e s h a ll c o n t in u e to s u b s is t a ft e r th e
re c o n c ilia tio n , unless the s p o u s e s agree to revive
the ir fo rm e r p roperty regime.
(b) If the spouses agree to revive their form e r property
regime or a d o p t a n e w regime, th e y shall execu te
an agreement under oath sp ecifying :
(i) the properties they are contributing anew to the
restored regime;
(ii) t h e p r o p e r t ie s r e t a in e d b y e a c h s p o u s e as
separate property; and
(iii) the names and addresses of all kn ow n creditors
o f each sp o u s e , th e a m o u n ts o w in g to each
and the liens held by each, if any.
(c) The sp ou se s shou ld th e n s u b m it to the c o u r t the
above mentioned agreement tog e the r w ith a m otion
a s k i n g f o r it s a p p r o v a l . T h e m o t i o n s h a l l be
s u b m i t t e d in t h e s a m e p r o c e e d i n g f o r le g a l
separation.
(d) Copies o f th e a g re e m e n t and th e m o tio n shall be
furnished the creditors named in the agreement.
(e) A f t e r due h e a rin g , th e c o u r t shall issue an o rd er
approving the agreement, b u t it shall take measures
t o p r o t e c t t h e in t e r e s t s o f th e c r e d it o r s n a m e d
therein.
(f) The c o u rt o rder a p p ro v in g th e p a rtie s ' a g re e m e n t
shall be recorded in the proper registries of property
in all the places where the spouses have properties.
This recording is in addition to the recording of the
order setting aside the decree of legal separation in
t h e c i v i l r e g i s t r y w h e r e t h e d e c r e e o f le g a l
separation is recorded as well as in the place where
‘’'“The Family Code only allows the parties to revive their former
property regime if they so desire. But the Special Rule promulgated
by the Supreme Court on Legal Separation (id.) allows the spouses
to adopt a new property regime after their reconciliation.
120 Art. 67

the parties reside, if they have changed residence.

In other words, there will be double recording in the
proper registries of property, and in the proper civil
registries.
(g) The recording of the said order shall not, however,
prejudice creditors not listed or not notified of the
proceedings, unless the debtor-spouse has sufficient
separate properties to satisfy the claims of such
creditors. In other words, the revival of the old
property regime betw een the parties is w ithout
prejudice to vested rights already acquired by
creditors prior to such revival. In effect, a legal lien
is created in favor of unsecured creditors. Thus:
(i) Contractual lienholders retain their liens:
(ii) Creditors without liens are given a legal lien;
(iii) In case of insufficiency of properties of the
debtor-spouse w ith which to pay his or her
creditors, the future share of said spouse in the
community or conjugal properties will answer
for his personal obligations.
(h) The Code does not require pub lication of the
proceedings, because publication is very expensive
and it is usually made in newspapers that nobody
reads. Anyway, creditors not personally notified of
the proceedings are not affected by the same.
However, the Special Rule on Legal Separation (id.)
requires the parties to publish their verified motion
for revival of their former property regime or the
adoption of a new one for tw o (2) consecutive
weeks in a newspaper of general circulation.
(i) The creditors not notified of the proceedings may, if
the intention of the Code is to be followed, assert
their claims against the debtor-spouse within the
ordinary periods of prescription.
(See Minutes of Committee meeting of March 9,
1986)
Art^ S7 121

js a suit for legal separation a prejudicial question to a

prosecution of the respondent-spouse for biaamv?

No. A petition for legal separation can be tried

simultaneously with a criminal action for bigamy filed
against the guilty spouse because said petition is not
intended to enforce liability arising from a criminal offense
but it is intended to obtain the right to live separately from
the other spouse and its consequences. (Gandionco v.
Penaranda, 155 SCRA 725).

What is the effect of the death of either party to the

action for legal separation?

The action is abated by the death of either party.

(Lapuz V. Eufemio, 43 SCRA 177; also Sec. 21(a), Special
Rule on Legal Separation).

What is the best evidence to prove the leoai separation

between the spouses?

According to Sec. 19 of the Special Rule on Legal

Separation promulgated by the Supreme Court, the court
shall issue the Decree of Legal Separation after the
registration of the entry of its decision as well as the
approved partition and distribution of the properties of the
spouses in the proper registries.

Also in Sec. 20 (c), same Rule, the registered Decree

of Legal Separation is the best evidence to prove the legal
separation of the spouses and shall serve as notice to third
persons concerning the properties of said spouses.
Title /// - Rights and Obligations Between Husband and Wife Art, 63

T IT L E

RIGHTS AND OBLIGATIONS BETWEEN

HUSBAND AND WIFE‘S''

Art. 68. The husband and wife are obliged to live

together, observe mutual love, respect and fidelity, and
render mutual help and support. (109a)

The personal obligations of the spouses to each other

are:
(1) to live together,
(2) to observe mutual love, respect, and fidelity; and
(3) to render mutual help and support.

The above Article is the same as Art. 109 of the Civil

Code except for . the addition of the spouses' duty to
observe mutual love apart from the mutual duty to respect
and observe fidelity towards each other. The duty to
observe "mutual love" has been added because every
marriage must be founded on mutual love, a love that is
not just a feeling but a deep, abiding unity, maintained by
will and reinforced by the grace which both partners ask
and receive from God, a love that they should have for
each other even at moments when they do not like each
other and even when each would easily. If he or she
allows himself, be "In love" with someone else (C.S.
Lewis, Mere Christianity, p. 97).

Duty to Live Together:

(1) The duty to live together includes cohabitation or

consortium and sexual intercourse.
S e a Lacson v. Lacson, 2 4 S C R A 8 3 7 , in A p p e n d ix "F" h e re o f, fo r th e
reaso ns w h y th e la w p ro vid es fo r th e s e rig h ts and o b lig a tio n s o f th e
spouses.
Art. 68 123

(a) The right to sexual intercourse involves

normal intercourse. Thus, the wife may refuse
to have sexual intercourse with the husband if
he resorts to abnormal or perverse practices.
(b) The wife can also refuse to have sexual
Intercourse with the husband if she is III, If it
would endanger her health, or if he Is
suffering from some venereal disease.
(c) If the husband forces the wife to have sexual
intercourse with him against her will, he may
be charged with coercion.

(2) The wife has the duty to live with her husband,
but she may refuse to do so in certain cases like:
(a) If the place chosen by the husband as family
residence is dangerous to her life;
(b) If the husband subjects her to maltreatment
or abusive conduct or insults, making
common life impossible;
(c) If the husband compels her to live with his
parents, but she cannot get along with her
mother-in-law and they have constant quarrels
(Del Rosario v. Del Rosario, CA, 46 O.G.
6122);
(d) Where the husband has continuously carried
illicit relations for 10 years with different
women and treated his wife roughly and
without consideration (Dadlvas v. Villanueva,
5 4 Phil. 92;
(e) Where the husband spent his time In
gambling, giving no money to his family for
food and necessities, and at the same time
insulting his wife and laying hands on her
{Panuncio v. Sula, CA, 3 4 O.G. 129);
(f) If the husband has no fixed residence and
lives a vagabond life as a tramp (1 Manresa
329).
124 Art. 68

(g) When the husband is carrying on a shameful

business at home (Gahn v. Darby, 36 La.
Ann. 70).
(3) If the wife abandons the conjugal home without
justifiable cause, can the husband compel her to
come home under pain of contempt of court?
No, because cohabitation is a purely personal
obligation, and to compel the wife to comply with
such obligation would be a violation of her
persona! liberty which is guaranteed by the
Constitution (Arroyo v. Vasquez de Arroyo, 42
Phil. 54).

But the husband has the following remedies:

(a) to refuse support to the wife (Arts. 100(1)
and 127(D );
(b) to recover moral damages from the wife
(Tenchavez v. Escano, 15 SCRA 335, 17
SCRA 674); and
(c) to ask the Court to counsel his wife under
Art. 72.

Duty to Observe Mutual Love. Respect and Fidelity:

These duties are personal to the spouses and go into

their intimate relations, so that they must be performed
voluntarily by them. However, some consequences of such
duties are the following:
(a) The unfaithful spouse may be charged criminally
with adultery in the case of the wife or
concubinage in the case of the husband;
(b) Sexual infidelity and perversion are also grounds
for legal separation in the Family Code, and so is
repeated physical violence or grossly abusive
conduct directed against a spouse by the other,
which shows lack of love and respect for the
former,
(c) Both spouses now administer the family property,
whether in the absolute community system or in
Art. 68 125

the system of conjugal partnership, and they also

have joint parental authority over their minor
children, both over their persons as well as their
properties.
(d) If one spouse commits acts which tend to bring
danger, dishonor, or injury to the other, the
aggrieved spouse may apply to the court for relief
(Art. 72).

Dutv to Render Mutual Help and Support:

(1) The spouses are mutually bound to support each

other.
(2) A spouse has the right to defend the life and
honor of the other spouse (Art. 11, Rev. Penal
Code).
(3) A spouse cannot be examined for or against the
other without his or her consent, except in a civil
case by one against the other or in a criminal
case for a crime committed by one against the
other (Sec. 20b, Rule 130, Rev. Rules of Court,
otherwise known as "the marriage privilege rule").
(4) A spouse cannot, during the marriage or
afterwards, be examined without the consent of
the other as to any communication received In
confidence by one from the other during the
marriage (Sec. 21a, Rule 130, Rev. Rules of
Court, otherwise known as "the marital
communication rule").
(5) The management of the household Is the right
and duty of both spouses; either spouse may
exercise any legitimate profession or activity
without the consent of the other; both spouses
manage the absolute community or conjugal
property together; both spouses exercise parental
authority over their common children.
126 Art. 69

Art. 69. The husband and wife shall fix the family
domicile. In case of disagreement, the court shall decide.

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)

Rule in the Civil Code:

Under Art. 110 of the Civil Code, it is the husband,

as head of the family, who has the right to fix the family
residence, and the court may exempt the wife from living
with the husband only if he should live abroad, unless he
does so in the service of the Republic, in which case the
wife should also join him abroad.

Rule under the Above Article:

(1) Under the above Article of the Family Code, it is

no longer the sole prerogative of the husband to
fix the family domicile. It must be a joint decision
of the spouses, and in case they disagree, the
court shall decide.
(2) Once the matter is decided by the spouses or by
the court, the spouses already have the duty to
live together. The court may, however, exempt
one from living with the other.
(a) if one of the spouses should live abroad, or
(b) there are other valid and compelling reasons
for the exemption.
The exemptions shall not, however,
apply if the same will not be compatible with
the solidarity of the family.
(3) The Family Code does not consider a spouse's
living abroad "in the service of the Republic"
anymore as a statutory reason to compel the wife
to live with the husband abroad. It is only one of
 An. 70 127

the reasons that the court may take into account

t - in determining whether the wife should join the
husband or not. There may be reasons that would
justify the wife's staying in the Philippines, like if
the children are studying here, or the weather is
too cold abroad for her health.
(4) The court may likewise exempt the wife from
(iving with the husband even if the latter is just in
the Philippines, but assigned to a place far from
the family home. The Committee decided not to
mention specific reasons that would justify the
court in exempting the wife from joining the
husband; it opted to use the words "other valid
and compelling reasons" so as not to limit the
discretion of the court in deciding the matter.
(5) By way of exception, the court may not exempt
the wife from joining the husband If it would not
be compatible with the solidarity of the family.
(6) The above Article uses the term ''family domicile"
Instead of family residence because the spouses
may have multiple residences, and the wife may
elect to remain in one of such residences, which
may destroy the duty of the spouses to live
together and Its corresponding benefits.
(7) Young people who are about to get married
should first discuss and agree on the matter of
family residence or domicile, especially if their
places of occupation are different, to avoid serious
conflict on this matter after the marriage.

Art. 70. The spouses are jointly responsible for the

support of the family. The expenses for such support and
other conjugal obligations shall be paid from the community
property and. In the absence thereof, from the income or
fruits of their separate properties. In case of insufficiency
or absence of said income or fruits, such obligations shall
be satisfied from their separate properties. (111a)
128 Art. 77

Rule under the Civil Code:

Under Art. 111 of the Civil Code, the support of the

family is the husband's responsibility, and this is so
because he is the administrator of the conjugal partnership
property, which is principally for the family's support,

Rule Under the Above Article of the Familv Code:

Under the above Article of the Family Code:

(1) The spouses are jointly responsible for the support
of the family. And this is to because they are
now joint administrators of the absolute
community or conjugal property.
(2) Such support shall be satisfied in the following
order:
(a) First, from the community property or
conjugal property;
(b) Second, from the income or fruits of the
separate properties of the spouses;
(c) Third, from the separate properties of the
spouses.
(3) In the third case, the spouses are, between
themselves, liable in proportion to their properties.
With respect to creditors, however, they are
soHdariiy liable.

Art. 71. The management of the household shall be

the right and duty of both spouses. The expenses for such
management shall be paid In accordance with the
provisions of Article 70. (115a)

(1) While under the Civil Code, the management of

the household is given to the wife in view of the
popular notion that "'the wife is the queen of the
home", the Family Code, under the above Article,
now provides that the management of the
household is the right and duty of both spouses,
and the expenses for such management shall be
paid in accordance with the rules of family
support. (Art. 70).
 72 ?2S

(2) The change In the rule Introduced by the Family

Code answers the cry of Filipino women that they
should not be confined to stereotype roles, one of
which is the management of the household. They
would like the husbands also to share this
responsibility, like worrying about the high prices
of food items and other family necessities,
"making both ends meet", helping the wife with
household chores if the maid leaves or goes on
vacation, taking care of the baby at night
especially if both spouses go to office or work
during the day, etc.

Art. 72. When one of the spouses neglects his or her

duties to the conjugal union or commits acts which tend to
bring danger, dishonor or injury to the other or the family,
the aggrieved party may apply to the court for relief.
(116a)

(1) This article covers both cases of:

(a) either spouse neglecting his or her duties to
the conjugal union, or
(b) either spouse committing acts which tend to
bring danger, dishonor, or injury to the other
or to the family.
(2) The injury contemplated by this Article is not
economic or financial, but physical, moral,
emotional, or psychological. Examples are:
(a) if the wife spends all her time at the casino
or at the mahjong table, neglecting the home
and the children;
(b) if the husband is having an affair with his
secretary;
■ (c) if the husband keeps on drinking and then
beating his wife when he comes home;
(d) if the wife refuses to live with her husband
without justifiable reason.
(3) The court may admonish or issue an injunction
order to the guilty spouse and even threaten her
730 Art. 73

with contempt of court if he or she refuses to

heed the court order.
But the court, under pain of contempt,
cannot compel the wife to live with or return to
the husband. (Arroyo v. Vasquez de Arroyo,
supra)

Art. 73. Either spouse may exercise any legitimate

profession, occupation, business, or activity without the
consent of the other. The latter may object only on valid,
serious, and moral grounds.
In case of disagreement, the court shall decide
whether or not:
(1) The objection is proper; and
(2) Benefit has accrued to the family prior to the
objection or thereafter. If the benefit accrued prior
to the objection, the resulting obligation shall be
enforced against the community property. If
benefit accrued thereafter, such obligation shall be
enforced against the separate property of the
spouse who has not obtained consent.
The foregoing provisions shall not prejudice
the rights of creditors who acted in good faith.
(117a)

There was an omission in Art. 73 when the Code

was printed. As approved by the Committee (Meeting of
November 8, 1968), par. (2) of the second paragraph of
this Article should read:
"(2} Benefit has accrued to the family prior to the
objection or thereafter. If the benefit accrued prior to the i
objection, the resulting obligation shall be enforced against ^
the community property. If benefit accrued thereafter, such K:
obligation shall be enforced against the separate property of
the spouse who has not obtained consent."
r
Rule Under the Civil Code:

Under Art. 117 of the Civil Code, it is only the

Art^ 73 131

husband who may object to the wife's exercising a

profession or occupation or engaging in business, on the
following grounds, which must concur.
(1) His income is sufficient for the family, according
to its social standing;
(2) His objection is founded on serious and valid
grounds.

If the spouses disagree,

(1) The parents and grandparents as well as the

family council, it any, shall be consulted.
(2) If no agreement is still arrived at, the court shall
decide.

Rule Under the Above Article of the Family Code:

(1) Right to object is mutual.

Women have been complaining why their husbands

should be allowed to object to their exercising any
; legitimate profession or occupation, or going into business
or performing any other legitimate act or activity, without
^the previous consent of the husbands. They complain that
: they cannot even open charge accounts in department
stores without the consent of their husbands.

Now, under the Family Code, the women have no

more cause to complain, since the right to object is already
mutual, and if there is no objection from either spouse, the
other may go ahead and do or perform the act or activity
he or she is contemplating of doing, which is presumed to
be in the interest and for the benefit of the family or for
his or her personal advancement and improvement, which
will ultimately redound to the benefit of the family.

(2) The profession, occupation, business, or activity of

either spouse must be legitimate: that is, lawful,
honest, moral. An act may be lawful but immoral like
all kinds of gambling.
132 Art. 77

(3) In case of disagreement:

(a) Only the court wlli decide, since the Family Code
has abolished the family council. The reasons
given by Justice J.B.L. Reyes, Chairman of the
Committee that drafted the Family Code, for the
abolition of the family council are as follows:

"In the case of the family council supposed

to be composed of relatives of husband and wife,
it was found out that the family council, instead
of solving problems, created new ones, because in
view of family affection and loyalty that prevail in
our country, the family council usually split into
factions so that no solutions could be obtained.
So the Committee opted for solutions through the
courts/'
Besides, the Committee observed that
records and experience show that very few family
councils have been constituted under the Civil
Code.

(b) When the disagreement is referred to the court, it

will determine:
(i) Whether the objection is proper:
Examples of proper objections: Exposure
of the wife to Immorality or dangers to her
honor and reputation; long separation of the
spouses may result in incompatibility with
duties of wife to her family and children.
(ii) Whether benefit has accrued to the family
prior to the objection or thereafter.

(4) Is the absolute community or the conjugal partnership

liable for the acts or transactions of the spouse who
acted without the consent or notwithstanding the
objection of the other?
(a) If benefit has accrued to the family prior to the
objection, the absolute community or conjugal
partnership is liable for the obligations incurred
 133
since all the profits or income from the acts or
transactions of the spouse who acted without the
consent of the other become part of the absolute
community or conjugal properties.
If profits accrued after the objection, the resulting
obligations of the spouse who acted without the
consent of the other shall be enforced only
against his or her separate properties.
(c) Creditors who acted in good faith (i.e., without
knowledge of the objection) are, however,
protected and will not be prejudiced in their rights.
Thus, they may go after the absolute community
or conjugal properties or the separate properties of
the spouse with whom they contracted.

(See Minutes of Committee meeting on November 8,

1986).
Title I V - P ro p e rty R elatio ns B e tw e e n H u s b a n d a n d W ife A rt. 7 4

TITLE IV

PROPERTY RELATIONS BETWEEN

HUSBAND AND WIFE

CHAPTER 1

GENERAL PROVISIONS

Art. 74. The property relations between husband and

wife shall be governed in the following order:
(1) By marriage settlements executed before the
marriage;
(2) By the provisions of this Code; and
(3) By the local customs. (118)

Theory of the Law on Property Relations of Spouses:

Under the above Article as well as Art. 118 of the

Civil Code, the agreement of the parties embodied in the
marriage settlement executed by them before their marriage
prevails over the provisions of the law on the matter of
their property relations during their marriage. In other
words, the law gives the parties the freedom to determine
before the marriage what property regime would govern
their marriage. Only if they do not enter into a marriage
settlement would the provisions of the Family Code on
absolute community regime apply between them.

Art. 118 of the Civil Code and Above Provision of the

Family Code Compared:

The above provision is simiiar to Art. 118 of the Civil

Code except for the following:
134
A rt. 7 5 135

(1) Par. (1) of the above provision specifically

mentions "marriage settlements" while par. (1) of
Art. 118 of the Civil Code simply states "contract
executed before the marriage."
(2) While par. (3) of Art. 118 of the Civil Code
states "by custom", par. (3) of the above Article
specifies "by the local custom", which means the
custom of the specific place where the parties
reside or intend to reside and not the national
custom (which may be different from the local
custom).

Meaning of "Marriage Settlement"

By "m arriage\ settlement", which is also called

"antenuptial agreement," is meant the contract entered into
by a man and a woman who intend or plan to get married
fixing the property regime that will govern their present and
future properties during their marriage.

Art. 75. The future spouses may in the marriage

settlements, agree upon the regime of absolute community,
conjugal partnership of gains, complete separation of
property, or any other regime. In the absence of marriage
settlements, or when the regime agreed upon is void, the
system of absolute community of property as established in
this Code shall govern. (119a)

Property Regimes that may be agreed upon in IVIarriaqe

Settlement:

(1) The future spouse may, in their marriage

settlement, agree on:
(a) the regime of absolute community;
(b) conjugal partnership of gains;
(c) complete separation of property;
(d) a combination of the above regimes;
(e) any other regime, like the dowry system,
whereby the female before the marriage
136 A rt, 7 5

delivers a dowry or property to the male to

help out in the marriage obligations, but at
the end of the marriage, the property or its
value must be returned.
(2) Whatever be the regime agreed upon, it must,
however, not be contrary to law, morals, good,
customs, public order, or public policy (Art.
1306, Civil Code).
(3) The marriage settlement can provide in a general
way for the regime or combination of regimes that
the parties want, but once a regime is chosen, all
properties are governed by that regime. The
parties cannot exclude specific properties from the
regime.
(4) To eliminate doubt, the parties must identify their
specific properties in their marriage settlements by
their titles.
(See Minutes of Committee meeting of Oct. 13, 1984)

Suppose the Parties in their Marriage Settlement Expresslv

Reject the Absolute Communltv Regime Established bv this
Code but do not Agree on anv System to Govern their
Propertv Relations During their Marriage, what System will
apolv?

(1) First, determine the intention of the parties as to

what system they really want and for this
purpose, their contemporaneous and subsequent
acts shall be considered (A rt 1371, Civil Code).
(2) If the intention cannot be ascertained, then apply
the local custom in accordance with par. (3) of
Article 7 4 of this Code.
(3) If there is no local custom, apply the rules on co-
ownership.

W hat if the Marriage Settlament is Completely Void?

Apply the system of absolute community established

in this Code.
 A rt. 7 6 137

gnppose the Parties did not Enter into a Marriage

%% gftttlement?

Apply also the system of absolute community.

i-xamples of Provisions in the Marriage Settlement that are

Void:

I ( D A provision prohibiting any party from marrying

§ another;
I (2) A provision that the spouses will live separately;
i (3) A provision imposing a fine on infidelity;
f (4) A provision depriving either party from asking for
I legal separation when there is ground to do so;
I (5) A provision prohibiting the surviving spouse from
contracting a second marriage;
(6) A provision that a third person will manage the
I community or conjugal properties;
I (7) A provision that all the properties of the wife will
I belong to the husband (this is contrary to Art. 84
providing that the future spouses cannot donate
I more than 1/5 of their present property to the
f other and if one does, the excess is void).

Suppose Some Provisions of the Marriage Settlement are

void and Some are Valid, W hat is the Effect?

The nullity of the void provisions will not nullify the

valid ones, provided the latter can stand by themselves.

Art. 76. In order that any modification in the marriage

settlements may be valid, it must be made before the
celebration of the marriage, subject to the provisions of
Articles 66, 67, 128, 135 and 136 (121)

(1) To be valid, any modification in the marriage

settlement must be made before the marriage.
(2) The only exception is judicial separation of
property during the marriage under Arts. 66, 67,
128, 135 and 136 of this Code.
 ■

138 A rt. 77

(3) Any extrajudicial agreement between the spouses

separating their properties is void (Quintana v.
Lerma, 24 Phil. 285).

Art. 77. The marriage settlements and any

modification thereof shall be in writing, signed by the
parties and executed before the celebration of the marriage.
They shall not prejudice third persons unless they are
registered in the local civil registry where the marriage
contract is recorded as well as in the proper registries of
property. (122a)

Form of the Marriage Settlement:

(1) As between the parties:

(a) Must be in writing (may be private or public
instrument);
(b) Must be signed by the parties;
(c) Must be executed before the marriage;
(d) If a party executing the settlement needs
parental consent for the marriage, the parent
or guardian whose consent to the marriage is
needed must be made a party to the
agreement (Art. 78);
(e) If a party executing the settlement is under civil
interdiction or any other disability (like deaf-
mutism, prodigality, etc. but not insanity), the
guardian appointed by the court must be made
party to the marriage settlement.

(2) In order to affect third persons:

(a) All the above requirements as between the
parties;
(b) The marriage settlements must be registered
in the local civil registry where the marriage
contract is recorded as well as in the proper
registries of property. Hence, a private
instrument will not suffice. The agreement
must be in a public document or the same
cannot be registered.
Art. ?C 139

Reason for i^eulstration in order to Affect Third Persons:

The marriage settlement does not only affect the

parties but also affects third persons who may enter Into
contracts with the spouses or either of them. Hence, third
persons should know what property regime governs the
property relations of the spouses.

If the marriage settlement is not registered, it will not

prejudice third persons, and the absolute community regime
will apply as to them.

Can Either Party Compel the Other to Reduce the IVIarrlaqe

Settlement into a Public Document?

Yes, since it is already required to be in writing. If,

therefore, It is already in a private document, either party
may compel the other to reduce the same into a public
document so that it can be registered in order to affect
third persons.

Form under the Civil Code:

Art. 122 of the Civil Code provides that marriage

settlements shall be governed by the Statue of Frauds. This
means that as between the parties, even an oral marriage
settlement Is still valid if they do not object to oral
evidence thereof or have accepted benefits under the
contract (Art. 1405, Civil Code). The above provision of
the Family Code, however, requires that the marriage
settlement must be in w ritin g and signed by the parties,
which rules out an oral marriage settlement.

Art. 78. A minor who according to law may contract

marriage may also enter into 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)
140 Art. 79

(1) The minor referred to in this Article is one who

can get married with parental consent; that is,
one who is at least 18 but below 21 years old,
whether male or female.
(2) The parent or guardian who is required to give
consent to the marriage of the minor must
actually be made a p a rty to the agreement.
Otherwise, the marriage settlement of the minor is
void {Mirasol v. Lim, 59 Phil. 701)
(3) By being a party to the agreement means that the
parent or guardian must also sign the same.
Hence, if he or she was present but did not sign
the agreement, said agreement is void (Mirasol v.
Lim, supra).
(4) The idea in requiring the parent or guardian to be
made a party to the agreement is to give him or
her the opportunity to participate in the discussion
as to what the agreement shall contain. One of
the parties being a minor, the presumption is that
he cannot take care of his own interests and
needs the help of his parent or guardian.
(5) The participation of the parent or guardian in the
agreement is to capacitate the minor to enter into
the same and not for the purpose of imposing a
liability on said minor.
(6) If there is no parent or guardian, the person
exercising substitute parental authority over the
minor should be the one to participate and sign
the marriage settlement with him.
(See Minutes of Committee meeting of Sept.
15, 1984)

Art. 79. For the validity of any marriage settlements

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)
Art. 80 741

(1) If the judicial guardian of the person under

disability or under civil interdiction does not sign
the marriage settlement as a party thereto, the
marriage settlement is void,
(2) By the phrase "other disability" means other
persons who may enter into a marriage even
under some disability, like deaf-mutes,
spendthrifts, or insolvents, but not insanes since
they cannot contract marriage even with the
consent of their parents or guardians.

Art. 80. In the absence of a contrary stipulation in the

marriage settlements, the property relations of the spouses
shall be governed by Philippine laws, regardless of the
place of the celebration of the marriage and their residence.
This rule shall not apply:
(1) Where both spouses are aliens;
(2) With respect to the extrinsic validity of contracts
affecting property not situated in the Philippines
and executed in the country where the property is
located; and
(3) With respect to the extrinsic validity of contracts
entered into in the Philippines but affecting
property situated in a foreign country whose laws
require different formalities for their extrinsic
validity. (124a)

Philippine Law Applies to Property Relations of Filipino

Spouses. Irrespective of the Place of the Celebration of
their Marriage, their Residence, and the Location of their
Properties:

Following the nationality theory, the above Article

provides for the application of Philippine laws to property
relations of Filipino spouses, whether;
(1) they were married in the Philippines or abroad;
(2) they reside in the Philippines or abroad;
(3) their properties are located in the Philippines or
abroad
 m
142 Art. 81

Exceptions to the Application of Philippine Laws wherg

there is Conflict of Laws.

Philippine laws will not apply in the following cases: m

(1) Where both spouses are aliens. (In this case, their
national law will apply) ^
(2) With respect to the extrinsic validity of contracts
over properties located abroad and executed in the
country where the property is located. (In this
case, the extrinsic validity of the contract will be
governed by the lex situs or the law of the |
-
country where the property is situated).
(3) With respect to the extrinsic validity of contracts
over properties located abroad, even if the
contract is entered into the Philippines, in cases
where the laws of the countries where the
properties are located require different formalities
for their extrinsic validity. (Again, the /ex situs
applies in these cases.)

Art. 124 of the Civil Code Abandoned:

Note that the rule of Art. 124 of the Civil Code

providing that it is the national law of the husband in
cases where the spouses are of different nationalities that
governs their property relations, has been abandoned by
the above Article of the Family Code, which applies even if
one spouse is a Filipino and the other, an alien (Minutes of
Committee meetings of Nov. 15, 22, and 24, 1986).

Art. 81. Everything stipulated in the settlements or

contracts referred to in the preceding articles in
consideration of a future marriage, including donations
between the prospective spouses made therein, shall be
rendered void if the marriage does not take place.
However, stipulations that do not depend upon the
celebration of the marriage shall be valid. (125a)
 80 143

(1) Reason for rule: Since the marriage settlement is

only an accessory contract dependent for its
existence on the intended marriage of the parties,
if such marriage does not take place, the marriage
settlement will become void and ineffective,
except stipulations therein that do not depend
upon the celebration of the marriage for their
validity.
(2) Example of exception: Recognition of an
ii illegitimate child in the marriage settlement.
§ (3) Donations propter nuptias are also rendered void
§ under the above provision if the marriage does not
^ take place. Under the Civil Code, such donations
I' are not automatically revoked by the non-
( celebration of the marriage, but still need to be
I revoked by the donor under Art. 132, par. (2)
 A rt. 8 2

CH APTER 2

DONATIONS BY REASON OF MARRIAGE

Art. 82. Donations by reason of marriage are those

which are made before its celebration, in consideration of
the same, and in favor of one or both of the future
spouses. (126

Requisites of Donations Propter Nuptias:

(1) Must be made before the celebration of the

marriage;
(2) Must be made in consideration of the marriage;
(3) Must be made in favor of one or both of the
future spouses.

Donations Excluded:

(1) Ordinary wedding gifts, which are given to the

spouses after the celebration of the marriage;
(2) Donations in favor of the future spouses made
before the marriage but not in consideration
thereof;
(3) Donations made in favor of persons other than
the spouses (like the parents of the female, or
children of one spouse by a previous marriage)
even though they may be founded on the
intended marriage.

The above donations are governed by the provisions

on ordinary donations.

144
A rt. 8 3 145

Donations Propter Nuptias Distinguished froin Ordinary

Donations:

Donations Propter nuptias Ordinary Donations

(1) Does not require express Express acceptance is

acceptance. necessary.

(2) May be made by minors (see Cannot be made by

Art. 78). minors.

(3) May include future property Cannot include future

(same rule as wills). property.

(4) If present property is donated No limit to donation of

and property regime is not present property
absolute community, limited to provided legitimes are
1/5. not impaired.

(5) Grounds for revocation are Grounds for revocation

found In Art. 86. are found in law on
donations.

Art. 83. These donations are governed by the rules on

ordinary donations established in Title III of Book III of the
Civil Code, insofar as they are not modified by the
following articles. (127a)

Form of Donations Prooter Nuotias:

(1) Under the above Article, the form of donations

p ro p te r nuptias follows those of ordinary
donations. Including oral donations, as established
In Title III of Book III of the Civil Code on
donations.
(2) The above Article amends Art. 127 of the Civil
Code, which provides that the form of donations
p ro p te r nuptias shall be regulated by the Statute
of Frauds.
 Art. 84

Art. 84. If the future spouses agree upon a regime

other than the absolute community of property, they
cannot donate to each other in their marriage settlements
more than one-fifth of their present property. Any excess
shall be considered void.

Donations of future property shall be governed by the

provisions on testamentary succession and the formalities ^
of wills. (130a) il
mm
Limitation to Donation of Present Property:

(1) Limitation does not apply if the property relations

of the future spouses will be governed by the
system of absolute community of property, since
ail the properties of the parties (only with certain
exceptions) will become absolute community any
way.
(2} But if the future spouses agree on a regime other
than the absolute community of property, they
cannot donate to each other in their marriage
settlement more than 1/5 of their present
property. Any excess shall be considered vo/d.

Donations of Future Property Allowed:

(1) While donations of future property are not allowed

in ordinary donations, they are allowed in
donations p ro p te r nuptias.
(2) Donations p ro p te r nuptias of future property shall,
however, be governed by the provisions on
testamentary succession and the formalities of
wills. Hence, they are revocable, unlike donations
of present properties in the marriage settlement
which cannot be revoked except if the marriage
does not take place, since marriage settlements
cannot be modified much less revoked after the ¥
marriage (1 Tolentino, id., p. 367) V-.
v.'

>
/\ft. 8 5 and Art. 8 6 147

Art. 85. 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. (131e)

(1) Rule in the Civil Code: Art. 131 of the Civil Code
requires the donor in a donation p ro p te r nuptias to
release the property donated from mortgages and
other encumbrances with the exception of
easements, unless the contrary is stipulated.
(2) The above Article changes the rule in Art. 131 of
the Civil Code by providing that even property
subject to encumbrances may be the subject of a
donation by reason of marriage, subject to the
following conditions:
(a) In case of foreclosure of the encumbrance
and the property is sold for less than the
amount of the obligation secured, the donee
shall not be liable for the deficiency.
(b) If the property is sold for more than the total
amount of the obligation, the donee shall be
entitled to the excess.

Art. 86. A donation by reason of marriage may be A

revoked by the donor in the following cases: C'
(1) If the marriage is not celebrated, or judicially ' ^
declared void ab initio except donations made in
the marriage settlements which shall be governed
by Article 81;
(2) When the marriage takes place without the
consent of the parents or guardians as required by
law;
(3) When the marriage is annulled, and the donee
acted in bad faith;
(4) Upon legal separation, the donee being the guilty
spouse;
148 Art. 86

(5) If it IS with a resolutory condition and the

condition is complied with;
(6) When the donee has committed an act of
ingratitude as specified by the provisions of the
Civil Code on donations in general. (132a)

Grounds for Revocation of Donations Prooter Nuptias:

(1) If the marriage is not celebrated. (If, however, the
donation is made in a marriage settlement, there
is no need to revoke the same if the marriage
does not take place because under Art. 81, the
donation is automatically rendered i/o/d).
(2) If the marriage is judicially declared void ab initio.
But if the donee acted in bad faith and the donor
is the other spouse, there is no need for an
action for revocation because the donation is
revoked by operation of law (Art. 50 in relation to
Art. 43 (3)).
(3) When the marriage takes place without the
consent of the parents or guardian as required by
law;
(4) When the marriage is annulled and the donee
acted in bad faith. But if the donor is the other
spouse, the donation is again revoked by
operation of law (also Art. 50 in relation to Art.
43 (3)),
(5) Upon legal separation, the donee being the guilty
party;
(6) If the donation is with a resolutory condition and
the condition is complied with; and
(7) When the donee has committed an act of
ingratitude as specified by the provisions of the
Civil Code on donations in general. These acts of
- ingratitude under Art. 765 of the Civil Code are:
(a) If the donee should commit some offense
against the person, honor, or property of the
donor, his wife, or his children under his
parental authority;
■m Art. 86 149

(b) If the donee imputes to the donor any

criminal offense or any act involving moral
turpitude, even though he should prove it,
unless the crime or act has been committed
I against the donee himself, his wife, or his
children under his authority; and
(c) If the donee unduly refuses to support the
: donor when he is legally or morally bound to
give such support.

Prescriptive Periods for Filing Action for Revocation of

Donations

Except for the action to revoke a donation to the guilty

spouse in case of a legal separation, which the second
paragraph of Art. 64 of the Code states must be brought
within five years from the time the decree of legal separation
has become final, there is no other provision in the Family
Code on the period of prescription of the action to revoke a
donation propter nuptias. Hence, prescriptive periods in other
provisions of the Civil Code should apply, depending on the
ground for the revocation. Thus:
(1) If the marriage is not celebrated (except donations
in the marriage settlement which are automatically
rendered void if the marriage does not take place
under Art. 81):
(1) Written donation - 10 years (Art. 1144, par.
(D);
(2) Oral donation - 6 years (Art. 1145, par. (1));
(2) If the marriage is declared void ab initio: Same as
in par. (1) hereof;
(3) When marriage takes place without the required
parental consent - 4 years, being an injury not
founded upon contract (Art. 1146, par. (1));
(4) If the resolutory condition is complied with -
Same as par. (1) hereof.
(5) When marriage is annulled - Same as par. (3)
hereof;
150 Art. 87

(6) If donee committed an act of ingratitude - 1 year

from the donor's knowledge of the fact (Art.
769), (Taken from 1 Reyes & Puno, Outline of
Philippine Civil Law, p. 166).

Art. 87. Every donation or grant of gratuitous

advantage, direct or indirect, between the spouses during
the marriage shall be void, except moderate gifts which the
spouses may give each other on the occasion of any family
rejoicing. The prohibition shall also apply to persons living
together as husband and wife without a valid marriage.
(133a)

Donations Void under this Article:

(1) Donations between the spouses during the

marriage;
(2) Any grant of gratuitous advantage between the
spouses during the marriage, direct or indirect,
like:
(a) Donation to a step-child or a child of the
other spouse by another marriage, since if the
child dies, the other spouse inherits the
property donated;
(b) Donation to a person of whom the other
spouse is a presumptive heir at the time of
the donation, as a donation to a brother of
the other spouse.
(Under Art. 134 of the Civil Code, these
donations are only voidable at the instance of
the donor's heirs within five years from his
death [Art, 1149, Civil Code].

Reasons for Prohibition of Donations between Spouses

during the IVlarriaqe:

(1) To prevent the weaker spouse from being

influenced by the stronger spouse, whether by
abuse of affection or by threats or violence;
(2) To protect creditors;
 Art, 87 151

iS;-; (3) To prevent an indirect modification of the

marriage settlement during the marriage, which is
not allowed {Art. 76).
i
Who may question vaiiditv of donation:

; (1) Only any person prejudiced thereby, like the donor

or his heirs.
(2) !n one case, the husband donated an automobile
to his wife, who insured it for P3,000. Later, the
car was completely destroyed and the wife sought
to collect from the insurance company the
indemnity, but the latter claimed in defense that
the wife had no insurable interest in the car, its
donation to her by her husband being void. HELD:
: The insurance company cannot challenge the
donation, since it had no rights or interests in the
.
car in question, present, remote, or inchoate.
(Hardling v. Commercial Union Ass. Co., 38 Phil.
464)

Prohibition Applies to Parties Living Together without

Wedlock:

The prohibition applies, under the second sentence of

the above Article, even to parties living together as
husband and wife without a valid marriage, as:
(1) in common~law marriages;
(2) parties living in a state of adultery or
m.f'
W concubinage.
I
Reasons for applying prohibition to above relationships
without marriage:
■
(1) The possibility of undue influence still exists;
(2) If rule were otherwise, those living in guilt would
turn out to be in a better position than those in
' legal union.
(Buenaventura v. Bautista, CA, 50 0 ,G .
367 9.; Matabuena v. Cervantes, 38 SCRA 284)
152 Art. 87

Exceptions to Prohibitions:

(1) Moderate gifts which the spouses may give each

other on the occasion of any family rejoicing.
(a) To determine whether a gift is moderate or
not, the social position of the family, its
financial condition, its usages and customs,
and other circumstances of the parties, should
be considered.
(b) A car may be a moderate gift, depending on
the circumstances (Harding v. Commercial
Union Ass. Co., supra).
 Art, 88

C H A P TE R 3

SYSTEM OF ABSOLUTE COMMUNITY

S E C TIO N 1. G EN ER AL PROVISIONS

Art. 88. The absolute community of property between

spouses shall commence at the precise moment that the
marriage is celebrated. Any stipulation, express or implied,
for the commencement of the community regime at any
other time shall be void (154a)

Regime of Absolute Community Explained:

In this regime, the husband and the wife are co-

I owners of all the properties that they bring Into the
marriage and those acquired by each or both of them
during the marriage (except for those expressly excluded by
Art. 92 of this Code), which properties, upon the
dissolution of the marriage, the spouses or their heirs will
11^ divide equally. While In the conjugal partnership of gains,
only the net profits of the partnership are divided between
the spouses, In the absolute community, the entire
common mass of properties Is divided between them, each
spouse losing the ownership of the properties brought into
the marriage.

Beason Why the Family Code Adopts the System of

Absolute Community:

When the Code Commission drafted the Civil Code of

the Philippines in 1947, it already wanted to adopt the
system of absolute community between the spouses
instead of the conjugal partnership of gains (which is
borrowed from Spanish law) but considered It too drastic

153
 Art. 88

and revolutionary to do so. Said tiie Code Commission in

its Report on this matter.

"According to established custom in a majority of

Finpino families, the husband and wife consider themselves
co-owners of all the property brought into and acquired
during the marriage. Therefore, there is in fact an absolute"
community of property between the spouses in the
Philippines. If law ought to be based on real and actual
conditions, the present system of relative community, or
conjugal partnership of gains, should be abolished, and in
its stead, the regime of absolute community should be
incorporated into the new Civil Code. Were it not for the:
consideration that such reform in the law would be looked
upon as revolutionary, the Commission would have
proposed its adoption."

(Report of the Code Commission, p. 25)

The Commission also said that the system of absolute

community is "in consonance with a Filipino custom, which
is nearer to the ideal of family unity and is more in
harmony with the traditional oneness of the Filipino family"
(Report of the Code Commission, id,).
The Civil Code Revision Committee agrees with the
above observations of the Code Commission and, for this
reason, has adopted the system of absolute community in
the Family Code, leaving it to the future spouses to provide
for the system of conjugal partnership of gains in their
marriage settlement If that is the regime that they want to
govern their property relations during their marriage. The
Committee believes that it is now time to go back to a
Filipino custom that is more in consonance with the nature
and ideals of marriage, and which brings about a closer
unity and oneness in the life and interests of the Filipino
husband and wife, since it is based essentially on mutual
trust and confidence.
The system o f absolute community has in fact been
adopted by many countries such as Portugal, Brazil,
Denmark, and the Netherlands.
 155

those who, having substantial amounts of

are worried that they or their children might fall
Into the hands of fortune-hunters in marriage under the
system of absolute community of property between
spouses, all they or their children have to do is to enter
into marriage settlements providing for the conjugal
partnership of gains or some other system of property
relationship during the marriage.

When System of Absolute Communitv between the

Spouses Begins:

(1) Under Art. 145 of the Civil Code, the conjugal

partnership between the spouses shall commence
precisely on the date of the marriage, and any
stipulation to the contrary shall be void.
(2) Said provision of the Civil Code is, however,
inaccurate, because the property relations of the
spouses do not begin on the "date" of the
marriage but on the "precise moment" or actual
time the marriage is celebrated on a certain date.
Hence, the above Article of the Family Code has
cured the inaccuracy of the Civil Code by
providing that the system of absolute community
between the spouses shall commence "at the
precise moment" that the marriage is celebrated,
and any stipulation to the contrary, express or
implied, shall be void.
(3) Thus, if the marriage is solemnized in the
afternoon or evening on a certain date, the
;■
system of absolute community actually
commences at the precise moment of the
wedding that afternoon or evening and not before.

Art. 89. IMo waiver of rights. Interests, shares and

effects of the absolute community of property during the
m
marriage can be made except In case of judicial separation
of property.
j-
Ml:
156 Art. 89

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)

(1) While Art. 146 of the Civil Code prohibits waiver

' of "gains or effects" of the conjugal partnership
during the marriage, this Article of the Family
Code makes the provision more broad by using
the all-inclusive terrris "rights, Interest, shares, and
effects/'
(2) Reason for rule: To avoid undue influence exerted
by one spouse on the other.
(3) Waiver by one spouse Is, however, allowed In the
following cases:
(a) With the marriage subsisting. In case of a
judicial separation of property, which includes
dissolution of the absolute community or
conjugal partnership as a result of legal
separation.
(b) In case the marriage Is dissolved {by death of
one of the spouses) or annulled.
(4) In the above cases where waiver is allowed:
(a) The waiver must appear In a public instrument
(an oral waiver is void);
(b) The waiver must be recorded in.the office of
the local civil registrar, where the marriage
contract Is recorded, and in the proper
registries of property.
(5) Creditors of the spouse who made the waiver,
may, however, petition the court to rescind the
waiver to the extent of the amounts sufficient to
cover their credits.
 Art. 90 157
(6) This provision is limited to voluntary waivers, the
reason being to avoid undue influence between
the spouses, and does not, therefore, affect
judicial transfers.

Art. 90. The provisions on co-ownership shall apply to

the absolute community of property between the spouses
In all matters not provided for In this Chapter, (n)

Rules on co-ownership are suppletory to the provisions

of this Chapter on the system of absolute community of
property between the spouses.

:‘'5

V-

IP
 Art. 91 and Art. 92

S E C TIO N 2.

WHAT CONSTITUTES COMMUNITY

PROPERTY
Art. 91. Unless otherwise provided in this Chapter or
fn the marriage settlements, the community property shall
consist of all the property owned by the spouses at the
time of the celebration of the marriage or acquired
thereafter. (199a)

(1/) Ail properties belonging to husband and wife

before marriage, except those excluded by Art.
92, are automatically converted into community or
common property of the spouses by the
marriage, without need of any judicial act on the
part of the owner-spouse transferring the same to
the community. The same is true with properties
acquired by either spouse or in the names of both
spouses during the marriage.
(2) The spouses have no option to exclude specific
properties from the community.

Art. 92. The following shall be excluded from the

community property:
(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;

158
 0 ^rt. 9 2 159

^ (3) Property acquired before the marriage by either

^ spouse who has legitimate descendants by a
J former marriage, and the fruits as well as the
income, if any, of such property. (201a)
(1) Properties acquired by either spouse during the
marriage by gratuitous title:
||- (a) By "gratuitous title" means by donation, or
testate or intestate succession. Intestacies are
pi included under "gratuitous title," especially as
there are more intestacies than testacies.
(b) The fruits and income of the property
acquired by donation or succession are also
excluded.
^ (c) Exception is when the donor, testator, or
^ grantor has expressly provided in the
donation, will or grant that property shall form
part of the community property of the
^ spouses, in which case such property and its
income and fruits wilt be community property,
(d) The Civil Code includes fruits and income of
properties acquired by gratuitous title by either
spouse during the marriage in the community
property; only the property itself is excluded.
.
But the Committee has changed this rule and
has decided to exclude even the fruits and
income of properties acquired by gratuitous
title from the community property, because
the donation or grant is made to a particular
spouse and not to both spouses or in
consideration of their marriage, and also to
respect the wishes of the donor or testator,
who could have given the donation to both
spouses if he had wanted to. (See Minutes of
Committee meeting of September 15, 1984).
(2) Properties for the personal and exclusive use of
either spouse, except jewelry:
(a) These are properties not only intended for the
personal use of either spouse but those
160 Art. 92

susceptible only of the "exclusive use" of

each. For example, a car, although belonging
to the husband before the marriage, will
become community property, because it can
be used by both husband and wife.
(b) Jewelry are excluded even if they are being
used exclusively by either spouse (like the
diamond earrings of the wife) because they
are valuable and expensive and should,
therefore, be part of the community.
(3) Properties acquired before the marriage by either
spouse who has legitimate descendants by a
former marriage, und the fruits as well as the
income, if any, of such property:
(a) This rule is intended to protect the rights of
legitimate children and descendants of the
first marriage, since the Family Code has
adopted the system of absolute community
between spouses, and if properties of a
widow or widower acquired during the first
marriage are not excluded from the absolute
community of property in her or his second
marriage, the rights of the children and
descendants of the first marriage over said
properties may be prejudiced.
(b) The above rule also consolidates and
simplifies pars. (2) and (3) of Art. 201 of the
Civil Code excluding from the absolute
community of the spouses inheritance from a
child by a former marriage who has full-blood
brothers and sisters, and the presumptive
legitime of children by a former marriage. All
these excluded properties are already included
in the "property acquired before the marriage
by either spouse who has legitimate
descendants by a former marriage" excluded
under the above provision of the Family Code.
(c) The above rule does not, however, affect the
i)
Art. S3 161

rights of the children of the second nnarriage

ii- to inherit their shares of the properties of
their father or mother acquired during his or
her first marriage under the law on
succession. The rule is intended merely to
tef- :
prevent the merger of the properties of a
spouse acquired during a former marriage with
V i-
his or her absolute community in the second
marriage if said spouse has legitimate children
I
- or descendants by his or her first marriage.

Property acquired during the marriage is

presumed to belong to the community, unless it is proved
that it Is one of those excluded therefrom. (160a)

(1) The presumption applies to all properties acquired

during the marriage. Therefore, in order that the
presumption can be invoked, the property must be
shown to have been acquired during the marriage
(De Leon v. RFC, 36 SCRA 289).
(2) The presumption is rebuttable only by strong,
clear and convincing evidence (Ahern v. Julian, 39
Phil. 607)
(3) The presumption is stronger when creditors of the
spouses are involved than when only the spouses
or their successors-in-interest are involved (Ahern
V. Julian, id., Hartake v. Frankel, 54 Phil. 156).
(4) Registration of property in the name of "Emilio
Jocson married to Alejandra Poblete" is no proof
J that properties were acquired during their
marriage. Properties could have been acquired by
Emilio while he was still a bachelor but registered
after his marriage. The import of his titles merely
shows that he owns said properties and that he is
married to Alejandra Poblete. (Jocson v. Jocson-
Vasquez, 170 SCRA 333)
(5) The presumption is not rebutted by the mere fact
that the deed of sale or certificate of title is in
the name of only one spouse (Sideco v. Aznar,
92 Phil. 952).

■
 Art. 93

(6) The presumption, of course, does not apply to

properties excluded from the absolute community
under Art. 92.

SECTIO N 3

CHARGES UPON AND OBLIGATIONS

OF THE ABSOLUTE COMMUNITY

Art. 94. The absolute community of property shall be

liable for:
(1) The support of the spouses, their common
children, and legitimate children of either spouse;
however, the support of illegitimate children shall
be governed by the provisions of this Code on
Support;
(2) All debts and obligations contracted during the
marriage by the designated administrator-spouse
for the benefit of the community, or by both
spouses, or by one spouse with the consent of
the other;
(3) Debts and obligations contracted by either spouse
without the consent of the other to the extent
that the family may have been benefited;
(4) All taxes, liens, charges and expenses, including
major or minor repairs, upon the community
property;
(5) All taxes and expenses for mere preservation
made during marriage upon the separate property
of either spouse used by the family;
(6) Expenses to enable either spouse to commence or
complete a professional or vocational course, or
other activity for self-improvement;
(7) Antenuptial debts of either spouse insofar as they
have redounded to the benefit of the family;
Art. 94 163

(8) The value of what is donated or promised by

both spouses in favor of their common legitimate
children for the exclusive purpose of commencing
or completing a professional or vocational course
or other activity for self-improvement;
(9) Antenuptial debts of either spouse other than
those falling under paragraph (7) of this Article,
support of illegitimate children of either spoiise,
and liabilities incurred by either spouse by reason
of a crime or a quasi-delict, in case of absence or
insufficiency of the exclusive property of the
debtor-spouse, the payment of which shall be
considered as advances to be deducted from the
share of the debtor-spouse upon liquidation of the
community; and
(10) Expenses of litigation between the spouses unless
the suit is found to be groundless.

If the community property is insufficient to cover the

foregoing liabilities, except those falling under paragraph
(9), the spouses shall be solidarily liable for the unpaid
balance with their separate properties, (161a, 162, 163a,
202a-205a).

Obligations of the Absolute Community of Pronertv:

(1) Support {Art. 94 (1)):

(a) Of spouses, their common children, and legitimate
children of either spouse by a previous marriage.
(b) Support of illegitimate children of either spouse is
governed by par. (9) of this Article and the
provisions of this Code on Support.
(c) Support shall be given to the spouses even if
they are not living together, except when one
spouse leaves the other without valid reason, in
which case the former is not entitled to support;
(d) Support shall be given to the spouses, during the
pendency of an action for legal separation (Art.
61) or for annulment of marriage (Art. 49)
164 Art. 94

(2) Debts and Obligations Contracted during the Marriage

{Art. 92 (2)).
Whether contracted:
(a) by the designated administrator-spouse for the
benefit of the community;
(b) by both spouses;
(c) by one spouse with the consent of the other. In
pars, (b) and (c), since both spouses consented,
creditors need not prove that the debts
redounded to the benefit of the family.

(3) Debts Contracted by One Spouse without the Consent

of the Other (Art. 94 {3)):
(a) Absolute community is liable only to the extent
that the family may have been benefited by the
debt or obligation.
(b) The reason is because the spouses are joint
administrators of the absolute community property
and one should not act without the consent of
the other.

(4) Taxes, Liens, Repairs on Community Property (Art. 94

(4)):
(a) Taxes Include those on the property itself and
also on its fruits, since the fruits are also absolute
community property.
(b) Surcharge on real estate taxes are included.
(c) Expenses incurred in the production of the fruits
are included.
(d) Losses suffered if fruits are destroyed, or fruits
are not enough to cover the expenses, are borne
also by the absolute community.
(e) Repairs on community property, whether major or
minor, are borne by the absolute community.
"'Minor repairs" are those for mere
preservation of the property or those caused by
ordinary wear and tear.
"Major repairs" are those caused by
extraordinary events such as storms, floodSy
 Art. 94 ;65
earthquakes, fire, etc. affecting the substance and
not just the enjoyment of the property.

Taxes and Expenses for Mere Preservation of Separate

Properties of the Spouses (Art. 94 (5)):
(a) Applies only to separate property of either spouse
being used b y the fam ily, not to all other separate
properties of the spouses which do not benefit
the family.
(b) Expenses are limited to mere preservation or for
minor repairs, since major repairs should already
be paid by the owner-spouse.
(c) For example, a building exclusively owned by the
wife was completely burned. If she would like to
reconstruct the building, she will have to pay with
her own exclusive money, since that is no longer
an expense for mere preservation but an
extraordinary or major expense.

(6 ) Expenses for Professional, Vocational, or Self-

Jmprovement Course of Either Spouse (Art. 94. (6)};
(a) Art. 161, par. (6) of the Civil Code uses the term
"to complete" a professional, vocational or other
course. This provision of the Family Code uses
the terms "to commence or complete" a course,
since a spouse might want not only to complete a
course but to start a new course (such as law or
medicine) during the marriage.
(b) This provision of the Family Code also includes
"self-improvement" courses such as speech power
lessons, cooking lessons for the wife, health-
improvement courses, a course in "karate" or
other self-defense course, etc.
(c) The intention of the law is to encourage the
spouses to improve themselves for the benefit not
only of their families but of the nation as a
whole.

1:.
166 Art. 94

(7) Ante-nuptial Debts that Benefited the Family (Art. 94.

(7)):
(a) Examples are expenses incurred by the wife on a
building owned by her before the marriage but
which became absolute community property after
the marriage, or loans incurred by the husband
before the marriage for the purchase of the
conjugal home or with which to start a business
intended for the support of the family.
( b) If the ante-nuptial debt did not redound to the
benefit of the family, the applicable rule is par. (9)
of this Article.

(8) Donations by Both Spouses to Common Legitimate

Children for them to Commence or Finish Professional,
Vocational, or Self-Improvement Courses (Art. 92. (8)):
(a) These donations are beyond what is required
under the duty of the parents to support their
children, which includes their education in keeping
with the financial capacity of the family (Art.
194). An example is a post-graduate course
pursued by one of the children here or abroad.
(b) Beneficiaries should be common legitimate children
of the spouses.
(c) The rule applies not only actual donations but
even to promises to donate.
(d) The donation or promise to donate must be made
by both spouses, otherwise, the absolute
community is not liable.
(e) The rule covers not only professional or vocational
courses but all courses for the self-improvement
of the children (similar to par. (6) of this Article
referring to the spouses).

(9) Ante-Nuptial Debts not Falling under Par. (7) hereof.

Support of Illegitimate Children, Liabilities of Either
Spouse arising from a Crime or a Quasi-Delict (Art. 9 4
(9)):
(a) The absolute community is liable for these
obligations if the debtor-spouse has no exclusive
 Art. 94 167

property or his or her exclusive property is

insufficient, without need of proving first that the
responsibilities of the absolute community under
this Article have been covered or paid (a condition
required if the regime is the conjugal partnership
of gains under Art. 122 of this Code) The reason
is that generally, the spouses do not have
separate properties because ail the properties they
owned before the marriage had become part of
their absolute community property during the
marriage. It is only logical, then, that the absolute
community should be made liable for these
obligations; otherwise, creditors of antenuptial
debts incurred by .i spouse, illegitimate children of
either spouse, and parties aggrieved by a spouse
who has committed a crime or a quasi-delict, will
be prejudiced or even defrauded In their rights.
(b) The amounts to be paid by the absolute
community for the above obligations are,
however, considered as advances to be deducted
from the share of the debtor-spouse upon the
liquidation of the community property,
(c) Under Art. 205 of the Civil Code, the guilty
spouse has no obligation to reimburse to the
absolute community indemnities paid by the latter
on account of a crime or quasi-delict committed
by him or her. This provision of the Family Code
has changed that rule, as the absolute community
is considered to have merely advanced these
i- indemnities and they shall be deducted from the
: share of the guilty spouse at the time of the
i liquidation of the absolute community.

(10) Expenses of Litigation between the Spouses (Art. 94

(10)):
(a) Examples of these litigations are actions for
support by one spouse against the other or for
support and custody of children, legal separation,
and annulment of marriage.
168 Art. 9q

(b) If the spouse who files the case loses, the

absolute community is noi liable for the expenses
of litigation.

Spouses are Solidarilv Liable to Creditors with thpjr

Separate Properties:

(1) If the community properties are not sufficient to

pay for all the liabilities under this Article except
those falling under par. (9) thereof, the spouses
are solidarily liable to creditors with their separate
properties.
(2) The reason for this rule is because the spouses
are joint administrators of the community
property. Thus, if it incurs more liabilities than it
can pay, they must answer to creditors in sofidum
with their separate properties.
(3) The spouse who pays the creditor with his or her
separate property may, however, get
reimbursement from the absolute community at
the time of liquidation.

Art. 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)

(1) Art. 64 of the Civil Code makes the gambler-

spouse liable for all gambling losses during the
marriage, but does not state if the winnings form
part of the conjugal partnership property.
(2) This Article now makes it clear that while it is the
gambler-spouse who shall bear all his losses
during the marriage from all kinds of gambling,
whether permitted or prohibited by law, including
sweepstakes, all winnings therefrom shall form
part of the community property.
 Art- 96 169

(3) If, however, the winning ticket in a lottery or in

the sweepstakes was given to a spouse by a
friend, it is believed that the ticket w ould be
considered a donation under A rt. 92 (1) and the
w innings therefrom w ill not be part o f the
com m unity property unless expressly so provided
by the donor o f the ticket.

SE C TIO N 4

OWNERSHiP, ADMINISTRATION, ENJOYMENT

AND DISPOSITION OF COMMUNITY PROPERTY

Art. 96. The administration and enjoyment of the

community property shall belong to both spouses jointly. In
I case of disagreement, the husband's decision shall prevail,
subject to recourse to the court by the wife for a proper
I remedy, which must be availed of within 5 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
f common properties, the other spouse may assume sole
powers of administration. These powers do not include the
powers of disposition or encumbrance which must have the
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
maybe 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)

Administration of Community Property:

(1) Administration of the community property belongs

to both spouses jointly. This means that both
spouses administer together, or each spouse may
170 Art. 96

administer with the consent of the other,

expressly or impliedly.
(2) If the spouses disagree on any act of
administration, the decision of the husband shall
prevail, subject to recourse to the court by the
wife for a proper remedy. If, however, she does
not go to court, that means she already agrees to
the decision of the husband.
(3) Within what period must the wife go to court?
This Article says "within five years from the date
of the contract implementing the husband's
decision". Thus,
(a) The wife may go to court even before the
husband implements his decision on an action
for injunction to stop the husband from
implementing his decision.
(b) If the husband has already entered Into the
contract implementing his decision, the wife
can file an action questioning the contract
within five (5) years from the date of said
contract.
(c) Third persons who deal with the husband
cannot complain if the contract is set aside
by the court, for by dealing with the husband
without the consent of the wife, they are
forewarned that the wife is given by law the
right to question the transaction in court.
(4) Art. 173 of the Civil Code gives the wife ten (10)
years within which to question transactions of the
husband without the wife's consent which
defraud her of her rights. The Committee has
reduced this period to five (5) years, which period N

it believes is long enough for the wife to learn

about the transaction and decide whether to
question it in court or not.
(5) Some women's groups are complaining why the
husband's decision should be made to prevail if
there Is a disagreement between the spouses. But jp

fc-
A rt. 9 6 7 77

the law has to take care of emergency situations

which cannot wait for the decision of the court in
cases where the wife chooses to go to court to
question the decision of her husband. And so the
Committee decided that as a solution to the
conflict between the spouses and following the
tradition of the husband being the head of the
family, he should be allowed to decide the
problem ad interim before the matter winds up in
court. But the Committee hopes that with the
husband knowing that his decision would be
subjected to an ultimate review by the court, it is
not likely that he would abuse his power to
decide ad interim . The Committee also hopes -that
considering the delay that court litigation^ Usually
entail, we can all look forward to the time when
husband and wife can come to a compromise or a
m odus vivendi on matters concerning the family
without need of going to court.
It was also observed by the Committee that
spouses fight over property matters only when
there is already some conflict within the marriage.
These are, however, exceptional cases, the
general situation being that husband and wife are
joined by love as one. And since the husband is
expected to have the interests of the family at
heart, it is believed that in most cases, he would
consider and be guided by the best interests of
the family everytime he makes a decision, unlike
in an ordinary business partnership where each
partner is thinking only of his own, personal
interests.
(6) In the event that one spouse is incapacitated or
otherwise unable to participate in the
administration of the community property, then
the other spouse may assume sole powers of
administration, which do not, however, include the
powers of disposition or encumbrance.
172 A rt. 97
Disposition or Encumbrance of Community Pronertv:

(1) Disposition or Gncumbrance of community

property is again joint; i.e., both spouses must
consent or approve.
(2) The consent of the other spouse to the
encumbrance or disposition must be in writing.
(3) If the written consent of the other spouse cannot
be obtained or is being withheld, then the matter
should be brought to court and the court will give
the authority if the same is warranted by the
circumstances.
(4) If one spouse acts without the written consent of
the other or without court authority, the
disposition or encumbrance shall be void.
(5) The transaction entered into by one spouse
without the written consent of the other or
without court authority shall, however, bC/
construed as a continuing offer on the part of thfe
consenting spouse and the third person, and ^may
be perfected as a binding contract up^^ the
acceptance by the other spouse or auth^f^ization
by the court before the offer is with(/rawn by
either or both offerors. /
(6) Third persons who would deal with tne spouses
after the effectivity of the Family Code should
know these new provisions of the /Family Code
and so, it is up to them to take steps to protect
their rights. /

Art. 97. Either spouse may dispose bv will of his or

her interest in the community property, (n)

(1) Since the last will and testament of the spouse

will be effective only after his or her death, each
spouse is allowed to dispose by will of his or her
interest in the community property, \ subject to the
limitations of the law on testamentary succession.
(2) The will should refer only to the sl\are of either
spouse, not to any specific property in their
Art- 98 173

absolute community, since it is not yet known at

the time of the making of the will whether such
specific property will be adjudicated to the
deceased spouse or not at the time of the
liquidation of the absolute community. If,
however, said specific property is adjudicated to
the deceased spouse, then his will can be given
effect.

Art. 98. 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)

(1) The spouses are prohibited from donating any

community property without the consent of the
other.
(2) Suppose the prohibition is violated and one
spouse donates a piece of community property
without the consent of the other, what is the
nature of the donation, void or voidable? Since
Art. 96 provides that a disposition made by one
spouse without the written consent of the other
or authority of the court is void, the donation
without the written consent of the other spouse
would also be void.
(3) A donation by the husband to his mistress is not
only void under this Article but also void under
Art. 739 of the Civil Code.
(4) The donation being totally inexistent, the action or
defense for the declaration of its inexistence does
not prescribe (Art. 1410, Civil Code).
(5) Exceptions to prohibition:
(a) Moderate donations to charity or on occasions
of family rejoicing or family distress. (See
above article).
(b) Moderate gifts of the spouses to each other
?74 Ar,. 9 9 ®

on the occasion of any fam ily rejoicing (Art

87).
(c) W hat is moderate depends on the financial
circum stances of the couple, the value of t h e ^
property donated, and their social position.
(6) The prohibition, like in A rt. 87, should also apply
to parties living together as husband and wife S ii
w ith o u t a valid marriage, for the same reasons as
in A rt. 87; namely:
(a) The possibility of undue influence between ^
the parties,
(b) Those living in guilt w ould turn out to be in a 'S
better position than those in legal union if the
prohibition is not applied to them. J

SECTION 5 I
DISSOLUTION OF ABSOLUTE
COMMUNITY REGIME
Art. 9 9 . The absolute community terminates:
(1) Upon the death of either spouse;
{2) When there is a decree of legal separation;
(3) When the marriage Is annulled or declared void, or
(4) In case of judicial separation of property during
the marriage under Articles 134 to 138. (175a)

Grounds for Termination or Dissolution of the Absolute

Community Regime:

(a) Upon the death o f either spouse;

(b) Upon a decree of legal separation between the
spouses;
(c) W hen the marriage o f the spouses is annulled or
declared null and void; or
(d) In case o f judicial separation of property during
the marriage under Arts. 134 to 138.
firt. 100 175
Applicable Rules for Each Ground of Termination of
Ahsoiute Community

(a) Death of either spouse - Apply Art. 103.

(b) Legal separation - Apply Arts. 63 and 64
(c) Annulment and declaration of nullity of marriage
Apply Arts, 50 to 52
(d) Judicial separation of property during the marriage
under Arts. 134 to 138.

Art. 100. The separation in fact between husband and

wife shall not affect the regime of absolute community
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 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 letter's share.
(178a)

Meaning of Separation In Fact or Separation De Facto:

By separation in fact or de facto between the spouses

is meant that they are no longer living together, i.e., their
cohabitation or common life under the same roof is
terminated, although there is no legal separation between
them. The absolute community of property or conjugal
partnership between the spouses is not affected by their
separation de facto except as provided in this Article.
176 Art. 100

Separation De Facto PistinquishGd from Abandonment:

Separation de facto is, as already stated, the

termination of the cohabitation or common life of the
spouses under the same roof, but the spouses might still
be complying with their mutual duty of support, as well as
their duty to support and maintain the children.
Abandonment, on the other hand, is not mere separation
de facto but implies an intention never to return to the
conjugal home and without providing for the needs and
maintenance of one's family.

Rules Applicable to Separation Oe Facto between the

Spouses:

(1) The separation de facto between the spouses

does not affect their absolute community of
property.
(2) The spouse who leaves the conjugal home or
refuses to live therein without just cause shall not
have the right to be supported. His or her
obligation to support the other spouse, if the
latter needs such support, is not, however,
extinguished.
(3) When the consent of one spouse to any
transaction of the other is required by law and
the latter does not want to give such consent or
is not available to give the required consent (as
when one of the spouses is abroad), authorization
may be obtained from the court in a summary
proceeding.
(4) Support of the family will be taken from the
absolute community property.
(5) If the community property is insufficient for such
support or in the absence of community property,
the separate properties of the spouses shall be
solidarily liable for the support of the family.
(6) If it is necessary to administer or encumber any
specific separate property of the spouse who has
left for the support of the family, the spouse
An. 101 17V

present may, upon proper petition in a summary

proceeding, ask for judicial authority to administer
or encumber such property and use its fruits or
proceeds to satisfy the share of the other spouse
in the support of the family. And if the present
spouse has no separate property at all, the
support of the family shall come solely from the
fruits or proceeds of the separate properties of
the other spouse.

Art, 101. If a spouse without just cause abandons the

other or fails to comply with his or her obligations to the
family, the aggrieved spouse may petition the court for
receivership, for judicial separation of property, or for
authority to be the sole administrator of the absolute
community, subject to such precautionary conditions as the
court may impose.
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 any
intention of returning. The spouse who has left the
conjugal dwelling for ^/period of three months or has failed
within the same perrp'd to give any information as to his or
her whereabouts ^ a ll be prim a facie presumed to have no
intention of returning to the conjugal dwelling. (178a)

Remedies of Present Spouse in Case of Abandonment by

the Other Spoji^se:

Abandonment, as already stated, means a spouse's

leaving the/conjugal dwelling without any intention of
returning ^nd no longer complying with his or her
obligations/ to the family which may refer to marital,
parental pr property relations.
In /Such case, the present spouse may petition the
court for:
{d) receivership;
Id ) ju d icial separation of property; or
T78 Art. 1 0 2

(c) authority to be the sole administrator of the

absolute com munity, subject to such precautionary
conditions as the court may impose.

Presumption of Abandonment:

A spouse is prima facie presumed to have abandoned

the other spouse and the fam ily and to have no more
intention of returning to the conjugal dwelling if;
(a) He or she has left the conjugal dwelling for a
period of three m onths; or
(b) He or she has failed w ithin the same period of
three months to give any information as to his or
her whereabouts.

SECTION 6

LIQUIDATION OF THE ABSOLUTE

C O M M U N IT Y ASSETS A N D LIABILITIES

Art. 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 solldarily
'iable for the unpaid balance with their separate properties
In accordance with the provision 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^
Art 102 179

waiver of such share as provided in this Code. For

purposes of computing the net profits subject to forfeiture
in accordance with Articles 43, No. (2) and 63, No. (2),
the said profits shall be tine 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 is no such majority,
the court shall decide, taking into consideration the best
interests of said children, (n)

Procedure in Liouidatinq the Absolute Community Assets

and Liabilities:

A fter the dissolution of the absolute com m unity

regime by any o f the causes mentioned In A rt. 99, it shall
be liquidated in the follow ing m anner:
(1) An inventory shall be prepared, fisting separately
al! the properties of the absolute com m unity and
the exclusive properties of each spouse.
(2) The debts and obligations of the absolute
com m unity shall be paid as follow s:
(a) Payment shall be made out of the assets of
the absolute com m unity.
(b) In case there are no assets or the same are
insufficient to pay for all the debts and
obligations, the spouses shall be soHdarily
liable for the unpaid balance w ith their
separate properties in accordance w ith the
— _ second paragraph of Art. 94.
180 Art. 703

(3) The exclusive properties of the spouses, or

whatever remains of them after paying the debts
and obligations of the absolute community, shall
then 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 the
spouses, unless:
(a) a different proportion or division was agreed
upon in the marriage settlement, or
(b) there has been a voluntary waiver by one
spouse of his or her share; or
(c) the share of the guilty spouse is forfeited.
(5) The presumptive legitimes of the common children
shall be delivered to them upon partition in
accordance with Art. 51.
(6) The conjugal dwelling and lot shall be adjudicated
as follows:
(a) In accordance with the agreement of the
parties, if any;
(b) if the parties did not make any agreement on
the matter, it shall be adjudicated to the
spouse with whom the majority of the
common children choose to remain;
(c) Children below 7 years old are deemed to
have chosen the mother, unless the court
decides otherwise;
(d) In case there is no such majority among the
children, the court shall decide the matter,
taking into consideration the best interests of
the children.

Art. 103. Upon the termination of the marriage by

death, the community property shall be liquidated In the
same proceeding for the settlement of the estate of the
deceased.
If no judicial settlement proceeding is instituted, the
surviving spouse shall liquidate the community property
I
A rt 103 787

either judicially or extra-judicially within one year from the

death of the deceased spouse. If upon the lapse of the
said period, no liquidation is made, any disposition or
encumbrance involving the community property of the
terminated marriage shall be void.
Should the surviving spouse contract a subsequent
marriage without complying w ith' the foregoing
requirements, a mandatory regime of complete separation
of property shall govern the property relations of the
subsequent marriage, (n)

Rules in Case of Termination of Marriage bv Death of One

of the Spouses:

(1) The community property shall be liquidated in the

same proceeding for the settlement of the estate
of the deceased spouse.
(2) If no such judicial settlement proceeding is
instituted, the surviving spouse shall liquidate the
community property either judicially or extra-
judicially w ithin one year from the death of the
deceased spouse.
(a) The one-year period is in keeping with Filipino
tradition that we do not want to partition the
estate of a deceased person until after the
one-year period of mourning.
(b) Liquidation may be extra-judicial settlement
under Rule 74 of the Revised Rules of Court
or an ordinary action for partition, in both
cases if there are no debts to be paid.
(c) If there are debts, the surviving spouse has
no choice but to file proceeding for the
settlement of the estate of the deceased
spouse, and the community property would
be liquidated in the same proceeding.

Effects if the Community Property is Liquidated as Above

Prescribed:

(1) Any disposition or encumbrance made by the

T82 Art. 10^

surviving spouse of community property shall be

void.
(2) Should the surviving spouse contract a
subsequent marriage without complying withe the
requirements above prescribed, a mandatory
regime of complete separation of property shall
govern the property relations of the subsequent
marriage.
(a) In case one of the spouses dies, the surviving
spouse may not settle the estate of the
deceased spouse and liquidate their absolute
community. It is different when a marriage is
annulled because there is always a court
action and the court will order the liquidation
of the absolute community.
(b) If the surviving spouse does not settle the
estate of the deceased spouse and liquidate
their absolute community property, the heirs
of the deceased spouse may be prejudiced by
the subsequent marriage of the surviving
spouse because under the Code, the latter
would have an absolute community with his
second spouse and the community properties
of the first marriage might be merged with
the absolute community of the second
marriage. Hence, the Code prescribes a regime
of complete separation of property in the
second marriage so as to protect the heirs of
the deceased first spouse.

Art. 104. Whenever the liquidation of the community

properties of two or more marriages contracted by the
same person before the effectlvity of this Code is carried
out simultaneously, the respective capital, fruits and income
of each community shall determined upon such proof as
may be considered according to the rules of evidence. In
case of doubt as to which community the existing
properties belong, the same shall be divided between or
among the different communities in proportion to the
capital and duration of each. (189a)
jirt. 104 183

prncedure in the Liquidation of Community Properties of

Two Marriage:

Unless all the heirs come to an agreement as to how

to divide the community properties of two marriages, the
following procedure in the liquidation of such properties
shall be followed:
(1) First, determine the capital, fruits and income of
each community upon such proof as may be
considered according to the rules of evidence.
(a) Thus, where eleven parcels of land were
acquired during the first marriage and twenty
parcels during the second, each absolute
community should be considered owner of the
parcels of land acquired during its existence,
for it is preposterous to believe that the
twenty parcels of the second marriage were
acquired with the products of the eleven
parcels of the first marriage. (Onas v. Javillo,
59 Phil. 733)
{2} In case of doubt as to which community the
existing properties belong, they shall be divided
between the two communities in proportion to the
capital and duration of each.
(a) For example, the first marriage lasted for 10
yeas and the second marriage for 20 years
and the values of the respective capitals of
each marriage had been more or less equal,
the second marriage will get twice as much
properties as those of the first marriage.
(b) If one marriage lasted for 18 years and the
second for 46 years, the properties should be
divided in the proportion of 18 to 46, if the
capital of either marriage or the contribution
of each spouse cannot be determined with
mathematical certainty (De Ocampo v. Delizo,
69 SCRA 216).
 Art. 70s'

CHAPTER 4

CONJUGAL PARTNERSHIP OF GAINS

SECTION 1. GENERAL PROVISIO NS

Art. 105. In case the future spouses agree In the

marriage settlements that the regime of conjugal partnership
of 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
255 . (n)

When the Regime of Conjugal Partnership of Gains Applies

(1) In case the future spouses agree on this regime in

their marriage settlement, their property relations
will be governed by their agreement, with this
Chapter having supplementary applications.

(2) 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 Art. 256.

784
 106 185

Art. 106. Under the regime o f conjugal partnership of

gains, the husband and wife place in a common fund the
I 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
I; obtained by either or both spouses shall be divided equally
between them, unless otherwise agreed in the marriage
settlements. (142a)

Concept of Conjugal Partnership of Gains:

(1) Husband and wife place in common fund:

(a) the proceeds, products, fruits and income of
their separate properties;
(b) everything acquired by them through their
efforts (i.e., their work, labor, or industry,
whether singly or jointly); and
(c) everything acquired by them through chance
(like winnings from gambling, hidden treasure,
and those acquired through fishing and
hunting).
(2) Upon dissolution of the marriage or of the
partnership, the net gains or benefits from the
partnership shall be divided equally between the
spouses, unless they have agreed on another
manner of division in their marriage settlement.

Coniuaal Partnership Distinguished from Svstem of Absolute

I Community:

(1 in the system of absolute community, all the

properties owned by the spouses at the time of
the marriage become community property. In the
conjugal partnership, each spouse retains his or
her property before the marriage, and only the
fruits and income of such properties become part
of the conjugal properties during the marriage.
In the system of absolute community, what is
divided equally between the spouses or their heirs
186 Art. lOQ

upon the dissolution and liquidation of the

community property is the n et remainder of the
properties of the absolute community, so that it
may happen that a piece of land owned by either
spouse before the marriage, being the only
property left after the dissolution of the absolute
community, would be divided between the
spouses or their heirs.
in the conjugal partnership of gains,
however, the separate properties of the spouses
are returned upon the dissolution of the
partnership, and only the net p ro fits of the
partnership are divided equally between the
spouses or their heirs,
{3} The system of absolute community is based
essentially on mutual trust and confidence between
the spouses and fosters oneness and unity between
them. This is in fact the tradition and custom
among the great majority of Filipinos, and this is the
reason why the Family Code adopts this system
instead of the conjugal partnership of gains, which
Is taken from Spanish law.
In the conjugal partnership of gains, the
capital or properties of the spouses are kept
separate and distinct from the benefits acquired
by them during the marnage. This constitutes an
Insurmountable obstacle to the presumption of
solidarity between thre spouses. (National Bank v.
Quintos, 46 Phil. 370).
(4) It is easier to liquidate the absolute community
property because the net remainder of the
community properties are just divided between the
spouses or their heirs. In the conjugal partnership,
the exclusive properties of the parties will have to
be identified and returned, and sometimes, this
identification Is very difficult.
 Art. 106 TS7

rnniuaal Partnership Distinguished from Ordinary

Partnership:

(1) The conjugal partnership has no judicial

personality. An ordinary partnership is a judicial
person.
(2) The conjugal partnership commences at the
precise moment the marriage is celebrated. An
ordinary partnership begins at any time agreed
upon by the parties.
(3) The conjugal partnership is generally regulated by
law; an ordinary partnership is regulated by the
agreement of the parties and only subsidiarily by
law.
(4) The purpose of the conjugal partnership is not
particularly for profit; profit is the purpose of an
ordinary partnership.
(5) In the conjugal partnership, the profits are
generally divided equally between the spouses; in
an ordinary partnership, they are usually divided in
proportion to the capital contribution of each
partner.
(6) The conjugal partnership is dissolved upon the
death of one of the spouses. In an ordinary
partnership, the surviving partners may decide to
continue the same inspite of the death of one of
the partners.
(7) In the conjugal partnership, there can be no
liquidation or division of profits until after its
k.
f- dissolution. In an ordinary partnership, there can
be division of profits without dissolution.

Each Spouse has Mere Inchoate Right Over Coniugal

j ^-i-
W
: Propertv During the IVIarrtage:
:■
V The spouses are not co-owners of the conjugal
properties during the marriage and cannot alienate the
i, supposed one-half interest of each in said properties. The
interest of the spouses in the conjugal properties is only
.
•• inchoate or a mere expentancy and does not ripen into title

a
188 Art. 107 and Art. lO s M

until it appears after the dissolution and liquidation of the ^

partnership that there are net assets.
If therefore, during the liquidation of the partnership, it ^
appears that there is no conjugal property to divide 9
between the spouses, there w ill be no share for either
husband or w ife (Nable Jose v. Nable Jose, 41 Phil. 713).

Thus, a private creditor of the husband cannot attach

or levy on one-half of the joint account of the spouses in a
bank on the ground that it is the share of the husband in ®
said account The right of the husband to one-half of the
properties of the conjugal partnership does not vest until its
dissolution and there are net assets left. (De Ansaldo v,
Sheriff of Manila, 64 Phil. 156}.

Art. 107. The rules provided In Articles 88 and 89

shall also apply to the conjugal partnership of gains, (n)

The provision of Art. 88 as to when the absolute

com m unity between the spouses begins also applies to the
conjugal partnership of gains, i.e., at the precise moment
(not day) the marriage is celebrated.

The rule in A rt. 89 as to waiver of rights, interests,

share and effects of the absolute com m unity of property
during the marriage by one spouse, is also applicable to
the conjugal partnership o f gains.

Art. 108. The conjugal partnership shall be governed by

the rules on the contract of partnership In all that is not in
conflict with what Is expressly determined In this Chapter or
by the spouses in their marriage settlements. (147a)

(1) The rules on ordinary partnerships govern conjugal |

partnerships in all m atters that are not in co n flic t
or expressly determined in this Chapter or in the
marriage settlem ents of the spouses.
(2) Hence, husband and w ife are liable for conjugal
obligations w ith their separate properties if the
 109 189

conjugal properties are not enough to pay for the

same (PNB v. Quintos, Phil, 370).
(3) But unlike in ordinary partnerships, the liability of
the spouses for conjugai debts if the conjugal
properties are not sufficient to pay for the same is
solidary (Art. 121). In ordinary partnership, the
partners are generally liable for partnerships debts
only pro rata and not in sofidum.

SECTIO N 2

EXCLUSIVE PROPERTY OF EACH SPOUSE

Art. 109. The following shall be the exclusive property
fof each spouse:
(1) That which is brought to the marriage as his or
her own;
(2) That which each acquires during the marriage by
gratuituous title;
(3) That which Is acquired by right of redemption, by
barter or by exchange with property belonging to
only one of the spouses; and
(4) That which is purchased with exclusive money of
the wife or of the husband. (148a)

Kinds of Exclusive Property of Each Spouse:

(1) Property by direct acquisition or property that is

originally exclusive:
(a) Property brought to the marriage by each
spouse as his or her own {Art. 109 (1) and
(b) Property acquired by either spouse during the
marriage by gratuitous title {Art. 109 (2));
{2) Property by substitution:
(a) Property acquired by right of redemption, by
barter, or by exchange with property
belonging to either spouse {Art. 109 {3)):
(b) Property purchased with exclusive money of
either spouse {Art. 109 {4));
190 A rt. 70S

Each Kind of Property under Art. 109 Explained:

(1) Property Brought to the Marriage:

(a) House and lot or car owned by either spouse
before the marriage;
(b) Property defectively acquired by either spouse (like
under a voidable contract) before the marriage,
but the defect in the title was cured during the
marriage.
(c) Property alienated by either spouse before the
marriage but reacquired during the marriage
because of the annulment or rescission of the
contract, or the revocation of donation if the
property was donated (Santos v. Bartolome, 44
Phil. 48);
(d) Property bought on installment by either spouse
before the marriage and fully paid only after the
marriage, but ownership was already vested on
the buyer-spouse before the marriage. The
amounts of installments paid during the marriage I
by the conjugal partnership must, however, be :
reimbursed to it upon liquidation (Art. 118;
Lorenzo v. Nicolas, 91 Phil. 686).

(2) Property Acquired During the iVIarriage by Gratuitous

Title:
(a) Property acquired during the marriage by either
spouse through testate (as heir, devisee, or
legatee) or intestate succession, or by donation;
(b) A gratuity given as a bounty or out of pure
liberality ^gr^t/sJ by an employer to either spouse
for long, faithful, and dedicated service;
(c) Unearned increment (such as increase in value of
land belonging to either spouse because the
government built a road near the land, or just
because of the mere passage of time);
(d) Moral damages awarded to either spouse for
personal injury sustained (but damages awarded
for hospitalization expenses, medical assistance.
 /Irt. n o n ri

and loss of salary, are conjugal ) {Lilius v. MRR,

62 Phil. 56)

(3) Property Acquired by Right of Redemption, Barter, or

Exchange with Exclusive Property:
(a) Barter: Property inherited by wife from her father
was exchanged by her with another property. The
newly-acquired property is paraphernal (Lim v.
f Garcia 7 Phil. 33).
(b) Redemption: Wife sold a piece of land to X with
the right to repurchase before her marriage. During
the marriage, she and her husband redeemed it with
conjugal funds. The land is still paraphernal, but the
wife must indemnify the conjugal partnership with
the redemption money upon liquidation (Santos v.
Bartolome, 44 Phil. 76).
(c) Exchange: Wife's paraphernal building was insured
before the marriage but burned during the
marriage, and the wife collected the insurance.
The insurance money is paraphernal (9 Manresa
567).
If wife's paraphernal land is expropriated by
the government, indemnity is also paraphernal (/c/.)

(4) Property Purchased with Exclusive Money of Either

Spouse:
(a) A diamond ring purchased by the wife with her
own money is paraphernal.
(b) Land acquired by wife with her exclusive money
is paraphernal, even if her title describes her as
"A, married to B" (Gonzales v. Miller, 69 Phil.
340).

Art. 110. The spouses retain the ownership,

possession, administration and enjoyment of their exclusive
properties.
Either spouse may, during the marriage, transfer thfe
administration of his or her exclusive property to the other
by means of a public instrument, which shall be recorded
 Art. 777

in the registry of property of the place where the property

is located. (137a, 168a, 169a)

(1) The spouses retain the ownership, possession,

administration, and enjoyment of their exclusive
properties.
(2) Either spouse may transfer the administration of
his or her exclusive property to the other, but the
transfer of administration must be:
(a) in a public instrument, and
(b) recorded in the registry of property of the
place where the property is located.
(3) The husband, for example, is leaving on a
contract to work abroad. He may transfer the
administration of his exclusive property to his
wife, or even to a third person, not necessarily
his wife. And the wife can also do the same.
(People's Bank v. Register, 60 Phil. 167).
(4) As part of her administration of her paraphernal
property, the wife can collect its gross rentals and
pay her administration expenses therefrom,
because only net fruits of her property are
conjugal and which she should turn over to the
conjugal partnership (People's Bank v. Register,
id).
(5) The wife cannot be restrained by injunction from
selling her paraphernal property even if the sale
would deprive the conjugal partnership of its
fruits, since she is the owner of that property
(Perez v. De Perez, 109 Phil. 64).
(6) The wife can alienate her paraphernal property
without the husband's consent even if she has
transferred its administration to her husband since
she is still the owner thereof (Rodriguez v. De la
Cruz, 8 Phil. 665)
/\rts. 711, 1 1 2 and 11 3 193

Art. 111. A spouse of age may mortgage, encumber,

alienate, or otherwise dispose of his or her exclusive property,
without the consent of the other spouse, and appear alone in
court to litigate with regard to the same, (n)

(1) The rights to mortgage, encumber, alienaite or

otherwise dispose of his or her property belong to
the owner-spouse and are consequences of his or
her right of ownership. Hence, the owner-spouse
can exercise these rights w ith o u t the consent of
the other.
(2) The owner-spouse can also appear alone in cn;::-
to litigate w ith respect to his or her exciu'.;/:-
property.

Art. 112. The alienation of any exclusive property of a

spouse administered by the other automatically terminates
the administration over such property and the proceeds of
the alienation shall be turned over to the owner-spouse. (n)

(1)As already stated, one spouse may transfer the

adm inistration of his or her exclusive property to
the other (Art. 110),
(2) Nonetheless, the owner-spouse can alienate the
property being administered by the other at any
time w ith o u t the letter's consent, as that is a
consequence of his or her right of ownership.
(3) Once the owner-spouse has alienated said
property, the adm inistration thereof by the other
spouse autom atically terminates, and the proceeds
of the alienation m ust be turned over to owner-
spouse.

Art. 113. Property donated or left by wil! to the

spouses, jointly and with designation of
determinate shares, shall pertain to the donee-
spouse as his or her own exclusive property, and
in the absence of designation, share and share
alike, without prejudice to the right of accretion
when proper. (150a)
194 A rts . 7 74

(1) If property is donated or left by will to the

spouses, whether their shares therein are
designated or not, the property is exclusive of the
spouses, not conjugal, because it is acquired by
lucrative or gratuitous title.
{2} If there is a designation of the share of each
spouse in the property, they will own their
respective shares exclusively.
(3) If there is no designation of the shares of the
spouses in the property, then they will share it
fifty-fifty, or one-half goes to the wife and one-
half, to the husband.
(4) Unless the contrary is provided by the donor or
testator, there shall be a right of accretion
between the spouses in said property (Art. 753,
Civil Code). And this right of accretion takes place
when either spouse.
(a) refuses to accept;
(b) is incapacitated to accept; or
(c) predeceases or dies before the perfection of
the donation.

For example, the wife refuses to accept her share in

the donation of a piece of land made to her and her
husband. The latter would then get the wife's share by
accretion, unless the donor has provided otherwise in the
deed of donation.

Art. 114. If the donations are onerous, the amount of

the charges shall be borne by the exclusive property of the
donee-spouse, whenever they have been advanced by the
conjugal partnership of gains. (151a)

Although the conjugal partnership paid for the amount

of charges imposed by the donor on the husband or wife
in an onerous donation to either, the property donated is
still the exclusive property of the donee-spouse, but he or
she has an obligation to reimburse the amount advanced
by the conjugal partnership for the charges on the property
at the time of liquidation of the partnership.
 Art. 175 195

Art. 115. Retirement benefits, pensions, annuities,

gratuities, usufructs and similar benefits shall be governed
by the rules on gratuitous or onerous acquisitions as may
be proper in each case, (n)

(1) Retirement benefits, pensions, annuities, gratuities,

J usufructs, and similar benefits may be gratuitous
or onerous. If they are gratuitous, they are the
J exclusive property of the spouse to whom they
P are given. If they are onerous (as when the
p spouse who receives the same contributes to a
pension fund or pays for the benefit out of his
p salary every month), then such benefits are
conjugal.

I (2) Annuity: The husband bought a life annuity for

PI 0 0 ,0 0 0 before he got married, with the
agreement that the insurance company would give
him a monthly pension of P500 as long as he
lives. The pensions received by the husband
during the marriage are conjugal, but his right to
the annuity itself is his exclusive property. Hence,
if his wife dies, the pensions he will receive
thereafter will again be his exclusive property.
(3) Usufruct: A man was given by a friend the
usufruct over a coconut plantation for 10 years.
One year after the usufruct was given to him, he
m got married. The harvests of the plantation during
the marriage are conjugal, but after his wife dies,
pJ; all the harvests will again become the husband's
^ exclusive property.
(4) Pension: The pension of a government employee
that he receives from GSIS upon his compulsory
retirement is conjugal, because he pays for that
. pension monthly from his salary.
(5) Gratuity: A gratuity that is given by an employer
to his employee out of liberality for the latter's
long, faithful, and loyal service to the former Is
exclusive property of the employee, the same
being gratuitous.
196 A rt. n 6 a n d A rt. 777

S EC TIO M 3

C O N J U G A L P A R T N E R S H IP P R O P E R T Y

Art. 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)

See com m ents under Art. 93, which is the same as

this A rticle except for the regime.
Although the husband left his w ife and children and
cohabited w ith his mistress, land acquired by the spouses
during their cohabitation is presumed conjugal. (Villanueva
V. C.A., GR 143 286, April 14, 2004)

Art. 117. The following are conjugal partnership

properties:
(1) Those acquired by onerous title during the
marriage at the expense of the common fund,
whether the acquisition be for the partnership, or
for only one of the spouses;
(2) Those obtained from the labor, industry, work or
profession of either or both of the spouses;
(3) The fruits, natural, industrial or civil, due or
received during the marriage from the common
property, as well as the net fruits from the
exclusive property of each spouse;
(4) The share of either spouse in the hidden treasure
which the law awards to the finder or owner of
the property where the treasure is found;
(5) Those acquired through occupation such as fishing
or hunting;
(6) Livestock existing upon the dissolution of the
partnership in excess of the number of each kind
brought to the marriage by either spouse; and
(7) Those which are acquired by chance, such as
winnings from gambling or betting. However,
Art. 117 797

losses therefrom shall be borne exclusively by the

loser-spouse. (153a, 154, 155, 159)

This article consolidates into one Article the provisions

of Arts. 153, 154, 155, 156 and 159 of the Civil Code on
what constitute conjugal partnership properties.
Under this Article, the following are conjugal
properties:
{1} Those acquired during the marriage with conjugal
funds;
(2) Those obtained from the labor, industry, work or
profession of either or both spouses;
(3) The fruits (natural, industrial or civil) of the
conjugal properties, as well as the net fruits of
the exclusive property of each spouse;
(4) The share of either spouse in hidden treasure,
whether as finder or owner of the property where
the treasure is found or both;
(5) Those acquired through occupation such as fishing
or hunting;
(6) Livestock existing at the dissolution of the
partnership in excess of the number of each kind
brought to the marriage by either spouse; and
(7) Those acquired by chance such as winnings from
gambling or betting.

Each Kind of Coniugal Propertv explained:

Properties Acquired bv Oneruus Title during the Marrlaqe at

Expense of Common Fund (Art. 117 (1)):

(1) The test is the origin of the money invested in

the purchase; if it came from conjugal funds, the
property acquired is conjugal (Rivera v. Batallones,
C.A., 40 O.G. 2090).
(2) Car bought by the husband for the family with
conjugal funds is conjugal.
(3) Car bought by the husband for the use of the
wife with conjugal funds, placing the car in her
name, is still conjugal.
198 Art. 717

(4) Land bought by the husband with conjugal funds

is conjugal even if he registers it in his own name
(Flores v. Flores, 48 Phil. 288).
(5) In an action for damages filed by the husband
against PAN-AM with his wife and daughter as
co-plaintiffs, based on breach of contract and
quasi-delict (the husband was left behind in an
island during a stop-over on the way to Manila),
the husband was awarded moral and exemplary
damages. Are such damages conjugal or separate
property of the husband? HELD: They are
conjugal. First, they are presumed to be conjugal.
Second, the action was based on breach of
contract of carriage, which contract was perfected
with the purchase of the airplane tickets with
conjugal funds. (Zulueta v. Pan-Am Airways, 49
SCRA 1).
(6) Mr. X was leasing a part of government land and
was given an option to buy the same before he got
married. After his marriage, he bought the land with
conjugal funds. The husband's right to buy the land
before the marriage is of secondary consideration.
Before the actual sale, he had no title to the land.
After the sale, ownership passed to the conjugal
partnership. (Rivera v. Batallones, id).

Special rules on iife insurance:

Since a contract of Insurance is onerous in character,

if the beneficiary is the insured himself or his estate, the
character of the proceeds will depend on the character of
the premiums paid:
(1) If the premiums were paid with conjugal funds,
the proceeds are conjugal.
(2) If the premiums were paid with separate funds,
the proceeds are separate.
(3) If the premiums were paid partly with conjugal
funds, and partly with separate funds, the
proceeds will be partly conjugal and partly
separate. (Bank of P.l. v. Posadas, 56 Phil. 215).
 199

Tolentino believes, however, that we should

follow the rule in Louisiana that if the policy of
insurance was taken out when the insured was
still single, the proceeds thereof should go to the
insured's separate estate even if the premiums
were paid out of conjugal funds, but the conjugal
partnership should be refunded by the insured the
amounts that it had paid as premiums (1
Tolentino, id., p. 408-4 09).

If the other spouse is the beneficiary:

(1) An insurance taken by one spouse on his own life

and with the other spouse as beneficiary belongs
to the latter even if the premiums are paid out of
i ' conjugal funds, but the beneficiary-spouse, who is
deemed a donee of the premiums paid, must
W- return one-half of the premiums to the conjugal
fe
partnership,
(2) When the spouses are jointly insured in a single
policy, the proceeds to be paid to the surviving
spouse, the survivor gets the insurance proceeds
even if the premiums are paid with conjugal
funds, with no obligation to return any part of the
premiums to the conjugal partnership, because
there is deemed to be reciprocal donations
thereof, which in effect constitute aleatory
onerous contracts.
(3) When the insurance is taken by a third person
with a spouse as beneficiary, the latter owns the
insurance proceeds as it is deemed a gift to him
or her.
(4) If the insurance is taken by the wife on the life of
the husband or wee versa and the premiums are
paid out of conjugal funds, the proceeds are
conjugal property. (Taken from Tolentino, id., pp.
409*410).
200 Art. 7 77

Properties Acquired through the Labor. Industry, Wnrtr

Profession of Either or both Spouses (Art. 117 (2)):

(1) These include all income fronn work, labor or

industry, of either or both spouses, whether in the
form of wages, salaries, honoraria, practice of a
profession, income from business even if the
capital comes from the exclusive property of one
of the spouses, commissions, bonuses, etc. i‘
(2) Backpay representing salaries of a spouse,
although payment is delayed and made only after ^
the death of the spouses, is conjugal.
(3) Although in the contract between the husband
and the employer, the former's earnings are
payable to the wife, the earnings of the husband
are still conjugal (Rosales de Echaus v. Gan. 55
Phil. 527)
(4) Pensions or retirement pay, where premiums are
deducted from the salaries of the retired spouse,
are conjugal (Bowers v. Roxas, 69 Phil. 626).
(5) But teacher's gratuity under special law, being
remuneratory, is not conjugal (Alano v. Florido, 61
Phil. 303).

Fruits from common property, and net fruits of exclusive

property of each spouse (Art. 117 (3)):

(1) All kinds of fruits from conjugal properties as well

as the exclusive properties of the spouses,
whether natural, industrial, or civil, like young of
animals, produce of land, earnings from business, |p
etc. are conjugal. Ip
(2) But only net income or fruits of exclusive property
of the spouses become conjugal. The expenses
for production, administration, and preservation
0.
should be taken from the gross fruits, and the
owner-spouse is entitled to retain the gross
income until these expenses are paid (People's
Bank v. Reg. of Deeds, 60 Phil. 167; Agapito v.
Molo, 50 Phil. 779).
 201

(3) If fruits were pending on separate property of a

spouse at the time of the marriage, the harvest
collected during the marriage is conjugal, and the
conjugal partnership is not bound to pay the
expenses of cultivation to the spouse who owns
the property from which the fruits were
harvested, because the right of the conjugal
partnership Is a real right of usufruct and,
therefore, the law on usufruct should apply (9
Manresa 582).
(4) The wife, before her marriage, received five-years'
advance rentals from the tenant of a paraphernal
building. One year later, she got married. The
rentals for the first year are paraphernal, while the
rentals corresponding to the four years falling due
during the marriage are conjugal.
(5) The wife lent money to another before her
marriage at interest, payable in installment for ten
years. The interest failing due during the marriage
are conjugal, but the installment payments on the
principal loan belong to the wife exclusively. {Art.
119).
(6) If land belonging to the wife is unlawfully
possessed by a stranger during the marriage,
damages recovered from the latter are conjugal,
since had the property not been detained by the
latter, the conjugal partnership would have profi­
ted from it (Bismorte v. Aldecoa, 17 Phil. 480).
(7) But fruits that accrue to paraphernal property of
the wife after the conjugal partnership has been
dissolved is already her exclusive property (Crespo
V. Tinio, 62 Phil. 202).

Share of either spouse in hidden treasure. v\/hether as

finder or owner of propertv where treasure is found (Art.
1411:
(1) Hidden treasure found by the spouses on the
property of either of them is conjugal.
202 Art. 7 77

(2) If the owner of the property where the treasure is

found is one of the spouses and the treasure is
found by a stranger, the one-half share of the
owner of the property goes to the conjugal
partnership.
(3) If the property where the treasure is found
belongs to a stranger and the treasure is found by
one of the spouses, the one-half share of the
finder is conjugal.

Properties acquired through occupation such as fishing or

hunting (Art. 117 (5)):

(1) These include wild animals caught by the husband

in the forest while hunting, and ait kinds of
marine life caught while fishing.
(2) The theory is that animals in the forest and fishes
in the ocean are res nuUius and do not belong to
anyone, and if one of the spouses catches any of
them, the benefit is not his alone but for the
conjugal partnership.

Livestock existing at dissolution of partnership in excess of

what is brought bv either spouse to the marriage (Art. 117

(1) While Art. 159 of the Civil Code classifies as

conjugal all animals existing at the dissolution of
the partnership "exceeding" that brought to the
marriage by each spouse, this particular provision
of the Family Code considers as conjugal all
"livestock existing at the dissolution of the
partnership in excess of each kind brought to the
marriage by either spouse."
(2) In other words, the Family Code takes into
account the different kinds of livestock brought to
the marriage by either spouse, like horses, cows,
carabaos, goats, pigs, and poultry, and the excess
of each kind over that which was brought by
 An. 117 203

each spouse into the marriage is what is

considered conjugal.

Properties acquired bv chance, such as winnings from

gambilna or betting (Art. 117 (7)):

(1) See Comments under Art. 95 on absolute

community property system.
(2) ff a winning lottery or sweepstakes ticket is
bought by a spouse with his or her own money
or the ticket was given gratuitously by a friend,
the prize will be separate property of the spouse
m::. who owns the ticket. If, however, the ticket was
bought with conjugal funds, the prize is conjugal.
If (3) Unless the contrary is proved^ the presumption,
however, is that a lottery or sweepstakes ticket
acquired during the marriage was bought with
conjugal funds, and the prize is, therefore,
conjugal.

Special cases not included in Art. 117:

(1) Land obtained by either spouse or by both

through a loan is conjugal, and so is the loan (see
Palanca v. Smith Bell, 9 Phil. 131), and the
spouses will be solidarily liable for said loan with
their separate properties if later, the community
property is not enough to pay for the same (Art.
121, last par).
(2) Where property belonging to one spouse is
converted into another kind totally different in
nature from its original form (e.g., when a nipa
swamp is converted into a fishpond) during the
marriage, the converted property is conjugal in the
absence of proof that the expenses of conversion
were exclusively for the account of the original
owner-spouse. But said owner-spouse is entitled
to reimbursement of the value of the original
property from the conjugal partnership (Vitug v.
Montemayor, 91 Phil. 286).

■
204 Art. 775

(3) Money received under the Social Security Act is

not conjugal, although the employee-spouse
contributes to the SSS with his salaries, but
belongs to the designated beneficiary under the
Social Security Law (Tecson v. SSS, 3 SCRA
735).
(4) Intellectual property, like copyright or patent,
should, according to Tolentino, citing Planiol and
Ripert, be considered separate property of the
spouse who produces or invents or discovers it,
this property being of a special type, alnnost a
part of one's person or taken from his personality
and the physical or external manifestation of his
intellect or genius, that it is not simply a product
of one's work or industry but should be
considered as pertaining exclusively to its creator
(Tolentino, id., p. 412)
(5) Business property like trade-marks, trade names,
service marks, business goodwill, and similar kinds
of property are, however, merely accessories to
some commercial establishment or product, so
that if such establishment or product is separate
property of one spouse, then the business is
separate property, the same being an accessory
that follows the principal; but all benefits or
earnings derived from these different kinds of
property during the marriage should belong to the
conjugal property {Tolentino, id., citing the same
authority).

Art. 118. Property bought on Installments paid partly

from exclusive funds of either or both spouses and partly
from conjugal funds belongs to the buyer or buyers if full
ownership was vested before the marriage and to the
conjugal partnership if such ownership was vested during
the marriage. In either case, any amount advanced by the
partnership or by either or both spouses shall be
reimbursed by the owner or owners upon liquidation of the
partnership, (n)
 118 205

(1) This Article applies to property bought on

installments by the husband or wife before the
marriage and is a new provision in the Family
Code, although the same is taken from existing
jurisprudence.
(2) if the property was bought on installment by a
spouse before the marriage and the contract of
sale is such lhat ownership was already vested on
the buyer-spouse at the time of the execution of
the contract, the property is exclusive property of
said buyer-spouse, even if installments on the
price up to full payment came from the conjugal
funds. The amounts paid by the conjugal
partnership shall, however, be reimbursed to it by
the owner-spouse at the time of the liquidation of
the partnership.
(3) If, however, the contract of sale on installment is
such that ownership did not vest on the buyer at
the time of the execution of the sale and
ownership vested only after the whole price was
paid during the marriage and out of conjugal
funds, the property is conjugal but the partnership
shall reimburse the buyer-spouse the installments
. paid by him or her before the marriage.
^4) in Lorenzo v. Nicolas, 91 Phil. 686, it was held
that property bought on installment by either
spouse before the marriage and was fully paid
only after the marriage but ownership had vested
on the buyer-spouse before the marriage is
separate property of the buyer-spouse, although
the installments paid by the conjugal partnership
during the marriage must be reimbursed to it upon
liquidation.
(5) J signed a tease contract with PHILAMLIFE over a
house and a lot for 20 years with the provision
that upon the expiration of said period, J would
already own the property. J's wife died after 10
years and he married again. The 20-yr. lease
expired during J's second marriage. Property
206 A rt. 1 1 9 a n d A rt. 12 q

belongs to the conjugal partnership of J's second

marriage. The right acquired by J during his first
marriage was only an inchoate or expectant right
under the conditional sale or contract to sell that
he signed with PHILAM. (Jovellanos v. CA., 210
SCRA 126).

Art. 119. Whenever an amount or credit payable

within a period of time belongs to one of the spouses, the
sums which may be collected during the marriage In partial
payments or by installments on the principal shall be the
exclusive property of the spouse. However, Interests falling
due during the marriage on the principal shall belong to tho
conjugal partnership. (156a, 157a)

This Article clarifies Art. 156 of the Civil Code

providing that "whenever an amount or credit payable in a
certain number of years belongs to one of the spouses, the
sums which may be collected by installments due during
the marriage shall not pertain to the conjugal partnership,
but shall be considered capital of the husband or of the
wife, as the credit may belong to one or the other
spouse."
The above Article distinguishes the installment
payments falling due during the marriage on the principal of
the credit, which is exclusive property of the creditor-
spouse, and the installment payments on the interests
which, being fruits of the credit, belong to the conjugal
partnership.

Art. 120. The ownership of Improvements, whether

for utility or adornment, made on the separate property of
the spouses at the expense of the partnership or through
the acts or efforts of either or both spouses, shall pertain
to the conjugal partnership, or to the original o w n e r-s p o u s e ,
subject to the following rules:
When the cost of the improvement made by the
conjugal partnership and any resulting increase In value are
more than the value of the property at the time of the
Art. 120 207

Improvement, the entire property of one of the spouses

shall belong to the conjugal partnership, subject to
reimbursement of the value of the property of the owner-
spouse at the time of the improvement; otherwise, said
property shall be retained in ownership by the owner-
spouse, likewise subject to reimbursement of the cost of
the Improvement.
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)

This Article changes radically the rules in Art. 158 of the

Civil Code:

Art. 158. of the Civil Code has a rule for ordinary

improvements made by the spouses on separate property
of each of them, and another rule if the conjugal
partnership constructs a building on land belonging to either
spouse.

As to ordinary improvements, whether for utility or

adornment, said Article of the Civil Code provides, by way
of exception to the ordinary rule in accession that the
accessory follows the principal, that the improvement shall
be conjugal property and will not follow the principal.

The rule, however, is different if the improvement

made by the spouses is a building on land belonging to
either of them. The land will follow the ownership of the
building (a case of reverse accession), and the conjugal
partnership will become the owner of both land and
building, subject to its obligation to reimburse the owner-
spouse the value of the land on which the building is
constructed.

Rule under the above Article:

(1) The above Article adopts a uniform rule for ail

improvements, whether for utility or adornment
208 An. 120

made at the expense of the conjugal pcirtnership

or through the efforts of either or both spouses,
on separate property of either spouse during the
marriage, to w it\
(a) If the cost of the improvement made by the
conjugal partnership on separate property of a
spouse and the resulting increase in the value
of said separate property and the improve­
ment, are more than the value of the principal
property at the time of the improvement, the
entire property shall become conjugal, subject
to the reimbursement by the conjugal partner­
ship of the value of the principal property to
the owner-spouse at the time of liquidation of
the conjugal partnership, which value shall be
the value of the principal property at the time
the improvement is made.
(b) If, however, the cost of the improvement and
the resulting increase in the value of the
principal property together with the improve­
ment, is less than the value of the principal
property at the time the improvement is
made, both principal property and
improvement shall belong to the spouse who
owns the principal property, subject to his or
her obligation to reimburse the conjugal
partnership of the value of the improvement
at the time of the liquidation of the
partnership, which value shall be computed at
the time the improvement was made.
(2) For example, the land belonging to the wife has a
value of PI 0 0 ,0 0 0 , and the conjugal partnership
constructed a building thereon at a cost of
P 50,000, so that the entire property (both land
and building} is now worth PI 5 0,000 . But
because of the construction by the spouses of a
building on the land, the value of the whole
property went up to P18 0 ,0 0 0 , resulting in an
 Art. 120 209

increase in value or "plus value" of P30,000. But

since the cost of the building (Pf50,000) and the
"plus value" total only P 80,000 or less than the
value of the land of PI 0 0 ,0 0 0 , then both land
and building v\/ould belong to the Vv/ife, with an
obligation on her part to reimburse the conjugal
partnership the value of the building at the time it
was constructed, the reimbursement to be made
fe at the time of the liquidation of the conjugal
partnership.
(3) In determining which property is the principal and
which is the accessory, the property of greater
value should of course be considered the principal.
Thus, if the spouses build a fence on land
belonging to the husband, the land is definitely
the principal and the fence, the accessory, and
even without applying the above formula, the
fence will definitely follow the land, but with the
obligation on the part of the husband to reimburse
the cost of the fence to the conjugal partnership
at the time of its liquidation.
(4} When does ownership of the entire property
(principal and improvement) vest on the ow ner--
spouse or the partnership, as the case may be?
Upon the reimbursement of the improvement,
Bm-. which shall be made at the time of the liquidation
I' of the conjugal partnership, according to the third
V
paragraph of the above Article {also Maramba v.
Lozano, 20 SCRA 474; Paterno v. Vda. de Padilla,
74 Phil. 377). Meanwhile, the conjugal partnership
has the right to use both principal and
improvement as a usufructuary (Coingco v. Flores,
82 Phil. 284; Paterno v. Vda. de Padilla, supra:
Testate Estate of Narciso Padilla, 3 SCRA 378).
■
' (5) In the cases where the separate property of a
spouse is to follow the improvement made
thereon by the conjugal partnership, as of what
time should the value of the principal property be

:
210 Art. 121

determined, at the time the improvement is made

or at the time the value of the principal property
is reimbursed to the owner-spouse? At the time
the improvement is made, as expressly provided in
the second paragraph of the above Article.

SECTIO N 4

CHARGES UPON AND OBLIGATIONS OF THE

CONJUGAL PARTNERSHIP

Art. 121. The conjugal partnership be liable for:

(1) The support of the spouses, their common

children and the legitimate children of either
spouse; however, the support of illegitimate
children shall be governed by the provisions of
this Code on Support;
(2) All debts and obligations contracted during the
marriage by the designated administrator-spouse
for the benefit of the conjugal partnership of
gains, or by both spouses or by one of them with
the consent of the other;
(3) Debts and obligations contracted by either spouse
without the consent of the other to the extent
that the family may have been benefited;
(4) All taxes, liens, charges and expenses, including
major or minor repairs upon the conjugal
partnership property;
(5/ All taxes and expenses for mere preservation
made during the marriage upon the separate
property of either spouse;
{6} Expenses to enable either spouse to commence or
complete a professional, vocational, or other
activity for self-improvement;
(7) Antenuptial debts of either spouse insofar as they
have redounded to the benefit o f the family;
Art. 121 211

(8) The value of which is donated or promised by

both spouses in favor of their common legitimate
children for the exclusive purpose of commencing
or completing a professional or vocational course
or other activity for self-improvement; and
(9) Expenses of litigation between the spouses unless
the suit if found to be groundless.

If the conjugal partnership is insufficient to cover the

foregoing-llabilities, the spouses shall be solidarify liable for
the unpaid balance with their separate properties. {161a}

(1) The liabilities of the conjugal partnership under the

above Article are the same as those of the
absolute community enumerated in Art. 94 of this
Code, with the exception of pars. (5) and (9) of
Art. 94.
(2 Under par. (5) of Art. 94, the absolute community
is liable for “all taxes and expenses for mere
preservation made during the marriage upon the
separate property of either spouse used by the
family." Par. (5) of this Article, on the other hand,
makes the conjugal partnership liable for all taxes
and expenses for mere preservation made during
the marriage on the separate property of either
spouse, without qualifying whether the property is
being used by the family or not. The reason for
the distinction is that the conjugal partnership is
the usufructuary of ad separate properties of the
spouses and is entitled to all their fruits; hence, it
is required to pay for all taxes and expenses for
mere preservation on said properties. In the
system of the absolute community, however, the
absolute community is not entitled to the fruits of
all properties excluded from the community under
Art. 92. Therefore, it has no obligation to pay for
the taxes and expenses of preservation of
separate properties.
 Art. t 2 i
(3) In the system of absolute community, all the ®
properties of the spouses before the marriage
become absolute community property, except only
those excluded by Art. 92. It is to be expected
then that in most cases, the spouses do not have
or have limited separate properties. What, then,
would answer for the antenuptial debts of either
spouse that did not redound to the benefit of the ®
family, support of the illegitimate children o f either
spouse, and the liabilities incurred by either
spouse arising from crimes or quasi-delicts? This
is the reason why Art, 94(9) makes the absolute
community liable for these obligations in the
absence or insufficiency of the exclusive property
of the debtor-spouse, without need of proof on
the part of the creditors that the other
responsibilities of the absolute community under
Art. 94 have already been paid or covered. The
amounts to be paid by the absolute community
for said obligations are, however, considered as
advances to be deducted from the share of the
debtor-spouse in the net assets of the absolute
community upon its liquidation.
In the conjugal partnership, however, the
spouses retain ownership of their separate
properties and only the fruits thereof become
conjugal. Hence, they are personally liable with
their separate properties for their personal debts
that did not redound to the benefit of the family,
for fines and pecuniary indemnities imposed upon
them arising from crimes or quasi-delicts, and for
the support of their illegitimate children. If,
however, the debtor-spouse has no exclusive
properties or the same are insufficient to pay for
the aforesaid obligations, while the conjugal
partnership is rich or well off and has assets more
than enough to pay for all its liabilities under Art.
121, then the creditor can sue the conjugal
partnership for the aforementioned personal
i
m
m
Art. 122 213

obligations of either spouse, but the amounts paid

shall be reimbursed by the debtor-spouse to the
partnership at the time of its liquidation, {see the
succeeding Article 122).

Art. 122. The payment of personal debts contracted

by the husband oir the wife before or during the marriage
shall not be charged to the conjugal partnership except
insofar as they redound to the benefit of the family.
Neither shall the fines and pecuniary indemnities
imposed upon them be charged to the partnership.
However, the payment of personal debts contracted
by either spouse before the marriage, that of fines and
indemnities imposed upon them, as well as the support of
illegitimate children of either spouse, may be enforced
against the partnership assets after the responsibilities
enumerated in the preceding Article have been covered, if
the spouse who is bound should have no exclusive
property or if it should be insufficient; but at the time of
the liquidation of the partnership, such spouse shall be
charged for what has been paid for the purposes above-
mentioned. (163a)

(1) As already explained under the preceding Article,

the conjugal partnership is not liable for the
personal debts of each spouse contracted before
or during the marriage, except if they had
redounded to the benefit of the family, for fines
and pecuniary liabilities imposed on either spouse
by reason of the commission of a crime or quasi­
delict, and for the support of illegitimate children,
because the separate properties of the spouses do
not become conjugal and can be taken to pay for
the aforesaid obligations. It is only if the debtor-
spouse has no exclusive property or they are
insufficient to pay for the aforesaid obligations,
that the creditor may sue the conjugal partnership
for such obligations, subject to the condition that
the liabilities of the conjugal partnership under the
 214
A rt. 7 2 3

preceding Art. 121 have already been paid or

w \ °'^'y if
pa ners ip as assets more than sufficient to pay
or all rts legal oblrgations can it be held liable for
Artic?e'^^°^^ obligations of the spouses under this

(2) Note that this Article covers payment of the

personal debts contracted by either spouse before
o rd u n n g the marriage. This Article thus cures tlie
e ec o rt. 63 of the Civil Code (which is the
source of this Article of the Family Code) referring
on y o persona debts contracted by either spouse
e ore t e marriage , although the intention of
s I provision of the Civil Code must have been
to include personal debts of the spouses
con racte during the marriage. Otherwise,
personal creditors of the spouses for debts and
contracted by them during the marriage
wou recourse against the conjugal
partnership even if the latter has substantial
assets, while the debtor-spouse may have no
separate properties to pay for such obligations.

Art. 123. Whatever may be lost d u rin g the m a rria g e

in any game of chance, or in betting, sweepstakes, or any
1. h ".f permitted or prohibited by
law shall be borne by the loser and shall not be charged
iL n f P f ‘ "ership but any winnings therefrom
shall form part of the conjugal partnership property. (164a)

in the Chapter on the

tm lT . H Community, this Article being the
same as said Article except for the regime
m - 724 275

SE C TIO N 5

ADMINISTRATION OF THE CONJUGAL

PARTNERSHIP PROPERTY

Art. 124. The administration and enjoyment of the

conjugal partnership property 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 a 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 the
powers of disposition or encumbrance which must have the
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)

(1) See Comments under Art. 96 In the Chapter on

the System of Absolute Community, which is the
same as this Article except for the regime.
(2) This Article amends all the provisions of the Civil
Code conferring administration o f the conjugal
partnership on the husband alone. Thus, even in
the regime of conjugal partnership which the
parties may choose in their marriage settlement,
both spouses already exercise joint administration
and control over the conjugal properties. As
explained by the late Honorable J.B.L. Reyes in
one of his lectures on the Family Code:
216 Art. 1 2 5 and Art. 12G

"The Family Code is primarily intended to reform tfie

fam ily law so as to emancipate the w ife from the exclusive
control of the husband and to place her at parity w ith him
insofar as the fam ily is concerned. The w ife and the
husband are now placed on equal standing by the Code.
They are now jo in t adm inistrators of the family properties
and exercise joint authority over the persons and properties
of their children. This means a dual authority in the
family. The husband will no longer prevail over the wife
bui; she has to agree on all matters coticerning the fam ily."

Art. 125. Neither spouse may donate any conjugal

partnership without the consent of the other. However,
either spouse may, without the consent of the other, ttiake
moderate donations from the conjugal partnership property
for charity or on occasions of family rejoicing or family
distress. (174a)

See Comments under A rt. 98, which is the same as

the above A rticle except for the regime.

SEC TIO N 6

D IS S O L U T IO N O F C O N J U G A L
P A R T N E R S H IP R E G IM E

Art. 126. The conjugal partnership terminates:

(1) Upon the death of either spouse;

(2) When there is a decree of legal separation;
(3) When the marriage is annulled or declared void; or
(4) In case of judicial separation of property during
the marriage under Articles 134 to 138. (175a)
y
See Comments under A rt. 99 in the Chapter on the
System of Absolute Com m unity, which is the same as this
Article except for the regime.
■-V

Si
Art. 127 und Art. 123 217

Art. 127. 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 a 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 suniinary
proceeding;
(3) !n the absence of sufficient conjugal partnership
pro party, ifie sepas'ate property of both spouses
shall be solldarily liable for the support of the
fam ily. 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 latter's
share. (178a)

A rt. 128. if a spouse without just cause abandons the

other or fails to com ply with his or obligations to the
family, the aggrieved spouse may petition the court for
receivership, for judicial separation of property, or for
authority to be the sole administrator of the 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 any
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 prim a facie presumed to have no
intention of returning to the conjugal dwelling, (167a,
191a)
See Comments under Arts. 100 and 101 on the
218 Art. 129

System of Absolute Committee, which are the same as the

above Articles, except for the regime.

SE C TiO N 7

L IQ U ID A T IO N O F T H E C O N J U G A L P A R T N E R S H IP
A S S E T S A N D LIA B ILITIE S

Art. 129. 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 has been indemnified from
whatever source, the loss or deterioration of
Art. 129

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 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.
(182a, 183a, 184a, 185a)

Under this Article, the procedure in the liquidation of

the conjugal partnership assets and liabilities is as follows:
(1) An inventory shall be prepared, listing separately
all the conjugal properties and all the exclusive
properties of each spouse.
(2) Amounts advanced by the conjugal partnership in
payment of personal debts and obligations of each
spouse shall be credited to the conjugal
partnership as part of its assets.
(3) Each spouse shall be reimbursed for the use of
his or her exclusive funds by the conjugal
220 A n . 729

partnership, or the value of exclusive property the

ov^nership of w hich has been vested by law in
the conjugal partnership.
(4) Debts and obligations o f the conjugal partnership
shall be paid out of its assets. In case of
insufficiency o f said assets, the spouses shall be
solidarily liable w ith their separate properties as
provided In par. (2) of A rt, 121.
(5) W hatever remains o f the exclusive properties of
the spouses shall be delivered to each of them.
(6) Each spouse shall be paid for the loss or
deterioration o f movables used by the family
belonging to either even if the loss be due to
fortuitous event.
(7) The net remainder o f the conjugal partnership
properties shall constitute its profits, w hich shall
be divided equally between the spouses, unless '
they have agreed on a different proportion or
division in their marriage settlem ent or there has
been a voluntary waiver or forfeiture of the share
of each as provided in this Code.
(8) The presum ptive legitimes o f the common children Mi
shall be delivered upon partition in accordance
w ith A rt. 51.
(9) The conjugal dwelling and the lot on which it is
situated shall, unless otherwise agreed upon by
the parties, be adjudicated in the follow ing
manner:
(a) To the spouse w ith w hom m ajority of the
com mon children choose to remain;
(b) Children below 7 years are deemed to have
chosen the m other unless the court decides
otherwise;
(c) If there is no such m ajority, the court shall
decide, taking into account the best interests
of the children.

It w ould be w orth repeating here that while in the

conjugal partnership of gains, only the net profits are
•!
.5
Art. 1 3 0 r x f A rt. 131 221

divided b e tw e e n the spouses, in the system of absolute

co m m u n ity, it is the entire c o m m o n mass of property
which remains after the paym ent of the debts and
obligations of the absolute community th a t is divided
between the spouses, each spouse losing o w n ersh ip of
w h a te ve r properties he or she b ro ug h t to the marriage.
This is to because w hile in the conjugal partnership of
gains, the spouses retain their separate properties w h ic h do
not becom e part of the conjugal properties, all the separate
properties of the spouses before the mvnrringe in the system
of absolute co m m u n ity become part of the c o m m u n ity
property.

Art. 130. Upon the termination of the marriage by

death, the conjucjal partnership propcity shall be liqufdn:ed
in the same proceeding for the settlement of the cst^ite of
the deceased.
!f no judicial setrieriient proceeding is instituted, tf.u
surviving spouse shall liquidate the conjiigal pactncrship
property either judicially or extra-judicirilly within one year
from the death of the deceased spouse. If upon the lapse
of said period, no liquidation is mads, any disposition ot
encumbrance involving the conjugal p^irtncrship property of
the terminated marriage shall be void.
Should the surviving spouse contract a subsequent
marriage v^/ithout complying with the foregoing
requirements, a mandatory regime of complete separation
of property shall govern the property relations of the
subsequent marriage, (n)

See C o m m e n ts under A rt. 103, w h ic h is the same as

this A rticle except for the regime.

Art. 131 Whenever the liquidation of the conjugal

partnership properties of two or more marriages contracted
by the same person before the effectivity of this Code is
carried out simultaneously, the respective capital, fruits and
income of each partnership shall be determined upon such
proof as may be considered according to the rules of
222 A rt. 1 3 2 an d A rt. 133
evidence. In case of doubt as to which partnership the
existing properties belong, the same shall be divided
between and among the different partnerships in proportion
to the capital and duration of each. (189a)

See Comments under Art. 104, which is similar to

this Article except for the regime,
(See also Dael v. 1AC, 171 SCRA 524}

Art. 132. The Rules of Court on the administration of

estates of deceased person shall be observed n the
appraisal and sale of property of the conjugal partnership,
and other matters which are not expressly determined in
this Chapter. (187a)

See the pertinent provisions of the Revised Rules of

Court on the Settlement of Estate of deceased persons.

Art. 133. From the common mass of property,

support shall be given to the surviving spouse 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. (89a)

(1) The support to be given to the surviving spouse

and the children during the liquidation of the
conjugal partnership should be charged against the
fruits or income pertaining to their shares in the
properties under liquidation, so that if such support
exceeds the fruits and income pertaining to them,
the excess is considered advances on and should be
deducted from their respective shares.

(2) Where the liabilities of the conjugal partnership

exceed its assets, the surviving spouse is not
entitled to any support during the liquidation of
the partnership (Moore and Sons Mercantile Co. v.
Wagner, 50 Phil. 128).
 Art. 133 223

(3) Grandchildren are not entitled to support during

the liquidation of the conjugal partnership, since
the law only m entions "children" (Babao v.
- Villanueva, 44 Phil. 921).

(4) The above A rticle mentions "surviving spouse"

w hile Sec. 3 of Rule 83 o f the Revised Rules of
Court mentions only "the w id o w ". The above
provision prevails over the latter provision o f the
Rules of Court, since it is provided therein that
the Rules of Court shall be observed only on
"m atters w hich are not expressly determined in
this Chapter."
 A rt. 134

CHAPTER 5

SEPARATION OF PROPERTY OF THE SPOUSES

AND ADMINISTRATION OF CO M M ON
PROPERTY BY ONE SPOUSE DURING THE
MARRIAGE

Art. 134. In the absence of an express declaration in

the marriage settlements, the separation of property between
spouses during the marriage shall not take place except by
judicial order. Such judicial separation of property may either
be voluntary or for sufficient cause. (190a)

(1) This Article retains Art. 190 of the Civil Code

insofar as it provides that the separation of property
between the spouses during the marriage shall not
take place except by judicial order.
(2) But this Article improves on A rt. 190 of the Civil
Code by expressly providing th a t judicial
separation of property may be
(a) voluntary, or by agreement; or
(b) for sufficient cause.
(3) In case of voluntary separation of property,
however, unlike ordinary contracts, the same is
not perfected by mere consent but upon the
decree of the court approving the same. W ithout
judicial approval, the contract or agreement for
separation of property is void. (In the M atter of
Voluntary Dissolution of Conjugal Partnership of
Jose Bermas, Sr. and Pilar Bermas, 14 SCRA
327; Lacson v. Lacson, 24 SCRA 837),

224
Art. 135 225

Art. 1 3 5 . Any of the following shall be considered

sufficient cause for judicial separation of property:

(1) That the spouse of the petitioner has been

sentenced to a penalty which carries with it civil
Interdiction;
(2) That the spouse of the petitioner has been
judicially declared an absentee;
(3) That loss of parental authority of the spouse of
petitioner has been decreed by the court;
(4) That the spouse of the petitioner has abandoned
the latter or failed to comply with his or her
obligations to the family as provided for in Article
101;
(5) That the spouse granted the power of
administration in the marriage settlements has
abused that power; and
(6) That at the time of the petition, the spouses have
been separated in fact for at least one year and
reconciliation is highly improbable.

In the cases provided for in numbers (1), (2) and (3),

the presentation of the final judgment against the guilty or
absent spouse shall be enough basis for the grant of the
decree of judicial separation of property. (191a)

Valid Causes for Judicial Separation of Property:

1 Civit interdiction of the spouse of petitioner;

( )
( 2 ) The spouse of petitioner has been judicially
declared an absentee;
(3) Loss of parental authority of the spouse of
petitioner has been decreed by the court;
(4) The spouse of petitioner has abandoned the latter
or failed to comply with is or her obligations to
the family as provided for in Art. 101;
( 5 ) The spouse granted the power of administration in
the marriage settlement has abused the power
and
226 Arts. 136, 137, 138 and 139

(6) The spouses have been separated in fact for at

least one year and reconciliation is highly
improbable. (See Partosa-Jo v. C.A., Dec. 18,
1992).

In cases (1), (2) and (3), presentation of the final

judgment against the guilty or absent spouse is sufficient
for the grant of separation of property.
In cases (4) to (6), there must be proof of the cause
or ground for separation of property.

Art. 136. The spouses may jointly file a verified

petition with the court for the voluntary 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 the
conjugal partnership of gains, as well as the personal
creditors of the spouses, 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 a pecuniary
interest. (191a)

Art. 137. 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 spouse and
their children. (192a)

Art. 138. After dissolution of the absolute community

or of the conjugal partnership, the provisions on complete
separation of property shall apply. (191a)

Art. 139. 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)
 Arts 139 227

Procedure in Voluntary Agreement for Separation of

Property:

(1) The spouses w ill file a verified joint petition w ith

the court fo r the voluntary dissolution o f their
absolute com m unity or conjugal partnership.
(2) The petition shall list all the creditors of the
absolute com m unity or conjugal partnership
(including guarantors and insurers} as well as
'I personal creditors o f the spouses.
(3) The creditors so listed shall be personally notified
of the hearing.
(4) Is there need for the publication of the petition?
Publication is not prescribed by the Code because
it is expensive and does not serve its purpose in
most cases because the publication is usually
made in newspapers that nobody reads. Besides,
A rt. 140 provides that the separation of property
between the spouses does not prejudice rights
previously acquired by creditors. But in exceptional
cases, like if the spouses have an extensive
business which reaches to many parts of the
country, publication may be ordered for the
protection of creditors.
(5) During the pendency of the proceedings, the
absolute com m unity or conjugal partnership shall
pay for the support o f the spouses and their
children.
(5) A fte r the hearing, the court shall enter a decree
of separation of property between the spouses,
after w hich the spouses w ill already be governed
by the regime of com plete separation of property.
r (7) The petition as well as the final judgm ent granting
the separation of property shall be recorded in;
(a) the proper local civil registries; and
I;. (b) registries of property
Jv
228 Art. 739
Effects of Separation of Property between the Spouses:

{1) The absolute community or conjugal partnership of

the spouses is dissolved and liquidated.
(2) Each spouse shall thereafter have exclusive
management, ownership, and disposition of all his
or her earnings and the fruits of his or her
separate property.
(3) The liability of the spouses to creditors shall,
however, be solidary with their separate
properties.
(4) The mutual obligation of the spouses to support
each other continues except when there is legal
separation between them.
(5) Rights previously acquired by creditors are not
prejudiced.

Does the Law Require Specific Reasons to Justify the

Court in Approving the Parties' Voluntary Agreement for
Separation of Property?

No. The law leaves the matter to the discretion of the

court. If, however, there is no reason at all for the petition,
the court may disapprove the same, since the intention of
the law is to preserve the absolute community or conjugal
partnership of the parties as much as possible.

Art. 140. The separation of property shall not

prejudice the rights previously acquired by creditors. (194)

(1) This is true whether the creditors were notified of

the hearing or not, and whether they attended the
hearing or not.
(2) A creditor who has a mortgage on a piece of
community or conjugal property retains his
security even after the decree of separation of
property between the spouses and the assignment
of the property mortgaged to either of them.
Art. M7 229
{3} Attaching creditors also retain their liens on
properties attached.

Art. 141. The spouses maV' 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 absent spouse reappears;
(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;
K (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 been 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)

W hAn May the Former Property Regime between the

fipnnses be Revived?

(1) When the civil interdiction of the prisoner-spouse

terminates;
230 Art. 141

(2) When the absentee-spouse reappears;

(3) When the court, being satisfied that the spouse
granted the power of administration in the
nnarriage settlement 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 returns and
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 been separated in
fact for at least one year, reconcile and live
together again; or
(7) When after a voluntary separation of property
between the spouses, they agree to revive their
former property regime. But no voluntary
separation of property may thereafter be granted
to them.

W hat rules shall govern the revival of the former property

regime of the spouses?

Art. 67. (See Comments under said Article)

But Reconciliation between the Parties does not mean

Automatic Revival of their Former Regime.

Automatic revival of their former regime does not

follow the reconciliation of the parties. They must file a
motion in the same proceedings where separation of
property was decreed if they want such revival.

In other words, if the parties reconcile and decide to

live together again, their separation of property continues.
This is because to compel them to discuss property
matters might lead to a new dispute between them and
cause them to separate again,
 A lt. 142 231

Besides, an automatic return to the former regime is

cumbersome as an inventory and a statement of the
properties newly contributed by the parties to the revived
regime must again be made. And creditors would not know
that there has been a reconciliation between the parties
and a return to their former regime unless there is a judicial
decree to that effect and the decree is registered in the
proper civil registries and registries of property.

Special Rule in Case of Revival of Voluntary Separation of

Property between the Spouses:

(1) Once the spouses agree to revive their former

regime, no voluntary separation of property may
be granted to them again thereafter (par. (7) of
above Article).
(2) Of course, if there is legal separation between the
spouses and for sufficient causes justifying judicial
separation of property, there can be separation of
property between the spouses, but this Is no
longer voluntary or contractual separation of
property but for sufficient cause.

Art. 142. 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)

;■
m -.
232 Art. 142

(1) This Article refers to the cases when the court

may transfer the administration of all classes of
exclusive property of one spouse to the other,
(2) The court may do so in the following cases:
(a) When one spouse becomes the guardian of
the other;
(b) When one spouse is judicially declared an
absentee;
(c) When one spouse is sentenced to a penalty
which carries with it civil interdiction; or
(d) When one spouse becomes a fugitive from
justice or is in hiding as an accused in a
criminal case.
(3) 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.
(4) The above case must be distinguished from sole
administration by one spouse of the absolute
community or conjugal properties, which he or
she can assume without need of court
authorization:
(a) If the other spouse is incapacitated; or
(b) When one of the spouses is otherwise unable
to participate in the administration of their
common properties.
There is no need for court authorization in
this case because the spouses have joint
administration of the community or conjugal
properties, so that if one of them is
incapacitated or, for any other reason, cannot
participate in such administration, the other
spouse can assume sole administration of their
common properties (See Arts. 96 and 1 2 4 of
this Code).
Art-

CHAPTER 6

REGIME OF SEPARATION OF PROPERTY

Concept of Regime of Separation of Property:

Under this regime, the spouses retain ownership,

management, and control of their properties before the
marriage and those acquired during the marriage, together
with their earnings and fruits and accessions of their
separate properties, and each of them is responsible for his
or her liabilities, with each spouse contributing to the
family expenses proportionately with their income or value
of their properties.

Advantages of the Regime:

(1) It is simple. There are no common properties;

hence, no liquidation.
(2) Neither spouse can be accused of being interested
in the other's properties.

Disadvantages of the Regime:

(1) It is inconsistent with the community of life and

interests which a marriage is supposed to create.
(2) It is based on distrust and not favorable to family
unity.
(3) It is ordinarily unfavorable to the wife whose
duties in the home give her less opportunity to
earn for herself.
(4) It may lead to constant disputes between the
spouses in the sharing of family expenses,
 f
234 Art. 143 and Art. 745

(5) It is against the custom of the Filipinos which is

trust and sharing between the spouses.

When May Separation of Property Between the Spouses

Exist?

(a) By agreement of the parties in their marriage

settlement; or
(b) If decreed by the court in proper cases.

Separation of Property Cannot be Converted to Any OthRr

Regime During the Marriage:

While the absolute community regime or the conjugal

partnership system can be converted during the marriage
with court approval into a separation of property between
the spouses, the regime of complete separation of property,
once established in their marriage settlement before the
marriage, cannot be changed or converted into any other
regime during the marriage as there is no provision of law
allowing such conversion.

Art. 143, 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 of
suppletory application. (212a)

A regime of separation of property agreed upon by

the spouses is governed by:

(1) The provisions of their marriage settlement;

(2) The provisions of this Chapter by way
suppletory application.

Art. 144. 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)
Art. 7 4 5 a n d Art. 1 4 6 235

Kinds of Separation of Property:

(1) As to extent:
(a ). Total, or
(b) Partial - In this case., the property not agreed
upon as separate shall be absolute com m unity
property unless the parties agree otherwise.

(2) As to kinds of property:

(a) Present property;
(b) Future property; or
(c) Both present and future property.

Art. 145. Each spouse shall own. dispose of, posiioss.

administer and enjoy his or her own separate estate,
without need of the consent of the other. To each spouse
shall belong all earnings from his or her profession,
business or Industry and all fruits, natural, industrial or civil,
due or received during the marriage from his or her
separate property. {214a)

Rights of the Spouses Under Regjmg_q1_Setjaratjc^j—of

Property:

(1) Each spouse shall ow n, dispose of, possess

administer, and enjoy his or her ow n separate
estate w ith o u t need of the consent of the other,
(2) To each spouse shall belong all earnings from his
or her profession, business or industry and all
fru its, natural, industrial or civil, due or received
during the marriage from his or her property.

Art. 146. Both spouses shall bear the family expenses

in proportion to their income, or, in case of insufficiency or
default thereof, to the current market value of their
separate properties.

The liability of the spouses to creditors for family

expenses shall, however, be solidary. (215a)
236 Art. 14q

Liability of Spouses for Family Expenses

(1) Both spouses shall bear the family expenses in

proportion to their income, or in case of
insufficiency or default thereof, to the current
market value of their separate properties.

(2) As to creditors, however, the liability of the

parties for family expenses is solidary.
 CH A PTER 7

PROPERTY REGIME OF UNIONS

W IT H O U T MARRIAGE

Art. 144 of the Civil Code and Arts. 147 and 148 of the
Family Code Compared:

Art. 144 of the Civil Code regulates only the property

relations of a man and a woman living together as husband
and wife who are not incapacitated or who are without
impediments to marry each other (see Juaniza v. Jose, 89
SCRA 306), or the case of parties whose marriage is void
from the beginning (except bigamous marriages). It does
not cover parties living in an adulterous relationship or in a
state of concubinage, which unions abound in our society.

i; The Family Code has filled the hiatus in Art. 144 of

|: the Civil Code by expressly regulating in its Art. 148 the
|; property relations of couples living in a state of adultery or
I concubinage.

I Art. 147. When a man and 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

237
238 Art. lay

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 ail 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. (114a)

Unions Governed by This Article:

Like Art. 144 of the Civil Code, this Article governs

the property relations of the following unions or
relationships:
(1) When a man and a woman capacitated to marry
each other live exclusively with each other as
husband and wife without the benefit of marriage. :• J,
(a) The parties must be capacitated to marry
each other, which means that they have no
legal impediment to get married and Jp.
consequently, their living together does not
prejudice anyone.
(b) The cohabitation of the parties must be
exclusive. Multiple alliances, like a man living
with several women at the same time, are
thus excluded.
Art. 147 239

(c) There must be real cohabitation or "living

together as husband and wife" between the
parties. A mere transient relationship or the
case of a man merely "visiting" the woman
from time to time even for a long period, is
not included.
(d) The idea behind this provision is to encourage
the parties, who have no legal impediment to
get married to each other, to eventually
legalize their union.
(2) A man and woman living together under a void
marriage:
(a) This applies to void marriages where the
parties or either of them does not have an
existing valid marriage with any one else.
(c) On the other hand, if the parties do not have
existing marriages with other persons but their
marriage is void for other reasons (like an
incestuous marriage or a marriage against
public policy), it is believed that this Article
will apply.
(3) This Article does not apply to a cohabitation that
amounts to adultery or concubinage, for it would
be absurd to create a co-ownership where there
exists a prior conjugal partnership or absolute
community between a man and his lawful wife.
(Tumios V . Fernandez, GR 137 650, April 12,
2000 ).

Rules Governing the Propertv Relations of the Unions under

this Article:

(1) Wages and salaries earned by either party during

the cohabitation shall be owned by the parties in
equal shares and will be divided equally between
them, even if only one party earned the wages
and salaries and the other did not contribute
thereto.
240 Art. 747

(2) Properties acquired by the parties during their

cohabitation shall be governed by the following
rules:
(a) If the property was not acquired by their joint
work or industry, but was acquired by either
party through donation or succession or in
exchange for such exclusive properties, this
Article does not apply.
(b) The fruits and income of the above mentioned
exclusive properties rre also not covered by
this Article.
(c) In the absence of proof to the contrary,
however, properties acquired during the
cohabitation of the parties are presumed to
have been acquired through their joint efforts,
work, or industry.
(d) Properties acquired by the parties through
their work or industry are in turn governed by
the following rules:
(i) The rules of co-ownership shall govern,
which means that the parties own said
properties in proportion to their respective
efforts in acquiring the same.
(ii) In the absence of proof as to the
contribution of each party to said joint
efforts, it is presumed that the properties
were obtained through equal efforts and
the parties will own the same in equal
shares.
(iii) For purposes of this Article, a party who
did not actually participate in the
acquisition of said properties shall be
deemed to have contributed jointly in their
acquisition if the former's efforts
consisted in the care and maintenance of
the family and of the household.
Distinguish this from Art. 144 of the Civil
Code which does not provide for such a
situation.
 241

In Torres v. Yaptinchay, 28 SCRA 489,

the Supreme Court held that where the
only contribution of the common-law wife
in the acquisition of the properties was
moral or inspirational in character, her
interest as co-owner of such properties
shall be determined by the courts by
using their sound discretion. It is believed
that this doctrine may also be applied to
the above Article of the Family Code, as
it would strengthen the spiritual or moral
bond between the parties and would
encourage them to legalize their union.
(V) Properties of common-law wife cannot be
bound in a suit against the man without
making her a party to the case (Stasa,
Inc. V. Liwanan, 82 SCRA 879).
(3) Management of the properties co-owned by the
parties should be joint, since their property
■ relations are governed by the rules of co-
m
ownership.

■; (4) As to encumbrance of disposition of properties

owned in common, the above Article expressly
' provides that neither party can encumber or
dispose by acts in ter vivos of his or her share in
said properties without the consent of the other,
until the termination of their cohabitation.
0
Reason for the rule: If the parties are allowed
to dispose of their shares in said properties like in
a true co-ownership, it will destroy their
relationship. The Family Code, as already stated,
would like to encourage the parties to legalize
their union some day and is just smoothing out
the way until their relationship ripens into a valid
union.
242 Art. T4 q

Special Rules Applicable to Void Marriages under thk

Article:

(1) If only one party is in good faith, the other party

having been aware of the ground that renders their
marriage void but did not communieate it to the
other party, the latter's share in the properties
owned in common shall be forfeited as follows:
(a) In favor of their common children;
(b) In case of the predecease of a common child,
in favor of the descendants of said child, who
take the vacant share left by the deceased
child.
(c) The right of representation of the descendants
applies even in case of repudiation by a
common child of his or her share in the
forfeited property, since this is transmission
in ter vivos, not m ortis causa (i.e., the
transmission takes place upon the termination
of the cohabitation of the parties and not
upon the death of either of them), so that the
legal principles governing this kind of
transmission are different.
(d) If the descendant dies ahead of the common
child of whom he is a descendant, there will
be no transmission between the two.
(2) For reference, please see Minutes of Committee
meetings of May 18, June 15 and June 22,
1985.

Art. 148. In oases of cohabitation not falling under

the preceding Article, only the properties acquired by both
of the parties through their actual joint contribution of
money, property, or Industry shall be owned by them in
common in proportion to their respective contributions. In
the absence of proof to the country, their contributions and
corresponding shares are presumed to be equal. The same
rule and presumption shall apply to joint deposits of money
and evidences of credit.
 Art. 148 243

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
the preceding Article.

The foregoing rules on forfeiture shall likewise apply

even if both parties are in bad faith. (144a)

(1) This Article applies to:

(a) bigamous marriages;
(b) adulterous relationships (where the woman is
married to another while the man is single);
(c) relationships in a state of concubinage (where
the man is married to another while the
woman is single);
(d) relationships where both man and woman are
married to other persons; and
(e) multiple alliances of the same married man.

(2) Only properties acquired by the parties through

their actual joint contribution of money, property,
or industry shall be owned in common in
proportion to their respective contributions. Hence:
(a) Wages and salaries earned by each party
belong to him or her exclusively.
(b) Care by one party of the home, children, and
I:, household, or spiritual or moral inspiration
provided to the other, is not included in this
Article.

(3) In the absence, however, of proof to the country,

contributions and the shares of the parties to the
properties acquired during their cohabitation are
presumed to be equal.
This same rule applies to joint deposits of
money and to evidences of credit.
244 Art. 148

(4) If one party is valldiy married to another.

(a) His or her share in the co-owned properties
will accrue to the absolute community or
conjugal partnership of his or her existing
valid marriage.
(b) If the party who acted in bad faith is not
validly married to another, his or her share
shall be forfeited In the same manner as that
provided in the preceding Article.
(c) The same rules on forfeiture shall apply even
if both parties are in bad faith. The rule that
if both parties are in bad faith, they will be
considered as if they were in good faith,
cannot apply here because the rule in pari
delicto does not apply in family law.

Note: For recent jurisprudence on A rts, 147 and 148,

see A ppendix "C " o f this Handbook.
Title V - The F a m ily A rt. 145

TITLE V

THE FAMILY

CHAPTER 1

THE FAMILY AS AN INSTITUTION

Constitutional policies on Family (1987 Constitution):

Sec. 12, Art. 11, Declaration of Principles and State

Policies:

"The State recognizes the sanctity of family life and

shall protect and strengthen the family as a basic
autonomous social institution, xxx"

Sec. 1. Art. XV, The Family.

"The State recognizes the Filipino family as the

foundation of the nation. Accordingly, it shall strengthen its
solidarity and actively promote its total development."

Juridical Concept of Family:

The family is the natural and social institution,

founded on the conjugal union, that binds together the
individuals composing it, for the common accomplishment
of the material and spiritual ends of life, under the
authority of the original ascendant who heads it." (4
Valverde 8-9. quoted in Tolentino, id., p. 515, and in
Reyes and Puno, id., p. 221)

245
246 Art. 749 and A rt. ISO

Importance of the Family:

"The family is an essential factor in the general, social

and even political life. Constant living together of husband
and wife, and of parents and children, contributes to the
development of a strong sense of duty, of an aptitude for
heroic sacrifices, and of the love by future generations of
the traditions and moral conquests of those who preceded
them. The family is thus an indispensable element of social
cohesion and equilibrium. The vitality and strength of the
State depends upon the solidarity of its nucleus, the family.
This explains the interest of the State in the family."
(Tolentino, id., citing 3 Castan 428-4 31).

Art. 149. The family, being the foundation of the

nation, is a basic social institution which public policy
cherishes and protects. Consequently, family relations are
governed by law and no custom, practice or agreement
destructive of the family shall be recognized or given
effect. (216a, 218a)

Following the fundamental policies of the New

Constitution on Family and its importance to the social
order, the above Article lays down the policy of the law on
Family as follows:

(1) The family is the foundation of the nation.

(2) Being the foundation of the nation, the family Is a
basic social institution which public policy
cherishes and protects.
(3) Consequently, family relations are governed by
law.
(4) No custom, practice, or agreement destructive of
the family shall be recognized or given effect.

Art. 150. Family relations include those:

(1) Between husband and wife;
(2) Between parents and children;
(3) Among other ascendants and descendants; and
 Art. 151 247

14) Among brothers and sisters, whether of the full-or

p half-blood. (217a)
%
If FamHv relations, according to this Article, include those:

(1) Between husband and wife;

1 (2) Between parents and children (legitimate and
adopted);
(3) Among other ascendants and descendants; and
(4) Among brothers and sisters, whether of the full or
half blood.

Rules to remember on family relations:

(1) Family relations exist among the relatives

aforementioned even if they are not living
together.
(2) Other relatives like cousins, nephews and nieces,
and domestic helpers, who grew up or are living
with the family, are members of the household
m but not of the family.
(3) Illegitimate children are not included in the family
relations under the above Article because they
have their own families. Besides, this Chapter
§ refers to the family as an institution and for this
reason, it cannot include illegitimate children.
(4) Adopted children, being part of the family, are
included.
(5) Nephews and nieces, uncles and aunts, are not
included because they have their own families.
(6) The relatives mentioned in this Article include those
of the husband as well as those of the wife.
(See Minutes of Committee meeting of Aug.
24, 1985).

Art. 151. No suit between members of the same

fam ily shall prosper unless it should appear from the
m- verified complaint or petition that earnest efforts toward a
248 Art. 151

compromise have been made, but that the same have

failed. If it is shown that no such efforts were in fact
made, the case must be dismissed.

This rule shall not apply to cases which may not be

the subject of compromise under the Civil Code. (222a)

Reason for Article:

The reason for this Article, the source of which is

Art. 222 of the Civil Code, is the same reason given by
the Code Commission that drafted the Civil Code as
follows:

"This rule is introduced because it is difficult to

imagine a sadder and more tragic spectacle than a litigation
between members of the same family. It is necessary that
every effort should be made toward a compromise before a
litigation is allowed to breed hate and passion in the
family. It is known that a lawsuit between close relatives
generates deeper bitterness than between strangers."
(Report of the Code Commission, p. 18)

Above Article applied:

In order that a suit between the members of the same

family (those enumerated in Art. 150 hereof) may prosper,
the following requirements must be observed:
(1) It is must appear from the verified complaint or
petition that earnest efforts toward a compromise
have been made but that the same have failed.
(2) The petition or complaint is required to be verified
as an assurance of the truth of the allegation
therein that earnest efforts toward a compromise
have been made but the same have failed.
(3) The reason for the rule is to avoid or diminish
litigations among members of the same family.
(4) However, even if the required allegation is made
A r t 151 249

but it appears at the pre-trial that the same is not

true, the case must be dismissed.
(5) If the case can be compromised at the pre-trial,
this author sees no reason why the case should
be dismissed. After all, the compromise will end
the litigation.

Rule not applicable to matters that cannot be compromised:

The above rule shall not apply to cases which may

not be the subject of compromise under the Civil Code
(Art. 151, sec. par), like:
(1) The civil status of persons {Baiuyot v. Baluyot, L-
3 3 6 5 9 , June 14, 1990);
(2) The validity of a marriage or a legal separation;
(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts; or
(6) Future legitime.
(Art. 2035, Civil Code)

Why does the above Article not enumerate the

matters that cannot be compromised to which the rule
embodied therein will not apply? Because according to the
late Justice J.B.L. Reyes, Chairman of the Committee that
drafted the Family Code, the provisions on compromises
might be modified or amended in the future, so that it
would be safer just to refer to the provisions of the Civil
Code on the subject.
(See Minutes of Committee's Meeting of June 27,
1987)

Recent jurisprudence on the family as an institution:

(1) The enumeration in Art. 50 as to who are

members of the family Is exclusive. Hence, in a
suit between the husband and his sister-in-law.
Art. 151 does not apply. (Gayon v. Gayon, 36
SCRA 104)
2 50 A rt. 757,
■I-
(2) Collateral relatives who are not brothers and 3?
sisters are not included in the term "family S
relations" used in Art. 150. (Mendez v. Eugenia
60 SCRA 82).
(3) A suit filed by a woman against her sister and
the letter's husband does not require earnest
efforts at a compromise before filing, because the
sister's husband is not included within the term
"family relations" in Art. 150. (Hontiveros v. RTC,
309 SCRA 340)
(4) Non-compliance with Art. 151 is only failure to
comply with a condition precedent and not
jurisdictional. Hence, the complaint can be cured
by an amendment thereof. (Tribiana v. Tribiana,
GR 137 359, Sept. 13, 2004)
Underlying Principles in the Establishment of the Family
Home:

The constitution of the family home strengthens the

family as an institution and assures it of a home that
cannot be seized by creditors except in certain special
cases. As stated by the Code Commission when, following
the codes of other countries like Mexico, Switzerland, and
California, it instituted the family home in the Civil Code of
the Philippines, "the family home is a sacred symbol of
family love and is the repository of cherished memories
that last during one's lifetime", so that "when a home is
seized by creditors, it seems as though the heart of the
family were shattered. Being the seat and symbol of family
affections, it should not be seized for debts, except in
certain special cases" (Report of the Code Commission, pp.
18-20). The Commission had also believed that if the value
of the exemptions of the family home is raised, home
building will be encouraged {id).

Furthermore, in Sec. 9 of its Article XIII on "Social

Justice and Human Rights", the 1987 Constitution provides
that "the State shall, by law, and for the common good,
undertake, in cooperation with the private sector, a
continuing program of urban land reform and housing
which will make available at affordable cost decent housing
and basic services to underprivileged and homeless citizens
in urban centers and resettlement areas." This Chapter of
the Family Code on the Family Home implements said
constitutional provision by protecting the family home, once
constituted, from attachment and seizure of creditors.
251
252 Art. 752

Provisions of the Famiiv Code Changes Modes

Establishment of the Family Home in the Civil Code:

Under the Civil Code (Arts. 224 to 251), a family

home may be constituted judicially and extrajudicially, the
form er by the filing of a petition w ith and the approval of
the proper court, and the latter by the recording of a public
instrum ent in the proper registry of property declaring the
establishm ent of the fam ily home.
Experience under the Civil Code has, however, shown
that very few (and in many places, none at all) family
homes have been constituted under its provisions. To
encourage the establishm ent of a family home among our
people, the Family Code has made it very easy and simple
to do so, and it has likewise raised the values of the
exem ption of the fam ily home from seizure of creditors to
make the law realistic and abreast w ith the present high
cost of real estate and home building.

Art. 152. The family home, constituted jointly by the

husband and the wife or by an unmarried head of a family,
is the dwelling house where they and their family reside,
and the land on which it is situated. (223a)

Definition of famiiv home:

This A rticle defines the fam ily home as:

(1) constituted jointly by the husband and the w ife or
by an unmarried head o f a family;
(2) the dw elling house where they and their fam ily
reside, and the land on w hich it situated.

Who may constitute a famiiv home:

(1) Husband and w ife jointly; or

(2) An unmarried head o f a fam ily (which includes a
w id o w or w idow er).
/ir/. 151 253

Can the beneficiaries constitute a family home?

No, according to the Committee. Otherwise, they can

migrate from one place to another and have separate family
homes, to the prejudice of creditors. {See Minutes of
Committee meeting of April 9, 1987).

Can the family home be constituted on a house

constructed on land belonging to another?

No, because from the very definition of a family

home:
( 1) the land where the house is erected is an integral
part of the home; and
( 2) the home should be permanent in character. A
house constructed on rented land or by tolerance
of the owner of the land, is not a permanent
improvemciit of the land, and the home will thus
be temporary. (Jurado, id., p. 332)

Limitations on constitution of family home:

(1) Each family can have only one home. After a

family home is constituted, no other famil/" home
can be established without first dissolving the
existing one.
(2) The family home can be constituted only on the
dwelling place, and therefore, in the locality where
the family has its domicile. (Tolentino, id., p. 524)
(3) The value of the family home exempt from seizure
of creditors cannot exceed the limits fixed by law.

Family home must actually be used as residence of the

family:

(1) There must be actual occupancy of the family

home with intention of dedicating the premises for
such purpose. Merely going through the forms of
establishing the home is not sufficient.
(2) Where a dwelling consists of a double house with
two separate entrances and the family occupies
254 Art. 753

only one unit thereof, the family home is deemed

constituted on that unit alone.
(3) No valid family home can be constituted on
premises used primarily for business purposes (like
a store or a hotel), although the family resides
thereat.
(4) But If a portion of a building is really the bona
fide residence of the family, that portion and the
land on which it stands can be constituted as a
family home. {Tolentino, id,, pp. 524-525)

Art. 153. The family home Is deemed constituted on a

house and lot from the time it is occupied as a family
residence. From the time of its constitution and so long as
any of its beneficiaries actually resides therein, the family
home continues to be such and is exempt from execution,
forced sale or attachment except as hereinafter provided
and to the extent of the value allowed by law. (223a)

How a family home is constituted under the Family Code:

Under the above Article of the Family Code, a family

home is deemed constituted on a house and lot "'from the
time it is occupied as a family residence." There is no need
to constitute the same judicially or extrajudicially, as
required In the Civil Code.

How would creditors know whether a house and lot is a

family home or not?

They should conduct proper investigation. If the family

actually resides In the premises and it is, therefore, a
family home as contemplated by law, then the creditors
should take the necessary precaution to protect their
interests before extending credit to the spouses or the
head of the family who owns the home.

W hat is the family home exempt from?

It is exempt from:
Art. 154 2 55

(1) execution,
(2) forced sale, or
(3) attachment,
except as provided in this Code and to the extent of the
value allowed by law.

When does the exemption of the family home start and up

to when does it last?

The exemption starts from the time of the family

home's constitution as such, and lasts so long as any of
its beneficiaries actually resides therein.

Art. 154. The beneficiaries of a family home are:

(1) The husband and wife, or an unmarried person
who is the head of a family; and
(2) Their parents, ascendants, descendants, brothers
and sisters, whether the relationship be legitimate
or illegitimate, who are living in the family home
and who depend upon the head of the family for
legal support. (226a)

Beneficiaries of the family home:

The beneficiaries of the family home are:

(1) The husband and wife, or an unmarried person
who is the head of a family; and
(2) The following relatives of such persons, whether
legitimate or illegitimate:
(a) their parents;
(b) their ascendants {other than parents, like
grandparents), and descendants; and
(c) their brothers and sisters.

Provided:
(a) they actually reside in the family home; and
(b) they depend upon the head of the family for
legal support.
 ■m-
Art. 155

Are in-law relatives of husband or wife beneficiaries of tho

family home?
*
Yes, since the family home is constituted jo in tly by
husband and wife. The parents and brothers and sisters of
the husband, who are parents-in~iaw and brothers-in-law
and sisters-in-law of the wife, are also beneficiaries,
provided they live In the family home and are dependent on
the husband for legal support. The same is true with the
parents and siblings of the wife, who are in-law relatives of
the husband.

Art. 155. The family home shall be exempt from

execution, forced sale or attachment except:
(1) For nonpayment of taxes;
(2) For debts incurred prior to the constitution of the
family home;
(3) For debts secured by mortgages on the premises
before or after such constitution;
(4) For debts due to laborers, mechanics, architects,
builders, materialmen and others who have
rendered service or furnished material for the
construction of the building. (243a)

Exceptions to the exemption of the family home from

execution, forced sale, or attachment:

(1) For nonpayment of taxes;

(2) For debts incurred prior to the constitution of the
family home {Mondequillo v. J. Breva, GR 86 3 5 5 ,
May 31, 1990, 185 SCRA 766).
(3) For debts secured by mortgages on the premises
before or after,,such constitution; and
(4) For debts due to laborers, mechanics, architects,
builders, and material men and others who have
rendered service or furnished material for the
©y.".'.
construction of the building.
pi
Aft. 1 5 5 257

included in the exceptions by implication from the

ahove article.

(1) A money judgment, whether already final or still

on appeal, against the head of the family or the
spouses before the constitution of the family
home (Siari Valley Estate, Inc. v. Lucasan, 109
Phil. 294; Montoya v. Ignacio, 102 Phil. 546).
(2) Claims of persons who supplied services or
materials for the repairs and improvements of the
family home after its constitution (Tolentino, id.,
p. 534; Paras, id., p. 618)

According to Tolentino, a strict and literal

interpretation of the term "construction" in the fourth
paragraph of Art. 243 of the Civil Code (a provision similar
to the above Article):

" w o u ld render th e paragraph su p e rflu o u s, b e ca u se su ch c la im s

w o u ld c le a rly be w ith in the p ro v is io n s o f the se co n d paragraph,
in a s m u ch a s th e c o n s tru c tio n w o u ld a lw a y s be before the
cre a tio n o f th e fa m ily hom e. W e b e lieve, th erefo re , th a t th is
p aragraph sh ould be u n d e rsto o d to in clu d e, not only
c o n s tru c tio n , bu t a lso repairs and im p ro v e m e n ts w h ic h m a y
ta k e p lace afte r th e cre a tio n b ro a d ly so as to c o in c id e w ith the
scope of th e lien re co g n ize d in c o n n e c tio n w ith the
c o n stru c tio n , re c o n stru ctio n , and repair o f b u ild in g s p ro vid ed in
a rticle 2 2 4 2 . T h is is th e sc o p e of a sim ila r p ro v isio n in the
C a lifo rn ia co d e {section 1 2 4 1 ) ." (T o len tino , id.)

This author agrees with the above comments of

Tolentino, and would like to add that if services and
materials for the reconstruction, renovation, improvement,
and repair of the family home would not be included in the
exemptions, the spouses or head of the family who owns
the home would have difficulty obtaining credit for its
reconstruction, renovation, improvement, and repair, which
would defeat the purpose of the law of giving the greater
hnajority of our people the opportunity not only of having
family homes but also of improving the same.
25S Art. 756
Art. 156. The family home must be part of the
properties of the absolute community or the conjugal
partnership, or of the exclusive properties of either spouse
with the latter's consent. It may also be constituted by an
unmarried head of a family on his / her own property.
Nevertheless, property that is the subject of a
conditional sale on installments where ownership is
reserved by the vendor only to guarantee payment of the
purchase price may be constituted as a family home.
(227a, 228a)

What properties can be constituted as the familv home?

If constituted by the spouses, the family home must

be constituted:
(1) on any absolute community or conjugal property,
or
(2) any exclusive property of either spouse with the
owner-spouse's consent.
If constituted by an unmarried head of a family, it
may be constituted on any property belonging to him or
her.

Can a familv home be constituted on property bought on

installment and which has not vet been fully paid for?

(1) By express provision of the second paragraph of

the above article, property subject of a conditional
sale on installments where ownership is reserved
by the vendor only to guarantee payment of the
purchase price, may be constituted as a family
home.
(2) The above provision is a boon to many small
home-owners who have bought or will buy their
homes from the government or from subdivision
owners, usually assisted by the government or
any government agency like the GSIS or SSS, on
longterm installment plans, whereby they are
already given the beneficial title to their houses
and lots upon the execution of the sales, and the
Art. 157 259

ownership thereof being reserved by the vendors

only to guarantee the payment of the price. The
vendors, on the other hand, are sufficiently
protected because their liens on the properties fall
under one of those excepted from the exemption
of the family home from execution, forced sale, or
attachments under Art. 155.

Art. 157. The actual value of the family home shall

not exceed, at the time of its constitution, the amount of
three hundred thousand pesos in urban areas, and two
hundred thousand pesos in rural areas, or such amounts as
may hereafter be fixed by law.
In any event, if the value of the currency changes
after the adoption of this Code, the value most favorable
for the constitution of a family home shall be the basis of
evaluation.
For purposes of this Article, urban areas are deemed
to include chartered cities and municipalities whose annual
income at least equals that legally required for chartered
cities. All others are deemed to be rural areas. (231a)
{1} To make the actual values of the family home
exempt from seizure of creditors realistic and in
conformity with present values of real estate, the
Family Code has increased these values from the
P 30,000 in chartered cities and P 20,000 in all
other cases provided in Art. 231 of the Civil Code
(which were based on real estate values in 1950
or 48 years ago when the Civil Code took effect),
to:
(a) P 300,000 in urban areas, and
(b) P 2 00,000 in rural areas;
and has also added the proviso "or such amounts as may
hereafter be fixed by law", since real estate values may
again change and the law on the matter amended
accordingly.'*’

U n d e r s t a n d a b l v . 'l i e val ues of real pr operti es have i ncreased consi der abl y
since 1 9 8 8 w h e n t he Fami l y Cocifi t ook e f f ect . The val ues in Art . 151 of the
Code shoul d i^ovj be a me n d e d .
260 Art. 75a
(2) What is meant by "urban areas" and 'rural areas'?
under this Article?
(a) "Urban areas" include chartered cities and
nnunicipalities whose annual income at least
equals that legally required for chartered cities;
(b) All others are deemed to be "rural areas" (See
third par. of above Article)
(3) Suppose the value of the currency changes after
the adoption of this Code? If this happens, the
second paragraph of the above Article provides
that "the value most favorable for the constitution
of a family home shall be the basis of evaluation."
(4) Why limit the values of the family home exempt
from seizure of creditors to P 3 00,000 in the
urban areas and P 2 00,000 in the rural areas? Is
this in keeping with the common aspiration to
improve the quality of life? This question was
asked by the Department of Education, Culture
and Sports when the draft of the Code was
submitted by the President to the Cabinet
Assistance System (CAS) for study and
comments. In answer, the Committee stated:
"The reason for limiting the value of the
family home to P 3 00,000 in urban areas and
P 2 00,000 in rural areas is that the protection is
intended for the family that best needs it, namely,
the middle-class families, and those who can
afford more expensive homes do not need the
protection. This will also prevent people from
putting all their Income In family homes
unnecessarily." (See Minutes of Committee
meeting of June 27, 1987).

A rt. 158. The family home may be sold, alienated

donated, assigned or encumbered by the owner or owners
thereof with the written consent o f the person constituting
the same, the latter's spouse, and a majority of the
beneficiaries of legal age. in case of conflict, the court
shall decide. (235a)
Art. 159 261

tWlav the family home be sold, alienated, donated, assigned,

nr encumbered bv the owner or owners?

As provided in the above Article, yes, under the

following conditions:
(1) The person who constituted the same must give
his or her written consent;
(2) The spouse of the person who constituted the
same must also give his or her written consent;
(3) A majority of the beneficiaries of legal age must
also give their written consent.
(4) In case o f conflict, the court shall decide.

Suppose the family home, being insured, is completelv

burned or tost, what happens to the indemnity?

It is believed that the indemnity should be used for

the construction or acquisition of a new family home, and
is likewise exempt from seizure of creditors. This is the
only way to assure the family the protection of a family
home.

W hat about if the family home is expropriated bv the

government?

Again, the indemnity should be used for the

acquisition of another family home and should also enjoy
the same privileges as the family home itself.

Art. 159. The family home shall continue despite the

death of one or both spouses or of the unmarried head of
the family for a period of ten years or for as long as there
is a minor beneficiary, and the heirs cannot partition the
same unless the court finds compelling reasons therefor.
This rule shall apply regardless of whoever own the
property or constituted the family home. (238a)

Is the family home dissolved bv the death of the spouses

or the head of the familv w ho constituted the same?
262 Art. 760

Under the above Article, the fam ily home shaii

continue despite the death of one or both spouses or of
the unmarried head of the family:
(1) As long as there is a minor beneficiary still living
in the home;
(2) Even if there is no more minor beneficiary, for a
period of ten years.
(a) In this case, the heirs cannot partition the
same unless the court finds compelling
reasons therefor.
(b) This rule shall apply regardless of whoever
ow ns the property or constituted the family
home.

Art. 160. When a creditor whose claim is not among

those mentioned in Article 155 obtains a judgment in his
favor, and he has reasonable grounds to believe that the
family home is actually worth more than the maximum
amount fixed in Article 157, he may apply to the court
which rendered the judgment for an order directing the sale
of the property under execution. The court shall so order if
It finds that the actual value of the family home exceeds
the maximum amount allowed by law as of the time of its
constitution. If the increased actual value exceeds the
maximum allowed In Article 157 and results from
subsequent voluntary improvements introduced by the
person or persons constituting the family home, by the
owner or owners of the property, or by any of the
beneficiaries, the same rule and procedure shall apply.

At the execution sale, no bid below the value allowed

for a family home shali be considered. The proceeds shall
be applied first to the amount mentioned in Article 157,
and then to the liabilities under the judgment and the
costs. The excess, if any, shall be delivered to the
judgment debtor. (247a, 248a)
Art- 160 263

Right of unpreferred creditor if the value of the family

home is more than that fixed in Art. 157:

(1) The creditor referred to and covered by this

Article must comply with the following requisities:
(a) He must be a judgment creditor (one who has
already obtained a judgment in his favor in a
court action);
(b) His claim is not among those excepted under
Art. 1 55, and
(c) He has reasonable grounds to believe that the
family home is worth more than the maximum
amount fixed in Art. 157.
(2) Procedure to be followed by the aforementioned
creditor.
(a) He must file a motion in the court proceeding
where he obtained a favorable judgment for a
writ of execution against the family home.
(b) There will be a hearing on the motion, at
which the creditor must prove that the actual
value of the family home exceeds the
maximum amount fixed by Art. 157 either at
the time of its constitution or as a result of
improvements introduced thereto after its
constitution.
(c) If the creditor succeeds in proving that the
actual value of the family home exceeds the
maximum amount fixed by Art. 157, the
court will order its sale in execution.
(d) If the family home is sold for more than the
value allowed in Art. 157, the proceeds shall
be applied as follows:
(i) First, the obligations enumerated in Art.
155 must be paid.
(ii) Then the judgment in favor of the
judgment creditor will be paid, plus all the
costs of execution.
264 A rt. 767

(iii) The excess, if any, shall be delivered to

the judgment debtor (i.e., the owner or
ov^ners of the family home).
(3) Points to remember in the execution sale of the
family home:
(a) Creditors or lienholders mentioned in Art. 155
must be paid out of the proceeds first before the judgment
creditor is paid. Therefore, the actual value of the home
must not only exceed the maximum amount fixed in Art.
157, but the excess must also be over and above all
claims under Art. 155. For example, the family home has a
value of P 350,000 at the time of the execution sale, which
is P 5 0,0 00 more than the value fixed in Art. 157 for
homes in urban areas. But the homeowners still owe the
building contractor and those who supplied materials to the
home PI 0 0 ,0 0 0 . The judgment creditor cannot then
execute on the family home because once all the claims
under Art. 155 are paid, the value of the home would be
less than the maximum amount fixed by Art. 157.
(b) The increase in the value of the home over and
above that fixed in Art. 157 might have been due to
improvements introduced thereto by the owner or owners
or any of its beneficiaries after the home has been
constituted. This will not preclude the judgment creditor
from asking for the sale of the home in execution as long
as the value of the home, its original value at the time of
its constitution plus the value of the improvements,
exceeds the maximum amount fixed in Art. 157. A
different rule would prejudice creditors, since the owner of
the home or its beneficiaries can continue improving the
home and it would still be exempt from execution as long
as its value at the time of its constitution does not exceed
the maximum value fixed in Art. 157.

Art. 161. For purposes of availing of the benefits of a

family home as provided for in this Chapter, a person may
constitute, or be the beneficiary of, only one family home,
(n)
m^
I Art. 162 265

(1) As provided in this Article, to avail of the benefits

of a family home, a person may constitute, or be
the beneficiary of, only one family home.
(2) If a beneficiary, say a son or a daughter of the
owner or owners of the home, gets married and
already has his or her own family, he or she may
now constitute a family home different from that
of his or her parents, and this son or daughter
will cease to be a beneficiary of his or her
parents' family home.

Art. 162. The provisions in this Chapter shall also

govern existing family residences insofar as said provisions
are applicable.

(1) All existing family residences also enjoy the

protection of the provisions of this Chapter on the
family home insofar as said provisions are
applicable. In other words, the provisions of this
Chapter have retroactive effect and also apply to
homes already existing at the time the Family
Code took effect.
(2) The family home may be attached for the
satisfaction of a debt incurred by the husband
prior to the constitution of the family home under
Art. 155 (2). Art. 162 simply means that all
existing family homes at the time of the
effectivity of the Family Code are prospectively
entitled to the benefits accorded to a family home
by the Family Code. (Manacop v. C.A. Nov. 13,
1992, 277 SCRA 57).
(3) There is no need to constitute a family home
judicially or extra-judicially under the Family Code.
Family homes are deemed constituted by operation
of law upon the effectivity of the Family Code on
August 3, 1988. (Modequillo v. Breva, 185 SCRA
766).
{4} A family home constituted by the spouses is not
affected even if their marriage is nullified. (Valdes
266 Art. 7 6 2

V. RTC, 260 SCRA 221).

{5) The exemption of the family home lasts as long
as a beneficiary resides therein. (Modequillo v.
Breva, id.)
(6) The actual occupancy of the family home by the
beneficiary constitutes the same as such even if
the owner does not actually reside therein (like if
he is abroad). (Manacop v. C.A., id.)
(7) Beneficiaries of the family home included in-laws it
the home is constituted by husband and wife. But
maids and overseers are not included (iVlanacop v,
C .A .. id.)
i Title VI ' Paternity and Filiation Art. 162

T IT L E VI

PATERIMITY AND FILIATION

Concepts:

"P a ternity'’ is the civil status of the father with

respect to the child.
"M a te rn ity " is the civil status of the mother with
respect to the child.
“ Filiation" is the status of the child in relation to the
father or the mother. Sometimes, it is used to indicate
paternity (or maternity) as well.

Kinds of paternity and filiatton:

(1) Natural - the relation between parent and child

arising from nature or from the child's birth,
(2) Artificial - the relation that arises between parent
and child by fiction of law or in imitation of
nature, as in adoption.

Kinds of chitdren under the Familv Code:

(1) Legitimate - One conceived or born during a valid

marriage of the parents, or within lawful wedlock.
(Art. 164).
(2) Illegitimate - One conceived and born outside a
valid marriage or out'^ide lawful wedlock. (Art.
164).
(3) Legitimated - One who is originally illegitimate but
later considered legitimate by legal fiction because
of the subsequent marriage of the parents who,
at the time of the child's conception, had no legal

267
ill
268 Art. 762

impediment to marry each other. (Arts. 177 and

178).

Major changes made bv the Family Code in the law nn

Paternity and Filiation in the Civil Code:

The Family Code has greatly simplified the law on

paternity and filiation by making the following major
changes in the law as found in the Civil Code:

(1) It limits the classification of children to legitimate

and ilJegitimate, thereby eliminating the
acknowledged natural children and the natural
children by legal fiction.
(2) It does not only presume children as legitimate
(whether conclusively, quasi*conclusively, or prima
p facie) but gives them their status of either
'I-; legitimate or illegitimate at the moment of their
birth.
(3) Children by artificial insemination under the
conditions laid down by the Code are given the
status of legitimate children.
(4) Impugnation of the legitimacy of a child is allowed
for biological or other scientific reasons.
(5) Legitimation of a child conceived and born outside
wedlock of parents who, at the time of the
conception of the child, are not disqualified by
any impediment from marrying each other, takes
place by the mere subsequent marriage of the
parents, without need of their recognizing the
child prior to or after the marriage.
(6) Illegitimate children are allowed to establish their
illegitimate filiation in the same way and on the
same evidence as legitimate children.
firt. 163 and Art. 764

CHAPTER 1

LEGITIMATE CHILDREN

Art, 163. The filiation of chffdren may be by nature or

by adoption. Natural filiation may be legitimate or
illegitimate, (n)

Under the above Article, the filiation of children may

be;
(1) by nature, or
(2) by adoption;

while natural filiation may be:

(1) legitimate; or
(2) illegitimate

Art. 164. Children conceived or born during the

marriage of the parents are legitimate.

Children conceived as a result of artificial insemination

of the wife w ith 'th e sperm of the husband or that of a
donor or both are likewise legitimate children of the
husband and his wife, provided that both of them
authorized or ratified such Insemination in a written
iristrument executed and signed by them before the birth of
the child. The instrument shall be recorded in the civil
registry together with the birth certificate of the child.
i255a, 258a)

Definition of “legitimate" children:

This Article defines "legitimate" children as those
conceived or born during the marriage of the parents.

269
270 Art. 762

Of course, children conceived and born during tiie

marriage of tf^e parents are necessarily legitimate. But a
child, although conceived before the marriage, but born
already during the marriage, is likewise legitimate; and so ?
with a child who, although born outside the marriage, was
conceived during the marriage.

The definition of "legitimate” children applied:

(1) Suppose a child was conceived out of pre-marital

relations between a man and a woman, but the
two got married before the child was born, so
that when the woman gave birth to the child, she
is already married to the child's father. The child
is legitimate, having been born during the marriage
of the parents.
(2) Cn the other hand, let us take the case of a wife
who was pregnant when her husband suddenly
died in an accident. Thus, when the child was
born, the father was already dead. The child is
legitimate, since it was conceived during the
marriage of the parents.
(3) A child conceived while the parents were still
living under a voidable marriage but born after the
marriage of the parents had been annulled is stil(
legitimate, having been conceived during the
marriage of the parents.
(4) A child conceived of parents who, being lawfully
married, later separated, whether de facto or legal, J
so that when the child was born, the parents are |
already separated, is legitimate, because it was |
conceived and born during the marriage of the
parents.

Children bv artificial insemination:

The above article also gives the status of a legitimate

child to child conceived by artificial insemination under the
following conditions:
 Art. 162 271

(1) The artificial insemination is made on the wife,

not on another woman.
(2) The artificial insemination of the wife is done with
the sperm of the husband or of a donor or of
both the husband and a donor;
(3) The artificial insemination has been authorized or
ratified by the spouses in a written instrument
executed and signed by them before the birth of
the child; and
(4) The written instrument aforementioned is recorded
in the civil registry together with the birth
certificate of the child.

What is Artificial Insemination?

Artificial insemination may be defined as the

impregnation of a female with semen from a male without
sexual intercourse. AIJ that is needed is the squirting of
semen toward the uterine opening by means of a syringe
■K inserted Into the vagina. The semen may be that of the
W husband (AIH or homologous artificial insemination), that of
a donor (AID or heterologous artificial insemination) or a
U combination of the husband's and a donor's semen (AlC or
I’ confused or combined artificial insemination) (Romero, Legal
p Aspects of Artificial Insemination).
Why is artificial insemination resorted to? AIH is a
valuable method of reproduction in cases of physical
inability of the spouses to copulate, like cases of vaginal
tumors, partial vaginal obliteration through scarring, an
abnormal position of the uterus, obesity, or a very small
cervical opening, on the part of the wife; and on the
husband's part, physical impotence, low sperm count,
obesity, malformation of the penis, or retrograde
ejaculation. AID may be used when there is permanent
sterility or genetic disorders on the part of the husband
which the couple would not like to transmit to their
^ children, low sperm count on the part of the husband due
^ to excessive exposure to drugs or radiation, or an
incompatibility in the Rh blood factors of husband and
wife, so that the semen of a donor is preferable to that of
the husband. And AlC is resorted to in order that the
husband may still entertain the hope that it was his seed
that successfully brought forth the child. (Romero, id.)

Why has the Family Code included therein a provision

the status of children born of artificial insemination?

During consultations with medical experts on the

subject, notably Dr. Vicente J.A . Rosales of the UST
Faculty of Medicine, the Committee was informed that
artificial insemination of the wife by the semen of the
husband or of a donor or of both is actually being resorted
to by childless couples in the Philippines, so that to avoid
uncertainty in the status of children born of this means,
the Committee has decided to include in the Family Code a
provision determining the status of such children. The
Committee has been subsequently criticized by some
Catholic groups for doing so on the ground that a provision
legalizing artificial insemination is immoral and violates the
sacredness or sanctity of family life. In answer to those
criticisms, the Committee, through Justice Eduardo
Caguioa, made it clear that the provision in question does
not address itself to the legality or illegality, or the morality
or immorality, of artificial insemination, nor does it approve
of the practice; that the provision only determines the
status of children born of such means so that their status
would not be doubtful and uncertain; that the fact that the
Committee has included such children does not mean that
it approves of artificial insemination; and that similarly, the
law has always determined the status of illegitimate
children but that does not. mean that the law approves of
children born out of wedlock.

Other important points to remember in connection with

children born of artificial insemination.

(1) The fact that the child was born of artificial

insemination should not appear in the birth
Art. 165 2/3

certificate of the child, so that the child would

not know that he or she was born of artificial
insemination. Likewise, the husband would like the
public to believe that he is the father of the child.
(2) The written instrument executed and signed by
the spouses wherein they authorized or ratified
the artificial insemination must be recorded in the
civil registry together with the birth certificate of
the child for the protection of the doctor who did
the artificial insemination, and also to protect the
wife in case the husband dies before the birth of
the child.
(3) As to the fear of some members of the
Committee that the recording of the written
instrument executed by the spouses might destroy
I'le secrecy of the artificial insemination, the
majority of the members answered that in case of
conflict between such secrecy and a determination
of the child's status, secrecy should be sacrificed
in order to settle the child's status.
(4) In the case of AID or artificial insemination of the
wife with the semen of a donor, the donor must
be unknown, Indeed, no donor would want his
identity known to avoid paternity suits in the
future. B'jsidcs, the anonymous donor cannot be
considered the natural father of the child, as he is
no more responsible for the use of his sperm than
the donor of blood or a kidney to a patient. (For
reference, see Minutes of Committee meetings of
June 22, 1985 and July 6, 1985).

Art, 165. Children conceived and born outside a valid

marriage are illogltirnaie, unless otherwise provided in this
Code, (n)

Illegitimate children, under this Article, are ihose

conceived and born outside a valid marriage.
2 ;’.; /irr 766

Thus, the foilowinq chiidren are illegitimate:

(1) Children born of couples who are not legally

married, or of common-law marriages;
(2} Children born of incestuous marriages;
(3) Children born of bigamous marriages;
(4) Children born of adulterous relations between the
parents;
(5) Children born of marriages void for reasons of
pLiblic policy under Art. 38;
(6) Children born of couples below 18, whether they
are married (which marriage is void) or not;
(7} Children of other void marriages under Art. 35,
except where the marriage of the parents is void
for lack of authority on the part of the
solemnizing officer, but the parties or either of
them had believed in good faith that the
solemnizing officer had authority, in which case
the marriage will be considered valid and the
children will be considered legitimate. (Art. 35,
par. (2)).

Children of marriages void under Art. 36 {because of

the psychological incapacity of one of the spouses) and
Art. 53 (the second marriage of a widow or widower who
has not delivered to his or her children by his or her first
marriage the legitime of said children) are, however,
legitimate.

Art. 166. Legitimacy of a child may be impugned only

on the following grounds.
(1) That it was physically impossible for the husband
to have sexual intercourse with his wife within
the first 120 days of the 300 days which
immediately preceded the birth of the child
because of;
(a) the physical incapacity of the husband to
have sexual intercourse with his wife;
(b) the fact that the husband and wife were
I
m
A rt. 166 275

living separately in such a way that sexual

intercourse was not possible; or
(c) serious illness of the husband, which
absolutely prevented sexual Intercourse;
(2) That it is proved that for biological or other
scientific reasons, the child could not have been
that of the husband, except in the instance pro-
% vided in the second paragraph of Article 164; or
(3) That In case of children conceived through
artificial insemination, the written authorization or
^ ratification of either parent was obtained through
mistake, fraud, violence, intimidation, or undue
influence. (255a)

Rule under the Civil Code:

Under Art. 255 of the Civil Code, only one kind of

proof is allowed to rebut the presumption that a child born
after 180 days following the celebration of the marriage
and before 300 days following its dissolution or the
separation of the spouses is legitimate, and that is, the
physical impossibitir/ of the husband's having access to his
'.vife during the first 120 days of the 300 days preceding
the birth of the child (considered the period within which
conception took place).
The above provision of the Civil Code does not,
however, take into account the modern advances in
science and technology that make it possible to determine
the legitimacy or illegitimacy of a child by scientific tests
and processes, like the human leucocyte antigen (HLA) and
DNA tests. As Tolentino aptly puts it:

" M a n y tim e s, th erefo re there w ill be c a s e s w h e re sc io n c e

can s h o w n o n -p a te rn ity or ille g itim a c y , but the present article
of the co d e w ill prevent the in tro d u c tio n of su ch s c ie n tific
ev id e n c e b e ca u se it do e s not c o n s titu te p h y s ic a l im p o s sib ility
of a c c e s s . Th e rules on le g itim a c y sh o u ld have been m od ified,
so that the ty ra n n y of legal p re su m p tio n m a y not co m p le te ly
ignore the tru th and lo g ic of s c ie n tific a lly e sta b lish e d fa c ts ."
(T olen tino , id., 5 4 7 )
276 Art. IQS

Rule under the Family Code:

Recognizing the rapid advances and modern

discoveries in science and technology making it possible to
determine the legitimacy or illegitimacy of a child through
scientific evidence, the Family Code, under the above
Article, now includes as a ground for the impugnation of
the legitimacy of a child, biological or scientific reasons.
Thus, the grounds for impugning the legitimacy of a child
Linder the above Article of the Family Code are;

(1) That it was physically impossible for the husband

to have sexual intercourse with his wife within
the first 120 driys oT the 300 days which
immediately preceded the birth of the child
because of :
(a) the physical incapacity of the husband to
have sexual intercourse with his wife;
(b) the fact that the husband and wife were
living separately in such a way that sexual
intercourse was not possible; or
(c) serious illness of the husband, which
absolutely prevented sexual intercourse;
(2) That it is proved that for biological or other
scientific reasons, the child could not have been
that of the husband, except in the instance
provided in the second paragraph of Article 164
(artificial insemination); or
(3) That in case of children conceived through
artificial insemination, the written auihorization or
ratification of either parent was obtained throu g h
mistake, fraud, violence, intimidation, or undue
influence.

Grounds for impugnation of legitimacy of a child

explained:

(1) Physical impossibility of the husband to have

sexual intercourse with his wife within the first
 Art. 766 277
120 days of the 300 days which immediately
preceded the birth of the child:

(a) The period referred to is considered the period

of the child's conception; i.e, the child could
have been conceived (the fertilization of the
egg cell by the sperm) at any time within said
first T 20 days or the first 4 months of the
3 0 0 d a y s or 10 mont hs (the l ongest
gestation period of the foetus in the womb
of the mother) immediately preceding the
birth of the child.
(b) It It was physically impossible for the husband
to have sexual intercourse with his wife
during said period of 120 days or four
months, the child cannot be the legitimate
child of the husband.
(c) The reasons that could have made it
impossible for the husband to have sexual
intercourse with his wife during said period of
120 days or 4 months might have been
because;
(i) Of the physical impotence or physical
incapacity of the husband to have sexual
intercourse with his wife. Sterility of the
husband is not, therefore, enough.
(ii) The fact that the husband and wife were
living separately in such a way that
sexual intercourse was not possible, like;
if the husband was working in Saudi-
Arabia at the time, while the wife was in
the Philippines, or the husband was a
■
\J prisoner at the New Biiibid Prisons in
Muntinlupa, MIVI while the wife was all
the time in Davao City.
(iii) Serious illness of the husband which
absolutely prevented him from having
sexual intercourse with his wife, like if
the husband was already comatose or a
278 A rt. 166

vegetable, or sick with syphilis in the

tertiary stage so that copulation was no
longer possible (Andal v. Macaraeg, 89
Phil. 165) But TB, even in its most
crucial stage, does not preclude
copulation between the sick husband and
his wife (Andal v. Macaraeg. id.)

(2) Proof that for biological or other scientific reasons,

the child could not have been that of the
husband, except the child born, of artificial
insemination under the second paragraph of Art.
164;
(a) As already stated before, the human
leucocyte antigen (HLA) test has been
discovered to prove conclusively the paternity
of a child. This test, according to Dr. Carmen
de la Alas of the Research Laboratory of the
Kidney Center, Medical City, can now identify
inherited genetic markers in the white blood
cells and makes it possible to match a child
with his biological father. These inherited
genetic markers are, according to the same
doctor, like fingerprints that remain unchanged
throughout life. This test can thus protect
men falsely accused in paternity suits as well
as give a measure of justice to women left
with the responsibility of single parenthood to
enable them to go after the fathers of their
children for support and other remedies.
(b) Blood tests may also show that the supposed
father is not the biological father of his
alleged child. Although the presence of the
same type of blood in two persons does not
indicate that one was begotten by the other,
the fact that they are of different blood types
indicate the Impossibility of one being the
child of the other. Blood tests, then, together
with other evidence, like a racial or ethnic
 A r t 16 6 279

difference between the supposed father and

the child, can be presented to impugn a
child's legitimacy.
(c) The fact that the husband has had double
vasectomy, together with other evidences,
can also show the impossibility of the alleged
father having sired his supposed child.
(d) DNA tests, being a novel, scientific technique,
are still open to question as evidence.
t However, courts should not hesitate to rule
on their admissibility in appropriate cases in
ife the future, since they are useful in the prompt
resolution of parentage and identity issues.
(Tijing v. GSIS, 3 5 4 SCRA 17; also Cabatania
v. C.A., Oct. 21, 2004).
(e) As more discoveries in the scientific and
technological fields are made to determine the
legitimacy or illegitimacy of a child, so may
the courts accept evidences of scientific
nature to prove whether a child is really that
of the DUtative father or not.
(3) In case ot ch ild re n c o n c e iv e d Dy a r tific ia l
insem ination under A rt. 1 6 4 , the husband may
show that his alleged consent to or ratification of
the artificial insemination undergone by his w ife
with the sperm of a donor was obtained through
m istake, fraud, violence, intim idation, or undue
influence, in which case the child would be held
»■ not to be his legitimate child.
(4) Arts. 166, 170, and 171 ot the Family Code
providing how the legitimacy of a child may be
impugned, the period of filing the action, and the
persons who can file the action, do not apply
where the child is alleged not to be the biological
child of a certain couple. These articles apply only
where a husband (or his heirs) denies as his own
a child alleged to be his. (Benitez-Badua, v. C.A.,
299 SCRA 468).

■
280 1 6 7 an d A rt. 16S

Art. 167. Tha child sheii be considered legitimate

although the mother may have deciared against its
legitimacy or may have been sentenced as an adulteress.
(25a)

Reasons for the rule:

(1) The child's legitimacy, which is established by the

Family Code at the moment and by the fact of
his birth, should not be affected by the mere
declaration of the mother against its legitimacy
nor her mere conviction as an adulteress.
(2) The mother, in a fit of anger or to arouse
jealousy on the part of the husband, might have
declared against the child's legitimacy, even if
such declaration is untrue (Powell v. State, 95
N.E. 660).
(3) Even the wife, who has had carnal knowledge
with her husband and with her paramour, would
not be able to tell with certainty who is the real
father of her child. And as between the paternity
by the husband and that of the paramour, all
things being equal, the law considers the child as
legitimate for his protection (Paras, Id., pp. 634-
635, citing 1 Manresa 549).
(4) The husband, whose honor is offended, might
have been able to obtain from his wife through
coercion a confession of her guilt of adultery, but
this does not mean that the child begotten by her
is not that of her husband. (1 Manresa, 503-504,
cited in Paras, id., p. 635 and Tolentino, id., p.
547)

Art. 168. If the marriage Is terminated and the mother

contracted another marriage within three hundred days after
such termination of the former marriage, these rules shall
govern in the absence of proof to the contrary:
(1) A child born before one hundred eighty-days after
the solemnization of the subsequent marriage Is
 Art. 168 281

considered to have been conceived during the

former marriage, provided if be born within three
hundred days after the termination of the former
marriage;
(2) A child born after one hundred eighty days
following the celebration of the subsequent
m marriage is considered to have been conceived
during such marriage, even though it be born
within the three hundred days after the
termination of the former marriage. (259a)

(1) This Article is similar to Art. 259 of the Civil

Code, except that while said Article of the Civil
Code establishes mere presumptions of the
legitimacy of the child, the above Article gives the
child the status of a legitimate child of the first
husband in its par. (1), and the status of a
legitimate child of tlie second husband in its par.
( 2 ).
(2) The problem posed in the above Article can arise
even more under the Family Code, as it has
eliminated, in answer to the clamor of the women
for equal rights with men, the provision in the
Civil Code (Art. 84} prohibiting the issuance of a
marriage license to a widow within 3 0 0 days
from the death of her husband, unless she has
given birth to a child in the meantime. It can well
happen, then, that a widow or a woman whose
marriage has been annulled, marries again within
300 days from the termination of her first
marriage, not knowing that she is pregnant at the
time of her second marriage, so that if her child is
born during these same 300 days, there might be
a confusion as to who is the real father of her
E:;
child, whether her first husband or her second
husband. To avoid this problem, a widow or a
woman whose marriage has been annulled should
not marry again within 3 0 0 days after the
termination of her first marriage without
282 A rt. 1 6 7 a n d A rt. 168

undergoing a pregnancy test first and being

certain that she is not pregnant by her first
husband.
(3) For the child to be considered the child of the
first husband under par. (1) of the above Article,
the following requisites must concur;
(a) The mother must have married again within
300 days from the termination of her first
marriage;
(b) The child was born within the same 300 days
after the termination of the former marriage of
its mother;
(c) The child was born before 180 days after the
solemnization of its mother's second marriage.
(4) For the child to be considered the child of the
second husband under par. (2) of the above
Article, the following requisites must concur.
(a) The mother must have married again within
3 0 0 days from the termination of her first
marriage;
(b) The child was born within the same 300 days
after the termination of its mother's first
marriage;
(c) The child was born after 180 days following
the solemnization of tis mother's second
marriage.
(5) Who can impugn the status given by the above
Article to the child in pars. (1) and (2) thereof?
Only the husband whom the law considers
the father of the child, or his heirs, can bring an
action to impugn the child's status. The child
cannot choose his or her own filiation. If the
husband presumed to be the father does not
impugn the child's status, then, it is fixed and will
stay with the child. If, on the other hand, the
status of the child has been successfully
impugned, the child cannot choose the paternity
of the husband who had successfully impugned
his or her status. (Tolentino, id., 555)
A rt. 1 6 9 a n d A rt. 170 283

Art. 169. The legitimacy or illegitimacy of a child born

after three hundred days following the termination of the
marriage shall be proved by whoever alleges such
legitimacy or illegitimacy. (261a)

(1) The law does not give a status to a child born

after 3 0 0 days following the termination of the
marriage of the mother because the birth of the
child is already beyond said period of 300 days
which the law considers the longest period of
gestation of a fo^us in the mother's womb.
(2) Thus, it is up to the person who alleges the
legitimacy or illegitimacy of a child, or to the child
himself or herself, to prove the true status of said
child. If, for example, the child was born 310
days after the death of the husband, but the
mother can prove that she went through a very
abnormal pregnancy that resulted in a much
delayed birth of her child, the child could still be
considered the legitimate child of the deceased
husband.

Art. 170. The action to impugn the legitimacy of the

child shall be brought within one year from the knowledge
of the birth or its recording In the civil register, if the
husband, or in a proper case, any of his heirs, should
reside in the city or municipality where the birth took place
who was recorded.
If the husband or. In his default, all of his heirs do
not reside at the place of birth as defined In the first
paragraph or where It was recorded, the period shall be
two years If they should reside in the Philippines; and three
years if abroad. If the birth of the child has been concealed
from or was unknown to the husband or his heirs, the
period shall be counted from the discovery or knowledge of
the birth of the child or of the fact of registration of said
birth, whichever is earlier. (263a)
28^ An. 77q

Legitrmacv of a child must be attacked in a direct action

for that purpose:

The legitimacy of a child cannot be attacked

collaterally or by way of defense to any action or
proceeding filed for a different purpose. The status of ^
child can be questioned only in a direct action or
proceeding filed under this Article (Sayson v. CA, 205
SCRA 321)

Periods for ftilinn action:

The action to impugn the legitimacy of the child shall
be brought:
(1) Within one (1) year from the knowledge of the
child's birth or its recording in the civil register, if
the husband (or in the proper cases, his heirs)
should reside in the city or municipality where the
child was born or his birth was recorded;
(2) Within two (2) years if the husband (or his heirs)
does not reside in the city or municipality where
the child's birth took place or was recorded but
his (or their) residence is in the Philippines;
(3) Within three (3) years if the child's birth took
place or was recorded in the Philippines while the
husband (or his heirs) has his residence abroad, or
vice versa.

If the birth of the child has been concealed or was

unknown to the husband or his heirs, the above periods
shall be counted:
(1) from the discovery or knowledge of the birth of
the child, or
(2) from the discovery or knowledge of the fact of
registration of said birth, whichever is earlier.

Points to remember in connection with action to impugn

legitimacy of child:
(1) While In Art. 263 of the Civil Code, the periods
provided for filing the action to impugn the
Art. 170 285

legitimacy of a child are one (1) year, eighteen

(18) months or 1-1/2 years, and two (2) years,
respectively, the above Article has changed these
periods to one (1) year, two (2) years, and three
(3) years, respectively, to make them easier to
remember.
(2) The periods are quite short, so that the status of
a legitimate child will not be In a state of
uncertainty for a long period of time.
(3) Upon the expiration of the periods prescribed in
this Article, no action impugning the legitimacy of
a child can be brought anymore.
(4) While Art. 263 of the Civil Code counts the
aforesaid periods for bringing the action from the
recording of the birth of the child, the above
Article of the Family Code counts them from
"knowledge" of birth or its recording, the reason
being that very few people bother to look at the
recordings in the civil registry, especially since
under P.D. 603, records of birth are confidential.
(5) While Art. 263 of the Civil Code, in the case
where the filing of the action is limited to only
one (1) year, merely states that the recording of
the birth of the child and husband (or his heirs)
"should be in the same place" in the Philippines,
without specifying what the term "place" means,,
the above Article clarifies the matter by stating
'■'in the same city or municipality". And "city" or
"municipality" was chosen because there are
some provinces in the Philippines that are very
wide in area.
(6) It can happen that while the spouses are
separated de facto, the wife gave birth to child,
but the husband did not know of such birth and
the fact that the child was recorded in his name.
This the reason why the second paragraph of the
above Article provides that the period for bringing
the action may be counted "from the discovery or
. knowledge of the birth of the child,"
286 Art. I 7 j

(7) Registration of the birth of the child in the civil

registry is not considered by this Article as
constructive notice of such birth. There must be
actual knowledge of such registration by the
husband or, in proper cases, his heirs.
(8) If the wife, when already several months
pregnant, left for the US and gave birth to her
child there, the action to impugn the legitimacy of
that child should be filed within three (3) years
from her husband's (or his heirs') knowledge of
such birth or its recording in the U.S. But if the
birth of the child had been concealed or was
unknown to the husband (or his heirs), the period
of three (3) years should be counted from the
discovery or knowledge of the birth of the child
or of the fact of its recording, whichever is
earlier.
(9) The term "concealed" as used in the above Article
means concealed from the husband or his heirs,
not concealed from the public.
(10) This Article is not applicable if the action is not
to impugn the legitimacy of a child but to have
the child declared not a child of the alleged
mother and not her legal heir. (Cabatbat-Lim v.
lAC, 166 SCRA 451)

(For references, see Minutes of Committee meetings

of July 6 and August 3 and 10, 1985)

Art. 171. The heirs of the husband may 'impugn the

filiation of the child within the periods prescribed in the
preceding article only in the following cases:
(1) If the husband should die before the expiration of
the period fixed for bringing his action;
(2) If he should die after the filing of the complaint/
without having desisted therefrom; or
(3) If the child was born after the death of the
husband. (262a)
 firt. 171 287

(1) As a general rule, only the husband can impugn

the legitimacy of a child. If he does not bring the
action within the periods provided for in the
preceding Article, he cannot file such action
anymore thereafter, and this is also true with his
heirs.
(2) The heirs of the husband may, however, file the
action or continue the same if it has already been
filed, In the following cases;
(a) If the husband dies without bringing the
action, but the periods prescribed in the
preceding Article have not yet expired;
(b) If the husband has already filed the action but
dies during its pendency, without desisting
therefrom; and
(c) If the child is born after the death of the
husband (posthumously).
(3) Once the legitimacy of 'the child Is successfully
Impugned, the paternity of the husband Is
rejected, and the child shall be considered
illegitimate (adulterous). It is not necessary that
the Identity of the real father be established.
(Tolentino, Id., 558)
(4) Periods in Art. 171 apply only when the husband
impugns the legitimacy of his wife's child. They
do not apply when the child is alleged to be not
his wife's at all but of another woman. (Babiera
V. Catotal, 333 SCRA 487)

11 '
1
illl
iir i

gji! Art. 772,(

PliU!

CHAPTER 2

PROOF OF FILIATION

Art. 172. The filiation of legitimate chiidren is

established by any of the following:
{1) The record of birth appearing in the civil register
or a final judgment; or
(2) An admission of legitimate filiation in a public
document or a private handwritten instrument and
signed by the parent concerned.

In the absence of the foregoing evidence, the

legitimate filiation shall be proved by:
('}) The open and cbntinuous possession of the status
of a legitimate child; or
(2) Any other means allowed by the Rules of Court
and special laws. (265a, 266a, 267a)

(1) The Family Code, as already stated previously,

gives children their status from the moment of
their birth. Such status may, however, be
questioned, or in the case of a child born after
300 days following the termination of the
marriage of the mother, the law does not give
him any status so that the child or someone in
hfs behalf will have to prove his status for him
{Art. 169). Hence, the necessity of this Chapter
defining the evidence that a legitimate child may
present to establish or prove his status or filiation.
(2) A legitimate child may prove his filiation or status,
by any of the following evidences.
{a) His record of birth appearing in the civil
register;
(b) A final judgment declaring his status;
2SS
172 289
(c) An admission of his legitimate filiation by his
parent or parents in a public document or a
private handwritten instrument and signed by
said parent or parents.
{3} There is no priority in the above kinds of
evidence, and that is why the beginning of the
Article says "any". Hence, any of the above
enumerated kinds of evidence may be presented,
as the legitimacy of the child is favored by law.
(4) The record of birth is strong proof and establishes
paternity if unrefuted. {Mariatequi v. CA, 205
SCRA 499)
(5) The Family Code's policy is to liberalize the rule
on investigation of paternity of children, especially
illegitimate children. (Mendoza v. C.A., 201 SCRA
675).
(6) Unlike in Art. 265 of the Civil Code wherein only
an "authentic" document Is acceptable as proof of
the child's filiation, which means a public
instrument (1 Manresa 538), the above Article
also allows as proof thereof an admission of the
legitimate filiation of the child by the parent in a
private instrument, provided it is handwritten and
signed by said parent. A typewritten document is
not allowed, as the signature therein may just be
superimposed and may not be the true signature
of the parent.
(7) Unsigned birth certificates are not evidence of
recognized filiation (Baluyut v. Baluyut, L-33659,
June 14, 1990).
(8) The alleged father must intervene in supplying
information in the birth certificate. Othervvi;>e, it is
not competent evidence of paternity. (J?'>on v.
C.A., 286 SCRA 495; Cabatania v. C.A. and
Regodos, GR 1 24 814, Oct. 21, 2004).
(9) Baptismal certificate and school records alone are
incompetent to prove paternity. (Jison v. C.A., idr
Cabatania v. CA., id.)
(10) Rule 130, sec. 40 is limited to objects commonly
 ■vM
290 Art. 772 '1^
known as family possessions reflective of g
family's reputation or tradition regarding pedigree
like inscriptions on tombstones, monuments, or
coffin plates (Jison v. C.A., id.)
(11) In the absence of any of the evidences mentioned
in the first paragraph of the above Article, its vMili
second paragraph provides that the child may
prove his legitimate filiation by:
(a) The open and continuous possession of the
status of a legitimate child; or
(b) Any other means allowed by the Rules of
Court and special laws.
(12) By ''open and continuous possession of the status
of a legitimate child" is meant the enjoyment by
the child of the position and privileges usually
attached to the status of a legitimate child, like
bearing the paternal surname, treatment by the
parents and family of the child as legitimate,
constant attendance to the child's support and
education, and giving the child the reputation of
being a child of his parents (Adriano v. De Jesus,
23 Phil. 350; De Jesus v. Syquia, 58 Phil. 866).
(a) By "continuous" is meant uninterrupted and
consistent (I Manresa 539), but it does not
require any particular length of time (Adriano
and De Jesus v. Syquia, id.). The child might
have died soon after birth, but during his very
short life, he had consistently been given by
his parents and family the status of a
legitimate child, (id.)
(b) Possession of the status of a legitimate child
may even be enjoyed by a child conceived
but not yet born (Barrueco v. Consul General,
74 Phil. 151).
(c) There must be evidence of the manifestations
of parental affection and care, which cannot
be attributed to mere charity, (Examples are
given in Jison v. C.A., supra).
(13) Note, however, that if it is shown that the alleged
Arf. 173 291

parents are really childless and th a t they just

adopted the child de facto (ampon), that the birth
certificate of the child show s that the parents are
another couple, etc., the filiation o f the child can
be impugned.
(14) "A n y other means allowed by the Rules of Court
and special la w s" may include the child's
baptismal certificate, a judicial admission, the
fam ily bible wherein the name o f ihe child is
entered, com mon reputation respecting pedigree,
admission by silence, testim onies of witnessc^s,
and other kinds of proof admissible under Rulo^
130 o f the Revised Rules of Court.

Art. 173. The action to claim legitimacy may be

brought by the child during his or her lifetime and shall he
transmitted to the heirs should the child die during minority
or in state of insanity. In these cases, the heirs shall have
a period of five years within which to institute the action.
The action already commenced by the child shall
survive notwithstanding the death of either or both of the
parties. (268a)

When can the child bring an action to claim his status as

feqitimate child or prove his filiation as such?

{1} The child can bring the action during his or her
entire lifetim e (not during the lifetim e of the
parents) and even after the death o f the pcirents.
In other words, the action does not preocribe as
long as he lives.
(2) If the child is a minor, or is incapacitated or
Insane, his guardian can bring '.ne action in his
behalf.

Can the heirs bring the action for the child af^er the iatter^s
death?
 fll

Ipi
ill] 292 Art. J -/4

Wil (1) If the child dies after reaching m ajority without ^

li il bringing such an action, his heirs can no longer ;
;q|; file the action after this death. It is the soie right ^
jfli: of the child to bring the action during his lifetime, /
Ipj and if he did not bring the action while he was
I'f: still alive and could have brought the same, to
allow the heirs to being the action for him v\/ould
be contrary to the rule on waiver of the right of
succession. The action to claim one's legitim acy is
Si!
1:5 f f
co-extensive w ith his right to claim his
successional rights. If the child refuses to claim ■
his legitimacy, he is in effect repudiating his :
llli inheritance from his parents. (See Minutes of >
Meeting of Committee of August 10, 1985)
(2) If, however, the child dies during m inority or in a :
state of insanity, his heirs can file the action for
him w ith in five (5) years from the child's death.
(3} Furthermore, if the child dies after commencing
the action, the action wilt survive and the heirs of
'''■ the child will be substituted for him. This action is
among those that survive under the Revised Rules
of Court.
; (4) However, the second paragraph of A rt. 173 of the
Family Code cannot be given retroactive e ffe c t so
as to p re ju d ic e th e o th e r h e irs o f the p u ta tiv e
parent. Under A rt. 285 , New Civil Code, an action
fo r com pulsory recognition filed by a child against
h is a lle g e d fa th e r s h o u ld be d is m is s e d if the
alleg ed fa th e r dies d u rin g th e p e n d e n c y o f the
case. (M arquino v. lAC. 2 3 8 SCRA 27)

Art. 174. Legitimate children shall have the right;

(1) To bear the surnames of the father and the
mother, in conformity with the provisions of the
Civil Code on Surnames;
(2) To receive support from their parents, their
ascendants, and in proper cases, their brothers
and sisters, in conformity with the provisions of
this Code on Support; and
 Art 174 293

(3) To be entitled to the legitime and other

successional rights granted to them by the Civil
Code. (264a)

Rights of iegitimate children:

The rights of legitimate children:

f1) To bear the surnames of the father and the
mother, in conformity with the provisions of the
Civil Code on Surnames.
(2) To receive support, in conformity with the
provisions of this Code on Support from their:
(a) parents
(b) ascendants, and
(c) brothers and sisters in proper cases; and
(3) To be entitled to the legitime and other
successional rights granted to the under the Civil
Code.

is it obliaatorv for the legitimate child to use his father's

surname?

(1) The child's use of his father's surname indicates

the family to which he belongs.
(2) Hence, it is mandatory for the child to use the
father's surname. He may also use his mother's
surname as a middle initial or a middle name, but
the child's surname should still be that of his
. father.
Examples: Alfonso Ponce Enrile; Jose Gutierrez David

W hat is the legitime of a legitimate chitd?

The legitime of each child is half of the parents'

estate divided by the number of legitimate children (Art.
888, Civil Code).
In intestate succession, legitimate children inherit
equally (per capita) without distinction as to age or sex,
and even if they spring from different marriages. (Art. 979
id.)
 CHAPTER 3

ILLEGITIMATE CHILDREM

Art. 175. Illegitimate children may establish their

illegitimate filiation in the same way and on the same
evidence as legitimate children.
The action must be brought within the same period
specified in Article 173, except when the action is based
on the second paragraph of Article 172, in which case the
action may be brought during the lifetime of the alleged
parent. (289a)

(1) As earlier stated in the comments under this

Chapter, illegitimate children, like legitimate children, are
already given by the Family Code their status as such from
the moment of birth. There is, therefore, no need for an
illegitimate child to file an action against his parent for
recognition if he has in fact already been recognized by the
latter by any of the evidences mentioned in Art. 172 of
the Code.
(2) If, however, the status of an illegitimate child is
impugned, or he is required by circumstances to establish
his illegitimate filiation, then he can do so in the same way
and on the same evidence as legitimate children as
-
provided in Art. 172.
(3) Does this Article mean that the action for the
illegitimate child to establish his filiation may be filed within
the same period as that of a legitimate child; i.e., during
his lifetime?

(a) If the action is based on the record of the birth

of the child, a final judgment, or an admission by
the parent of the child's filiation in a public
document or in private handwritten, signed
294
A r t 175 295

instrument, Yes, because there is no longer any

question that the child is really the illegitimate
child of his putative parent. He can, therefore,
claim his rights as such even after the death of
his parent, including hts share in the tatter's estate
as heir.
(b) But if the action is based on the open and
continuous possession by the child of the status
of an illegitimate child, or on other evidences
allowed by the Rules of Court and special laws,
No, In these cases, the action must be brought
during the lifetime of the alleged parent. {Leuterio
V . C.A., GR 8 46 47, May 17, 1991).
(4) Why must the action be brought during the
lifetime of the putative parent in the last two cases
mentioned above? Since in these cases, there might still be
a question as to whether the child is really the illegitimate
child of the alleged parent or not, the latter must be given
an opportunity to contest the action, and this he or she
can do only if the action is filed during his or her lifetime.
It is a truism that unlike legitimate children who are
publicly recognized, illegitimate children are usually begotten
and raised in secrecy and without the legitimate family
being aware of their existence. Who, then, can be sure of
their filiation but the parents themselves? But suppose the
child claiming to be the illegitimate child of a certain person
is not really the child of the latter? The putative parent
should thus be given the opportunity to affirm or deny the
child's filiation, and this, he or she cannot do if he or she
Is already dead. (For reference, see Minutes of Committee
Meetings of August 10, 24 and 31, 1985; also Uyquangco
V . C.A., 178 SCRA 684).
(5) In Mendoza v. Tunaga, GR 8 6 5 0 2 , Sept. 14,
1991, the Supreme Court recognized that the Family Code
has liberalized the rule in the investigation of the paternity
of illegitimate children, including evidence obtainable
through the facilities of modern medicine and technology.
In this case, the child was held to have shown that
she is the child of her 9 1 -year old father by acts or
2 96 Art. 7 76

declaration o f her father about her pedigree in that she

used to call him "Papa M iro y," his having helped her in her
livelihood, his giving her m other money, etc.

Art. 176- Illegitimate children shall use the surname

and shall be under the parental authority of their mother
and shall be entitled to support in conformity with this
Code. However, illegitimate children may use the surname
of their father if their filiation has been expressly
recognized by the father through the record of birth
appearing fn the civil register, or when an admission in a
public document or private handwritten instrument is made
by the father. Provided, the father has the right to institute
an action before the regular courts to prove non-filiation
during his lifetime. The legitime of each illegitimate child
shall consist of one-half of the legitime of a legitimate
child. (As amended by Rep. Act 9 2 5 5 approved on Feb.
24, 2004)

Who exercises parental authority over the illegitimate child:

(1) The mother, unless the court orders otherwise.

(2) If the alleged father • admits th a t the child is his
and he lives w ith the child and the m other under
a void marriage, or even w ith o u t benefit of
marriage, both parents exercise parental authority
over the child. (Dempsey v. RTC, 164 SCRA 384)
(3) The child in question being illegitim ate, he is
under the so/e parental authority of the mother
w h o, in the exercise o f that authority, is entitled
to keep the child in her company. Recognition of
the child by the father could be a ground for
ordering him to give support to, but not to the
custody of, the child. He is, however, entitled to
visitorial rights over the child, in view o f the
constitutionally protected inherent and natural right
of parents over their children. (Briones v. Miguel,
GR 156 343, Oct. 18, 2004)
 Art. 176 297

IHeaitimate chitdren are now entitted to use the surname of

their fathers under Rep. Act 9255:

If recognized by the father in the birth certificate, or

in a public document or private handwritten instrument, the
illegitimate child is now entitled to use the surname of the
father. (See the rules promulgated by the Civil Registrar
General to implement Rep. Act 9255).

Other rights of illegitimate children:

(1) To support in conformity with this Code;

(2) To the legitime, which is one/half (1/2) of that of
a legitimate child, and other successional rights.

■;
■'
■
jifi

III
i
298 Art.

V
CHAPTER 4

LEGITIMATED CHILDREN

Concepts:

"Legitimation" is a remedy by means of which those,

who in fact were not born in wedlock and should,’
therefore, be considered illegitimate, are, by fiction,
considered legitimate, it being supposed that they were
born when their parents were already validly married (1
Manresa 550).

"Legitimated" children are ilfegitimate children who

because of the subsequent marriage of their parents are,
by legal fiction, considered legitimate.

Art. 177. Only children conceived and born outside of

wedlock of parents who, at the time of the conception of
the former, were not disqualified by any impediment to
marry each other, may be legitimated. (269a)

Who can be legitimated?

{1} Only children conceived and born outside of

wedlock of parents who, at the time of the
conception of the former, were not disqualified by
any impediment to marry each other, may be
legitimated.
(2) Hence, in order that a child may be legitimated,
the following requisites must be present.
(a) The child was conceived and born outside
wedlock;
 f?7 299

(b) The parents, at the time of the child's

conception, were not disqualified by any
impediment to marry each other.
(3) On the other hand, children of adulterous,
incestuous and bigamous marriages, or of
marriages void by reasons of public policy under
Art. 38, cannot be legitimated, because there is
an impediment to the marriage of the parents.
(4) Under the Civil Code, children of bigamous
marriages, who are natural children by legal
fiction, can be legitimated, since the parents can
marry each other upon the death of the first
husband or wife of the parent who married twice.
Unfortunately for such children, however, they can
no longer be legitimated under the Family Code,
which has limited the kinds of children to
legitimate and illegitimate and abolished the
category of natural children by legal fiction. The
parents of such children who subsequently marry
each other may, however, adopt said children and
by so doing raise their category and confer on
them the same rights as those of a legitimate or
legitimated child.
(5) Some members of the Committee were in favor
of extending legitimation not only to children of
bigamous marriages but even to adulterous
children, provided the parents marry each other
subsequently. The majority of the members of the
Committee did not, however, agree, for the
following reasons;
(a) The rationale of legitimation would be
destroyed.
(b) It would be unfair to the legitimate children in
terms of successional rights.
'■
(c) There will be the problem of public scandal,
unless social mores change.
(d) It is too violent to grant the privilege of
legitimation to adulterous child^'^n as it will
destroy the sanctity of marriagr
I!

300

(e) It will be very scandalous, especially if

parents marry many years after the birth ofl
the child. (Cited, In Abadilla v. Tabiliran, Jr::?
249 SCRA 447). (See Minutes of Committee^
meeting of August 24, 1985).

Art. 178, Legitimation shall take place by a

subsequent valid marriage between parents. The annulment
of a voidable marriage shall not affect the legitimation.
(270a)

How does legitimation take place?

Under the Civil Code, legitimation takes place by the

subsequent marriage of the parents (Art. 270) provided thd
parents have acknowledged the child before or after the |
marriage.
Under the above Article, legitimation takes place only
by the subsequent marriage of the parents of the child,
and this is so because the Family Code has deleted
recognition of natural children and already confers on
legitimate and illegitimate children their status at the |
moment of birth. As long, therefore, as the children comply
with the requisites of Art. 177, they are ipso facto
legitimated upon the subsequent marriage of their parents
no matter how long a period of time has elapsed from the
birth of said children to the time of the marriage of their
parents.

Does the annulment of the marriage of the parents affect

the legitimation of the child?

No, by express provision of the above Article,

considering that a voidable marriage is valid until annulled.
It is different however, if the marriage of the parents is
void ab initio, in which case there can be no legitimation
since the marriage does not exist at all.
 I'Aris- 7 7 a 180 and 181 301

|E Art. 179. Legitimatec5 children shall enjoy the same

Ifjghts as legitimate children. (272a)
p' (1) The effect of legitim ation of children is to confer
I? on them the same rights as legitim ate children.
Thus, they have the right:
(a) To bear the surnames of their father and
mother;
ji- (b) To receive support from their parents,
I ascendants, and in proper cases, their
brothers and sisters, and
(c) To the legitime and other successional rights
granted by law to a legitim ate child.
(2) It was held In one case that the legitimated
daughter of a man can inherit from the m an's
brother as a legitim ate niece. (De los Santos, v.
Luciano, 60 Phil. 328)

Art. 180. The effects of legitimation shall retroact to

the time of the child's birth. (273a)

Art. 181. The legitimation of children who died before

the celebration of the marriage shall benefit their
Idescendants. (274)

# Legitimation takes effect or retroacts to the time of the

f c child's birth:

(1) Under A rt. 180, the effects o f legitim ation

retroact to the tim e o f the child's birth, w hile
under A rt. 181, it is provided that the legitim ation
of children w ho died before the celebration o f the
marriage shall benefit their descendants. The
provision o f A rt. 181 is a necessary consequence
o f the provision of A rt. 180, and the effects of
legitim ation are made to retroact to the time of
the child's birth precisely to benefit not only the
child but even the child's descendants, as it can
happen that at the time o f the marriage o f the
child's parents, the child is already dead but is
survived by his or her ow n children.
302 Art. 182

(2) The above provisions were taken from Arts. 273

and 274 of the Civil Code, the rationale of which
is the protection of the child and his or her
descendants, since the child's parents may get
married many, many years after the birth of the
child, and even after the latter had already married
and died, leaving children behind who should
benefit from the legitimation of their own
deceased parent.

Art. 182. Legitimation may be impugned only by

those who are prejudiced in their rights, within five years
from the time their cause of action accrues, (275a)

Who may impugn the legitimation of a child?

Those who are prejudiced in their rights, which means

those who would suffer economic or material injury by the
legitimation like testamentary or intestate heirs. Creditors
are excluded, because they step into the picture only when
there is repudiation of inheritance by the heirs,

On what grounds may iegitimation be impugned?

The legitimation may impugned on grounds like:

(1) The subsequent marriage of the child's parents is
void;
(2) The child allegedly legitimated is not natural; or
(3) The child is not really the child of the alleged
parents.

Within what period may Impugnation of the legitimation be

made?

Legitimation may be impugned within five (5) years

from the time the cause of action accrues, which is from
the death of the putative parent because before that, the
heirs of the child have no personality to bring the action
(See Minutes of Committee Meeting of Aug. 24, 1985).
 Titio VII - Adoption

TITLE VI)

A D O P T IO N
('/Is A m e n d e d b y Rep. A c t. 8 5 5 2 ,
The "D o m estic A d o p tio n A c t o f 1998)
Sources of our law on adoption:

Before the Family Code took effect on August 3,

iy S 8 , our law on adoption was PD 603 (the Child and
Yxjuth Welfare Code), which expressly repealed all the
provisions of the Civil Code of the Philippines on adoption.
Said PD was later amended by Executive Order No. 91
signed by former President Corazon C. Aquino on
December 17, 1986 regarding non-resident aliens who
were allowed to adopt 'n the Philippines under PD 603.
Subsequently, all the provisions of PD 603 and E.O. 91 on
substantive matters were repealed by this Title of the
Family Code. Certain procedural provisions of PD 603 on
Adoption (Articles 32 to 38} were, however, not repealed
by the Family Code. This Code also did not allow aliens to
adopt in the Philippines anymore save those excepted
|| under its Art. 184, par. (3), and non-resident aliens were
allowed to adopt Filipino children only under the law on
Inter-Country Adoption (Rep. Act. No. 8043), which former
President Fidel V. Ramos signed on June 7, 1995. Under
this special law on inter-country adoption, the petition for
adoption is filed, the supervised trial custody over the
adopted child is undertaken, and the decree of adoption is
issued, outside the Philippines. This law requires that
efforts should first be exerted to place the child with an
adoptive family in the Philippines, and only when such child
cannot be adopted in the Philippines by qualified Filipino
citizens or by aliens residing in this country, would aliens
I coming from other countries be allowed to adopt said child,

303
304 Art. 18^

but the adoption proceedings are, as already stated, to b ||

held in the home country of the alien or aliens desiring
adopt the child, w ho would be brought to said c o u n t r y i
before the adoption proceeding is conducted there.

Still later, on February 25, 1998, former President

RaFTios signed Rep. Act. No. 85 5 2 , otherwise known as
the "Domestic Adoption Act of 1998", amending many
provisions of the Family Code on domestic adoption. It is
the declared policy of this special law that every child
should remain under the care and custody of his/her
biological parents and only when such parents are not able
to provide the child with the necessary care,
understanding, and security towards the full and
harmonious development of his/her personality would the
adoption be allowed within the child's extended family. If,
however, such adoption cannot be made, then adoption of
the child by a person unrelated to him/her may be allowed.

Concept and rationale of adoption:

The old definition of adoption In the Partidas is that it

is "the act whereby one person is received as the offspring
of another although he is not such by nature" (Reyes and
Puno, id., p. 313). This definition was based on the theory
that adoption is mainly for the benefit of the adopter, so
that those who have no children or have lost them, may
have the solace and joys of parenthood, and that the void
which exists in childless homes may be filled (see Ynigo v.
Rep., 95 Phil. 244).
The rationale of adoption has, however, changed, and
it is now considered more for the benefit of the child than
for the adopter, and pursuant to this modern trend, it has
been held that adoption does not merely establish a
relationship of paternity and filiation but is also an act
which endows the child with legitimate status (Prasnick v.
Rep., 98 Phil. 6651). "'Adoption is thus given a social and
moral purpose; that is, to extend to the orphan or to the
child of the indigent, the incapacitated or the sick, the
mi Titfo VU - Adoption 305

J protection of society in the person of the adopter/'

fe (Toientino, id., 694).

i Nature of adoption Droceedings:

(1) Adoption proceedings in this country are always

judicial; adoption cannot be granted administratively.
Adoption proceedings are furthermore in rern, for which
reason publication of the petition is required by the Rules
of Court as constructive notice to , the whole world, and
without which the court will not acquire jurisdiction over
the case.
(2) And because there can be no valid adoption
without a court decree granting the same, a mere
agreement of adoption between the adopters and the
parents of the child is not a valid adoption (Santos-Ynigo
v. Rep., supra), nor the mere fact that the child has lived
with the alleged adopter who has treated him like his ov\/n
child sufficient to establish a valid adoption between
alieged adopter and the child (Lazatin v. Judge Campos, 92
SCRA 250).
(3) Neither is the mere registration of the child in his
or her birth certificate as the child of the supposed adopter
a valid adoption. This is becoming a common practice
these days among people who want to avoid the expense
and trouble of a judicial adoption. They do not realize,
though, that such registration does not confer upon the
child the status of an adopted child, and they can even be
charged with the crime of simulation of the child's birth
under Rep. Act. No. 85 5 2 , which crime is punishable by
pris'on m ayor in its medium period and a fine of not
exceeding P 50,000 (Sec. 21 (b). Rep. Act No. 8552)
(4) In Rep. v. C.A. and Bobiles (GR No. 9 2 3 26, 24
Jan. 92), the Supreme Court held that the petitioner's right
to file a petition for adoption is already vested at the time
of filing and governed by the law then in force and cannot
be impaired by the enactment of a new law on adoption.
Therefore, a person who was qualified to adopt under the
law prevailing when he/she filed his petition, may still be
306 Title VU - Adoption

allowed to adopt even if the law has been amended and 3

under the new law, he/she is no longer qualified to adopt.

The above ruling was later affirm ed in Republic v.

Miller, GR 125937^ Apr. 21, 1999, where the S.C. held
that the petition filed by an alien to adopt under PD 603
may be granted even if such alien is no longer qualified to
adopt under the Family Code, because he already acquired
a vested right under PD 503 to adopt, which right cannot
be impaired by the enactm ent of the Family Code which
disqualifies him to adopt.

Who mav adopt:

A rt. 183 of the Family Code as to w ho may adopt,

and A rt. 184 o f the same Code as to w ho may not adopt,
have been amended by Sec. 7 of Art. Ill of Rep. A c t No.
8 5 5 2 reading as follow s:

"Sec. 7. Who May Adopt - The following may adopt:

(a) Any Filipino citizen of legal age, in possession of
full capacity and legal rights, of good moral
character, has not been convicted of any crime
involving moral turpitude, emotionally and
psychologically capable of caring for children, at
least sixteen (16) years older than the adoptee,
and who is in position to support and care for
his/her children in keeping with the means of the
family. The requirement of sixteen (16) years
difference between the age of the adopter and
adoptee may be waived when the adopter is the
biological parent of the adoptee, or Is the spouse
of the adoptee's parent.
(b) Any alien possessing the same qualifications as
above stated for Filipino nationals: Provided. That
his/her country has diplomatic relations with the
Republic of the Philippines, that he/she has been
living In the Philippines for at least three (3) years
prior to the filing of the application for adoption
TiUo VII - A d o p t io n 307

and maintains such residence until the adoption

decree is entered, that he/she has been certified
by his/her diplomatic or consular office or any
appropriate government agency that he/she has
the legal capacity to adopt in his/her country, and
his/her government allows the adoptee to entor
his/her country as his/her adopted son/daughter;
Provided, Further, That the requirements on
residency and certification of the alien's
qualification to adopt In his/her country may be
waived for the following:
(i) a former Filipino citizen who seeks to adopt a
relative within the fourth (4th) degree of
consanguinity or affinity; or
(11) one who seeks to adopt the legitimate son/
daughter of his/her Filipino spouse; or
(ill) one who is married to a Filipino citizen and
seeks to adopt jointly with his/her spouse a
relative within the fourth (4th) degree of
consanguinity of affinity of the Filipino
spouse; or
(c) The guardian with respect to the ward after the
termination of the guardianship and ciearance of
his/her financial accountabilities.

Husband and wife shall jointly adopt, except in ilr;

following cases:

(I) If one spouse seeks to adopt the legitirnaie son/

daughter of the other; or
(ii) If one spouse seeks to adopt his/her own
Illegitimate son/daughter; Provided, However, that
the other spouse has signified his/her consent
thereto: or
(iii) if the spouses are legally separated from each
other.

In case husband and wife jointly adopt, or one spouse

adopts the illegitimate son/daughter of the other, joint
parental authority shall be exercised by the spouses."
308 Title V/l - Adoption

Adoption bv Ftlipino citizens:

(1) Under the aforequoted provision of Rep. Act. No,

85 5 2 , a Filipino citizen who wants to adopt must
have the following qualifications:
(a) of legal age;
(b) in possession of full capacity and legal rights;
(c) has not been convicted of a crime involving
moral turpitude;
(d) emotionally and psychologically capable of
caring for children;
(e) in a position to support and care for his/her
children in keeping with the means of the
family; and
(f) at least 16 years older than the adoptee,
except
(i) if the adopter is the biological parent of
the adoptee; or
(ii) if the adopter is the spouse of the
adoptee's parent.

(2) Starting with PD b03, even persons who have

already children of r.heir own can still adopt other
children as long as they have alt the qualifications
to do so. Under the New Civil Code and in some
countries of the world, persons who have already
children of their own cannot adopt anymore,
unless they are adopting their own illegitimate
children in order to elevate their status, the reason
being that, as already stated, the old concept of
adoption considered it mainly for the benefit of
persons who have not been blessed with children
or who have lost them. But in our country, this
r j e hr.3 been changed since P.D. 603 because of
the many orphaned, destitute, abandoned,
neglected, abused, and disadvantaged children in
O'jr society who need the protection and
assistance that adoptive parents can give.

■
Art. 183 309

(3) The adopted or adopter may be single or married,

but if married, the consent to the adoption of his
or her spouse is needed.
(4) The age-difference of at least 16 years between
the adopter and the adopted child is to give
assurance that the adopter has sufficient maturity
to fill the role of a parent to the adopted child. It
is also intended to approximate natural filiation as
much as possible. But this minimum age gap
between the adopter and the adopted may be
waived if the adopter is the biological parent of
the adopted, or the spouse of the legitimate
parent of the adopted child; i.e., the stepfather or
stepmother of the child.
(5) It is provided that the adopter should not have
been convicted of any crime involving moral
turpitude because adoption requires that the
adopter should be morally qualified to do so.
Conviction is, however, necessary because of the
presumption of innocence of the accused before
conviction. And the disqualification is not removed
even if the offended party pardons the offender,
since there is still the lack of the required moral
qualification for adoption by the offender.
(6) It is also required that the adopter must be
emotionally and psychologically capable of caring
for children and in a position to support and care
for ail his or her children in keeping with the
means of the family. This implies that the adopter
should not only have the financial means to
adopt, but he or she must also be physically,
psychologically, morally and spiritually capable to
care for and rear the adopted child. There are
some rich, childless persons who, inspite of old
age or other physical disabilities, still apply for
adoption only because they want certain children
to inherit their wealth when they die. But this
intention goes against the concept of adoption,
which means that the adopting parents step into
310 Title VU - Adoption

the shoes of the biological parent of the child and

assume all the duties and responsibilities of
rearing, car’ing, educating, supporting, and molding
the character of said child for the development of
his character and well-being. A rich person should
not be allowed to adopt if he is already too old or
too physically weak to care for and rear the child
whom he or she wants to adopt. After all, he or
she can simply execute a will leaving all his or
her wealth to said child, if that is his or her only
intention.
1
Adoption bv Aliens:

(1) The Family Code (Art. 184} prohibited aliens from

adopting in the Philippines except for:
(a) A former Filipino citizen who seeks to adopt a
relative by consanguinity;
(b) One who seeks to adopt the legitimate child
of his or her Filipino spouse;
(c) One who is married to a Filipino citizen and
seeks to adopt jointly with his or her spouse
a relative by consanguinity of the latter."
(Art. 184, par. (3), Family Code)

Aliens not included in the foregoing exceptions were

advised to adopt Filipino children in accordance with the
law on Inter-Country Adoption (Rep. Act 8043) (Art. 184.
id.)
(2) Why did the Family Code become strict in the
adoption of Filipino children by aliens, contrary to
P.D. 603 which, as already stated, was very
liberal on the matter? It was because of the
information received by the Committee that
drafted the Family Code (of which this author was
a member) from the DSWD that some children
adopted by aliens suffered cultural and
psychological shock and could not adjust to their
new lives in the foreign countries where they
Art. 783 311

were brought by their adopters. There was also

information that some oid alien male pedophiles,
after having been allowed to adopt Filipino
children in the Philippines, simply abandoned the
children after they had satisfied their sexual
desires on them in their foreign homes. Lastly,
there were allegedly cases of children who, after
having been adopted by aliens, were killed for
organ transplants in the foreign countries where
they were brought by the adopters. For these
reasons, the Committee believed that by limiting
adoption by aliens to former Filipino citizens (and/
or their spouses) who were adopting their blood
relatives, we are given some measure of
assurance that the adopted children v'vould receive
the love, care, and protection the adopters who
are also related to them by consanguinity will
surely give them.
(3) Applying Art. 184 (3), in relation to Art. 185, of
the Family Code {requiring that husband and wife
must jointly adopt, with certain exceptions), the
Supreme Court, in two cases, dismissed the
petitions for adoption filed by two American
couples (the wives were former Filipino citizens)
to adopt close blood relatives of the former
Filipino wives, because the husbands were not
qualified to adopt under Art. 184 (3) of the
Family Code and could not, therefore, exercise
joint parental authority with their wives over the
adopted children (Rep. v, C.A. and Hughes, 227
SCRA 401, Oct. 26, 1993; and Rep. v. J.
Toledano, GR 9 4 1 47, June 6, 1994). The couples
were thus advised to resort to Inter-Country
Adoption.
(4) Adoption by aliens of Filipino children has,
however, now been liberalized by Rep. Act. 8552,
otherwise known as the "Domestic Adoption Act
of 1998", which allows aliens to adopt in the
Philippines provided:
312 Title VII - Adoption

(a)That he or she has the same qualifications for^

Filipino nationals as provided in par. (a), Sec
7 (a), of the A ct;
(b) That his or her country has diplomatic
relations w ith the Republic of the Philippines;
(c) That he or she has been living in the
Philippines for at least ’ three (3) continuous
years prior to the filing of the application for
adoption and maintains such residence until
the adoption decree is entered;
(d) That he or she has been certified by his or
her diplom atic or consular office or any
appropriate governm ent agency that he or she
has the legal capacity to adopt in his or her
country; and
(e) That his or her governm ent allows the
adopted child to enter his or her country as
his or her adopted child. (Sec. 7 (b), Rep.
A ct 8552)

Furthermore, the requirements as to residency in the

Philippines and the certification from the diplom atic or
consular office of the alien's country that he or she has
the capacity to adopt, may be waived in the following
cases:
(a) A form er Filipino citizen w ho seeks to adopt his
or her relative w ith in the fourth degree of
consanguinity or affinity:
(b) One w ho seeks to adopt the legitim ate son or
daughter of his or her Filipino spouse; or
(c) One w ho is married to a Filipino citizen and seeks
to adopt jo intly w ith his or her spouse a relative
w ith in the fourth degree of consanguinity or
affin ity o f the Filipino spouse.
(Sec. 7(b), /rf.)
In other w ords, in the foregoing three cases, the alien
applicant for adoption need not reside in the Philippines for
at least three continuous years prior to the filing o f the
petition for adoption and maintain such residence until the
 Aft. 184 313

adoption is approved, nor is it necessary for fiinn or her to

present a certification from the embassy or consular office
of his or her country in the Philippines that he or she has
the capacity to adopt.

Rep. A c t 8552 also amends A rt. 184{3) of the Family

£ I Code in that only relatives w ith in the 4th civil degree of
I consanguinity or affinity may be adopted by the aliens
under the three excepted cases above mentioned, unlike
Ithe Family Code w hich does not lim it the degree o f blood
relationship between the alien and the child to be adopted.
This author does not understand the reason for the
amendment, w hich means th a t a Filipino or form er Filipino
cannot adopt, under the provision, the child of his or her
first cousin (5th degree) or of his or her second cousin
(6th degree). Since the im portant consideration here is the
care, love and protection that the Filipino or form er Filipino
adopter w ould surely give the adopted child when brought
;abroad because they are blood relatives, it is immaterial
how close they are related to each other by blood.

Rep. A c t 8552, however, also allows former Filipinos,

or Filipinos and their alien spouses, to adopt the form er's
^relative w ith in the 4th degree of affinity. This is a welcom e
/amendment, as it w ill allow more disadvantaged Filipino
children to be adopted by Filipinos or form er Filipinos living
abroad.

Finally, w ith the provision of Rep. A ct 8552 now

allowing aliens to adopt in the Philippines provided they
have all the qualifications specified therein, it is believed
that the couples w hom the Supreme Court held not to be
qualified to jo in tly adopt in the Philippines in the cases of
Rep, V . C.A. and Hughes and Rep. v. J. Toledano, supra,
may now adopt under Rep. A ct 8552, provided they have
all the qualifications required by said Act.

Adoration bv husband and wife:

(1) A rts. 185 and 186 of the Family Code provide:

314 Art. 185 and An,

"Art. 185. Husband and wife must jointly adopt,

except in the following cases;
(1) When one spouse seeks to adopt his own
illegitimate child; or
(2) When one spouse seeks to adopt the legitimate
child of the other."

Art. 186. In case husband and wife jointly adopt or

one spouse adopts the legitimate child of the other, joint
parental authority shall be exercised by the spouses in
accordance with this Code."

Similarly, .the second paragraph of Art. 7 of Rep. Act

8 5 5 2 provides:

"Husband and wife shall jointly adopt, except in the

following cases:
(1) If one spouse seeks to adopt the legitimate son/
daughter of the other; or
(ii) If one spouse seeks to adopt his/her own
illegitimate son/daughter; Provided, how ever, that
the other spouse has signified his/her consent
thereto; or
(iii) If the spouses are legally separated from each
other.
In case husband and wife jointly adopt, or the spouse
adopts the illegitimate son/daughter of the other, joint
parental authority shall be exercised by the spouses."

(2) Both the Family Code and Rep. A c t 8 5 5 2 thus

require that if husband and w ife jo in tly adopt or one
spouse adopts the legitim ate child o f the other, joint
parental authority shall be exercised by the spouses over
the child, w hich is indeed the ideal situation and w ould
serve the best interests and w elfare of the child.

It is believed, though, th a t there is an oversight in the

provision of A rt. 7 of Rep. A c t 8 5 5 2 w hen it states that
jo int parental authority shall be exercised by the spouses if
"'one spouse adopts the illegitim ate son/daughter o f the
 Art. 1 8 7 375

other", because in this case, there is only one adopter, the

illegitimate father or mother w ho adopts his or her
illegitimate child (although w ith the consent of the other
I spouse), so that there is no reason w h y the other spouse
should also exercise parental authority over the adopted
child. This is similar to a case of a man adopting alone, or
a wom an adopting alone (like the case of legally separated
couples in the same third paragraph of Rep, A c t 8552).
I The Family Code is correct in providing in its A rt. 186 that
I joint parental authority shall be exercised by the spouses in
I case one spouse adopts the legitimate, not the illegitim ate,
I child of the other,
(3) The last paragraph of Sec. 7 of Rep. A ct 8 55 2
^clarifies that if the spouses are legally separated, there is
^^no need for husband and w ife to jointly adopt. In other
I words, the husband can adopt alone, and so w ith the wife.
And the consent of the other spouse to an adoption filed
|by one spouse is not necessary.

Adoption bv guardians:

Both the Family Code and Rep. A c t 8552 allow a

guardian to adopt his ward provided the guardianship has
I been term inated and he has been cleared of his financial
accountabilities (Art, 184 (1), Family Code; Sec. 7, first
par. subpar. (c) Rep. Act. 8552). The intention of both
I provisions is to prevent a guardian w ho has misused or
^misappropriated the funds or properties of his ward to
resort to adopting his ward to avoid an accounting of such
funds or properties and possible criminal prosecution.

Who may be adopted:

Instead of stating w ho may be adopted. A rt. 187 of

the Family Code enumerates those w ho may not be
adopted as follow s:
“Art. 187. The following may not be adopted:
(1) A person of legal age, unless he or she is a child
by nature of the adopter or his or her spouse, or.
316 Art. 7S7

prior to the adoption, said person had been

consistently considered and treated by the adopter
as his or her own child during majority;
(2) An alien with whose government the Republic of
the Philippines has no diplomatic relations; and
{3} A person who has already been adopted unless
such adoption has been previously revoked or
rescinded."

Upon the other hand, Sec. 8 of Rep. Act 8552

enumerates those who may adopted as follows:

"Sec. 8. Who May Be Adopted: The following may be

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

(1) Why is the adoption of an adult not allowed:

Subject to the exceptions mentioned by law, there is

no need for an adult to be adopted because he is old
enough to take care of himself and does not have to
depend on anyone else to do so. A nd if the only reason
why a person would like to adopt an adult is to share his
 ■■Arts. 187 317

material advantages w ith the latter, he can do so by simply

giving the latter financial assistance and leaving him
something in his w ill. The rationale of adoption is to give
poor, orphaned or abandoned little children the advantages
and blessings of having parents w ho w ould love, support,
protect, rear and educate them until they are old enough to
take care of themselves.

iZ l What are the reasor^s for the exceutions aliowinci the

adoption of adults?

(a) There is no reason w hy thp i^.iofUion should not

be allowed if the adopter is the parent by nature,
or the stepfather or stepm othtji, oi the chtid lo i;c
adopted, even if the latter is already an adult. A
parent w ho adopts his ow n Illegitimate child raises
the status of tlie latter, and he should not be
stopped or prevented from doing so ju st because
the child has reached adulthood. The same is true
in the case of a stepfather or stepm other w ho
w ould (ike to adopt his or her stepchild, thereby
legalizing their parent-child relationship.

(b) Another exception to the rule that an adult cannot

be adopted is a child w ho, during his m inority,
has already been adopted c/e facto by the adopter;
that is, since his childhood, he has already been
taken by the adopter into the latter's fam ily and
treated like his or her ow n child. The adoption in
this case w ould only legalize the de facto
adoption w nich has already started since the
m
child's m inority. There is also the presum ption
here that the adopter really w ants to adopt the
child but only neglected to do so before the tatter
reached m ajority.
K4-
W
131 What is meant bv a person ''who has been
administratively or iudiclallv declared available for

I' adoption?''
318 Art. TQy

Sec. 8 of Rep. Act 8 5 5 2 provides that "any person J

below eighteen (18) years of age who has been ^
administratively or judicially declared available for adoption" ®
may bs adopted. ^
What is meant by a person below 18 years "who ®
has been administratively or judicially declared available for J
adoption?"
In Sec. 3(b) of the same Rep. Act 8552, a child
legally available for adoption is defined as one "who has
been voluntarily or involuntarily committed to the
Department or to a duly licensed and accredited child-
placing or child-caring agency, freed of the parental |
authority of his/her biological parent(s) or guardian or -j
adopter(s) in case of rescission of adoption."
Sec. 3(c) same. Act, defines a "voluntary committed r
child" as "one whose parent(s) knowingly and willingly |
relinquishes parental authority to the Department"; while
3(d) thereof defines an "involuntarily committed child" as
one whose parentis), known or unknown, has been
permanently and judicially deprived of parental authority due
to abandonment, substantial, continuous, or repeated
neglect; abuse; or incompetence to discharge parental
responsibilities."
But what about children below 18 years who have
not been voluntarily or involuntarily committed to the
Department or any duly licensed and accredited child-
placing or child-caring agency? Can they not be adopted
anymore? For example, an older brother wants to adopt a
younger brother or an older sister wants to adopt a
younger sister, or an aunt wants to adopt a nephew or ^
niece, or a cousin wants to adopt a younger cousin? M ust J
the child still be "voluntarily" or "Involuntarily" co m m itted
before he can be adopted? Or an employer wants to adopt ^
the illegitimate child of her maid? It is required that the ^
child still be "voluntarily" or involuntarily committed" as qj
defined by Rep. Act 85 5 2 . This author thinks these ^
matters should be clarified by the Department of S o c ia l ^
Welfare and Development, as there are many such |p
adoptions in our society, and she does not see any need g
Art. 187 3 TQ

for the children sought to be adopted in said examples to

be declared adm inistratively or judicially available for
adoption. That is or^e of the very purposes of the adoption
proceeding: for the court to determine w hether the child is
available for adoption or not.

Consents necessary to the adoption:

According to Sec. 9 of Rep. A c t 8552, the w ritten

consents necessary to the adoption are those of the
follow ing:

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

(b) The biological parent(s) o f the child, if know n, or
the legal guardian, or the proper governm ent
instrurmentality w h ich has legal custody o f the
child;
(c) The legitim ate and adopted sons/daughters, ten
(10) years o f age or over, o f the adopter(s) and
adoptee, if any;
(d) The illegitim ate sons/daughters, ten (10) years of
age or over o f the adopter if living w ith s<iici
adopter and the le tter's spouse, if any;
(e) The spouse, if any. o f the person adopting or to
be adopted."

(1) Consent o f the child to be adopted:

Under the New Civil Code and P.D. 603, the

consent of the child to be adopted was required only
if he w as already 14 years of age or over. The Family
Code, and Rep. A c t 8 5 5 2 follow ing the Family Code,
have reduced this age to 10 years, considering that a
child o f 10 already has sufficient discernment to
decide w hether he w ould like to be adopted by
another person or not. The Family Code and Rep. A ct
8 5 5 2 w ould like to avoid emotional and psychological
damage to a child already 10 years old w ho, w ith o u t
his consent, is removed from the parents and siblings
320 Art. i s y M

he loves, and turned over to the adopter, w ho may be ^

a complete stranger to him. .^

(2) Consents o f the children of the adopter: ^

(a) Legitimate children: P.D. 603 required the w ritten ®

consent to the adoption of the legitim ate children M
of the adopter if they were 14 years old or over.
Again, the Family Code and Rep. A c t 8552 have
reduced this age to 10, also for the reason that
children, if 10 years old or above, already have :;y
sufficient understanding and discernm ent to decide 1
w hether they w ould like another child (sometimes . |
a com plete stranger to them or a non-relative) to 1
become a part o f their fam ily. Their consents to :|
the adoption are thus required to preserve |
harmony and happiness in the fam ily and avoid
conflict in the home. I
(b) Adopted children: A person w ho already has an |
adopted child may still adopt; and a person w ith
legitimate and adopted children is still allowed to
adopt if he or she has the means and
qualifications to do so. The consents to the
adoption of the adopted children o f the adopter
w ho are 10 years old or more are thus also :
required, again to preserve harmony, peace, and
happiness in the fam ily and home.
(c) Illegitimate children: There are cases where a
person has an illegitim ate child or illegitimate
children living in his or her home w ith his or her
fam ily. Likewise, fo r a happy, peaceful, and
harmonious relationship among all the children of
the adbpter w ho are living under the same roof,
the Family Code and Rep. A c t 8 5 5 2 also require
the w ritten consents o f the illegitim ate children of
the adopter already 1.0 years old or over and
living w ith him or her, to enable the parent to
adopt another child. Besides, the illegitim ate
children of the adopter already living w ith him or
Art. 18 7 32 7

her and who are old enough to understand, migiu

resent the fact that the parent adopts a stranger
instead of his or her own illegitimate children.

{3) Consent of the parent by nature of the adopted child:

If the child to be adopted Is under the parental

authority of both parents, their joint consent is
required.
If one parent has been deprived by the court of
parental authority over the child, said parent's
consent to the child's adoption is not needed.
The consent of the parent who has abandoned
the child is not necessary (Dayrit v. Judge Piccio,
92 Phil. 729).
If both parents hdve abandoned the child, the
consent of the person exercising substitute
parental authority over the child is enough (Art.
233, Family Code; Duncan v. CFl of Rizal, 69
SCRA 298); and if there is no such person, even
the consent of a guardian ad litem would be
enough if the child has no legal guardian {Santos
V. Aranzado, 16 SCRA 344),
(e) If a legal guardian has been appointed by the
court, the consent of the child's legal guardian is
required.
(f) If the child is illegitimate sucl^ that he or she is
under the parental authority of the mother. (Art.
176, Family Code), the mother shall give the
consent to the child's adoption.

Legal effects of adoption:

(1) Parental ?iuthoritv:
Sec. 16 of Rep. Act 8552 provides: "Except in
cases where the biological parent is the spouse of the
adopter, all legal ties between the biological parent(s)
and the adoptee shall be severed and the same shall
then be vested on the adopters."
322 Art. 737

The above provision was taken from Art. 189 (2)

of the Family Code providing that "parental authority
of the parents by nature over the adopted shall
terminate and be vested in the adopters, except that
if the adopter is the spouse of the parent by nature
of the adopted, parental authority over the adopted
shall be exercised jointly by both spouses."

{2} Status of the adopted child:

Sec. 17 of Rep. Act. 8 5 5 2 provides: "The
adoptee shall be considered the legitimate son/
daughter of the adopter(s) for all Intents and purposes
and as such is entitled to all the rights and obligations
provided by law to legitimate sons/daughters born to
them without discrimination of any kind. To this end,
the adoptee is entitled to love, guidance, and support
in keeping with the means of the family."

The above provision was taken from Art. 189 (1)

of the Family Code which reads: "(1) For Civil
purposes, the adopted child shall be deemed to be a
legitimate child of the adopters and both shall acquire
the reciprocal rights and obligations arising from the
relationship of parent and child, including the right of
the adopted to use the surname of the adopter."

(3) Successiona! rights of the adopted child:

in this connection, Sec. 18 of Rep. Act 8 55 2
provides: "In legal and intestate succession, the
adopter(s) and the adoptee shall have reciprocal rights
of succession without distinction from legitimate
filiation. However, if the adoptee and his/her biological
parent!s) had left a will, the law on testamentary
succession shall govern."

Obviously, the above provision means that In

intestate succession, the adopted child is a legal heir
of the adopter, just as the adopter is a legal heir of
the adopted child. The adopted child Inherits in the
same manner a logitimate child, while the adopter
 Art. 190 323

|; inherits in the same manner as a legitimate parent. It

I' is not clear to this author, though, whether Sec. 18
of Rep. Act 8 5 5 2 repeals Art. 190 of the Family
1} Code providing for the specific rules applicable in the
legal or intestate succession to the estate of the
adopted child. In any case, the rules in Art. 190 of
I' the Family Code are copied hereunder for convenience
I' of reference, since only provisions of said Code which
\ are contrary with the provisions of Rep. Act 8 5 5 2 are
C deemed repealed, modified, or amended by the latter
^ {Sec. 26, Rep. Act 8552).

Art. 190. Legal of Intestate succession to the estate

of the adopted shall be governed by the following rules:
(1) Legitimate and illegitimate children and
descendants and the surviving spouse of the
adopted shall Inherit from the adopted in
accordance with the ordinary rules of legal or
intestate succession;
(2) When the parents, legitimate or illegitimate, or the
legitimate ascendants of the adopted, concur with
the adopters, they shall divide the entire estate,
one-half to be inherited by the parents or
ascendants and the other half, by the adopters;
(3) When the surviving spouse or the Illegitimate
children of the adopted concur with the adopters,
they shall divide the entire estate in equal shares,
one-half to be inherited by the spouse or the
Illegitimate children of the adopted and the other
half, by the adopters;
(4) When the adopters concur with the illegitimate
children and the surviving spouse of the adopted,
they shall divide the entire estate in equal shares,
one-third by the surviving spouse, and one-third
by the adopters;
(5) When only the adopters survive, they shall inherit
the entire estate; and
(6) When only collateral blood relatives of the
324 A]rt )3Q

adopted survive, then the ordinary rules of legal or

intestate succession shall apply."

Points to remember tinder the foregoing provision of iHp

family Code:

(1) Unlike P.D. 603 wherein the adopter does not

inherit from the adopted except when his parents by
nature, being his only legal heirs, are both dead (Art. 39,
last par.), the adopter or adopters, under the Family Code,
get a share in the adopted child's estate except only if the
latter is survived by legitimate children and other
descendants
(2) The Family Code has eliminated reversion to the
adopter of property received from him gratuitously by the
adopted, if the adopted dies without legitimate issue.
(3) If the adopted dies unmarried and without issue,
leaving only his parents by nature (whether legitimate of
illegitimate) or legitimate ascendants, the adopter or
adopters inherit with the parents or ascendants, getting
one-half of the estate of the adopted, while the parents or
ascendants get the other half.
(4) Why does the adopter get more hereditary rights
from the adopted under the Family Code than under P.D.
603? Because the Committee that drafted the Family Code
had believed that because the natural parents gave up the
child, .together with all their obligations as parents towards
him, when they turned him over to the adopter for
adoption, while the latter not only assumed said parental
obligations towards the child but also the risks of
parenthood towards the latter. If, then, the child succeeds
in life because of the education and other advantages
provided him by the adopter, the latter should be given
some reward by making him share in the estate of the
adopted if the latter dies without legitimate issue.

Rescission of the adoption:

(1) Under the Family Code:

 An. 190 325

Under the Family Code, as well as P.D.603 anr{

the Civil Code before it, both the adopted child
and the adopter can ask for the judicial rescissiof; of
the adoption.

(2) Under Rep. Act. 8 5 5 2:

Republic Act 85 5 2 , however, has changed the

provisions of the Family Code on rescission of adoption, in
that only the adopted can now rescind, under the following
provision:

"Sec. 19. Grounds for Rescission of Adoption - Upon

petition of the adoptee, with the assistance of the
Department if a minor or if over eighteen (18) years of age
but is incapacitated, as guardian/counsel, the adoption may
be rescinded on any of the following grounds committed
by the adopter(s): (a) repeated physical and verbal
maltreatment by the adopter(s) despite having undergone
counselling; (b) attempt on the life of the adoptee; (c)
sexual assault or violence; or (d) abandonment and failure
to comply with parental obligations.
i
Adoption, being in the best interest of the child, shall
not be subject to rescission by the adopter(s). However,
the adopter(s) may disinherit the adoptee for causes
provided in Article 919 of the Civil Code."

Although the adopter cannot now rescind the

m
adoption, he is not, however, without remedy. For the
I
m foregoing provision of Rep. Act 8552 provides that he may
0: disinherit the adoptee for the same causes as those
S
provided in Art. 919 of the New Civil Code for disinheriting
*
a child or descendant, which are:
(a) Conviction of an attempt against the life of the
i testator, his or her spouse, descendants or
it ascendants;
(b) Having accused the testator of a crime punishable
by imprisonment for six years or more, if the
1 accusation has been found groundless;
326 Aft. 750

(c) Conviction o f adultery or concubinage w ith the

spouse of the testator;
(d) Having induced the testator to make a w ill or to
change one already made, by fraud, violence,
intim idation or undue influence;
(e) Refusal w ith o u t justifiable cause to support the
testator;
(f) M altreatm ent of the testator by word or deed;
(g) Living a dishonorable or disgraceful life;
(h) Conviction of a crime w hich carries the penalty of
civil interdiction.

Effects of Rescission of Adoption:

Sec. 20 of Rep. A ct 8 5 5 2 provides for the effects of

the rescission of the adoption as follow s:

"Sec. 20. Effects o f Rescission ~ if the petition is

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

The Crime of Simulation of Birth:

Simulation of birth is a new crime defined and

punished by Rep. A c t 855 2. It is intended to curb or
prevent the practice o f people w ho w a nt to avoid the
 A rt. 190 327

trouble and expenses of a judicial adoption by simply

registering the adopted child in their names {i.e., in the
child's birth certificate filed with the Office of the Local
Civil Registrar). As stated earlier in this Title, such
registration does not confer upon the child the status of an
adopted child, and the person who commits such act can
be prosecuted for simulation of the child's birth or
falsification of a public document.

Indeed, Sec. 21 (b) of Rep. Act 8552 provides:

(b) Any person who shall cause the fictitious
registration of the birth of a child under the
name(s) of a person(s) who is not his/her
biological parent(s) shall be guilty of simulation of
birth, and shall be punished by prision m ayor in
Its medium period and a fine not exceeding Fifty
Thousand Pesos (P 50,000 .0 0).
Any physician or nurse or hospital personnel
who. In violation of his/her oath of office, shall
cooperate in the execution of the above-mentioned
crime shall suffer the penalties herein prescribed
and also the penalty of permanent
disqualification,”

Sec. 22, same Act, further provides:

"Sec. 22. Rectification o f Sim ulated Births - A person

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

in words, persons who, prior to the e ffe c tiv ity

OT Rep, A cr 3552, had already cornnnitted the crime of
sirviiiiation of birth, shall not be charged with and penalized
for such crirne ii the crime was committed under the
following conditions:
(1) The act was committed for the best interests of
the child;
(2) The child has been consistently considered and
trecJted by the person who committed the act as
his or her own son or daughter;
(3) An application for the correction of the birth
registration of the child and a petition for the
adoption of the child shall be filed within five (5)
years from the effectivity of Rep. Act 855 2, and
completed thereafter; and
(4) Such person complies with the procedure
specified in Art. IV of Rep. Act 8 5 5 2 and other
requirements as determined by the DSWD.
Unfortunately, the 5-year period from the effectivity of
Rep. Act 8 5 5 2 (which became effective in 1998) has
already elapsed. Unless, therefore, a new law is passed
providing for another period or making the defense to
simulation of birth imprescriptible, such defense can no
longer be invoked.

Other crimes relating to adoption:

Other crimes relating to adoption are defined and

penalized by Sec. 21 of Rep. Act 8 5 5 2 . (Please refer to
said provision).

Other provisions of Rep. Act 8 5 b 2 on Adoption:

As for other provisions of Rep. Act 8 5 5 2 on

Declaration of Policies, Pre-Adoption Services of the DSWD,
and the procedure in the adoption process, please refer to
other provisions of said law, which is Appendix ''B" of this
Handbook on the Family Code, and the Special Rule on
Domestic Adoption promulgated by the Supreme Court.
For the law (Rep. Act. 8 0 4 3 ) on Inter-Countrv Adoption,
please see Appendix 'M '' hereof.
 Title ViU - Support

TITLE y \\\

SUPPORT

Art. 194. Support comprises everything indispensable

for sustenance, dwelling, clothing, medical attendarice,
education, and transportation. In keeping with the financial
capacity of the family.
The education of the person entitled to be supported
referred to In the preceding paragraph shall include his
schooling or training for some profession, trade or vocation,
even beyond the age of majority. Transportation shall
include expenses in going to and from school, or to and
from place to work. (290a)

Concept of Support:

■ (1) Under the above Article, Support consists of

everything indispensable for:
(a) sustenance (or food),
(b) dwelling,
(c) clothing,
(d) medical attendance,
(e) education, and
■ (f) transportation,
in keeping with the financial capacity of the
family.
(2) Education, according to the above Article, includes
schooling or training for some profession, trade or
vocation, even beyond the age o f m ajority.
(3) Transportation includes expenses in going to and
from school, or to and from one's place to work.

329
330 Title V/l - Adoption

(a) Transportation is not included as an item of

support in Art. 290 of the Civil Code, but the
Family Code includes the same in support
because of the high cost of transportation in
recent times.
(b) Sometimes, one's expenses for transportation
in going to and from school or to and from
place to work, is even more than his or her
expenses for food, which can be reduced to a
minimum if one wants to save, but one
cannot save on the cost of transportation if
his or her school or place of work cannot be
reached by walking.
(c) Some have inquired why support should stilt
be given to one who is already working. But
the earnings of such person may not be
enough for his or her support, so that the
person or persons legally obliged to support
him or her must still help out.

Kinds of support:

(1) As to extent:
(a) Natural - limited to what is absolutely
indispensable for subsistence or the bare
necessities of life, or
(b) Civil - that which accords with the social
position or standing of the family.

(2) As to source:
(a) Legal - that which is required to be given by
law.
(b) Judicial - that which is required to be given
by court order whether pendente lite or in a
final judgment.
(c) Voluntary or conventional:
(i) in te r vivos - by contract
(ii) iViortis causa - by will.
A rt 194 337

Characteristics of support:

(1) Purely personal, as it is founded on personal

necessity;
(2) Intransmissible or non-assignable, as it is personal
and needed for survival;
(3) Not subject to attachment or execution by
creditors, again because it is needed for survival.
(4) Never fixed; always subject to adjustment
depending on the means , of the giver and the
needs of the recipient;
(5) Reciprocal on the part of those who are by law
bound to support each other;
(6) Demandable from the time it is needed, although
payable only from the time of demand,
extrajudicial or judicial;
(7) Demandable even if the recipient is beyond the
ape of majority, as long as it is needed and the
obligor has the capacity to give support; and
(8) Demandable .even if the recipient is already
married, again as long as it is needed and the
obligor is in a position to give support.

Concepts of support in the Civil Code and the Famiiv

Code. Compared:

(1) The Civil Code distinguishes between civil and

natural support, and all those obliged to support
each other are required to give civil support to the
recipient, except for brothers and sisters who are
only required to give natural support (necessaries
of life) to each other (Arts. 2 9 0 and 291).
(2) The Family Code has, however, abolished the
family's "social standing" as the measure of
support, not only to eliminate elitism in the law on
support, but because it is not realistic, since some
families may have social standing but have no
financial capacity, while other families may have
financial capacity but have no social standing.
 in s te a d , th e Fam ily Code adop^^;(
"indispensabiiity" and "financial capacity of
family" as the measure and limitation of supjport*
i.e., support is limited to w hat is needed by the
recip ien t, for beyond th at, it is no longer an'""'?
obligation, and to the finaricia! resources of the '!S
fam ily, for if they do not have such resources S
they can not also give support to one another -.^'
even if they want to. 5
(3) The rationale of support, cu:cording to the
Committee, is that it is the obligation of the '^,,
parents to support the child until he is in a ’ 4
position to support himself. For example, there is
a difference between "indispensable education" "
and "university education". If the family can X
afford it, university education becomes
indispensable. But if other children will suffer if
the parents give one child university education,
then university education is no longer
indispensable and there is no more obligation on 'V
the part of the parents to give the child university
education. ■
(4) The Family Code has also abolished the distinction , |
between civil and natural support. All members of
the family who are obliged to support each other,
even those illegitimately related, are required to
give support to each other on the basis of
"indispensability" and "financial capacity." Even
brothers and sisters, legitimate or illegitimate, are
required to give each other this kind of support,
subject only to the limitation in Art. 196 with
respect to an Illegitimate brother and sister who is
already of age and whose need for support is due
to a cause imputable to his own fault or
negligence.
(5) For references on changes made by the Family
Code on the iaw on support, please see M inutes
of Commili'je meetings of October 9, 12, and
1985 end Ju ly 5, 1987.
 Aft- ^33

A rL 1 9 5 . S ub je ct to the p ro v i‘o !ons o f the succeeding

articles, the following are obliged I'o support each othar Jo
th e Vi/hole e x te n t jie t f o r t h in th e p re c e d in g a rtic le :
(1) The spouses;
(.2) Legitimate ascendants and descendants;
(3) Parents and their iegltiniate children and the
legitimate and illegitimate children of the latter;
(4) Parents and their illegitimate children and the
legitimate and iilogitimate children of the latter;
and
(5) Legitimcite brothers and sisters, whether of the full
or half-blood, (291a)

ft Persons obliged to support each other to whole extent set

forth in Art. 194:

{1} The spouses;

(2) Legitimate ascendants and descendants;
(3) Parents and their legitimate children and the
legitimate and illegitimate children of the latter;
{4) Parents and their illegitimate children and the
legitimate and illegitimate children of the latter;
and
(5) Legitimate brothers and sisters, whether of the full
or half-bfood.

t Above provision explained:

(1) Mutual support between the spouses (Art. 195 (1)):

(a) This duty presupposes a valid marriage between

the parties.
(b) Hence, once the marriage is annulled, there is no
more mutual duty on the part of the parties to
support each other. (Art. 198}
(c) But in case of legal separation, the court may
order the guilty spouse to support the innocent
spouse if the latter needs support, as the parties
are stilf married to each other, {/c/.)
334- Tido VH - SuppQf^

id] If the wife is forced to leave the conjugal home

for justifiable reasons, she is entitled to separate
support (Goitia v. Campos Rueda, 35 Phil. 252;
Garcia v. Santiago, 53 Phil. 952; Dadivas v,
Villanueva, 54 Phil. 92)
(e) If the wife commits adultery, she loses the right
to support (Mangoma v. Macaraeg, 90 Phil. 508),
but if the spouses are in p a ri delicto (both are
guilty of infidelity), the right to support remains
{Almacen v. Baltazar, 103 Phil. 114).
(f) The right to support is not lost even if a spouse
is "gainfully employed" as long as he or she still
needs support (Canonizado v. Almeda - Lopez,
109 Phil. 1169).
(g) Support of wife includes the duty to pay a doctor .
who attended the wife's pregnancy (Pelayo v.
Lauron, 12 Phil. 453).

(2) Mutual support between legitimate ascendants and

descendants (Art. 195 (2));

(a) If the relationship is in issue, the relationship

should be established first before support can be
demanded (Francisco v. Zandueta, 61 Phil. 752).
(b) If the child has sufficient property of his own, he
cannot demand support from his parent (Jocson
V. Empire Insurance Co., 103 Phil. 580).
(c) With respect to legitimate ascendants and
descendants who are bound to support each
other, there is no limit in the degree of
relationship, so that a great-great-grandfather can
demand support from a great-great-grandson and
vice-versa, provided there is a financial capacity
on the part of the one from whom the support is
demanded, and the one asking needs the support.

(3) M u tu a l s u p p o rt b e tw e e n p a re n ts and le g itim a te

children, and the legitimate and illegitimate children of
the latter (Art. 195 (3):
Art. 795 335

(a) Under the above provision:- grandparents are

bound to support not only their legitimate children
and the legitimate children of the latter (or their
legitimate grandchildren) but also the illegitimate
children of . the latter (their illegitimate
grandchildren)
(b) This provision changes the rule in pars. (3) and
(4) of Art. 291 of the Civil Code which places a
barrier between the legitimate and illegitimate
ascending or descending line, and limits the right
of acknowledged natural • children and natural
children of legal fiction and their legitimate, and
illegitimate descendants to ask support only 'from
Illegitimate parents and grandparents.
Example: A has a legitimate son B., who has
an illegitimate son, C, Under the Family Code, C
can ask support from A. Under the Civil Code, he
cannot, because he is illegitimate while his
grandfather A belongs to the legitimate line.

(c) Why does the Family Code require a legitimate

grandparent to support an illegitimate grandchild?
First, because In the Filipino tradition,
grandchildren, whether legitimate or illegitimate,
are usually very close to their grandparents; and
second, because the legitimate grandparent is
somehow responsible for his or her own legitimate
son's having an illegitimate child. Parents are in
some way or another responsible for how their
children turn out to be, including their having
children born out of wedlock,

(4) Mutual support between parents and their [llegitimate

children, and the legitimate and illegitimate children of
the latter (Art. 195 (4)):

(a) This is similar to the rule In the Civil Code that

parents who have acknowledged natural children
or natural children by legal fiction are bound to
336 Title Vm - Support

support not only their ow n illegitimate children but

aiso all the children of the latter, whether
legitimate or illegitim ate, and w hich is based on
the principle that those w ho belong to the
illegitim ate ascending or descending line should
support each other.

(b) This provision o f the Family Code does not,

however, distinguish among the different
categories of illegitim ate children, and classifies
children into only tw o kinds, legitim ate and
illegitim ate. Hence, under the Family Code, the
illegitim ate child of an illegitim ate grandfather can
claim support from his illegitim ate grandfather,
while under par. (5) of A rt. 291 of the Civil Code,
if the child is spurious, the mutual duty to
support exists only between him and his
illegitim ate parent, and his ow n children, whether
legitim ate or not, cannot ask support from their
illegitim ate grandparent.
Example: A has a spurious son B, w ho has a
spurious son C. Under the Family Code, C can
ask support from A. Under the Civil Code, he
cannot; it is only B w ho can ask support from A
(Art. 291 (5)):

(5) Legitimate brothers and sisters, whether of the full or

half-blood (Art. 195 (5)):

(a) Under the second paragraph of A rt. 291 of the

Civil Code, legitimate brothers and sisters,
w hether o f the full or half-blood, are bound to
support each other only w ith necessaries of life
(natural support), and only if the one asking for
support cannot support himself for a cause not
imputable to him.
(b) Under this provision o f the Family Code, however,
legitim ate brothers and sisters, Vv'hether of the full
or half-blood, are bound to support each other
w ith o u t any conditions except those prescribed for
 Art. 796 3 37

all other relatives bound to support each other

under Art. 195, namely, the need to support
',.S ^ (indispensability) on the part of the one asking,
1: and financial capacity on the part o f the one
being asked.

A rt. 196. Brothers and sisters n o t legitim ately related

Ml w hether o f the full or half-blood, are likew ise bound to
support each other to the full e xtent set fo rth in Article
194, except only when the need fo r support o f the brother
or sister, being o f age, is due to a cause im putable to the
claim ant's fault or negligence. (291a)

(1) Under the above provision, illegitim ate brothers

and sisters, whether of the full or half blood, are
likewise bound to support each other to the full
extent prescribed in A rt. 194, except only if the
one asking for support is already o f age (18 years
or over under Rep. A ct. 6 80 9) and his or her
need for support is due to a-cause imputable to
his fault or negligence,
(2) Support for illegitim ate brothers and sisters under
the Family Code is not, therefore, limited to bare
necessities of life (natural support), which is the
rule in the Civil Code.
(3) The Family Ccdo under the above provision does
not put any condition if the one asking for
support is a minor. He or she is entitled to
support from his or her illegitim ate brother and
sister w ith o u t any condition or lim itation except
i his need for the support and the financial capacity
My# of the latter.
(4) in answer to the question w h y the Family Code
requires even illegitim ate brothers and sisters to
V .
I'-- support each other to the full extent prescribed
for other relatives. Justice Reyes, Chairrv.;^n o f the
Civil Code Revision Com m ittee, explained that
illegitim ate children are already burdeiied w ith the
stigm a of bastardy so that the law should try to
338 Title VIU - Support

ameliorate this stigma as much as possible.

Moreover, Justice Reyes adds, one of the main
considerations for the law on support Is the fact
that rather than throw the burden of support on
the State, it should fall on persons to whom the
one who needs the support is related. The idea,
according to him, is that as long as a person is a
member of a family, there is no reason why the
obligation to support him should fall on the State
and not on his family. (See Minutes of Committee
meetings of June 8, 1985 and October 9, 1985).
(5) The second paragraph of Art. 291 of the Civil
Code mentions only brothers and sisters who are
legitimate and natural, thereby excluding spurious
brothers and sisters. It would follow, therefore,
that under the Civil Code, spurious brothers and
sisters cannot ask support from their legitimate or
natural brothers and sisters and vice versa. The
Family Code does not, however, make any
distinction as to the kind of illegitimate brothers
and sisters who can ask support from each other,
since there is only one kind of illegitimate children
under the Code. Hence, under the above
provision, even spurious brothers and sisters can
ask support from each other.

Art. 197. For the support of legitimate ascendants,

descendants, whether legitimate or illegitimate, and brothers
and sisters, whether legitimately or illegitimately related,
only the separate property of the person obliged to give •Sil
support shall be answerable provided that in case the
obligor has no separate property, the absolute community
or the conjugal partnership, if financially capable, shall
advance the support which shall be deducted from the
•'
share of the spouse obliged upon the liquidation of the
absolute community or of the conjugal partnership, (n)

Properties liable for the support of relatives m e n tio n e d ^ in

Art, 195. m
Art. 197 339

Under the above provision, taken together with Art,

94 in the System of Absolute Community and Arts. 121
and 122 in the System of Conjugal Partnership of Gains,
the following are the properties liable for the support of the
relatives enumerated in Art. 195:
(1) The spouses - The absolute community or
conjugal property;
(2) The common children of the spouses - Same as
( 1 );
(3) The children of a spouse by another marriage -
Same as (1);
(4) Illegitimate children of either spouse:
(a) Under the system of absolute community -
The separate property of the parent-spouse,
but if the same is insufficient or there is no
such property, the absolute community
property is liable, but the support is
considered as advances on the share of the
parent to be paid by him to the community at
the time of liquidation.
(b) Under the system of conjugal partnership -
The separate property of the parent-spouse,
but if the same is insufficient or there is no
such property, the conjugal partnership
property is liable i f fmanciaHy capable (i.e., if
all the legal obligations of the conjugal
partnership have been covered or can be
covered), but the support paid to the child
shall be deducted from the share of the
parent-spouse at the time of the liquidation of
the partnership.
(5) Legitimate ascendants, other descendants
(whether legitimate or illegitimate) and brothers
and sisters, whether legitimate or illegitimate - the
separate property of the obligor-spouse, but if the
same is not sufficient or there is none, the
absolute community or conjugal partnership
property shall give the support i f financially
capable, which support shall be deducted from the
■i'fO An. ;s s

share of the parent-spouse or obligor-spouse upon

the liquidation of the absolute community
conjugal partnership.

Art. 198. During the proceedings for legal sepciration

or for annulment of marriage, and for declaration of nullity
of marriage, the spouses and their children shall be
supported from the properties of the absolute community
or the conjugal partnership. After final judgment granting
the petition, the obligation of mutual support between the
spouses ceases. However, In case of legal separation, the
court may order that the guilty spouse shall give support to
the Innocent one, specifying the terms of such order.
(292a)

Support during proceedinos for legal separation, annulment

of marriage, or declaration of nullltv of marriage:

(1) During the pendency of the proceedings: Support

for the spouses and their children shall be taken
from the absolute community properties or
conjugal properties.
(2) After the final judgment granting the petition.
(a) When marriage is annulled: Obligation of
mutual support between the parties ceases
because they are no longer married to each
other.
(b) When the marriage is declared null and void.
Same as (a);
(c) When there is a decree of legal separation:
(i) Ordinarily, the obligation of mutual
support between the spouses ceases
because their absolute community or
property or conjugal partnership has
already been dissolved.
(ii) If, however, the innocent spouse has no
properties, the court can order the guilty
spouse to support the innocent spouse
because after ail, the parties are still
married to each other.
 firt. 199 and Art. 200 34 /

(iii) The guilty spouse cannot, however, ask

support from the innocent spouse.

Art. 199. Whenever two or more persons are obliged

to give support, the liability shall devolve upon the
following persons in the order herein provided:
(1) The spouse;
(2) The descendants in the nearest degree;
(3) The ascendants in the nearest degree; and
(4) The brothers and sisters. (294a)

A person who needs support must ask from his

relatives enumerated in Art. 195 in the following order;
(1) From his or her spouse;
(2) If he or she cannot get support from the other
spouse, then he or she can ask from his or her
children, then from his or her grandchildren, and
so on down the descending line;
(3) If he or she cannot get support from his or her
spouse or descendants, then he or she can ask
from his or her parents, then his or her
grandparents, and so on in the ascending line;
(4) Finally, if he or she cannot get support from the
aforementioned relatives, the support can be
asked from his or her brothers and sisters.

Art. 200 . When the obligation to give support falls

upon two or more persons, the payment of the same shall
be divided between them in proportion to the resources of
each.
However, in case of urgent need and by special
circumstances, the judge may order only one of them to
furnish the support provisionally, without prejudice to his
right to claim from the other obligors the share due from
them.
When two or more recipients at the same time claim
support from one and the same person legally obliged to
-
give it, should the tatter not have sufficient rtieans to
satisfy all claims, the order established in the preceding
 'j
342 Art. 200

article shall be followed, unless the concurrent obligees

should be the spouse and a child subject to parental
authority, in which case the child shall be preferred. (295a)

If tvi/o more persons are obliged to give support:

(1) If two or more persons are obliged to give

support, like the several children of an aged or
sick mother, they shall give her support in
proportion to the resources of each.
Thus, a rich son should give more support
than a poor son, or an unm arried son w ith a
comfortable income should give more support than
a son with the same income but who is married
and with several children.
(2) However, in case of urgent need and by special
circumstances, only one person may be ordered
by the court to give the support provisionally, but
he can claim from the others also bound to give
support the shares of the latter.
In the same example above given, if one son
is ordered by the court to pay for the expenses of
the operation of a sick parent because the other
children are abroad or not readily available, the
son who paid for the expenses can recover later
the shares of the other children in said expenses.

What is the order of payment of support if two or more

obligees claim support at the same time from the same
person who cannot pav all their claims?

(1) If several persons entitled to support claim such

support from one and the same person at the
same time, and the latter does not have enough
properties or means to pay all of them, the
following order of payment shall be followed:
(a) Observe the order established in Art. 199,
namely:
(i) The spouse;
(ii) The descendants in the nearest degree.
Art. 201 and A rt. 202 343
(iii) The ascendants in the nearest degree.
(iv) The brothers and sisters.
(b) If, however, the concurrent obligees are the
spouse and a child subject to parental
authority, the child shall be preferred.
(2) As Tolentino aptly points out, however, the above
preference given to a child under parental
authority over the spouse should prevail only if
the person obliged to support pays it out of his or
her own separate property. But if the support
comes from the absolute community or the
conjugal partnership, the above rule of preference
does not apply, because the spouses, their
common children, and even the children of the
spouses by former marriages, should be supported
by the community or conjugal properties without
preference or distinction (see Arts. 94(1) and
121(1) of this Code) (Tolentino, id., pp. 628-629).

Art. 2 0 1 . The amount of support, in the cases

referred to in Articles 195 and 196, shall be in proportion
to the resources or means of the giver and to the
necessities of the recipient. (296a)

Support shall always be in proportion to:

(1) The resources or means of the giver; and
(2) The necessities of the recipient.

Art. 202. Support in the cases referred to in the

preceding article shall be reduced or increased
proportionately, according to the reduction or increase of
the necessities of the recipient and the resources or means
of the person obliged to furnish the same. (297a)

(1) The amount of support due to a person from

another is always subject to modification,
depending on the reduction or increase of the
necessities of the obligee and the resources or
means of the obligor.
3 -U l A rt. 2 0 3

(2) Hence, a judgm ent granting support is never final.

The court may m odify or change it depending on
the aforesaid circum stances.
(3) A case of support is, therefore, never terminated.
For the plaintiff can, by mere motion in the same
proceeding, ask for an increase of the support
form erly awarded to him or her, as his or her
needs and the means of the defendant increase,
while the defendant can also, by mere motion,
ask for the reduction of the award of support to
the plaintiff as the needs of the latter or his or
her ow n means also decrease.

Art. 203. The obligation to give support shall be

demandable from the time the person who has a right to
receive the same needs it for maintenance, but it shali not
be paid except from the date of judicial or extrajudicial
demand.
Support pendente Hte may be claimed in accordance
with the Rules of Court.
Payment shall be made within the first five days of
each corresponding month, When the recipient dies, his
heirs shall not obliged to return what he has received in
advance. (298a)

When and how should support be paid?

(1) W hile support can be demanded from the time the

person w ho has the right to receive it needs it, it
is payable only from judicial or extrajudicial
demand.
(a) This rule is based on the theory that if the
obligee did not demand support, he then had
no need for it.
(b) It has also been held in several cases that
support in arrears cannot be demanded by a
w ife w ho m ight have needed support from
the time her husband separated from or
abandoned her but made a demand for said

.•
Art. 2G4 345

support only many years later, such that the

support became due only from the time of
demand (Barnuevo v. Faster, 29 Phii. 606;
Marcelo v. Estacio, 70 Phil. 145}. Bui once
awarded, the judgm ent for support never
becomes dorm ant and never prescribes
(Maroelo v. Estacio, id.)
(2) As to the manner o f payment of support, it shall
be made w ith in the first five days of each m onth,
the reason being that it is needed for survival and
should, therefore, be paid in advance or the
person w ho needs it m ight not survive w ith o u t
the support.
(3) When the recipient, however, dies, his heirs shall
not be obliged to return the support that he has
received in advance.

Art. 204. The person obliged to give support shall

have the option to fulfil! the obligation either by paying the
allowance fixed, or by receiving and maintaining in the
family dwelling the person who has a right to receive
support. The latter alternative cannot be availed of in case
there is a moral or legal obstacle thereto. (299a)

(1) There are two ways of complying with one's duty to

support another, namely:
(a) The obligor can give the obligee the allowance
fixed (as P I , 0 0 0 every month); or
(b) The obligor may receive and maintain the obligee
in his home or fam ily dwelling (like when the
parents or the minor siblings of the husband or
the w ife live w ith the couple).
(2) The second option cannot, however, be availed of In
cases when there is a moral or legal obstacle thereto,
as in the following;
(a) The husband cannot, against the w ill of his w ife,
take into their home his minor illegitimate child
whom he is bound to support. (Pascual v.
Martinez, C.A., 37 O.G. 2418)
346 Art. 2 0 5 and Art. 20 6

(b) The wife cannot be compelled to live with the

husband who has been maltreating her. Hence,
she is entitled to a separate maintenance (Goitia
V . Campos Rueda, 35 Phil. 252).

(c) A minor daughter who had been raped by her

own father cannot be compelled to continue to
live with the latter and should be supported
without requiring her to live with the father.

Art. 205. The right to receive support under this Title

as wed as any money or property obtained as such support
shall not be levied upon on attachment or execution.
(302a)

(1) The right to receive legal support and any money

or property obtained as such support are not
subject to attachment or execution by creditors
because they are essential to the life of the
recipient (Samson v. Yatco, 1 SCRA 1145).
(2) But support in arrears, considering that the need
therefor had already been met or satisfied in the
past, is no longer exempt from attachment or
execution as the reason for such exemption no
longer exists.

Art. 206. When, without the knowledge of the person

obliged to give support, it is given by a stranger, the latter
shall have a right to claim the same from the former,
unless it appears that he gave it without any intention of
being reimbursed. (2T6a)

This provision is based on a quasi-contract:

The source of this Article is Art. 2 1 6 4 of the Civil

Code in the Title on Quasi-Contracts, the basis of which is
to avoid unjust enrichment on the part of the person
obliged to give support.
/\n, 2 0 7 347

Requisites for appiicatiori of provision:

(1) In order tfnat The stranger who paid the support

can recover from the one obliged to give the
same, the following requisites must be
established:
(a) The one obliged to give the support failed to
furnish the same;
(b) The support given was really needed by the
recipient:
(c) The support was given without the
knowledge of the person obliged to give it;
and
(d) The support was given without any intention
not to be reimbursed.

(2) Thus, where the relatives of a married woman

gave her support without notifying her husband,
who had been providing for her and their children
in a foreign land but reduced the support because
of financial reverses, those who gave the support
were not allowed to recover what they had given
to the wife because they did so without the
knowledge of her husband and without first giving
him the opportunity to give the support himself
(Ramirez and De Marcaida v. Redfern, 49 Phil.
849).

Art. 207. When the person obliged to support another

unjustly refuses or fails to give support when urgently
needed by the latter, any third person may furnish support
to the needy IndividuaL with a right of reimbursement from
the person obliged to give support. This Article shall apply
particularly when the father or mother of a child under the
age of majority unjustly refuses to support or fails to give
support to the child when urgently needed. (2166a)
348 Art. 2 0 8

This provision is iikewise based on quasi-contract:

The source of this Article is another provision of the

Civil Code on Quasi-contracts, A rt. 2166.

Reason for provision:

Under this provision, "'the obligor unduly refuses to

support the persons referred to therein. The law creates a
promise of reimbursement on the part of the person obliged
to furnish support, in spite of the deliberate disregard of
the legal moral duty. The new provision is demanded by
justice and public policy." (Report o f the Code Commission,
pp. 70-71).

Requisites for application of provision:

(1) In order to recover w h at he had paid as support,

the person w ho made the paym ent m ust establish
the follow ing:
(a) The person obliged by law to give the
support had unjustly refused or failed to give
the same;
(b) The support was urgently needed by the
recipient.
(2) This A rticle applies particularly when the father or
m other of a minor child unjustly refuses or fails to
give support to the child when urgently needed by
the latter.

Art, 208. In case of contractual support or that given

by will, the excess In amount beyond that required for
legal support shall be subject to levy on attachment or
execution.

Furthermore, contractual support shall be subject to

adjustment whenever modification Is necessary due to
changes in circumstances manifestly beyond the
contemplation of the parties, (n)
 A rts. 2 0 8 349

Speciai rules on conventiona} support:

(1) As earlier stated in this Title, conventional support

may be:

(a) By contract {inter vivos), or

(b) By will {mortis causa).

(2) In these kinds of support, the excess in amount

beyond that required for legal support is already
subject to levy on attachment or execution.

Reason: The amount of support agreed upon

in the contract or given in the will can be more
than what the recipient needs.

(3) Contractual support is also subject to adjustment

whenever modification is necessary due to
changes in circumstances manifestly beyond the
contemplation of the parties.

Examples: The recipient wins one million

pesos in the Sweepstakes; the business of the
obligor collapses; there is an extraordinary inflation
or deflation of the currency stipulated {Art. 1250,
Civil Code),

'I

If:

i
 Titlo IX - Parental Authority

TITLE IX

PARENTAL AUTHORITY

CHAPTER

GENERAL PROVISIONS

Concept of Parental Authority:

Parental authority {patria potestas) is defined by

Manresa as "the mass of rights and obligations which
parents have in relation to the person and property of their
children until their emancipation, and even after this under
certain circumstances." (2 Manresa 8).

Evolution of the concept:

"From the unlimited potestas of the Roman Law, with

the power of life and death {Just vitae ac necis) over the
child, this institution has developed under Christian
influence into something radically different. Modern
tendency is to view it as a function of the parents for the
benefit o f the children, under the supervision of the State.
"There is no power, but a task; no complex of rights, but
sum of duties; no sovereignty but a sacred trust for the
welfare of the minor" (Puig Pena)." (I Reyes and Puno, id.,
pp. 2 95 -2 96).

Purpose of Parental Authority:

According to the Supreme Court in Reyes v. Alvare",

8 Phil. 723, parental authority "has for its purpose not only
the sound physical development of the children, but also

350
 Art. 2 08 351

the cultivation of their intellectual perceptions and i:he

nourishment of their appetitive and sensitive faculties."

Law on Parental Authorltv:

Before the Family Code became effective on August

3, 1988, our law on Parental Authority was P.D. 603 and
all provisions of the Civil Code not inconsistent with the
provisions of said P.D. on the subject (Art. 26, P.D. 603).
The Family Code, however, expressly repeals Title XI of the
is Civil Code on Parental Authority and Articles 17, 18 and
ps 19 of P.D. 603 also on Parental Authority (Art. 254,
f.

Family Code).

Characteristics of Parental Authority:

(1) It is a natural right and duty of the parents (Art.

209, Family Code).
(2) It cannot be renounced, transferred, or waived
except in the cases authorized by law (Art. 210,
id.)
(3) It is jointly exercised by the father and the mother
(Art. 2^' \ . id.)
(4) It is purely personal and cannot be exercised
through agents.
(5) It is temporary and will end when the child is
emancipated or can otherwise take care of himself
and his property, or the parent is unable to
properly exercise the authority.

Art. 2 0 9 . Pursuant to the natural right and duty of

parents over the person and property of their uneman­
cipated children, parental authority and responsibility shall
include the caring for and rearing of such children for civic
consciousness and efficiency and the development of their
moral, mental and physical character and well-being, (n)

Parental authority includes parental "responsibilitv":

Considering that, as already pointed out, parental

authority has evolved under the Christian influence from tfie
^52 Art. 270

uniimited power of life and death of the parent over his

children into a function or duty of the parent for the
benefit of the child, the Family Code includes the concept
of "responsibility" in parental authority.
On the other hand, the Comnnittee considered it very
important to retain the concept of parental "authority"
considering that from the social point of view, one of the
things that erode present society is the tendency of
children to forget parental authority. For this reason, the
Committee believes that the concept of obedience to
parents must still be emphasized, which is in keeping with
"authority". (See Minutes of Committee Meeting on
November 23, 1985).

What parental authoritv includes under this Article:

This Article emphasizes that parental authority and

responsibility is "the natural right and duty of parents over
the person and property of their unemancipated children,"
and that It includes:
(1) the caring for and rearing of children for civic
consciousness and efficiency, and
(2) the development of the moral, mental and
physical character and well-being of said children.

Art. 210. Parental authority and responsibility may not

be renounced of transferred except in the cases authorized
by law. (313a)

Parental authority and responsibility may not be

renounced or transferred except in the cases authorized by
law, such as:
(1) Adoption;
(2) Guardianship; or
(3} Commitment of the child in an entity or institution
engaged in child care or in a children's home
(Arts. 223 -2 24). (See Leouel Santos v. C.A. 242
SCRA 407).
Art. 271 353

Art. 211. The father and the mother shall jointiy

exercise parental authority over the persons of their
common children. In case of disagreement, the father's
decision shall prevail, unless there is a judicial order to the
contrary.
Children shall always observe respect and reverence
toward their parents and are obliged to obey them as long
as the children are under parental authority. (17a, PD 603)

Both parents exercise ioint authority over their children:

(1) The Civil Code, P.D. 603, and the Family Code all
provide that the father and the mother shall jointly
exercise parental authority over their common
children, who may be:
(a) Legitimate;
(b) Legitimated; or
(c) Adopted.

(2) The reason for joint parental authority of both

parents, as distinguished from the sole parental
authority exercised by the father under the Civil
Code of Spain, was aptly given by the Code
Commission that drafted the Civil Code of the
Philippines as follows:
"The joint parental authority is more in
keeping with reality. The law should reflect actual
life, and should not lay down a purely legalistic
rule that is far from the true facts. This expressed
legal recognition of the mother's role in the family
is but a deserved tribute to their immeasurable
sacrifices for the children." (Report of the Code
Commission, p. 90).

Father's decision shall prevail in case of disagreement,

unless there is iudicial order to the contrary.

In view of the joint authority of the parents over their

minor children, disagreement between the parents cannot
 372 'm
be avoided. Hence, the Family Code, like the Civil Code 4
and P.D. 603 , provides that "in case of disagreement, the '1
fath er's decision shall prevail, unless there is a judicial ''Sm
order to the contrary."

Some w om en's groups, together w ith the National

Commission on W om en, have questioned w h y the Family
Code has continued to give reference to the decision of the
father in matters affecting the com mon children, when one
of the main reasons for the enactm ent of the Family Code Wi
is to give equal rights to husbands and wives, and to
fathers and mothers. The Comm ittee believes, however,
that while there are matters that do not need immediate
decision and can be left for the courts to decide in case of
disagreement between the parents, there are cases which
require immediate decision, so that there is a need for a
tem porary m odus vivendi before the m atter finally w inds up
in court. And follow ing tradition, the husband's or father's
decision should prevail tem porarily until the m atter is
decided by the court. (See M inutes of Com m ittee meetings
of June 27 and July 4, 1987)

Duty of children towards their parents:

(1) This Article also provides as the corresponding

duties of the children tow ards their parents that:
(a) They shall always observe respect and
reverence tow ard their parents, and
(b) They are obliged to obey their parents as long
as they are under their parental authority.
(2) Other responsibilities o f children may be found in
A rt. 4 of P.D. 603.

Art. 212 . In case of absence or death of either

parent, the parent present shall continue exercising parental
authority. The remarriage of the surviving parent shall not
affect the parental authority over the children, unless the
court appoints another person to be the guardian of the
person or property of the children. (17a. PD 603}.
I firt. 213 355

Art. 213 . In case of separation of the parents,

parental authonty shall be exercised by the parent
designated by the coiirt. The court shall take into account
all relevant considerations, especially the choice of the child
over seven years of age, unless the parent chosen is unfit.
IMo child under seven years of age shall be separated
from the mother, unless the court finds compelling reasons
to order otherwise. (363a)

Who exercises parental authority in case of absence, death

or remarriage of either parent, or separation of the parents?

(1) In case of absence of either parent: The parent

present.
(2) In case of death of either parent: The parent
present.
(3) In case of icmarriage of the surviving parent: Still
the surviving parent, unless the court appoints a
guardian over the child.
(4) In case of separation of the parents: The parent
designated by the court.
(a) The court shall take into account alf relevant
considerations, especially the choice of the
child over 7 years of age, unless the parent
chosen is unfit.
(b) No child under 7 years of age shall be
separated from the mother, unless the court
finds compelling reasons to order otherwise.
(I) The Family Code reverts to the provision
of the Civil Code that a child below 7
years old should not be separated from
the mother (Art. 363), which P.D. 603
amended by reducing the child's age to 5
years (Art. 17, third par.).
(ii) The Committee agrees with the framers
of the Civil Code that a child below 7
years still needs the loving, tender care
that only a mother can give.
356 Art. 213

(5) The grandparents' love and affection for the child

notwithstanding, the legitimate father is, in the
absence of the mother, still entitled to the child's
custody. The father's three-year inattention
towards the minor child is inexcusable and merits
the severest criticism, but it cannot be construed
as abandonment. (Leouel Santos, Sr. v, C.A., 242
SCRA 407).

What are the "comDellinq reasons" that would iustlfv the

court in taking the child away from the mother?

(1) "Examples of compelling reasons" are if the

mother is insane, is sick with a disease that is
communicable and might endanger the health and
life of the child, has been maltreating the child, or
other similar reasons that render her unfit to have
the care and custody of her child.
(2) The fact, however, that the mother is ^ prostitute
or has been unfaithful to the husband does not
render her an unfit mother. As stated by the Code
Commission in its comments on Art. 363 of the
Civil Code:
"The general rule is recommended in order to
avoid many a tragedy where a mother has seen
her baby torn away from her. No man can sound
the deep sorrows of a mother who is deprived of
her child of tender age. The exception allowed by
the rule has to be for 'compelling reasons' for the
good of the child; those cases must indeed be
rare, if the mother's heart is not to be unduly
hurt. If she has erred, as in cases of adultery, the
penalty of imprisonment and the divorce decree
(relative divorce) will ordinarily be sufficient
punishment for her. Moreover, her moral
dereliction will not have any effect upon the baby
who is as yet unable to understand her situation."
(Report of Code Commission, p. '12)
Art. 2 74 357

(3) Example of an u nfit mother. The open

cohabitation of the mother and her com m on-law
husband w ill not accord the minor that desirable
atmosphere where she can grow and develop into
an upright and moraify-minded person. Moreover,
the m other has another child by another man who
lives w ith her. (Petition for habeas corpus of
Angelie Anne Cervantes, 169 SCRA 575).

Art. 214. In case of death, absence or unsuitability of

the parents, substitute parental authority shall be exercised
by the surviving grandparent. In case several survive, the
one designated by the court, taking into account the same
consideration mentioned in the preceding article, shall
exercise the authority. {19a, PD 603).

W ho shall exercise parental authority in case of death,

absence, or unsuitability of both parents?

(1) In case of death, absence, or unsuitability of both

parents, the surviving grandparent shall exercise
substitute parental authority over the minor
children.
(2) If there are several grandparents, the one
designated by the court, taking into account the
same consideration mentioned in A rt. 212, shall
exercise substitute parental authority.
(Note that the above provision changes the
rule in A rt. 355 o f the Civil Code giving
preference to the paternal grandparents over the
maternal grandparents.)
(3) In Flores v. Esteban, 97 Phil, 439 , it was held
that although the paternal grandparents arc
preferred in the exercise of substitute parental
authority under Art. 355 of the Civil Code, Art.
363 provides that “ in all questions on the care,
custody, education, and property o f children, the
latter's welfare shall be param ount". If, thereforf;,
the maternal grandparent is in a better position t.o
 /Irf. 2 7 g

protect the child, this grandparent should beS

preferred under Art. 363. '■

Art. 215 . No descendant shall be compelled. In a

criminal case, to testify against his parents and
grandparents, except when such testimony is indispenGob!*? I
in a crime against the descendant or by one parent against
the other. (315a)

(1) This Article is known as the rule of "fiilaj

privilege" and is intended to preserve family
solidarity, which is more important than the
prosecution of offenses against parents and;
grandparents in a family. Another reason for the;
provision is to avoid a situation where one parent-
uses a common child against the other in cases
between the parents. (See Minutes of Committee
meeting of April 12, 1986).
(2} Unlike Art. 315 of the Civil Code which applies
the provision to all ascendants, the above
piovision of the Family Code limits its application
to parents and grandparents, the reason for the
inclusion of "grandparents" being that they usually
have a special relationship with the child. The
Committee believes, however, that to include all
"ascendants" in the rule would extend the
prohibition too much. The more compelling
relationship which requires such a rule is,
however, that of parent and child. (See Minutes,
id.)
(3) Remember also that:
(a) The rule applies only to compulsory, not
voluntary, testimony.
(b) The rule applies only to criminal, not civil,
cases.
(c) The criminal case filed against a parent might
have been filed by the other parent or by a
third person.
Art. 2 1 6

CH APTER 2

SUBSTITUTE AND SPECIAL PARENTAL

AUTHORITY

Art. 216 . In default of parents or a judicially

appointed guardian, the following persons shall exercise
substitute parental authority over the child in the order
indicated:
(1) The surviving grandparent, as provided in Art.
214;
(2) The oldest brother or sister, over twenty-one
years of age, unless unfit or disqualified; and
(3) The child's actual custodian, over twenty-one
years of age, unless unfit or disqualified.
Whenever the appointment of a judicial guardian over
the property of the child becomes necessary, the same
order of preference shall be observed. (349a, 351a, 354a)

Who exercises substitute parental authority over children?

In default of the parents or a judicial guardian, this

provision confers upon the following the right to exercise
substitute parental authority over the child in the order
indicated:

(1) The surviving grandparent (but if several survive,

the one designated by the court pursuant to Arts.
213 and 214}.
(2) The oldest brother and sister, over 21 years old,
unless unfit or disqualified; and
(3) The child's actual custodian, over 21 years old,
unless unfit or disqualified. (This custodian need

359
360 Art. 217 and Art. 218

not be a relative of the child, but he or she must

have actual custody of the child).

The above provision also states that whenever the

appointm ent of a judicial guardian is necessary, the above
order of preference should likewise be observed.

Art. 217. In case of foundlings, abandoned, neglected

or abused children and other children similarly situated,
parental authority shall be entrusted in summary judicial
proceedings to heads of children's homes, orphanages and
similar Institutions duly accredited by the proper
government agency. (314a)

(1) This Article applies to different kinds of

disadvantaged children: viz.
(a) foundlings:
(b) abandoned children
(c) neglected children; or
(d) abused children
(2) In the case of the above-mentioned children,
sum mary judicial proceedings shall be instituted in
accordance w ith Title XI of this Code so that they
may be entrusted to.
(a) heads of children's homes,
(b) orphanages, or
(c) similar institutions duly accredited by the
proper governm ent agency (at present, the
Department of Social W elfare and
Development}.

Art. 2 18 . The school, its administration and teachers,

or the Individual, entity or institution engaged in child care
shall have special parental authority and responsibility over
the minor child while under their supervision, instruction or
custody.
Authority and responsibility shall apply to all
authorized activities whether inside or outside the premises
of the school, entity or Institution. (349a)
 A rt 218 361

Concept of Special Parental Authority:

(1) The Family Code introduces the concept of special

parental authority as distinguished from substitute
parental authority.
(2) Special parental authority distinguished from
substitute parental authority:
(a) Substitute parental authority is exercised in
the case of death, absence, or unsuitability of
parents. Hence, it is not exercised
concurrently with the exercise by the parents
of parental authority over their minor children.
(b) Special parental authority is, however,
concurrent with the parental authority of the
parents and rests on the theory that while the
child is in the care and custody of the person
or persons exercising special parental authority
(like the child's teacher in school), the parents
temporarily relinquish parental authority over
the child to the latter.

Who exercises special parental authority over the child?

The following exercise special parental authority and

responsibility over the minor child while under their
supervision, instruction, or custody:
(1) the school, its administrators and teachers, or
(2) the individual, entity or institution engaged in child
■f
care.

To what activities do special parental authority apply?

31
Special parental authority and responsibility apply to all
authorized activities, w hether inside o r outside the premises
of the school, entity, or institution.
Thus, such authority and responsibility apply to field
trips, excursions, and other affairs of the pupils and
students outside the school premises whenever authorized
by the school or its teachers.

t ■
i-0
 279
Art. 219. Those given the authori^/ and responsibility
under the preceding Article shall be principally and solidarily
liable for damages caused by the acts or omissions of the
unemancipated minor. The parents, judicial guardians or the
persons exercising substitute parental authority over said
minor shall be subsidiarily liable.
The respective liabilities of those referred to in the
preceding paragraph shall not apply it if is proved that they
exercised the proper diligence required under the particular
circumstances.
All other cases not covered by this and the preceding
articles shall be governed by the provisions of the Civil
Code on quasi-deflcts. (n)

W hat is the liabilitv of those exercising special parental

authority?

{1) They are principally and solidarily liable for

damages caused by the acts of omissions of teh
unemancipated minor while under their
supervision, instruction or custody.
(2) The above liability is, hov\/ever, subject to the
defense that the person or persons exercising
special parental authority and responsibility
exercised the proper diligence required by the
particular circumstances,
(3) As to the parents and judicial guardians o f the
m inor or those exercising substitute parental
authority over said minor, they are subsidiarily
liable for the aforesaid acts and omissions of the
minor.
(4) All other cases not covered by the above and
preceding articles shall be governed by the
provisions of the Civil Code on quasi-delicts.
f CH APTER 3

EFFECT OF PARENTAL AUTHORITY UPON

I THE PERSOINiS OF THE CHILDREN

f Art. 2 20 . The parents and those exercising parental

f authority shall have with respect to their emancipated
I children or wards the following rights and duties:

(1) To keep them in their company, to support,

educate and instruct them by right precept and
good example, and to provide for their upbringing
in keeping with their means;

(2) To give them love and affection, advice and

counsel, companionship and understanding;

(3) To provide them with moral and spiritual guidance,

inculcate in them honesty, integrity, self-discipline,
self-reliance, industry and thrift, stimulate their
interest in civic affairs, and inspire in them
compliance with the duties of citizenship;

(4) To enhance, protect, preserve and maintain their

physical and mental health at all times;

(5) To furnish them with good and wholesome

educational materials, supervise their activities,
recreation and association with others, protect
them from bad company, and prevent them from
acquiring habits detrimental to their health, studies
and morals;

(6) To represent them in all matters affecting their

interests;

S63
>3^ Art. 221

(7) To demand from them respect and obedience;

(8) To impose discipline on them as may be required

under the circumstances; and

(9) To perform such other duties as are imposed by

law upon parents and guardians. (316a)

In addition to the foregoing rights and duties, parents

also have the rights and duties with respect to their minor
children specified in Chapters 2 and 3 of P.D. 603.

Furthermore, the provisions of Chapter 4 of P.D. 603

on parental crimes, as well as Art. 2 0 4 of said Decree
penalizing parents or guardians who aid or connive in the
commission by a child of a delinquency or do acts
promoting or contributing to a child's becoming a juvenile
delinquent, are still applicable even under the Family Code.

Art. 221 . Parents and other persons exercising

parental authority shall be civilly liable for the Injuries and
damages caused by the acts or omissions of their
unemancipated children living In their company and under
their parental authority, subject to the appropriate defenses
provided by law. (2180{2)a and (4)a).

Liability of parents for torts committed bv their minor

children:

(1) Parents and other persons exercising parental

authority are civilly liable for the torts of their
unemancipated children:

(a) Provided they are living in their company, and

(b) Subject to the appropriate defenses provided
by law, like the parent's having observed the
diligence of a good father of a family to
prevent the damage (Art. 2180, Civil Code;
LibI V. lAC, 2 1 4 SCRA 17)
Art. 222 and Art. 223 36 5

(2) If the minor child is, therefore, not living w ith the
parents but has been entrusted to the care of
other persons, or is an interne in school, the
liability does not apply.

(3) This liability, o f the parents and those exercising

parental authority over the child is solidary
(Araneta v. Arreglado, 104 Phil, 529) and primary
and direct, not subsidiary {Barredo v. Soriano, 73
Phil. 607; Tamargo v. C.A., 209 SCRA 17).

(4) Examples:
(a) If a minor child negligently operates the fam ily
car. the parents are liable for the damage
done {G utierrez v. G utierrez, 56 Phil. 177),
(b) If the child, while living w ith the parents,
com m its an illegal act in the streets, the
parents are liable (V. Tolentino, id.. 1959 ed,,
p. 521)

Art. 222. The courts may appoint a guardian of the

child's property, or a guardian ad litem when the best
interests of the child so require. (317)

Art. 223. The parents or. in their absence or

incapacity, the Individual, entity or institution exercising
parental authority, may petition the proper court of the
place where the child resides, for an order providing for
disciplinary measures over the child. The child shall be
entitled to the assistance of counsel, either of his choice or
appointed by the court, and a summary hearing shall be
conducted wherein the petitioner and the child shall be
heard.

However, if in the same proceeding the court finds

the petitioner at fault, irrespective of the merits of the
petition, or when the circumstances so warrant, the court
may also order the deprivation or suspension of parental
authority or adopt such other measures as It may deem
just and proper. (318a)
•3^^ Art. 224

Art. 224. The measures referred to in the preceding

article may include the commitment of the child for not
more than thirty days in entities or institutions engaged in
child care or in children's homes duly accredited by the
proper government agency.

The parent exercising parental authority shall not

Interfere with the care of the child whenever committed
but shall provide for his support. Upon proper petition or at
its own instance, the court may terminate the commitment
of the child whenever just and proper. (319a)

Measures to assist parent in Imoosinq discipline on the

child:

(1) There are children who are so defiant, spoiled,

hardheaded and stubborn that the parents or those
exercising parental authority over them can no
longer discipline and control them. They can then
ask the court for assistance under this Article.

(2) The parent or person exercising parental authority

shall file a petition in the proper court of the
place where the child resides (which may be the
residence of the parents or somewhere else) for
an o-'der providing for disciplinary measures over
the child.

(3) There w ill be a summary hearing of the petition,

and the child is entitled to counsel either o f his
choice or appointed by the court.

(4) If the court finds the petition m eritorious, it will

impose proper disciplinary measures over the
child, including his com m itm ent for not more than
30 days in an entity or institution engaged in
child care or in a children's home duly accredited
by the governm eiit (like Boys' Tow n or Nayon ng
Kabataan).
 A rts . 224 367

(a) The parents shall not interfere with the care

of the child v\/hile under commitment.
(b) The parents must, however, pay for the
child's support.
(c) Upon proper petition or at its own instance,
the court may terminate the child's
commitment whenever just and proper.

If the court finds the parent or petitioner at fault

irrespective of the merits of the petition (as when
the parent had neglected or abandoned the child),
the court may also order the deprivation or
suspension of his or her parental authority or
adopt such other measurers as it may deem just
and proper. (The court may also appoint a
guardian over the child.)

i-
 225

CHAPTER 4

EFFECT OF PARENTAL AUTHORITY UPON

THE PROPERTY OF THE CHILDREN

Art. 225. The father and the mother shall jointly

exercise legal guardianship over the property of their
unemancipated common child without the necessity of a
court appointment. In case of disagreement, the father’s
decision shall prevail, unless there is a judicial order to the
contrary.
Where the market value of the property or the annual
income of the child exceeds P 50,000, the parent
concerned shall be required to furnish a bond in such
amount as the court may determine, but not less than ten
per centum (10% ) of the value of the property or annual
income, to guarantee the performance of the obligations
prescribed for general guardians.
A verified petition for approval of the bond shall be
filed in the proper court of the place where the child
resides, or, if the child resides in a foreign country, in the
proper court of the place where the property or any part
thereof is situated.
The petition shall be docketed as a summary special
proceeding in which all incidents and issues regarding the
performance of the obligations referred to in the second
paragraph of this Article shall be heard and resolved.
The ordinary rules on guardianship shall be merely
suppletory except when the child is under substitute
parental authority, or the guardian is a stranger, or a parent
has remarried, in which case, the ordinary rules on
guardianship shall apply. (320a)

36S
 369
Father <ind mother are now joint guardians of the child's
property or income:

(1) Under Art. 320 of the Civii Code, the father is

the sole legal adm inistrator of the property of the
child under parental authority, and only in the
absence of the father w ould the m other become
such legal adm inistrator.

(2) The above provision of the Family Code has

changed the rule and provides that the father and
the mother shall jo in tly exercise legal guardianship
over the property of their unemancipated com mon
child w ith o u t court appointm ent.

(3) However, in case of disagreement, the father's

decision shall prevail, unless there is a judicial
order to the contrary.

(For the reasons w h y the Family Code gives

p re fe re n ce to the fa th e r's d e c is io n s u b je c t to
c o n f i r m a t i o n or r e v e r s a l by t he c o u r t , see
Comments under A rt. 21 i hereof).

(4) For the protection of the interests o f the child in

case his property has a market value of or his
annual income is more than P 50,000, the parent
or parents exercising legal guardianship over his
' property and income is required to put up a bond
of not less than 10% of said value of property or
income, to be approved by the court in a
summary proceeding.

(5) Reason for the above provision: The above

provision does aw ay w ith court appointm ent of
the parent or parents as legal guardians of the
child's property, thus avoiding the expense and
delay of a court appointm ent of the parent as
guardian, especially if the child's estate involves
only a few thousand pesos of insurance money or
deposit in the bank.
570 Art, 225
(6) In all cases, if there is a transaction that the
parent as legal guardian has to enter into which
needs court approval, the court's approval shall be
obtained in a summary proceeding for the
purpose.

Special rules in case the m arket value o f the propertv n r

annual income of the child exceeds P50.000.

(1) Art. 320 of the Civil Code requires the parent to

give a bond to be approved by the court if the
property of the child is w o rth more than P2,000.
The above provision of the Family Code has
increased said am ount to P 50,000, in view of the
present high values of all kinds of property, and it
is also expressly provided that the value referred
to is the market value, not the assessed value.
And if the child has no property but has an
annual income of more than P 50,000 the bond is
also required. This requirement is particularly
im portant in recent tim es when many children in
the TV and movie industries are already earning
thousands of pesos a m onth or more even before
they reach school age.

(2) The purpose o f the bond is to protect the child's

property or income from possible abuse of
adm inistration or even disposition by the parents.
On the other hand, the value o f the child's
property or his or her annual income has been
raised to over P 5 0,0 00 for the requirement of the
bond to apply, in order to spare the parent or
parents from the expensive premium on the bond
in case the property or income of the child is
small and does not reach the am ount o f P50,000,
w hich is not m uch these days w hen the cost of
living is very high and the great m ajority of our
people live below the poverty line.

(3) Procedure in the approval of the parent's bond:

Art. 2 25 371

(a) A verified petition for the approval of the

bond shall be filed v^;ith the proper court.
(b) The venue o f the petition is the place where
the child resides or, if the child resides In a
foreign country, the place where the property
o f the child or any part thereof is situated.
(c) The petition shall be docketed as a summary
special proceeding under Title XI of this Code.
(d) The court shall determine the am ount of the
bond, but is shall not be less than 10% of
the market value of the child's property or of
his annual Income.

(4) All incidents and issues regarding the performance

of the obligations o f the parent or parents as legal
guardians of the property or income of the child
shall be heard and resolved in the same summary
proceeding where his or her bond was approved.
(a) For example, the parent needs to encumber or
sell a piece o f property belonging to the child.
A m otion to that effect shall be filed by the
parent in the same summary proceeding
where his or her bond was approved, and
there w ill be a summary hearing of the
m otion.
(b) The parents, as legal guardians o f the child,
have all the rights, obligations, and liabilities
of judicial guardians, and m ust com ply w ith
such requirements as inventories, accounting,
etc. prescribed by the Rules of Court for
judicial guardians.

Rules prescribed for parents as legal guardians of the

child's property and income not applicable to other persons:

The above rules prescribed for parents, however, do

not apply to the follow ing persons, to whom the ordinary
rules on guardianship shall apply:
372 An. 22e

(1) a person exercising substitute parental authority;

(2) a guardian w ho is a non-relative of or a stranger
to, the chil'l; or
(3) a parent who has remarried.

A rt. 226. The property o f the unemancipated child

earned or acquired w ith his w ork or Industry or by onerous
or gratuitous title shall belong to the child in ownership
and shall be devoted exclusively to the tatter's support and
education, unless the title or transfer provides otherwise.

The right o f the parents over the fru its and income of
the child's property shall be lim ited prim arily to the child's
support and secondarily to the collective daily needs o f the
fam ily. (321a, 323a)

W hat "p rope rty" of the child includes:

(1) The child's earnings through his or her labor,

w ork or industry;
(2) Property acquired by the child by gratuitous title
(donated or inherited);
(3) Property acquired by the child through onerous
title;
(4) Fruits o f all the properties of the child, whether
acquired by lucrative or onerous title;
(5) Insurance proceeds accruing to the child.

Parental usufruct over child's property has been abolished.

A rt. 321 of the Civil Code provides th a t property

acquired by the child w ith his w ork or industry or through
lucrative title belongs to him or her in ownership, and in
usufruct to the father or mother exercising parental
authority over the child.
The above Article o f the Family Code has abolished
parental usufruct over the child's property and income, and
provides th a t such property or income shall belong to the
 f¥- Art. 227 373
ir
child in ow nership and shall be devoted exclusively to his
or her support and
anc education, unless the title or transfer
ml: provides otherwise.

For what purposes mav the parents use the fruits and
.
incom e o f the child's property?

As for the fruits and income of the child's pioperty,

^ the parents may use them;
(1) Primarily, for the child's support and education;
iiis
and
(2) Secondarily, for the collective daily needs of the
fam ily (which means the daily needs of the family
as a social unit, like food and shelter, but not
specific and individual needs of another child like
""^0 his education, clothing, or medical attendance,
f w hich should be paid out of the absolute
|, com m unity or conjugal properties of the parents).

Art. 227. If the parents entrust the management or

M administration of any of their properties to an
unemancipated child, the net proceeds of such property
shall belong to the owner. The child shall be given a
W reasonable monthly allowance in an amount not less than
that which the owner would have paid if the administration
were a stranger, unless the owner grants the entire
proceeds to the child. In any case, the proceeds thus given
in whole or in part shall not be charged to the child's
legitime. (322a)

Rules if the parents entrust the management of anv of their

properties to a child:

If the parents entrust the management or

adm inistration of any of their properties to an
unemancipated child, the follow ing rules shall apply;
(1} The net proceeds o f such properties belong to the
P-
parents or parent*owner (because the child is only
I-
acting as their agent or employee);

IK '
374
227
(2) The child shall be given a reasonable monthly
allowance in an am ount not less than that w hich
should be given to a stranger w ho manages the
same property (again because the child is
practically an agent employee o f the parents); and

(3) If the parents or parent-owner gives the entire

proceeds of the property to the child, such
proceeds shall not be charged to the child's
legitime (because it is given to the child as
com pensation for his services and not as a gift or
a donation).

jV;
Art. 228 and Art. 229

C HAPTER 5

SUSPENSION OR TERMINATION OF
PARENTAL AUTHORITY

A rt. 228 . Parental authority terminates permanently:

(1) Upon the death o f the parents;

(2) Upon the death o f the child; or
(3) Upon the em ancipation o f the child. (327a)

Permanent term ination o f parental authority:

(1) Upon the death of the parents;

(2) Upon the death of the child; or
(3) Upon the emancipation of the child.

Parental authority in the above ca se s terminates

permanently because there is no possibility of its revival.

A rt. 229. Unless subsequently revived by a final

judgm ent, parental authority also terminates:

(1) Upon adoption o f the child;

(2) Upon appointm ent of a general guardian;
(3) Upon judicial declaration of abandonment o f the
child in a case filed for the purpose;
(4) Upon final judgm ent of a com petent court
divesting the party concerned of parental
authority; or
(5) Upon judicial declaration of absence or incapacity
o f the person exercising parental authority. (327a)

375
3 76 Art. 230

Termination of parental authority which can be revived hy

final iudqment:

Parental authority may also be term inated:

•• (1) Upon the adoption o f the child;

-(2 ) Upon the appointm ent of a general guardian for
the child (e.g., over his person and property};
•^{3) Upon judicial declaration of abandonment of the
child (by the parent exercising parental authority)
in a case filed for the purpose;
(4) Upon final judgm ent of a com petent court
divesting the parent or parents of parental
authority over the child; or
' (5) Upon judicial declaration of absence or incapacity
of the parent or parents exercising parental
authority over the child.

(n the above cases, parental authority may be revived bv

final iudqment:

(1) Rescinding the adoption of the child (see Art. 93);

(2) Term inating the judicial guardianship over the
child;
(3) Restoring parental authority to the parent w ho has
returned home after abandoning the child or who
has been divested o f parental authority for any
other reason; or
(4) Restoring parental authority to an absent parent
w ho has returned or a form erly incapacitated
parent w ho has regained his or her incapacity.

Art. 230. Parental authority Is suspended upon

conviction of the parent or the person exercising the same
of a crime which carries with it the penalty of civil
Interdiction. The authority Is automatically reinstated upon
service of the penalty or upon pardon or amnesty of the
offender. (330a)
Art. 231 377

Civil interdiction of parent suspends parental authority:

(1) The parental authority o f a parent over his or her

minor child is suspended upon his or her
conviction o f a crime w hich carries the penalty of
civil interdiction.
(2) The parent's parental authority is, however,
autom atically reinstated upon service of the
penalty by, or upon pardon or am nesty of, the
parent.
(3) There is no need o f a court order reinstating the
parental authority of the parent over the child
because such authority is autom atically revived.

Art. 231. The court in an action filed for the purpose

or In a related case may also suspend parental authority if
the parent or the person exercising the same:

(1) Treats the cliild with excessive harshness or

cruelty;
(2) Gives the child corrupting orders, counsel or
example;
(3) Compels the child to beg; or
(4) Subjects the child or allows him to be subjected
to acts of lasciviousness.

The grounds enumerated above are deemed to include

cases which have resulted from culpable negligence of the
parent or the person exercising parental authority.
If the degree of seriousness so warrants, or the
welfare of the child so demands, the court shall deprive
the guilty party of parental authority or adopt such other
measures as may be proper under the circumstances.
The suspension or deprivation may be revoked and the
parental authority revived In a case filed for the purpose or
In the same proceeding if the court finds that the cause
therefor has ceased and will not be repeated. {332a)
378 Ar(, 232

Suspension o f parentai aiith o ritv

(1) The court may, in an action for the purpose or in

a related case, suspend parental authority if the
parent;
(a) Treats the child w ith excessive harshness or
cruelty;
(b) Gives the child corrupting orders, counsel or
example;
(c) Compels the child to beg; or
(d) Subjects the ch'^d or allows him or her to be
subjected to acts o f lasciviousness,
(2) The grounds enumerated above include cases
w hich have resulted from the culpable negligence
of the parent exorcising parental authority
(because there are parents w ho, w ith o u t actually
com m itting the above acts, have actual knowledge
of their children's commission of such acts as
begging, appearing in indecent show s, and the
like, but do not prevent them and even allow
them to com m it such acts for profit or material
advantage).
(3) If the degree of the w rongful acts of the parent
or parents so warrants, or the w elfare of the child
so demands, the court may deprive the guilty
■
parent of parental authority or adopt such other
measures as may be proper under the
circum stances.
(4) The suspension or deprivation o f the parents'
parental authority may, however, be revoked or
lifted and parental authority restored to him or her
in a case filed for the purpose or in the same
proceeding if the court finds that the cause
therefor has ceased and w ill not be repeated.

Art. 232. If the person exercising parental authority

has subjected the child or allowed him to be subjected to
sexual abuse, such person shall be permanently deprived by
the court of such authority, (n)
Art. 233 379

Case when the parent shaii be permanentfv denrtved of

parental authority:

(1) If the parent or parents exercising parental

authority have subjected the child or allowed him
or her to be subjected to sexual abuse, the parent
or parents shall be permanenHy deprived by the
court o f such authority.
(2) The deprivation of parental authority being
permanent, such authority can no longer be
revived or restored.
(3) An example of this case are parents w ho allow
their children to become prostitutes, or a father
w ho rapes or seduces his ow n daughter.

Art. 233. The person exercising substitute parental

authority shall have the same authority over the person of
the child as the parents.

In no case shall the school administrator, teacher or

individual engaged in child care and exercising ,.ecial
parental authority, inflict corporal punishment upon the
child, (n)

(1) Persons e x r:c is ii; c-ubstitute parental authority

have the same a it;i;o rity over the person o f the
child as the parents.

(2} Such authority includes the right to impose

discipline on the child as may be required under
the circum stances {which includes punishing him
or her moderately but not am ounting to
m altreatm ent or cruelty).

(3) Persons exercising special parental authority can

not, however, inflict corporal punishm ent upon the
child.
380 Art. 234, 2 35 and 236

TITLE X

E M A N C IP A T IO N A N D AGE OF M A J O R IT Y

Art. 234. Emancipation takes place by the attainment

of majority. Unless otherwise provided, majority commences
at the age of eighteen years. (As amended by Rep. Act.
6 80 9)

In view of the above am endment, the original

provision of this Article that emancipation also takes
place (1) by the marriage of the minor; or (2) by the
recording in the Civil Register of an agreement in a
public instrument executed by the parents exercising
parental authority and the minor at least eighteen
years of age, is no longer applicable.

Art. 2 3 5 . This has been expressly repealed by Sec.

2 of Rep. Act 680 9.

Art. 236 . Emancipation shall terminate parental author­

ity over the person and property of the child who shall
then be qualified and responsible for all acts of civil life,
save the exceptions established by existing laws in special
cases.

Contracting marriage shall require parental consent

until the age of twenty-one.
Art. 2 37 337

N othing in th is Code shall be construed to derogate

from the duty or responsibility of parents and yuardians for
children and w ards below tw e n ty -o n e years o f age m en­
tioned in the second and third paragraphs of Article 2 1 8 0
o f the Civil Code,

(As amended by Sec. 3 of Rep. A ct 6809)

Note th a t w hile Rep. A c t 6 8 0 9 has reduced the

age o f m a jo rity to e ig h te e n years o f age, it has
retained the provision o f the Family Code that a child
w h o is e ig h te e n b u t b e lo w tw e n ty -o n e years s till
n e e d s p a r e n ta l c o n s e n t to be able to c o n t r a c t
marriage.

As for the third paragraph o f Art. 236 added by

Rep. A ct 68 0 9 , there seems to be an oversight in the
above said a m e n d m e n t in re fe rrin g to the d u ty or
responsibility of parents and guardians for children and
w a rd s b e lo w tw e n ty -o n e years in re la tio n to to rts
c o m m itte d by said c h ild re n or w a rd s , because in
re d u c in g th e age o f m a jo rity to eighteen years, a
person w ho has reached this age is no longer under
guardianship by his parents or his form er guardian.

It s h o u ld a ls o be n o te d th a t w h ile th e
e m a n c ip a tio n o f a p e rso n by m a rria g e u n d e r th e
fo rm e r A r t. 2 3 6 o f th e F a m ily C ode w a s fu ll or
complete even if he or she is below 21 years, so that
his parents or guardians w ould no longer be liable for
his torts under A rt. 2 1 8 0 of the Civil Code, the above
amendment introduced by Rep. A c t 2809 has returned
to the parents and guardians re sp o n sib ility fo r to rts
com m itted by children between 18 and 21 years who
are s till livin g w ith them . The decision in Elcano v.
382 ^ rt. 237

H iil, 77 SCRA 89, w h e re in the fa th e r o f a married

m inor w as held liable for damages resulting from his
c h ild 's h a v in g k ille d s o m e o n e , w h ic h had been
abrogated by the form er Art. 236 o f the Family Code,
w o u ld now still be applicable under the am endm ent
introduced by Rep. A c t 6 8 0 9 to said A rt. 236.

A r t . 2 3 7 . T h is A r t ic le has a ls o been e x p re s s ly
repealed by Sec. 2 of Rep. A c t 680 9.
i- Titlo XI - Summary Judicial Procoodings in tha Family Law Art. 2 3 8

TITLE Xi

SUM M A RY JUDICIAL PROCEEDINGS

IN THE FAMILY LAW

CH APTER 1

SCOPE OF APPLICATION

A rt. 238. Until m odified by the Supreme Court, the

procedural rules in this Title shall apply in all cases
provided for in this Code requiring sum mary court
proceedings. Such cases shall be decided in an expeditious
manner w ith o u t regard to technical rules, (n)

W hy the Family Code includes provisions on Summary

Judiciat Proceedings:

The Com m ittee decided to include rules of procedure

in the sum mary judicial proceedings established and
prescribed in some of its provisions to avoid any delay in
the prom ulgation o f such rules, especially as the Farnil\
Code already became effective on August 3, 1988.
Moreover, it is more convenient for laymen w ho w ill
read and study the Code to have the procedural rules
governing the sum mary proceedings prescribed therein
already included in the Code itself.

Characteristics of Summary Proceedings in the Familv

Code:

(1) The petition shall be verified, to assure iis

truthfulness.

383
384 Titfo X ' Emancipation and A ge o f Authority

(2) Notice o f the filing o f the petition should always

be sent to the respondent at his or her last
know n address, as part of due process.
(3) No periods are set, and it is up to the judge to
determine the period w ith in w hich the respondent
should answer the petition and the hearing
thereof, which should be very short, considering
that the proceedings are summary.
(4) There is a preliminary conference wherein lawyers
are excluded, since In some cases, they are only
obstructions to a com promise between the parties.
(5) The appearance of the trial fiscal o f the court is
not required, since he m ight ju st be absent or
come unprepared.
(6) The preliminary conference should be conducted
personally by the judge in the nature o f an
inquisitional hearing.
(7) The proceeding can be decided on the basis of
affidavits or other docum entary evidence because
of its sum mary nature, and oral testim onies of
witnesses w ill be required only w hen needed and
at the discretion of the court.
(8) The case shall be decided in the m ost expeditious
manner and w ith o u t regard to technical rules.
(9) The judgm ent o f the court shall be immediately
final and executory.

(For reference, see M inutes of Com m ittee

iVleeiing o f April 9, 1986).
A rts. 239, 2 4 0 and 24 1

CH APTER 2

SEPARATION IN FACT BETWEEN HUSBAND

AND WIFE

Art. 239 . When a husband and wife are separated in

fact, or one has abandoned the other, and one of them
seeks judicial authorization for a transaction where the
consent of the other spouse is required by law but such
consent is withheld or cannot be obtained, a verified
petition may be filed in court alleging the foregoing facts.

The petition shall attach the proposed deed, if any,

embodying the transaction, and if none, shall describe in
detail the said transaction and state the reason why the
equired consent thereof cannot be secured. In any case,
the final deed duly executed by the parties shall be
submitted to and approved by the court, (n)

Art. 240. Claims for damages by either spouse,

except costs of the proceedings, may be litigated only in a
separate action, (n)

Art. 241. Jurisdiction over the petition shall, upon

proof of notice to the other spouse, be exercised by the
proper court authorized to hear family cases, if one exists ,
or in the regional trial court or its equivalent, sitting in the
place where either of the spouses resides, (n)

Sec. 23 of the Judiciary Reorganization A c t of 1980

(Batas Pambansa Big. 129) authorizes the Supreme Court
to designate certain branches of the Regional Trial Courts
to handle exclusively juvenile and dom estic relations cases.

3S5
336 A rts. 242, 243, 2 4 4 and 2 4 5

Until the faw creating Family Courts is im plem ented,

therefore, all proceedings to the filed under the Family Code
are cognizable by the branches o f the RTCs designated by
the Supreme Court to handle exclusively juvenile and
dom estic relations cases, and in places v\/here no
designation is made, by the RTC of the proper venue of the
case, .:W§

Art. 242. Upon the filing of the petition, the court

shall notify the other spouse, whose consent to the
transaction is required, of said petition, ordering said
spouse to show cause why the petition should not be
granted, on or before the date set in said notice for the
initial conference. The notice shall be accomplished by a
copy of the petition and shall be served at the last known
address of the spouse concerned, (n)

Art. 243 . A preliminary conference shall be conducted ^

by the judge personally without the parties being assisted
by counsel. After the initial conference. If the court deems
it useful, the parties may be assisted by counsel at the
succeeding conferences and hearings, (n)

Art. 244. In case of non-appearance of the spouse

whose consent is sought, the court shall inquire into the
reasons for his or her failure to appear, and shall require
such appearance, if possible, (n)

Art. 245. If, despite all efforts, the attendance of the

non-consenting spouse is not secured, the court may
proceed ex parte and render judgment as the facts and
circumstances may warrant. In any case, the judge shall
endeavor to protect the Interests of the non-appearing
spouse, (n)

Rep Act 8369 creates a family court in every province and city,
but this law has not yet been implemented for lack of funds.
Arts. 246, 247 and 248 3S7

A rt. 246 . If the petition is not resolved at t!ie iniiial

conference, said petition shall be decided in a sutrinifiry
hearing on the basis o f affidavits, docum entary evidence or
oral testim onies at the sound discretion of the court, if
testim ony Is needed, the court shall specify the vyitnesses
to be heard and the subject-m atter o f their testimonies,
directing the parties to present said witnesses, (n)

A rt. 247. The judgm ent of the court shall be

Immediately final and executory, (n)

A rt. 248, The petition for judicial authority to

adm inister or encumber specific separate property o f the
abandoning spouse and to use the fruits or proceeds
thereof fo r the support o f the fam ily shall also be governed
by these rules, (n)
 Arts. 249, 250, 251 and 2S2

CH APTER 3

INCIDEMTS IIMVOLVIMG
PARENTAL AUTHORITY

Art. 249. Petitions filed under Articles 223, 225 and

2 3 5 of this Code involving parental authority aha!! be
verified, (n)

Art. 250. Such petitions shall be filed In the proper

court of the place where the child resides, (n)

The venue of the petitions referred to in the preceding

Art. 249 hereof is the place where the child resides, or if
he resides abroad, in the place where his property or any
part thereof is located.

Art. 251. Upon the filing of the petition, the court

shall notify the parents or, in their absence or Incapacity,
the individuals, entities or institutions exercising parental
authority over the child, (n)

Art. 252. The rules in Chapter 2 hereof shall also

govern summary proceedings under this Chapter Insofar as
they are applicable, (n)

383
Title // - Final Provisions Art. 253 and Art. 254

CHAPTER 4

OTHER MATTERS SUBJECT TO SUM M ARY

PROCEEDIIVGS

Art. 2 5 3 . The foregoing rules in Chapters 2 and 3

hereof shall likewise govern summary proceedings filed
under Articles 41, 51, 69, 73, 96, 124 and 217, insofar
as they are applicable, (n)

TITLE II

FINAL PROVISIONS

Art. 254. Titles ill, IV, V, VI, VII, VIII, IX, XI and XV
of Book I of Republic Act No. 386, otherwise known as
the Civil Code of the Philippines, as amended, and Articles
17, 18, 19, 27, 28, 29, 30, 31, 39, 40, 41 and 4 2 of
Presidential Decree No. 603, otherwise known as the Child
and Youth Welfare Code, as amended, and all laws,
decrees, executive orders, proclamations, rules and
regulations, or parts thereof, inconsistent herewith are here
by repealed, (n)

The Titles of Book I of the Civil Code of the

Philippines that have been expressly repealed by the Family
Code are:
(1) Title ill. Marriage;
(2) Title IV. Legal Separation;
(3) Title V. Rights and Obligations between Husband
and Wife;

383
390 2 55 and A rt 2 5 q

(4) Title VI. Property Relations between Husband and

W ife;
(5) Title VII. The Family;
(6) Title VIII. Paternity and Filiation;
(7} Title IX. SL'pport;
(8} Title XI. Parental A u th o rity ; and
(9) Title XV. Emancipation and Age of M ajority.

A rts. 17, 18, 19, 27, 28, 2 9 , 30, 31, 39, 40, 41 and
42 of P.D. 6 0 3 , as am ended, on Parental A u th o rity and
A d option , have also been expressly repealed by the Family
Code, and later, by Rep. A c t 8 5 5 2 as to A doption.

Art. 255. If any provision of this Code is held invalid,

ail the other provisions not affected thereby shall remain
valid, (n)
■

Art. 256. This Code shall have retroactive effect

Insofar as it does not prejudice or Impair vested or acquired
rights in accordance with the Civil Code or other laws, (n)

(1) R etroactivity is only in cases where it w ill not

impair vested rights under the Civil Code or other
laws. (Colesterio v. Colesterio GR 136 467, April
6 , 2000 ).

(2) W hat is meant by, or w h a t constitutes, "vested

or acquired rights" under the above Article? The
Family Code does not so define. For, tike the
Code Commission that drafted the Civil Code of
the Philippines, the Com m ittee did not define w hat
is meant by a "vested or acquired" right, leaving
it to the courts to determ ine w h at it means as
each particular issue is subm itted to them, as it is
d iffic u lt to provide for each and every question
that may arise in the future (see Report of the
Code Commission th a t drafted the Civil Code of
the Philippines, pp. 165-166).
Art. 256 391

(3) However, in Balboci v. Farrales, 52 Phil. 498, the

Supreme Court defined a vested right as "some
right or interest in property that has become fixed
or established, and is no longer open to doubt or
controversy. Rights are vested v^hen the right to
enjoym ent, present or prospective, have become
the property o f some person as present interest."
(see also Marquino v. lAC, 233 SCRA 348).
Examples are the rights already vested in the
vendee a retro under the Old Civil Code
(Manalansan v. Manalang, 108 Phil. 104), or the
successional rights already acquired by the lawful
w ife from her husband w ho died before the New
Civil Code took effect (Uson v. Del Rosario, 92
Phil. 530).

(4) Contractual rights cannot also be impaired by

subsequent laws that change the intention of the
parties or m odify their rights and obligations (Art.
Ill, Sec. 10, 1987 Constitution) so as to prejudice
the original rights of either o f the parties (Clemens
V. Nolting, 42 Phil. 702). And in case of
remedies, there will be im pairment only if all of
them are w ith dra w n, w ith the result that either of
the parties will be unable to enforce his rights
under the original agreement (Manila Trading Co.
V. Reyes, 62 Phil. 461).

(5) As to acts contrary to law or w hich infringe orl

the rights of others. "\t is evident that no one can
validly claim any vested or acquired right if the
same is founded upon his having violated the law
or invaded the rights of others. The principle is
universally accepted." (Report of the Code
Commission on the Civil Code of the Philippines,
p. 167).

(6) New rules of procedure can also apply to causes

o f action that have accrued under past laws or
392 Art. 256

actions already pending when a new iaw takes

effect, since there are no vested rights in rufes of
procedure (People v. Surnilang, 77 Phil, 764;
Aguillon v. Dir. of Lands, 17 Phil. 507}.

(7) The above principles and rules, among others,

may be applied to determine whether certain
provisions of the Family Code may be given
retroactive effe ct or not. But it can safely be said
that the new grounds for declaration of nullity of
marriage, annulm ent of marriage, and legal
separation in the Family Code may be given
retroactive effect, provided the periods of
prescription have not yet expired, since they do
not involve property or contractual rights. The
provisions of the Code giving equal rights to
husband and w ife in the family, and liberalizing
the status and the mode and kind of proof of
filiation of illegitim ate children, may also be given
retroactive effect as they are new rights created
by the Code provided again that they do not
affect vested rights. These are but examples, and
as cases and problems are brought to our courts
for solution under the Family Code, w e are
confident, as the Code Commission th a t drafted
the New Civil Code more than fifty years ago was
before us, that our courts, w ith their high and
enlightened sense of justice, w ill be able to
determine rightly and well in w h a t cases the
Family Code can be made to apply retroactively
and when it cannot be so applied.

(8) Note, however, that in A rt. 105 o f the Code, it is

expressly provided that the provisions of the Code
on conjugal partnership of gains are also
applicable to conjugal partnerships already
established before the e ffe ctivity o f the Code,
w ith o u t prejudice to vested rights. Also, A rt. 162
provides that the provisions o f the Code on the
 , ’ff
Art. 257 393
fam ily home govern existing residences insofar as
said provisions are applicable.

A rticle 257 , This Code shall take effect one year after
the com pletion o f its publication \n a newspaper of general
circulation, as certified by the Executive Secretary, O ffice
of the President.

Publication shall likewise be made In the Official

Gazette, (n)

The Family Code was com pletely published in the

August 4, 1987 issue of the Manila Chronicle, as duly
certified by then Executive Secretary Joker P. Arroyo.
Hence, it took effect one year after such publication, or on
A ugust 3, 1988, considering th a t 1988 is a leap year
(M em orandum Circular No. 85 of the O ffice of the President
dated November 7, 1988; also M odequillo v. Breva, GR
8 6 3 5 5 , M ay 31, 1990).

Done in the City o f Manila, this 6th day of July, in

the year o f Our Lord, nineteen hundred and eighty-seven.

(Sgd.) CORAZON C. AQUINO

President
Republic of the Philippines

By the President:

(Sgd.) JOKER P. ARROYO

Executive Secretary
 w
SSB
A pp o m iix - A -

APPENDIX " A "

REPUBLIC A C T WO. 8 0 4 3

AN ACT ESTABLISHING THE RULES TO

GOVERM INTER-COUNTRY ADOPTION OF
FILIPINO CHILDREN, AND FOR OTHER
PURPOSES

Be it enacted by the Senate and House of

Representatives of the Philippines in Congress Assembled:

ARTICLE I
■
GENERAL PROVISIONS

SECTION 1. Short Title. - This Act shall be known as

the "inter-Country Adoption Act of 1995" i
■M
SEC. 2 - Declaration o f Policy. - It is hereby declared
the policy of the State to provide every neglected and
abandoned child with a family that will provide such child
with love and care as w^ell as opportunities for growth and
development. Towards this end, efforts shall be exerted to
place the child with an adoptive family in the Philippines.
However, recognizing that inter-country adoption may be
considered as allowing aliens, not presently allowed by law
to adopt Filipino children if such children cannot ‘ be
adopted by qualified Filipino citizens or aliens, the State
shall take measures to ensure that inter-country adoptions
are allowed when the same shall prove beneficial to the
child's best interests, and shall serve and protect his/her
fundamental rights.
SEC, 3. D efinition o f Terms. - As used in this Act,
the term:
394
Republic Act l\!o. 8043 395

a) in ter-country adoption refers to the socio-legal

process of adopting a Filipino child by a foreigner
or a Filipino citizen permanently residing abroad
where the petition is filed, the supervised trial
custody is undertaken, and the decree of adoption
is issued outside the Philippines.
b) Child means a person below fifteen (15) years of
age unless sooner emancipated by law.
c) Departm ent refers to the Department of Social
■ Welfare and Development of the Republic of the
Philippines.
d} Secretary refers to the Secretary of the
Department of Social Welfare and Development.
e) A uthorized and accredited agency refers to the
State welfare agency or a licensed adoption
agency in the country of the adopting parents
which provide comprehensive social services and
which is duly recognized by the Department.
f) Legaf/y-free chiid means a child who has been
voluntarily or involuntarily committed to the
Department, in accordance with the Child and
Youth Welfare Code.
g) iVlatching refers to the judicious pairing of the
adoptive child and the applicant to promote a
mutually satisfying parent-child relationship.
h) Board refers to the Inter-Country Adoption Board.

ARTICLE II

INTER-COUNTRY ADOPTION BOARD

SEC. 4. The Inter-C ountry A doption Board. - There is

hereby created the Inter-Country Adoption Board, herein
after referred to as the Board, to act as the central
authority in matters relating to inter-country adoption. It
shall act as the policy-making body for the purpose of
carrying out the provisions of this Act, in consultation and
coordination with the Department, the different chiid-care
396 Appendix "A "

and placement agencies, adoptive agencies as well as non

government organizations engaged in child-care and
placement activities. As such, it shall:
a) Protect the Filipino child from abuse, exploitation^
trafficking and/or sale or any other practice ih
connection with adoption v^hich is harmful,
detrimental, or prejudicial to the child;
b) Collect, maintain and preserve confidential
information about the child and the adoptive
parents;
c) Monitor, follow up, and facilitate completion of
adoption of the child through authorized and
accredited agency;
d) Prevent improper financial or other gain in
connection with an adoption and deter improper
practices contrary to this Act.
e) Promote the development of adoption services
including post-legal adoption;
f) License and accredit child-caring/placement
agencies and collaborate with them in the
placement of Filipino children;
g) Accredit and authorize foreign adoption agency in
the placement of Filipino children in their own
country; and
h) Cancel the license to operate and black-list the
child-caring and placement agency or adoptive
agency involved from the accredition list of the
Board upon a finding of violation of any provision
under this Act.

SEC. 5. Composition o f the Board. - The Board shall

be composed of the Secretary of the Department as ex
officio Chairman, and six (6) other members to be
appointed by the President for a non-renewable term of six
(6) years. Provided, that there shall be appointed one (1)
psychiatrist or psychologist, two (2) lawyers who shall
have at least the qualifications of a regional trial court
R op u b tio A c t N o , 8 0 4 3 397

judge, one (1) registered social worker and two (2)

representatives from non-governmental organizations
engaged in child-caring and placement activities. The
members of the Board shall receive as per diem allowance
of One thousand five hundred pesos ( P I,500) for each
meeting attended by them. Provided, further, that no
compensation shall be paid for more than four (4) m eetings
a month.

SEC. 6. Powers and Functions o f the Board. - The

Board shall have the following powers and functions:

a) to prescribe rules and regulations as it may deem

reasonably necessary to carry out the provisions
of this Act, after consultation and upon favorable
recommendation of the different agencies
concerned with child-caring placement, and
adoption.
b) to set the guidelines for the convening of an
Inter-country Adoption Placement Committee
which shall be under the direct supervision of the
Board.
c) to set the guidelines for the manner by which
selection / matching of prospective adoptive
parents and adoptive child can be made;
d) to determine a reasonable schedule of fees and
charges to be exacted in connection with the
application for adoption;
e) to determine the form and contents of the
application for inter-country adoption;
f) to formulate and develop policies, programs and
services that will protect the Filipino child from
abuse, exploitation, trafficking and other adoptive
practice that is harmful, detrimental and prejudicial
to the best interest of the child;
g) to institute systems and procedures to prevent
improper financial gain in connection with
adoption and deter improper practices which are
contrary to this Act;
J98 ApponcJix "A ”

i) to accredit and authorize foreign private adoption

agencies which have demonstrated
professionalism, competence and have consistently
pursued non-profit objectives to engage in the
placement of Filipino children in their own
country. Provided, that such foreign private
agencies are duly authorized and accredited by
their own government to conduct inter-country
adoption: Provided, however, that the total
number of authorized and accredited foreign
private adoption agencies shall not exceed one
hundred (100} a year;
j) to take appropriate measures to ensure confi­
dentiality of the records of the child, the natural
parents and the adoptive parents at all times;
k) to prepare, review or modify, and thereafter,
recommend to the Department of Foreign Affairs,
Memoranda of Agreement respecting inter-country
adoption consistent with the implementation of
this Act and its stated goals, entered into,
between and among foreign governments,
international organizations and recognized
international non-governmental organizations:
I) to assist' other concerned agencies and the courts
in the implementation of this Act, particularly as
regards coordination with foreign persons,
agencies and other entities involved in the process
of adoption and the physical transfer of the child;
and
m) to perform such other functions on matters
relating to inter-country adoption as may be
determined by the President.

ARTICLE III

PROCEDURE

SEC. 7. inter-C ountry A doption as the Last Resort. -

The Board shall ensure that all possibilities for adoption of
p-
w
S- Rspublic A c t No. 8 0 4 3 399

the child under the Famiiy Code have been exhausted and
that inter-country adoption is In the best interest the
child. Towards this end, the Board shall set up "rici
guidelines to ensure that steps will be taken to place the
child in the Philippines before the child is placed for inter­
country adoption: Provided, however, that the maximum
number that may be allowed for foreign adoption shall not
exceed six hundred (600) a year for the first five (5) years.

SEC. 8. Who M ay be Adopted. - Only a legally free

child may be the subject of inter-country adoption. In order
that such child may be considered for placement, the
following documents must be submitted to the Board:
a) Child study;
b) Birth certificate/founding certificate;
c) Deed of voluntary commitment/decree of
abandonment/death certificate of parents;
d) Medical evaluation /history;
e) Psychological evaluation, as necessary; and
f) Recent photo of the child.

SEC. 9. Who M ay Adopt. - Any alien or a Filipino

citizen permanently residing abroad may file an application
for inter-country adoption of a Filipino child if he/she;

a) is at least twenty-seven (27) years of age and at

least sixteen (16) years older than the child to be
adopted, at the time of application unless the
adopter is the parent by nature of the child to be.
adopted or the spouse of such parent;
b) if married, his/her spouse must jointly file for the
adoption;
c) has the capacity to act and assume all rights and
responsibilities of parental authority under his
national laws, and has undergone the appropriate
counselling from an accredited counselor in his/her
country;
d) has not been convicted of a crime involving moral
turpitude;
400 A p p e n d ix " A "

e) is eligible to adopt under his/her national law;

f) is in a position to provide the proper care and
support and to give the necessary moral values
and examples to all his children, including the
child to be adopted;
g) agrees to uphold the basic rights of the child as
embodied under Philippine lav\/s, the U.N,
Convention on the Rights of the Child, and to
abide by the rules and regulations issued to
implement the provisions of this Act;
h} comes from a country with whom the Philippines
has diplomatic relations and whose government
maintains a similarly authorized and accredited
agency and that adoption is allowed under his /
her national laws, and
i) possesses all the qualifications and none of the
disqualifications provided herein and in other
applicable Philippine laws.

SEC. 10. Where to file Application. - An application to

adopt a Filipino child shall be filed either with the Philippine
Regional Trial Court having jurisdiction over the child, or
with the Board, through an intermediate agency, in the
country of the prospective adoptive parents, which
application shall be in accordance with the requirements as
set forth in the implementing rules and regulations to be
promulgated by the Board.

The application shall be supported by the following

documents written and officially translated in English:
a) Birth certificate of applicant(s);
b) Marriage contract, if married, and divorce decree,
if applicable;
c) Written consent of their biological or adopted
children above ten (10) years of age, in the form
of sworn statement;
d) Physical, medical and psychological evaluation by
a duly licensed physician and psychologist;
Republic Act No. 8043 401

e) Income tax returns or any document showing the

financial capability of the applicant(s);
f) Police clearance of applicant(s);
g) C h a ra c te r re fe re n c e s fro m th e local c h u rc h /
minister, the applicant's employer and a member
of the immediate community who have known the
applicant(s) for at least five {5)>years; and
h) Recent postcard-size pictures of the applicant(s)
and his immediate family.

The Rules of Court shall apply in case of adoption by

judicial proceedings.

SEC. 11. Fam ily Selection/M atching. - No child shall

be matched to a foreign adoptive family unless it is
satisfactorily shown that the child cannot be adopted
locally. The clearance, as issued by the Board, with the
copy of the minutes of the meetings, shall form part of the
records of the child to be adopted. When the Board is
ready to transmit the Placement Authority to the authorized
and accredited inter-country adoption agency and all the
travel documents of the child are ready, the adoptive
parents, or any one of them, shall personally fetch the
child in the Philippines.

SEC. 12. 9re-adoptive Placement Costs. - The

applicant(s) shall bear the following costs incidental to the
placement of the child:
a) The cost of bringing the child from the Philippines
to the residence of the applicant(s) abroad,
including all travel expenses within the Philippines
and abroad; and
b) The cost of transport, visa, medical examination
and psychological evaluation required, and other
related expenses.

SEC. 13. Fees, Charges and Assessments. - Fees,

charges, and assessments collected by the Board in the
exercise of its functions shall be used solely to process
402 Appendix "A"

applications for inter-country adoption and to support the

activities of the Board.

SEC. 14. Supervision o f Trial Custody. - The

governmental agency or the authorized and accredited
agency in the country of the adoptive parents which filed
the application for \ inter-country adoption shall be
responsible for the trial custody and the care of the child.
It shall also provide family counseling and other related
services. The trial custody shall be for a period of six (6)
months from the time of placement. Only after the lapse of
ijie period of the trial custody shall a decree of adoption
be issued in the said country, a copy of which shall be
sent to the Board to form part of the records of the child.
During the trial custody, the adopting parent(s) shall
submit to the governmentar agency or the .authorized and
accredited agency, which shall in turn transmit a copy to
the Board, a progress report of the child's adjustment. The
progress report shall be taken into consideration in deciding
whether or not to issue the decree of adoption.
The Department of Foreign; Affairs shall; set-up a
system by which Filipino children sent abroad for trial
custody are monitored and r checked as reported by the
authorized and accredited inter-country adoption agency as
well as the repatriation to the Philippines of the Filipino
child whose adoption has hot beisn approved.

SEC. 15. Executive A g re e m e rit - I h e Department of

Foreign Affairs; upori represehtatibh' of the Board, shall
cause the preparation of Executive Agreements with
countries of the fbreign adoption agericies to ensure the
legitimate concurrence of said countries in upholding the
safeguards provided-by^ this Act,, i -
Republic A c t No. S 0 4 3 ,i.()3

ARTiCLE iV

PENALTIES

SEC. 16. Penalties. - a) Any person who shail

knowingly participate in the conduct of or carrying out an
illegal adoption, in violation of the provisions of this Act,
shall be punished with a penalty of imprisonment ranging
from six (6) years and one (1) day to twelve (12) years
and/or a fine of not less than Fifty thousand pesos
(P50,000), but not more than Two hundred thousand
pesos {P200,000), at the discretion of the court. For
purposes of this Act, an adoption is illegal if it is effected
in any manner contrary to the provisions of this Act or
established State policies, its implementing rules and
regulations, executive agreements, and other laws
pertaining to adoption. Illegality may be presumed from the
following acts:

1) consent for adoption was acquired through, or

attended by coercion, fraud, improper material
inducement;
2) there ts no authority from the Board to effect
adoption;
3) the procedures and safeguards placed under the
laws for adoption were not complied with, and
4) the child to be adopted is subjected to, or exposed
to danger, abuse and exploitation.
b) Any person who shall violate estabfish-:;d
regulations relating to the confidentiality and
integrity of records, documents and
communications of adoption application, cases
and processes shall suffer the penally of
imprisonment ranging from one (1) year and
one (1) day to two (2) years, and/or a fine of
not less tan Five thousand pesos {P5,000),
but more than Ten thousand pesos (PI 0,000),
at the discretion of the court.
404 Appondix "A '

A penalty lower by two (2) degrees than that

prescribed for the consummated felony under this article
shall be Imposed upon the principals of the attempt to
commit any of the act? herein enumerated.
Acts punishable under this Article, when committed by
a syndicate or where it involves two or more children shall
be considered an offense constituting child trafficking and
shall merit the penalty of reclusion perpetua.
Acts punishable under this Article are deemed
committed by a syndicate if carried out by a group of three
(3) or more persons conspiring and/or confederating with
one another in carrying out any of the unlawful acts
defined under this Article. Penalties as are herein provided
shall be in addition to any other penalties which may be
imposed for the same acts punishable under other taws,
ordinances, executive orders, and proclamations.

SEC. 17. Public O fficers as Offenders. Any

government official, emplovee or functionary who shall be
found guilty of violating ?ny of the provisions of this Act,
or who shall conspire with private individuals shall, in
addition to the above-prescribed penalties, be penalized in
accordance with existing civil service laws, rules and
regulations: Provided, That upon the filing of a case, either
administrative or criminal, said government official,
employee or functionary concerned shall automatically
suffer suspension until the resolution of the case.

ARTICLE V

FINAL PROVISIONS

SEC. 18. \mplem enting Rules and Regulations. - The

Inter-country Adoption Board, in coordination with the
Council for the Welfare of Children, the Department of
Foreign Affairs, and the Department of Justice, after due
consultation with agencies involved in child-care and
 I Ropubtic A c t No. 8043
*-> th 0
p placement, shall promulgate the necessary rules
i| regulations to implement the provisions of this Act w ith in .
I six (6) months after its effectivity.

SEC. 19. Appropriations. - The amount of Five millic ^

pesos {P5,0 0 0 ,0 0 0 ) is hereby appropriated from the
proceeds of the Lotto for initial operations of the Board and
subsequently the appropriations of the same shall be
included In the General Appropriations Act for the year
following its enactment.

SEC. 20. Separability Clause. - If any provision, or

part hereof, is held invalid or unconstitutional, the
remainder of the law or the provision not otherwise
affected shall remain valid and subsisting.

SEC. 21. Repealing Clause. - Any law decree,

executive order, administrative order or rules and
regulations contrary to, or Inconsistent with the provisions
of this Act are hereby repealed, modified or amended
accordingly.

SEC. 22. E ffe ctivity Clause. - This Act shall take

effect fifteen (15) days after its publication in two (2)
newspapers of general circulation.

Approved June 7, 1995.

 A p p e n d ix " 3 "

APPENDIX "B"
R EP U B LIC A C T N O . 8 5 5 2

AN ACT ESTABLISHING THE RULES AND

POLICIES ON THE DOMESTIC ADOPTION OF
FILIPINO CHILDREN AND FOR OTHER
PURPOSES.

Be it enacted by the Senate and House of

Representatives of the Philippines in Congress assembled:

ARTICLE I

G E N E R A L P R O V IS IO N S

SECTION 1. Short Title. - This Act shall be known as

the "Domestic Adoption Act of 1998."

SEC. 2. Declaration o f Policies -

(a) It is hereby declared the policy of the State to

ensure that every child remains under the care
and custody of his/her parent(s) and be provided
with love, care, understanding and security
towards the full and harmonious development of
his/her personality. Only when such efforts prove
insufficient and no appropriate placement or
adoption within the child's extended family is
available shall adoption by an unrelated person be
considered.
(b) In all matters relating to the care, custody and
adoption of a child, his/her interest shall be the

406
R ep u b lic A c t N o. 8 5 5 2 407

paramount consideration in accordance with the

tenets set forth in the United Nations (UN)
Convention on the Rights of the Child; UN
Decfaration on Social and Legal Principles relating
to the Protection and Welfare of Children with
Special Reference to Foster Placement and
Adoption, Nationally and Internationally, and the
Hague Convention on the Protection of Children
and Cooperation in Respect of Inter-country
Adoption. Toward this end, the State shall provide
alternative protection and assistance through
foster care or adoption for every child who is
neglected, orphaned, or abandoned.
(c) It shall also be a State policy to:
(i) Safeguard the biological parent{s) from making
hurried decisions to relinquish his/her parental
authority over his/her child;
(fi) Prevent the child from unnecessary separation
from his/her biological parent(s);
(iii) Protect adoptive parent(s) from attempts to
disturb his/her parental authority and custody
over his/her adopted child.

Any voluntary or involuntary termination of parental

authority shall be administratively or judicially declared so
as to establish the status of the child as “legally available
for adoption" and his/her custody transferred to the
Department of Social Welfare and Development or to any
duly licensed and accredited child-placing or child-caripig
agency, which entity shall be authorized to take steps for
the permanent placement of the child;
(iv) Conduct public information and educational
campaigns to promote a positive environment
for adoption:
(v) Ensure that sufficient capacity exists within
government and private sector agencies to
handle adoption inquiries, process domestic
adoption applications, and offer adoption-
related services including, but not limited to,
^■08 Appendix "B"

parent preparation and pocl-adoptton

education and counselling; and
(vi) Encourage domestic adoption so as to
preserve the child’s identity and culture in his/
her native land, and only when this is not
a\/ailsb!e shall inter-country adoption be
considered as a last resort.

S£C. 3. Definition o f terms. - For purposes of this

Act,, the following terms shall be defined as:

(a) "Child" is a person below eighteen (18) years of

age.
(b) "A child legally available for adoption" refers to a
child who has been voluntarily or involuntarily
cor'nrnitted to the Department or to a duly
licensed and accredited child-placing or child-caring
agency, freed of the parental authority of his/her
biological parent(s) or guardian or adopter(s) in
case of rescission of adoption.
(c) "Voluntarily committed child" is one whose
parent(s) knowingly and willingly relinquishes
parental authority to the Department.
(d) "Involuntarily committed child" is one whose
parent(s), known or unknown, has been
permanently and judicially deprived of parental
authority due to abandonment; substantial,
continuous, or repeated neglect; abuse; or
incompetence to discharge parental responsibilities.
(e) "Abandoned child" refers to one who has no
proper parental care or guardianship or whose
parent(s) has deserted him/her for a period of at
least six (6) continuous months and has been
judicially declared as such
(f) "Supervised trial custody" is a period of time
within which a social worker oversees the
adjustment and emotional readiness by both
adopter(s) and adoptee in stabilizing their filial
relationship.
r
ffopub/ic A c t N o. 8 5 5 2 409

(g) "Department" refers to the Depcirtfrient of Social

Welfare and Deveiopment.
(h) "Child-placing agency" Is a duiy licensed and
accredited agency by the Department to provide
comprehensive child welfare services including,
but not limited to, receiving applications for
adoption, evaluating the prospective adoptive
parents and preparing the adoption home study.
(i) "Child-caring agency" is a duly licensed and
accredited agency by the Department that
provides twenty four (24) hour residential care
services for abandoned, orphaned, neglected, or
voluntarily committed children.
(j) "Simulation of birth" is the tampering of the civil
registry making it appear in the birth records that
a certain child was born to a person who is not
his/her biological mother, causing such child to
lose his/her true identity and status.

ARTICLE U

PRE-ADOPTIOIM SERVICES

SEC. 4. Counselling Services - The Department shall

provide the services of licensed social workers to the
following:

(a) Biological Parent(s) - Counselling shall be providefi

to the parent(s) before and after the birth of his/
her child. No binding commitment to an adoption
plan shall be permitted before the birth of his/her
child. A period of six (6) months shall be allowed
for the biological parent(s) to reconsider any
decision to relinquish his/her child for adoption
before the decision becomes irrevocable.
Counselling and rehabilitation services shall also be
offered to the biological parent(s) after he/she has
relinquished his/her child for adoption.
410 A p p e n d ix "Q "

Steps shall be taken by the Department to

ensure that no hurried decisions are made and all
alternatives for the child's future and the
implications of each alternative have been
adopted.
(b) Prospective Adoptive Parent(s) - Counseling
sessions, adoption fora and seminars among
others, shall be provided to prospective adoptive
parent(s) to resolve possible adoption issues and
to prepare him/her for effective parenting.
(c) Prospective Adoptee - Counseling sessions shall
be provided to ensure that he/she understands the
nature and effects of adoption and is able to
express his/her views on adoption in accordance
with his/her age and legal of maturity.

SEC. 5. Location o f Unknow n Parentfs}. - It shall be

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

SEC. 6. S upport Services. - The Department shall

develop a pre-adoption program which shall include among
others, the above mentioned services.

ARTICLE III

E L IG IB IL IT Y

SEC. 7. Who iViay Adopt. - The following may adopt:

(a) Any Filipino citizen of legal age in possession of

full civil capacity and legal rights, of good moral
character, has not been convicted of any crime
involving moral turpitude, emotionally and
R ep u b lic A c t N o. 8 5 5 2 41 7

psychologically capable of caring for children, at

least sixteen (16) years older than the adoptee,
and who is in a position to support and care for
his/her children in keeping with the means of the
family. The requirement of sixteen (16) year
difference between the age of the adopter and
adoptee may be waived when the adopter is the
biological parent of the adoptee, or is the spouse
of the adoptee's parent.
(b) Any alien possessing the , same qualifications as
above stated for Filipino nationals: Provided, That
his/her country has diplomatic relations with the
Republic of the Philippines, that he/she has been
living in the Philippines for at least three (3)
continuous years prior to the filling of the
application for adoption and maintains such
residence until the adoption decree is entered, that
he/she has been certified by his/her diplomatic or
consular office or any appropriate government
agency that he/she has the legal capacity to adopt
in his/her country, and that his/her government
allows the adoptee to enter his/her country as his/
her adopted son/daughter: Provided, Further, That
the requirements on residency and certification of
the alien's qualification to adopt in his/her country
may be waived for the following:

(i) a former Filipino citizen who seeks to adopt a

relative within the fourth (4th) degree pf
consanguinity or affinity; or
' (ii) one who seeks to adopt the legitimate son/
daughter of his/her Filipino spouse; or
(iii) one who is married to a Filipino citizen and
seeks to adopt jointly with his/her spouse a
relative within the fourth (4th) degree of
consanguinity or affinity of the Filipino
spouse; or
^^12 Appendix "B"

(c) The guardian with respect to Ihe ward after the

termination of the guardianship and clearance of
his/her financial accountabilities.

Husband and wife shall jointly adopt, except in the

following cases:
(i) if one spouse seeks to adopt the legitimate son/
daughter of the other; or
(ii) if one spouse seeks to adopt his/her own
illegitimate son/daughter: Provided, However, that
the other spouse has signified his/her consent
thereto; or
(iii) if the spouses are legally separated from each
other.

In case husband and wife jointly adopt, or one spouse

adopts the illegitimate son/daughter of the other, joint
parental authority shall be exercised by the spouses.

SEC. 8. Who M ay Be Adopted. - The following may

be adopted:

(a) Any person below eighteen (18) years of age who

has been administratively or judicially declared
available for adoption:
(b) The legitimate son/daughter of one spouse by the
other spouse;
(c) An illegitimate son/daughter by a qualified adopter
to improve his/her status to that of legitimacy;
(d) A person of legal age if, prior to the adoption,
said person has been consistently considered and
treated by the adopter(s) as his/her own child
since minority;
(e) A child whose adoption has been previously
rescinded; or
(f) A child whose biological or adoptive parent(s) has
died; Provided, That no proceedings shall be
initiated within six (6) months from the time of
death of said parent(s).
Ropublic Act No, 8552 413

SEC. 9. Whose Consent is Necessary to the Adoption.

- After being properly counseled a n d iniorm ed of his/her
right to give or withhold his/her approval of the adoption,
the written consent of the folio w ing to the adoption is
hereby required:

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

(b) The bioiogical parent(s) of the child, if known, or
the legal guardian, or the proper government
instrumentality which has, legal custody of the
child;
(c) The legitimate and adopted sons/daughters by a
qualified adopter to improve his/her status to that
of legitimacy;
(d) A person of legal age if, prior to the adoption,
said person has been consistently considered and
treated by the adopter(s) as his/her own child
since minority;
(e) A child whose adoption has been previously
rescinded; or
(f) A child whose biological or adoptive parent(s) has
died; Provided, That no proceedings shall be
initiated within six (6) months from the time of
death of said parent(s).

SEC. 9. Whose Consent is Necessary to the Adoption

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

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

(b) The biological parent(s) of the child, if known or
the legal guardian, or the proper government
instrumentality which has legal custody of the
child;
(c) The legitimate and adopted sons/daughters, ten
(10) years of age or over, of the adopter(s) and
adoptee, if any;
474 Appendix "B"

(d) The illegitimate sons/dauphters, ten (10) years of

age or over, of the adopter if living with said
adopter and the latter's spouse, if any; and
(e) The spouse, if any, of the person adopting or to
be adopted.

ARTICLE IV

PR O C ED U R E

SEC. 10. Hurried Decision, - In ail proceedings for

adoption, the court shall require proof that the biological
parent(s) has been properly counseled to prevent him/her
from making hurried decisions caused by strain or anxiety
to give up the child, and to sustain that all measures to
strengthen the family have been exhausted and that any
prolonged stay of the child In his/her own home will be
inimical to his/her welfare and interest.
SEC. 11. Case Study, - No petition for adoption shall
be set for hearing unless a licensed social worker of the
Department, the social service office of the local
government unit or any child-placing or child-caring agency
has made a case study of the adoptee, his/her biological
parent(s), as well as the adopter(s), and has submitted the
report and recommendations on the matte; Lo the court
hearing such petition.
At the time of preparation of the adoptee's case
study, the concerned social worker shall confirm with the
Civil Registry the real identity and registered name of the
adoptee. If the birth of the adoptee was not registered
with the Civil Registry, it shall be the responsibility of the
concerned social worker to ensure that the adoptee is
registered.
The case study on the adoptee shall establish that he/
she is legally available for adoption and that the document
to support this fact are valid and authentic. Further, the
case study of the adopter{s} shall ascertain his/her genuine
Rf?fjubHc N o. 8 5 5 2 4 7(^

intensions and that the adoption is in the best interest of

the child.
The Department shall intervene on behalf of the
adoptee if it finds, after the conduct of the case studies,
that the petition should be denied. The case studies and
other relevant documents and records pertaining to the
adoptee and the adoption shall be preserved by the
Department.
SEC. 12. Supervised Trial Custody. - No petition for
adoption shall be finally granted until the adopter(s) has
been given by the court a supervised trial custody period
fpr at least six (6) months within which the parties are
expected to adjust psychologically and emotionally to each
other and establish a bonding relationship. During said
period, temporary parental authority shall be vested in the
adopter(s).
The court may m otu propio or upon motion of any
party reduce the trial period if it finds the same to be in
the best interest of the adoptee, stating the reasons for the
reduction of the period. However, for alien adopter(s), he/
she must complete the six (6)-month trial custody except
for those enumerated in Sec. 7 (b) (i) (ii) (iii).
If the child is below seven (7) years of age and is
placed with the prospective adopter(s) through a pre­
adoption placement authority issued by the Department, the
prospective adopter(s) shall enjoy all the benefits to which
biological parent(s) is entitled from the date the adoptee is
placed with the prospective adopter(s).
SEC. 13. Decree o f Adoption. - If, after the
publication of the order of hearing has been complied with,
and no opposition has been interposed to the petition, and
after consideration of the case studies, the qualifications of
the adopter(s), trial custody report and the evidence
submitted, the court is convinced that the petitioners are
qualified to adopt, and that the adoption would redound to
the best interest of the adoptee, a decree of adoption shall
be entered which shall be effective as of the date the
original petition was filed. This provision shall also apply in
4 76 Appendix "B"

case the petitioner{s) dies before the issuance of the decree

of adoption to protect the interest of the adoptee. The
decree shall state the name by which the child is to be
known.
SEC. 14. Civil Registry Record. - An amended
certificate of birth shall be issued by the Civil Registry, as
required by the Rules of Court, attesting to the fact that
the adoptee is the child of the adopter(s) by being
registered with his/her surname. The original certificate of
birth shall be stamped "cancelled" with the annotation of
the issuance of an amended birth certificate in its place
and shall be sealed in the civil registry records. The new
birth certificate to be issued to the adoptee shall not bear
any notation that it is an amended issue.
SEC. 15. C onfidential Nature o f Proceedings and
Records. - All hearings in adoption cases shall be
confidential and shall not be open to the pubic. All records,
books, and papers relating to the adoption cases in the
files of the court, the Department, or any other agency or
institution participating in the adoption proceedings shall be
kept strictly confidential.
If the court finds that the disclosure of the information
to a third person is necessary for purposes connected with
or arising our of the adoption and will be for the best
interest of the adoptee, the court may merit the necessary
Information to be released, restricting the purposes for
which it may be used.

AR TICLE V

EFFEC TS O F A D O P T IO N

SEC. 16. Parental A u th o rity - Except in cases where

the biological parent is the spouse of the adopter, all legal
ties between the biological parent(s) and the adoptee shall
be severed and the same shall then be vested on the
adopter(s).
R ep u b lic A c t N o . 8 5 S 2 <^17

SEC. 17. Legitimacy. - The adoptee shall be

considered the legitimate son/daughter of the adopter{s) for
all intents and purposes and as such is entitled to all the
rights and obligations provided by law to legitimate sons/
daughters born to them without discrimination of any kind.
To this end, the adoptee is entitled to love, guidance, and
support in keeping with the means of the family.
SEC. 18. Succession. - In legal and intestate
succession^ the adopter{s) and the adoptee shall have
reciprocal rights of succession without distinction from
legitimate filiation. However, if the adoptee and his/her
biological parent(s) had left a will, the law on testamentary
succession shall govern.

ARTICLE VI

R E S C IS S IO N OF A D O P T IO N

SEC. 19. Grounds fo r Rescission o f Adoption. - Upon

petition of the adoptee, with the assistance of the
Department if a minor or if over eighteen (18) years of age
but is incapacitated, as guardian/counsel, the adoption may
be rescinded on any of the following grounds committed
by the adopter{s); (a) repeated physical and verbal
maltreatment by the adopter(s) despite having undergone
counseling; (b) attempt on the life of the adoptee; (c)
sexual assault or violence: or (d) abandonment and failure
to comply with parental obligations.
Adoption, being in the best interest of the child, shall
not be subject to rescission by the adopter(s). However,
the adopter(s) may disinherit the adoptee for causes
provided in Article 919 of the Civil Code.
SEC. 20. Effects o f Rescission. - If the petition is
granted, the parental authority of the adoptee's biological
parent(s), if known, or the legal custody of the Department
shall be restored if the adoptee is still a minor or
incapacitated. The reciprocal rights and obligations of the
418 A p p e n d ix "B "

acJopter(s) and the adoptee to each other shall be

extinguished.
The court shall order the Civil Registrar to cancel the
amended certificate of birth of the adoptee and restore his/
her original birth certificate.
Successional rights shall revert to its status prior to
adoption, but only as of the date of judgnnent of judicial
rescission. Vested rights acquired prior to judicial rescission
shall be respected.
All the foregoing effects of rescission of adoption shall
be without prejudice to the penalties imposable under the
Penal Code if the criminal acts are properly proven.

ARTICLE VII

V IO L A T IO N S A N D P E N A LTIE S

SEC. 21. Violations and Penalties -

(a) The penalty of imprisonment ranging from six (6)

years and one (1) day to twelve (12) years and/or
a fine not less than Fifty thousand pesos
(5 0,000), but not more than Two hundred
thousand pesos (P200,000) at the discretion of
the court shall be imposed on any person who
shall commit any of the following acts:

(i) obtaining consent for an adoption through

coercion, undue influence, fraud, improper
materia! inducement, or other similar acts
(ii) non-compliance with the procedures and
safeguards provided by law for adoption; or
(iii) subjecting or exposing the child to be adopted
to danger, abuse, or exploitation.

(b) Any person who shall cause the fictitious

registration of the birth of a child under the
name(s) of a person(s) who is not his/her
Republic Act No. 8552 4J9

biological parent(s) shall be guilty of simulation of

birth, and shall be punished by prision m ayor in
its medium period and a fine not exceeding Fifty
thousand pesos (P50,000).
Any physician or nurse or hospital personnel who, in
violation of his/her oath of office, shall cooperate in the
execution of the above mentioned crime shall suffer the
penalties herein prescribed and also the penalty of
permanent disqualification.
Any person who shall violate established regulations
relating to the confidentiality and integrity of records,
documents and communications of adoption application,
cases and processes shall suffer the penalty of
imprisonment ranging from one (1) year and one (1) day to
two (2) years, and/or fine of not less than Five thousand
pesos (P 5,000.00) but not more than Ten thousand pesos
(PI 0 ,0 0 0 .0 0 ), at the discretion of the court.
A penalty lower by two {2} degrees than that
prescribed for the consummated offense under this Article
shall be Imposed upon the principals of the attempt to
commit any of the acts herein enumerated.
Acts punishable under this Article, when committed by
a syndicate or where it involves two (2) or more children
shall be considered as an offense constituting child
trafficking, and shall m^rit the penalty of reclusion
perpetua.
Acts punishable under this Article are deemed
committed by a syndicate if carried out by a group of three
(3) or more persons conspiring and/or confederating with
one another in carrying out any of the unlawful acts
defined under this Article. Penalties as are herein provided,
shall be in addition to any other penalties which may be
imposed for the same acts punishable under other laws,
ordinances, executive orders, and proclamations.
When the offender is an alien, he/she shall be
deported immediately after service of sentence a n d
perpetually excluded from entry to the country.
420 A (3iicndix " B "

Any government official, employee or functionary who

shall be found guilty of violating any of the provisions of
this Act, or who shall conspire with private individuals
shall, in addition to the above-prescribed penalties, be
penalized in accordance with existing civil service laws,
rules and regulations; Provided, That upon the filing of a
case, either administrative or criminal, said government
official, employee, or functionary concerned shall
automatically suffer suspension until the resolution of the
case.
SEC. 22. R ecitification o f Sim ulated Births. - A person
who has, prior to the effectivity of this Act, simulated the
birth of a child shall not be punished for such act:
Provided, That the simulation of birth was made for the
best interest of the child and that he/she has been
consistently considered and treated by that person as his/
her own son/daughter: Provided, further, That the
application for correction of the birth registration and
petition for adoption shall be filed within five (5) years
from the effectivity of this Act and completed thereafter:
Provided, finally, That such person complies with the
procedure as specified in Article IV of this Act and other
requirements as determined by the Department.

ARTICLE Vlli

F IN A L P R O V IS IO N S

SEC. 23. A doption Resources and Referral Office. -

There shall be established an Adoption Resources and
Referral Office under the Department with the following
functions: {a} monitor the existence, number, and flow of
children legally available for adoption and prospective
adopter(s) so as to facilitate their matching: (b) maintain a
nationwide information and educational campaign on
domestic adoption; (c) keep records of adoption
iM'oceedings; (d) generate resources to help child-caring and
chi’d-piacing agencies and foster homes maintain viability;
R ep u b lic A c t N o. 8 5 5 2 42^
and (e) do policy research in coKaboratfon with the Inter­
country Adoption Board and other concerned agencies. The
office shall be manned by adoption experts from the public
and private sectors,
SEC. 24. Implem enting Rules and Regulations. - Within
six (6) months from the promulgation of this Act, the
Department, with the Council for the Welfare of Children,
the Office of Civil Registry General, the Department of
Justice, Office of the Solicitor General, and two (2) private
individuals representing child-placing and child-caring
agencies shall formulate the necessary guidelines to make
the provisions of this Act operative.
SEC. 25. Appropriations. - Such sum as may be
necessary for the implementation of the provisions of this
Act shall be included in the General Appropriations Act of
the year following its enactment into law and thereafter.
SEC. 26. Repealing Clause. - Any law, presidential
decree or issuance, executive order, tetter of instruction,
administrative order, rule or regulation contrary to, or
inconsistent with the provisions of this Act is hereby
repealed, modified or amended accordingly.
SEC. 27. Separability Clause. - If any provision of this
Act is held invalid or unconstitutional, the other provisions
not affected thereby shall remain valid and subsisting.
SEC. 28. E ffe ctivity Clause. - This Act shall take
effect fifteen (15) days following its complete publication in
any newspaper of general circulation or in the Official
Gazette.

Approved: February 25, 1998

(Sgd.) FIDEL V. RAMOS

President of the Philippines
 APPENDIX "O ’'

RECEIMT JURISPRUDENCE ON FAMILY LAW

On Art. 36 - Psvcholoaicai incapacit\/ of one of the

spouses:

1. Psychological incapacity may be absolute, or

relative only in regard to the other spouse, not
necessarily absolutely against everyone of the
same sex. (Rep. v. Molina, 268 SCRA 198)
2. Decisions of church tribunals shouki be given
great respect by the courts, because the provision
was taken from Canon Lav\/. (Rep, v. Molina,
supra)
3. Findings of the trial court on the existence of
psychological incapacity are final and binding on
the Supreme Court except if they are manifestly
erroneous. (Santos v. C.A., id; Hernandez v. C.A.,
320 SCRA 76)
4. While it was held in Rep. v. Molina and
Hernandez v. C.A., supra, that the root cause of
the psychological incapacity must be sufficiently
proven by experts, it was later held in Marcos v.
Marcos, 343 SCRA 755, that there is no need for
the respondent to be examined by an expert, as
the psychological incapacity may be established by
the totality of the evidence presented.
5. The root cause of the psychological incapacity
and expert opinion therein need not be alleged
(Choa V . Choa, 392 SCRA 64; Macias v. Macias,
4 1 0 SCRA 365). But the root cause must be
sufficiently proven by experts. (Rep. v. Moiina,
supra).
422
Recent Jurfspn/denco on Family Law 423

6. The following were found by the Supreme Court as no t

constituting psychoiogical incapacity:
(a) The w ife 's refusal to return home from the U.S.
and her failure to communicate w ith her husband
{Santos V . C.A., supra).
(b) Difficulty of the husband to perform some marital
duties (Rep. v. Molina, supra).
(c) A lc o h o lis m and s e x u a l i n f i d e l i t y o f and
abandonment by the husband (Hernandez v. C.A.,
supra).
(d) Failure to provide fam ily w ith material support,
re so rt to p h y s ic a l v io le n c e , and a b a n d o n m e n t
(Marcos v. Marcos, supra).
(e) H u s b a n d 's b e in g e m o t i o n a lly im m a t u r e and
irresponsible, a habitual alcoholic, and a fugitive
from justice (Rep. v. Dagdag, 351 SCRA 425).
(f) Unhappy marital relationship between the spouses
(Pesca v. Pesca, 356 SCRA 588).
(g) Mere irre c o n c ila b le d iffe re n c e s and c o n flic tin g
personalities between the spouses (Choa v. Choa,
supra).
(h) A bandonment of wife and child by her Japanese
husband (Rep. v. Hamano. GR 1 49 4 98 , May 20.
2004).
(i) Marital infidelity on the part of the husband, and
the couple's drifting apart or falling out of love.
(S ia y n g co v. S ia y n g c o , GR 1 5 8 8 9 6 , O ct. 27,
2004)
7. However, in the recent case of Antonio v, Reyes,,GR
1 5 5 8 0 0 , M a rc h 10, 2 0 0 6 , 4 8 4 SCRA 3 5 3 , the
Suprem e C o u rt held th a t r e s p o n d e n t's "in v e te r a te
proclivity to telling lies and the pathologic nature of her
mistruths" amount to psychological incapacity.
The Court added that the alleged psychological
incapacity must be shown to be medically or clinically
p e rm a n e n t or in c u ra b le , w h ic h c a n n o t be d iv in e d
w ith o ut expert opinion.
8. The property regime between the parties in a marriage
nullified under Art. 36 is not governed by Art. 50, 51
424 Appendix "C "

and 52 in relation to Arts. 102 and 129 of the Family

Code, but by cO'Ovvnership under A rt. 147 or 148.
(Valdes V. RTC, 260 SCRA 221).
9, No moral damages can be awarded to the wife even if
the husband is psychologically incapacitated if there is
no basis the re o f other than the mere act of entering
into a marriage. There must be specific evidence that it
was done deliberately and with malice by the husband
who had knowledge of his disability but concealed it
fro m his w ife . (B uenaventura v. C .A ., et al., GR L
127 3 58 and 1 27449, March 31, 2005).
10. The procedure in declaration of nullity and annulment of
marriage is embodied in a special rule, A.M. No. 02-11-
10-SC, which took effect on March 13, 2003.
(a) Under this Rule, the appearance of the Solicitor
General in declaration of nullity of marriage under
Art. 36 is no longer necessary. Hence, the ruling
in Rep. v. Molina, supra, requiring said appearance,
is no longer applicable.
H o w e ver, the Court may require the public
p r o s e c u to r , in c o n s u lt a tio n w it h the S o lic it o r
General, to file a memorandum after trial. And the
p u b lic p ro s e c u to r or the S o lic ito r General may
appeal the court's decision.
(b) Likewise, undei this Rule, it is the decree of nullity
or a n n u lm e n t issued a fte r the c o u r t's decision
becomes final, and not the court's decision, that
constitutes evidence that the marriage has already
been nullified or annulled, and that Arts. 50 and
52 of the Family Code have been complied with.

11• A rt. 4 0 . Family Code: 'T h e absolute nullitv of a previous

marriage may be invoked for purposes of remarriage on the
basis solely of a fin a l ju d g m e n t declaring such previous
marriage void."

(a) P a r tie s a re n o t a l l o w e d t o a s s u m e t h a t t h e i r
m a rria g e is v o id even if s u c h is th e f a c t . T h e y
Recent Jurisprudence on Family Law 425

must file an action for declaration of nullity under

Art. 40 before they remarry. {Terre v. Terre, 211
SCRA 6)
(b) If the first marriage is void but a party remarries
without seeking judicial nullity of his first
marriage, the second marriage is also void for
non-compliance with Art. 40 in relation to Arts.
51 to 53 of the Family Code. (Valdes v. RTC,
supra)
(c) Bigamy is committed as long as the first marriage
of a person, although void, has not been declared
as such under Art. 40. (Mercado v. Mercado, 337
SCRA 122)
Note, however, Justice Vitug's dissenting
opinion in the Mercado case to the effect that
non-observance of Art. 40 will only affect the
application of Arts. 52 and 53 of the Family Code
but cannot add another element to the definition
of the crime of bigamy in the Revised Penal Code.
(d) Bigamy is committed even if the second marriage
is declared void on the ground of psychological
incapacity of one of the spouses because such
marriage, although void db initio, still produces
legal consequences, among which is incurring
criminal liability for bigamy. (Tenebro v. C.A., GR
150758, Feb. 18, 2004)
(e) In Carina v. Carino, GR 132529, Feb. 2, 2001;
the Supreme Court, while acknowledging that the
previous marriage of the deceased soldier was
void for lack of a license, held that his
subsequent marriage was bigamous because his
first marriage, though void, was still presumed to
be valid as there was no judicial declaration of its
nullity. Hence, the Court ruled that Art. 148 of
the Family Code applied to the man's second
marriage.
^26 Appendix "C"

^^^• A rt. 41. Family Code: Presumption of death of an

absent soouse.

(a) For the absent spouse to be presumed dead,

there must not only be compliance v-vith the rules
on absence (whether ordinary or extraordinary),
but the belief of the present spouse that the
absent or missing spouse is already dead must be
"well-founded".
(b) In Rep. v. Nolasco, 220 SCRA 20, the Supreme
Court held that the seaman-husband failed to
conduct a search for his missing wife with such
diligence as to give rise to a "well-founded" belief
that she was dead. His investigation was found to
be too sketchy.
(c) Considering that by express provision of Art. 247
of the Family Code, judgments on the summary
judicial proceedings provided therein are
"immediately final and executory" and, therefore,
unappealable, the judgment of the trial court
declaring the presumptive death/absence of
petitioner's husband was immediately final and
executory, and the Court of Appeals committed
grave reversible error when it failed to dismiss the
erroneous appeal of the Republic therefrom for
lack of jurisdiction. (Rep. v. Bermudez-Lorino, GR
160 258, Jan. 18, 2005).
(d) Word of caution: Considering the above decision
of the Supreme Court in the Rep. v. Bermudez-
Lorino case, courts must require strong and
convincing proof showing that the present spouse
has indeed a "well-founded belief" that the
missing or absent spouse is already dead before
granting petitions under Art. 41. Otherwise, the
summary proceeding under said Article can be
abused by colluding spouses who want their
marriages terminated but find it difficult and
expensive to have the same nullified or annulled.
Recent Jurisprudence on Family Law 427

IV. Title il on rights and obiiqations of the spouses

In Lacson v. Lacson, 24 SCRA 837, the Supreme

Court held that there is a very significant purpose for
providing for the duties of the spouses; i.e., these duties
make it as difficult as possible for married couples -
impelled by whims and caprices - to abandon each other's
company. Citing the early case of Arroyo v. Arroyo, 42
Phil. 58, the Court further held that these duties might
operate with great severity on the couple, yet the general
happiness of married life is secured by its indissolubility.
When people understand that they must live together,
except for very few reasons known to (aw, they (earn to
soften by mutual accommodation the yoke which they
know they cannot shake off; they become good husbands
and wives; for necessity is a powerful master in teaching
the duties that it imposes.
Of course, except for support, a court cannot validly
compel the spouses to live together and observe mutual
love and fidelity. Only the moral obligations of the spouses
make them observe these duties which are highly personal.
(Arroyo v. Arroyo, supra).

V. Arts. 147 and 148 (Unions without marriage):

(a) In Valdes v. RTC, 2 6 0 SCRA 221, the Supreme

Court affirmed that the fruits of the separate
properties of the spouses do not become part of
the co-ownership between them, whether under
Art. 147 or 148,

In the same case, it was also held that since

the marriage is void, Art, 147 applies, so that the
parties co-own their conjugal house and lot which
should be divided equally between them. Thus,
Arts, 102 and 129 providing that said house and
lot should be adjudicated to the spouse with
whom the majority of the children choose to
remain, do not apply.
428 Appendix "C"

(b In Agapay v. Palang, 276 SCRA 341, it was held

that the marriage of the parties was bigamous
because there was no compliance with Art. 40.
Hence, Art. 148 applies, and since it was not
shown that the woman contributed anything to
the ricefand acquired by the man during their
cohabitation, the subject land was awarded to the
conjugal partnership of the m?«n with his lawful
wife.

(c) In Cariho v. Cariho, 351 SCRA 127, the first

marriage of the deceased soldier was declared
void for lack of license. His second marriage was
likewise held void for non-compliance with Art.
40. Hence, the Court ruled that the first marriage
is governed by Art. 147, while the second, by
Art. 148. The result was, all the monetary
benefits from the government due the deceased
soldier were awarded to the first marriage.