Civil Law

Intestate Succession: The parties cannot inherit from each If one spouse contracted the marriage in bad faith,
other by way of intestate succession since they are no longer he shall be disqualified to inherit from innocent
considered as spouses spouse by testate and intestate succession [FC,
Art.43(5)].
Testate Succession:
GR: Any Testamentary provision by one in favor of the other
shall remain valid
XPN:
1. If the subsequent marriage is rendered void by non-
compliance with Article 40 of the Family Code FC, the
spouse who contracted the subsequent marriage in bad
faith is disqualified to inherit from the innocent spouse
Succession
2. If the marriage is void by reason of the bad faith of both
parties under Article 41 of the Family Code FC, all
testamentary dispositions made by one in favor of the
other are revoked by operation of law

NOTE: The parties are not disqualified to institute each other

as voluntary heir in their respective wills to be executed after
the judicial declaration of nullity

___________________________________________________________ intercourse with the husband if he resorts to

abnormal or perverse practices.
RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND b. The wife can also refuse to have sexual
WIFE intercourse with the husband if she is ill, 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
ESSENTIAL OBLIGATIONS
intercourse with him against her will, he may be
charged with coercion (Sempio-Diy, 1995).
Rights and obligations of the spouses (2010 BAR)
2. Fix the family domicile (FC, Art. 69);
1. Essential marital obligations (LOR) (FC, Art. 68):
a. Live together which includes consortium
NOTE: In case of disagreement the Court shall decide.
(cohabitation) and copulation (sexual
intercourse),
3. Jointly support the family (FC, Art. 70);
b. Observe mutual love, respect, fidelity, and
a. Expenses shall be paid from the community
c. Render mutual help and support
property,
b. In the absence thereof from the income or fruits of
NOTE: It is true that the Family Code, obligates the spouses
their separate properties,
to love one another but this rule sanctions affection and
c. In the absence or insufficiency thereof from their
sexual intimacy, as expressions of love, that are both
separate properties
spontaneous and mutual and not the kind which is
unilaterally exacted by force or coercion. Further, the
4. Manage the household (FC, Art. 71);
delicate and reverent nature of sexual intimacy between a
5. Not to neglect duties, or commit acts which tend to
husband and wife excludes cruelty and coercion. When
bring danger, dishonor, or injury to family (FC, Art. 72);
sexual intimacy it is egoistically utilized to despoil marital
6. Either spouse may practice any legitimate
union in order to advance a felonious urge for coitus by
profession/business, even without the consent of the
force, violence or intimidation, the Court will step in to
other.
protect its lofty purpose, vindicate justice and protect our
laws and State policies. Besides, a husband who feels
NOTE: The other spouse may object on valid, serious
aggrieved by his indifferent or uninterested wife's absolute
and moral grounds. In case of disagreement, the court
refusal to engage in sexual intimacy may legally seek the
shall decide whether:
court's intervention to declare her psychologically
incapacitated to fulfill an essential marital obligation. But he
a. Objection is proper; and
cannot and should not demand sexual intimacy from her
b. Benefit has accrued to the family prior to the
coercively or violently (People v. Jumawan, G.R. No. 187495,
objection or thereafter. If the benefit accrued
April 21, 2014). Therefore:
prior to the objection, the resulting obligation
shall be enforced against the community
a. The right to sexual intercourse involves normal
property. If the benefit accrued thereafter,
intercourse. The wife may refuse to have sexual
such obligation shall be enforced against the

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 PERSONS AND FAMILY RELATIONS
separate property of the spouse who has not a. Where both spouses are aliens;
obtained consent (FC, Art. 73 as amended by b. With respect to the extrinsic validity of contracts
R.A. 10572). affecting property not situated in the Philippines; and
executed in the country where the property is located;
The foregoing provisions shall not prejudice the rights of or
creditors who acted in good faith. c. With respect to extrinsic validity of contracts entered
into in the Philippines but affecting property situated
Other obligations of spouses in a foreign country whose laws require different
formalities for its extrinsic validity (FC, Art. 80).
1. Exercise the duties and enjoy the rights of parents;
2. Answer for civil liability arising from injuries caused Rule on waiver of rights over the share in the
by children below 18; community or conjugal property
3. Exercise parental authority over children’s property
(Republic v. CA, Molina, G.R. No. 108763, February 13, GR: Cannot be waived during the marriage.
1997).
XPN: In case of judicial separation of property.
Essential marital obligations cannot be compelled by
court NOTE: The waiver must be in a public instrument and
recorded in the office of the local civil registrar where the
GR: Performance of essential marital obligation under Art. marriage contract was recorded as well as in the proper
68 of the FC cannot be compelled by court because it will be registry of property.
a violation of personal liberty.
Property regime governing the property relations of
XPN: Giving support. (Arroyo v. Arroyo, G.R. No. L-17014, spouses in the absence of marriage settlement or when
August 11, 1921) regime agreed upon is void (1992, 1995, 2005 BAR)

Reasons when the Court may exempt one spouse from GR: Absolute Community Property (FC, Art. 75)
living with the other
If one spouse should live abroad. XPNs:
Other valid and compelling reasons. For marriages contracted prior to the effectivity of
the FC on August 3, 1988, conjugal partnership of gains shall
NOTE: The Court shall not grant the exemption if it is not govern the property relations because Art. 119 of the NCC
compatible with the solidarity of the family. will apply. The provisions of the FC shall have no retroactive
_________________________________________________________________ effect because it shall impair vested rights.
Subsequent marriage contracted within one year
PROPERTY RELATIONS OF THE SPOUSES from the death of the deceased spouse without liquidation
_________________________________________________________________ of the community property or conjugal partnership of gains,
either judicially or extra-judicially, as required under
The property relations shall be governed by the ff. in the Arts.103 and 130 of the FC. In such case, a mandatory
stated order: regime of complete separation of property shall govern the
1. Property relation agreed and embodied in the subsequent marriage (Rabuya, 2009).
marriage settlement ---
2. Provisions of the FC Q: Marriage being a contract, may the parties enter into
3. Local custom (FC, Art. 74). stipulations which will govern their marriage?

Commencement of Property Regime A: The nature, consequences and incidents of marriage are
governed by law and not subject to stipulation between the
A property regime commences at the precise moment of spouses. This, however, is not an absolute rule. The law
the celebration of the marriage (i.e. actual time the marriage allows the spouses to fix their property relations during the
is celebrated on a certain date). marriage through a device known as “marriage settlement”
subject only to the condition that whatever settlement they
Any stipulation, express or implied, for the commencement may have must be within the limits provided by the Family
of the community regime at any other time shall be void (FC, Code.
Art. 88).
MARRIAGE SETTLEMENT
Laws that will govern the property relations of the
spouses It is a contract entered into by a man and a woman who
intend or plan to get married fixing the property regime that
GR: Philippine laws shall govern, regardless of place of will govern their present and future properties during their
celebration of marriage and residence of spouses, in the marriage. It is also called as Ante-nuptial Agreement
absence of contrary stipulation in a marriage settlement (Sempio-Diy, 1995).
(FC, Art. 80).
Requisites of a valid Marriage Settlement (FC,Art. 77)
XPN: Lex rei sitae applies: (1991, 2005 BAR) (W-SER)

53
 Civil Law
a. In Writing;
b. Signed by the parties; Those donations which are made before the celebration of
c. Executed before the celebration of marriage; the marriage, in consideration of the same, and in favor of
d. Registration (to bind 3rd persons) one or both of the future spouses.

The provisions in the marriage settlement must be in The formalities of the donation propter nuptias follows the
accordance with law, morals or public policy; otherwise same formalities as set forth in the law on donations.
such agreement is void (Paras, 2008).
NOTE: Donations of future property are governed by
A marriage settlement need not be notarized. The law is provisions on testamentary succession and formalities of
clear that the marriage settlements and any modification wills.
thereof shall be in writing signed by the parties and
executed before the celebration of the marriage (FC, Art. Donation propter nuptias (DPN) v. Ordinary Donation
77). The law merely requires it to be in writing; it does not
require that it be in a public instrument for purposes of its BASIS DONATION ORDINARY
validity (Albano, 2013). PROPTER DONATION
NUPTIAS
The marriage settlements must be registered in the proper
local civil registry where the marriage contract was Donations of future Governed by
recorded as well as in the proper registries of property in property are Title III, Book
order that they may prejudice or bind third persons (FC, Art. governed by the III of the NCC.
77). provisions on
testamentary
Additional requirements for validity of the MS succession and the
As to formalities
formalities of wills
ADDITIONAL [FC, Art. 84(2)].
FACTUAL SITUATION
REQUIREMENT

The ff. must be made a

If one of both of the parties
party to the MS,
are: Present property There is no
otherwise the MS is void:
may be donated up limit except
to 1/5 of the that the donor
Parents; or donor’s present shall leave
18-21 years old those required to give property if the sufficient
consent future spouses property for his
have chosen a support and
Sentenced with civil Guardian appointed by the regime other than that of all
interdiction court absolute relatives
community of entitled to
Guardian appointed by the As to inclusion of
Disabled property (FC, Art. support from
court present property
84). him (NCC, Art.
750) and
Modification of the marriage settlement (FC, Art. 76) further no
(2005 BAR) legitimes of
compulsory
For any modification in the MS to be valid: heirs shall be
1. The requisites for a valid MS must be present; impaired (NCC,
2. There must be judicial approval; Art. 752).
3. Subject to the provisions of Arts. 66, 67, 128, 135, and
136 of FC.
Future property Future
Effect on the ante-nuptial agreement in case the may be included property
marriage is not celebrated (FC, Art. 81) provided the cannot be
As to inclusion donation is mortis included (NCC,
GR: Everything stipulated in the settlements or contracts in causa [NCC, Art. Art. 751).
consideration of the marriage shall be rendered void. of future
property 84(2)].
XPN: Those stipulations not dependent upon, or are not
made in consideration of, the marriage, subsist.

DONATION PROPTER NUPTIAS OR DONATION BY

REASON OF MARRIAGE (FC, ART.88)

54
 PERSONS AND FAMILY RELATIONS

Grounds for Grounds for The prescriptive periods in other provisions of the Civil
revocation are revocation are Code should apply, depending on the ground of revocation
Revocation found in Art. 86 of found in law in Except for the action to revoke a donation to the guilty
FC. donations. spouse in case of a legal separation, which the second
paragraph of Art. 64 of the Code states must be brought
within 5 years from the time of the decree of legal
Requisites for Donation Propter Nuptias separation has become final, there is no other provision in
the Family Code on the period of prescription of the action
a. Made before celebration of marriage; to revoke a donation proper nuptias (Sempio-Diy, 2010).
b. Made in consideration of the marriage; and
c. Made in favor of one or both of the future spouses. PRESCRIPTIVE PERIOD
GROUNDS (FC, Art. 86)
Requisites if the DPN is made by one spouse in favor of (Reckoning Point)
the other
1. Marriage is not celebrated. 5 yrs
There must be a MS stipulating a
property regime other than AC; XPN: Those automatically From the time the
Donation in the MS be not more than 1/5 rendered void by law. marriage was not
of the present property; and solemnized on the fixed
There must acceptance by other spouse. date (FC, Art. 1149).

Rule regarding DPN made between spouses

2. Marriage is Ground for Revoked by operation of
GR: Future spouses cannot donate to each other more than judicially nullity: law.
1/5 of their present property and any excess from which declared
shall be considered void. void. a. Contracted
subsequent
XPN: If they are governed by ACP, then each spouse can marriage
donate to each other in their marriage settlements present before
property without limit, provided there is sufficient property prior
left for their support and the legitimes are not impaired. marriage
has been
Effect of donations of encumbered property judicially
declared
Such donations are valid. In case of foreclosure of the void.
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 the obligation, the donee shall be
entitled to the excess (FC, Art. 85). b. Any other 5 yrs
grounds.
Donations that may be revoked by the donor (FC, Art. Finality of judicial
86) declaration of nullity (if
action is to recover
A donation by reason of marriage may be revoked by the property).
donor in the following cases:
3. Marriage took place without 5 yrs
1. GR: Marriage is not celebrated or is judicially declared consent of parents or
void ab initio. guardian, when required by Time the donor came to
law. know that the required
XPN: donations made in the marriage settlements parental consent was not
obtained.
2. Marriage takes place without the required consent of
parents or guardians.
3. Marriage is annulled and donee acted in bad faith. 4. Marriage is annulled and 5 yrs
4. Upon legal separation, the donee being the guilty donee acted in bad faith.
spouse. Finality of decree.
5. If with a resolutory condition which was complied
with. 5. Upon legal separation (LS), 5 yrs
6. Donee has committed an act of ingratitude. donee being the guilty
spouse. Time decree of L.S has
Grounds for filing an action for revocation of a DPN and become final.
their respective prescriptive periods

55
 Civil Law

5 yrs
6. Donation subject to Rule regarding donations between spouses during the
resolutory condition which marriage (FC, Art. 87)
Happening of the
was complied with.
resolutory condition.
GR: Every donation or grant of gratuitous advantage, direct
or indirect, between spouses is considered void.
1 yr
XPN: Moderate gifts on the occasion of any family rejoicing.
7. Donee committed an act of
From donor’s knowledge
ingratitude. The aforementioned rules also apply to common law
of the commission of an
act of ingratitude. spouses (Matabuena v. Cervantes, G.R. No. L-28771, March
31, 1971).

Acts of ingratitude: (FC, Art. 765) __________________________________________________________________

1. Commission of an offense against the person, honor or PROPERTY RELATIONS OF SPOUSES

property of the donor, his wife or his children under ___________________________________________________________________
his parental authority;
2. GR: Imputation to the donor any criminal offense or Different property regimes which may be adopted by
any act involving moral turpitude; future spouses
I. Absolute Community of Property (ACP);
XPN: if the crime was committed against the donee II. Conjugal Partnership of Gains (CPG);
himself, his wife or his children under his authority III. Absolute Separation of Property (ASOP);
IV. A combination of the above regimes;
3. Undue refusal to support the donor when he is legally
V. Any other regime within limits provided by
or morally bound to give such support.
the FC.
DONATIONS DURING THE MARRIAGE
The rule against donation to one another between the
spouses does not include a spouse being a beneficiary of an
insurance contract over the life of the other (Gercio v. Sun
Life Assurance Co., of Canada, G.R. No. 23703, September 28
1925).

ACP v. CPG v. CSOP

ABSOLUTE COMMUNITY CONJUGAL PPARTNERSHIP COMPLETE SEPARATION

OF PROPERTY OF GAINS OF PROPERTY
When applicable
When spouses: 1. When the future spouses adopt it in a 1. When future spouses adopt it in a
1. Adopt it in a marriage settlement; marriage settlement. marriage settlement;
2. Do not choose any economic 2. If the marriage is celebrated under 2. ACP or CPG is dissolved;
system; or the New Civil Code and they have not 3. Prior marriage is dissolved due to
3. Adopted a different property adopt any economic system. death of one spouse and surviving
regime and the same is void. spouse failed to comply with the
requirements under Art. 103
(judicial settlement proceeding of
the estate of deceased spouse);
4. By judicial order. Judicial
separation of property may either
be voluntary or for sufficient cause.

Composition
All the properties owned by the Each spouse retains his/her property
spouses at the time of marriage before the marriage and only the fruits
become community property. and income of such properties become
part of the conjugal properties during
the marriage.

Effect of Separation In Fact

The separation in fact shall not affect the regime of ACP, but:
1. The spouse who leaves the conjugal home or refuses to live therein, without
just cause, shall not have the right to be supported;

56
 PERSONS AND FAMILY RELATIONS
2. When 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 case of insufficiency of community or conjugal partnership property,
separate property of both spouses shall be solidarily liable for the support
of the family. 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 (FC, Arts. 100 & 127).

Effect of Dissolution
Upon dissolution and liquidation of Upon dissolution of the partnership, the
the community property, what is separate properties of the spouses are
divided equally between the spouses returned and only the net profits of the
or their heirs is the net remainder of partnership are divided equally
the properties of the ACP. between the spouses of their heirs.

Grounds for revival of former property regime Properties included in the absolute community

1. Civil interdiction of the prisoner-spouse terminates; 1. All the property owned by the spouses:
2. Absentee spouse reappears; a. At the time of the celebration of the marriage; or
3. Court authorizes resumption of administration by b. Acquired thereafter;
the spouse formerly exercising such power; 2. Property acquired during the marriage by gratuitous
4. Spouse who has abandoned the conjugal home title, if expressly made to form part of the community
returns and resumes common life with the other; property by the donor, testator or grantor;
3. Jewelry or properties with monetary value;
5. Parental authority is judicially restored to the spouse 4. Winnings in gambling.
previously deprived thereof;
6. Reconciliation and resumption of common life of Properties excluded in the Absolute Community
spouse who had been separated in fact for at least 1
year; 1. Property acquired during the marriage by gratuitous
7. Spouses agree to revive their former property title and its fruits as well as income thereof unless the
regime. grantor expressly provide they shall form part of the
community property;
Grounds for transfer of administration of the 2. Property for personal and exclusive use of either
exclusive property of each spouse spouse but jewelleries shall form part of the ACP
because of their monetary value;
When one spouses: 3. Property acquired before the marriage by one with
1. Is sentenced to penalty with civil interdiction; legitimate descendants by former marriage and its
2. Becomes fugitive from justice or is hiding as an fruits and income, if any;
accused in a criminal case; 4. Those excluded by the marriage settlement (FC, Art.
3. Is judicially declared absent 92).
4. Becomes guardian of another
Presumption of inclusion in the absolute community
NOTE: Transfer of administration of the exclusive
property of either spouses does not confer ownership In absence of evidence, property acquired during the
over the same (Rodriguez v. De la Cruz, G.R. No. 3629, marriage is presumed to belong to the community, unless
September 28, 1907). proven otherwise by strong and convincing evidence (FC,
Art. 93).
I. ABSOLUTE COMMUNITY OF PROPERTY (ACP)
The sale or encumbrance of a conjugal property requires
A property regime wherein the spouses are considered the consent of both the husband and the wife (Guiang v.
co-owners of all property brought into the marriage, as CA, G.R. No. 125172, June 26, 1998). The absence of the
well as those acquired during the marriage, which are not consent of one renders the entire sale or encumbrance
otherwise excluded from the community either by the null and void, including the portion of the conjugal
provisions of the Family Code or by the marriage property pertaining to the husband who contracted the
settlement (Rabuya, 2009). sale. Neither would the conjugal partnership be liable for
the loan on the ground that it redounded to the benefit of
Laws that govern the absolute community of the family (Homeowners Savings & Loan Bank v. Dailo, G.R.
property No. 153802, March 11, 2005).

1. Family Code A wife, by affixing her signature to a deed of sale on the

2. Civil Code provisions on co-ownership space provided for witnesses, is deemed to have given her
implied consent to the contract of sale. The consent need

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 Civil Law
not always be explicit or set forth in any particular
document so long as it is shown by acts of the wife that NOTE: For ante-nuptial debts, those contracted by
such consent or approval was in fact given (Pelayo v. one spouse without the consent of the other during
Perez, G.R. No. 141323, June 8, 2005). the marriage and those contracted by the
administrator-spouse, the burden of proof that such
When the sale was entered into prior to the effectivity of debts were contracted for the benefit of the
the FC Art.173, in relation to Art. 166 of the NCC will apply community or of the family lies with the creditor-
if there was a finding of lack of the wife's consent. Under party litigant claiming as much (Rabuya, 2009).
said provisions, the sale would have been merely
voidable, and not void. 8. The value of what is donated or promised by both
spouses in favor of their common legitimate children
The use of the jurat, instead of an acknowledgment, does for the exclusive purpose of commencing or
not elevate the marital consent into the level of a public completing a professional or vocational course or
document but instead consigns it to the status of a private other activity for self-improvement;
writing. Hence, the presumption of regularity does not 9. Payment, in case of absence or insufficiency of the
apply and the wife still needs to prove its genuineness and exclusive property of the debtor-spouse, of:
authenticity as required under the rules of evidence (Pan a. Ante-nuptial debts of either spouse which did
Pacific Industrial Sales Co., Inc. v. CA, G.R. No. 125283, not redound to the benefit of the family;
February 10, 2006). b. The support of illegitimate children of either
spouse;
The fact that the document contains a jurat, and not an c. Liabilities incurred by either spouse by reason
acknowledgment, should not affect its genuineness or of a crime or quasi-delict;
that of the related document of conveyance itself, the
Deed of Absolute Sale. In this instance, a jurat suffices as NOTE: The payment of which shall be considered as
the document only embodies the manifestation of the advances to be deducted from the share of the
spouse's consent, a mere appendage to the main debtor-spouse upon liquidation of the community
document (Pan Pacific Industrial Sales Co., Inc. v. CA, G.R. 10. Expenses of litigation between the spouses.
No. 125283, February 10, 2006). However, if suit is found to be groundless, it cannot
be charged against the ACP (FC, Art. 94).
A. CHARGES UPON AND OBLIGATIONS OF THE
ABSOLUTE COMMUNITY PROPERTY ACP v. CPG as to charges

Charges upon the ACP ACP (FC, Art. 84) CPG (FC, Art. 121)
Support of the spouses, their common children, and
1. The support of legitimate children of either spouse.
a. The spouses
b. Their common children
c. Legitimate children of either spouse; Debts and obligations contracted during
marriage:
NOTE: Support of illegitimate children of either a. By the administrator spouse designated in the
spouse is chargeable to exclusive property of the marriage settlement/appointed by court/one
illegitimate parent (FC, Art. 197). assuming sole administration;
b. By one without the consent of the other;
c. By one with the consent of other; or
2. All debts and obligations contracted during the
d. By both spouses
marriage by:
e. For (a) and (b), creditor has the burden of
a. the designated administrator-spouse for the
benefit of the community proving benefit to the family and ACP/CPG
b. by both spouses chargeable to the extent of benefit proven,
c. by one spouse with the consent of the other; otherwise, chargeable to the separate property of
the obligor spouse.
3. Debts and obligations contracted by either spouse f. For (c) and (d), real (Rul) benefit to family is
without the consent of the other to the extent that presumed.
the family may have been benefited;
4. All taxes, liens, charges and expenses, including All taxes, liens, charges and expenses including minor
major or minor repairs, upon the community repairs upon ACP or CP.
property;
5. All taxes and expenses for mere preservation made Expenses to enable either spouse to
during marriage upon the separate property of commence/complete a professional, vocational or
either spouse used by the family; other activity for self-improvement.
6. Expenses to enable either spouse to commence or
complete a professional or vocational course, or Value donated/promise by both spouses in favor of
other activity for self-improvement; common legitimate children for exclusive purpose of
7. Ante-nuptial debts of either spouse insofar as they commencing or completing professional or vocational
have redounded to the benefit of the family; (2007 course or other activity for self-improvement.
BAR)

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 PERSONS AND FAMILY RELATIONS
Expenses of litigation between spouses unless the suit
is found to be groundless. There is no presumption that the obligations incurred by
one of the spouses during the marriage are charged
For illegitimate against their community of property. Before any
For illegitimate children, support from obligation may be chargeable against the community of
children, support from separate property of property, it must first be established that such obligation
separate property of person obliged to give is among the charges against the same (Wong, et al, v. IAC,
person obliged to give support. In case of G.R. No. 70082, August 19, 1991).
support. In case of insufficiency or absence ---
insufficiency or absence of of separate property, CP Insufficiency of the community property to cover
separate property, ACP shall advance support, liabilities
shall advance support, chargeable to share of
chargeable to share of parent upon liquidation, GR: The spouses shall be solidarily liable for the unpaid
parent upon liquidation. but only after balance with their separate properties.
obligations in Art. 121
have been covered (FC, XPN: Those falling under paragraph 9 of Art. 94. of the
Art. 21). Family Code (Ante-nuptial debts, support of illegitimate
children, liabilities incurred by spouse by reason of a
Taxes and expenses for crime or quasi-delict) –in which case the exclusive
Taxes and expenses for mere preservation property of the spouse who incurred such debts will be
preservation during during marriage upon liable. However, if the exclusive property is insufficient,
marriage upon separate separate property of payment will be considered as advances to be deducted
property of either spouse either spouse, from share of debtor-spouse (FC, Art. 94 [9]).
used by family. regardless of whether
used by the family B. OWNERSHIP, ADMINISTRATION, ENJOYMENT
because the use and AND DISPOSITION OF THE ABSOLUTE
enjoyment of separate COMMUNITY PROPERTY
property of the spouses
belong to the
partnership. Administration of Community Property

For ante-nuptial debts, GR: The administration of community property belongs

1. Ante-nuptial debts are same as ACP but in case to both spouses jointly.
chargeable to ACP if of insufficiency of
they redounded to the separate property,
benefit of family. obligations enumerated XPN:
2. Personal debts not in Art. 121 must first be 1. Agreement that only one of the spouses shall
redounding to benefit satisfied before such administer the community property;
of the family such as debts may be 2. If one spouse is incapacitated or otherwise unable to
liabilities incurred by chargeable to the CP participate in the administration of the common
reason of crime or (FC, Art. 12). properties – capacitated or able spouse may assume
quasi-delict are
sole powers of administration without the need of
chargeable to the
court approval or authorization;
separate property of
3. If a spouse without just cause abandons the other or
the debtor spouse.
fails to comply with his or her obligations to the
3. In case of insufficiency
family, the aggrieved spouse may petition the court
of separate property,
for sole administration;
chargeable to ACP but
4. During the pendency of the legal separation case, the
considered advances
court may designate either of the spouses as sole
deductible from the
administrator.
share of the debtor-
spouse upon
NOTE: But such powers do not include:
liquidation.
1. Disposition;
2. Alienation; or
---
3. Encumbrance of the conjugal or community
Q: An individual, while single, purchases a house and
property.
lot in 1990 and borrows money in 1992 to repair it. In
1995, such individual is married while the debt is still
"Court authorization" in the sale of conjugal
being paid. After the marriage, is the debt still the
properties
responsibility of such individual? (2007 BAR)
Court authorization is resorted to in cases where the
A: NO. Ante-nuptial debts of either spouse shall be
spouse who does not give consent is incapacitated. If
considered as the liability of the absolute community of
there is no showing that the spouse is incapacitated, court
property insofar as they have redounded to the benefit of
authorization cannot be sought (Manalo v. Fernandez, G.R.
the family.
No. 147928, January 23, 2002).

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 Civil Law
Q: Does the prohibition cited above include lease by
Disagreement in the administration of community the husband over properties of the community of
property (FC, Art. 96) property without the consent of the wife?
A: YES. In the contract of lease, the lessor transferred his
In case of disagreement, the decision of the husband shall right of use in favor of the lessee. The lessor's right of use
prevail but subject to recourse to the court by the wife for is impaired therein. He may even be ejected by the lessee
proper remedy. if the lessor uses the leased realty. Therefore, the lease is
a burden on the land. It is an encumbrance on the land.
NOTE: Prescriptive period for recourse is within 5 years Moreover, lease is not only an encumbrance but also a
from the date of the contract implementing such decision. qualified alienation, with the lessee becoming, for all
intents and purposes, and subject to its terms, the owner
Sale or Disposition of Community Property of the thing affected by the lease (Roxas v. CA, G.R. No.
92245, June 26, 1991).
Alienation or encumbrance of community property must ---
have the written consent of the other spouse or the Donation of a community property by a spouse
authority of the court without which the disposition or
encumbrance is VOID. However, the transaction shall be GR: A spouse cannot donate any community property
construed as a continuing offer on the part of the without the consent of the other.
consenting spouse and the third person, and may be
perfected as a binding contract upon the acceptance by XPN: Moderate donations for charity or on occasion of
the other spouse or authorization by the court before the family rejoicing or distress (FC, Art. 98).
offer is withdrawn by either or both offerors (FC, Arts. 96
and 124; Sps. Antonio and Luzviminda Guiang v. CA, et al., Separation in fact between husband and wife (FC, Art.
G.R. No. 125172, June 26, 1998). 100)

The absence of consent of one of the spouses renders the GR: Such separation does not affect the regime of absolute
entire sale null and void, including the sale of the portion community
of the conjugal property pertaining to the spouse who
contracted the sale. XPNs:
1. Spouse who leaves the conjugal home or refuses to
The consent of one spouse regarding the disposition does live therein without just cause has no right to be
not always have to be explicit or set forth in any particular supported;
document, so long as it is shown by acts of the said spouse 2. When consent of one spouse to any transaction of the
that such consent or approval was indeed given (Sps. other spouse is required by law, judicial
Cirelos v. Sps. Hernandez, et al. G.R. No. 146523, June 15, authorization must be obtained;
2006). However, even if the other spouse actively 3. If community property is insufficient, the separate
participated in negotiating for the sale of the property, property of both spouses shall be solidarily liable for
that other spouse's written consent to the sale is required the support of the family.
by law for its validity. Being aware of a transaction is not
consent (Jader-Manalo v. Camaisa, G.R. No. 147978, Abandonment (1999, 2003 BAR)
January 23, 2002).
--- If a spouse without just cause abandons the other or fails
Q: Marco and Gina were married in 1989. In 1999, to comply with his or her obligations to the family, the
Gina left Marco and lived with another man, leaving aggrieved spouse may petition the court for:
the two children of school age with Marco. When 1. Receivership;
Marco needed money for their children’s education 2. Judicial separation of property;
he sold a parcel of land registered in his name, 3. Authority to be the sole administrator of the absolute
without Gina’s consent, which he purchased before community (FC, Art. 101).
his marriage. Is the sale by Marco valid, void, or
voidable? Explain with legal basis. (2015 BAR) Presumption of Abandonment

A: The sale is VOID. The parties were married in 1989. In A spouse is deemed to have abandoned the other when he
the absence of a marriage settlement, the parties shall be or she has left the conjugal dwelling without intention of
governed by ACP whereby all the properties owned by the returning. The spouse who has left the conjugal dwelling
spouses at the time of the celebration of the marriage as for a period of three months or has failed within the same
well as whatever they may acquire during the marriage period to give any information as to his or her
shall form part of the absolute community. In ACP, neither whereabouts shall be prima facie presumed to have no
spouse can sell or encumber property belonging to the intention of returning to the conjugal dwelling (Pineda,
ACP without the consent of the other. Any sale or 2008).
encumbrance made by one spouse without the consent of
the other shall be void although it is considered as a The presumption is rebuttable by the presentation of
continuing offer on the part of the consenting spouse clear, strong and convincing evidence that the absent
upon authority of the court or written consent of the other spouse did not intend to leave the present spouse and
spouse. family (Pineda, 2008).
---

60
 PERSONS AND FAMILY RELATIONS
Prohibition against the sale of property between D. LIQUIDATION OF THE ABSOLUTE
spouses COMMUNITYASSETS AND LIABILITIES

GR: Spouses cannot sell property to each other. Procedure in case of dissolution of ACP
XPNs: 1. Inventory of all properties of the ACP, listing
1. When a separation of property was agreed upon in separately the communal properties from exclusive
the marriage settlement;
properties of each spouse;
2. When there has been a judicial separation of
property under Articles 135 and 136 of the Family
Code (NCC, Art. 1490). 2. Payment of community debts;

NOTE: The proscription against the sale of property NOTE: First, pay out of the community assets. If not
between spouses under Art. 1490 of the New Civil Code enough, husband and the wife are solidarily liable for
applies even to common law relationships. In an earlier the unpaid balance with their separate properties.
ruling, the SC nullified a sale made by a husband in favor
of a concubine, after he had abandoned his family and left 3. Delivery to each spouse of his/her remaining
the conjugal home where his wife and children lived, and exclusive properties;
from whence they derived their support, for being 4. Equal division of net community assets
contrary to morals and public policy. The sale was Unless there is:
regarded by the court as subversive of the stability of the a. An agreement for a different proportion; or
family, a basic social institution which public policy b. A voluntary waiver of such share;
cherishes and protects (Ching v. CA, G.R. No. 165879, 5. Delivery of the presumptive legitimes of the common
November 10, 2006). children;
6. Adjudication of conjugal dwelling and custody of
C. DISSOLUTION OF ABSOLUTE COMMUNITY common children (FC, Art. 102).
REGIME
Applicable procedure in the dissolution of the ACP in
case the marriage is terminated by death
Dissolution of Absolute Community Property (2009
BAR) Community property shall be liquidated in the same
proceeding for the settlement of the estate of the
Absolute Community Property is terminated by: (FC, Art. deceased.
99)
If no judicial proceeding is instituted, the surviving
1. Death of either spouse; spouse shall, judicially or extra-judicially, liquidate the
community property within 1 year from the death of the
NOTE: If the surviving spouse contracts another deceased spouse (FC, Art. 103).
marriage without compliance with the foregoing
requirement, a mandatory regime of complete Consequences of failure to liquidate within 1 year
separation shall govern the property relations of the
subsequent marriage. 1. Failure to liquidate the community property within 1
year from the death of the deceased spouse contrary
Upon lapse of the one-year period and liquidation is to Art. 103 of the Family Code, would render any
made, any disposition or encumbrance involving the disposition or encumbrance involving community
community property of the terminated marriage property of the terminated marriage void.
shall be void (FC, Art. 103). 2. If the surviving spouse contracts a subsequent
marriage without compliance with the foregoing
The reason for the law is that, the law seeks to protect requirements, the subsequent marriage shall be
the children's interest in the first marriage (Albano, governed, mandatorily, by a regime of complete
2013). separation of property (Rabuya, 2006).
2. Legal separation; II. CONJUGAL PARTNERSHIP OF GAINS (CPG)
3. Annulment;
4. When the marriage is declared void under Art.40 of
It is the property relation formed by the husband and the
the Family Code;
wife by placing in a common fund: (FC, Art. 106)
5. Judicial separation of property during marriage (FC,
1. The proceeds, product, fruits and income of their
Art. 99).
separate properties;
2. Those acquired by either or both of them through:
NOTE: The absolute community of property or the
a. Effort;
conjugal partnership is considered dissolved only upon
b. Chance.
the issuance of the judicial decree of separation, not at the
moment when the parties enter into a compromise
Commencement of CPG
agreement in the course of the proceedings for separation
of property (Albano, 2013).
CPG shall commence at the precise moment when the
marriage ceremony is celebrated.

61
 Civil Law
Law that governs the conjugal partnership
Either spouse may mortgage, encumber, alienate or
The rules on the contract of partnership in all that is not otherwise dispose of his or her exclusive property (FC,
in conflict with what is expressly determined in the FC Art. 111 as amended by R.A. 10572).
and by the spouses in their marriage settlements (FC, Art.
108). Rules in cases of improvement of exclusive property
(FC, Art. 120)
Only inchoate right over conjugal property
1. Reverse accession – If the cost of the improvement
The interest of the spouses in the conjugal properties is and the value of the improvement is more than the
only inchoate or a mere expectancy and does not ripen value of the principal property at the time of the
into title until it appears the dissolution and liquidation of improvement, the entire property becomes conjugal.
the partnership that there are net assets (Sempio-Diy,
1995). NOTE: For reverse accession to apply, the separate
property must be owned by a spouse exclusively at
EXCLUSIVE PROPERTY OF THE SPOUSES (FC, ART. the time of the introduction of the improvement
109) neither it will apply if the property is partly owned
by a spouse and partly owned by a third person.
1. Those brought into the marriage as his/her own;
2. Accession– If the cost of the improvement and the
NOTE: value of the improvement isequal to or less than the
(a) A property purchased before the marriage and value of the principal property, the entire property
fully paid during the marriage remains to be a becomes the exclusive property of the respective
separate property of either spouse (Lorenzo v. spouse.
Nicolas, G.R. No. L-4085, July 30, 1952).
(b) Fruits and income of said properties shall be NOTE: In either case, there shall be reimbursement
included the conjugal partnership upon the liquidation of the conjugal partnership and
(c) Those included therein in the marriage ownership of entire property shall be vested only
settlement, subject to the 1/5 limitation under upon reimbursement.
Article 84 and the rule in Article 92(3) of the ---
Family Code which apply by analogy Q: A parcel of land is owned by the father of W. With
his permission, H and W constructed their house over
2. Those acquired during the marriage by the said parcel of land. After some time, the father of
gratuitous title; W died leaving W as his sole heir. Who now owns the
parcel of land and the improvements introduced by
NOTE: the H and W? Assume that the property regime of the
1. Pensions will not form part of the conjugal H and W is conjugal partnership of gains.
partnership of gains when it is given to him
voluntarily and he is not entitled as a matter of A: The wife will now own both the parcel of land the house
right such as a fruit of industry or labor. introduced by H and W. Reverse Accession under Article
2. Proceeds of life insurance policy will not form 120 of the Family Code will not apply since at the time of
part of the conjugal partnership of gains when the introduction of the improvement the parcel of land is
the beneficiary of the life insurance is the estate owned by the father of W which she inherited it when her
and the premiums are sourced from the father died. What will apply here instead is the ordinary
separate property of the spouse. rule of accession. However, the conjugal partnership of
3. Retirement Benefits will not form part of the gains will still enjoy the said property as a usufructuary
conjugal partnership of gains when it is given to and W will be the naked owner thereof.
him voluntarily and he is not entitled as a matter ---
of right such as a fruit of industry or labor. Presumption of inclusion of property in the Conjugal
Partnership of Gains
3. Those acquired by right of redemption, barter or
exchange with exclusive property; GR: All property acquired during the marriage, whether
the acquisition appears to have been made, contracted or
NOTE: In right of redemption, for it to form part of registered in the name of one or both spouses, is
the exclusive property of the spouse, the ownership presumed to be conjugal.
over such property must still pertain to the said
spouse. XPN: Unless the contrary is proved.

4. That purchased with exclusive money of either Obligations Chargeable to Separate Property
spouse.
1. Support of illegitimate children;
NOTE: The controlling factor is the source of the 2. Liabilities incurred by reason of a crime or quasi-
money used, or the money promised to be paid. delict;
3. Expenses of litigation between the spouses if found
Alienation of exclusive properties of either spouse to be groundless;

62
 PERSONS AND FAMILY RELATIONS
4. Debts contracted during the marriage by the name appeared to be merely descriptive of the civil
administrator-spouse which does not benefit the status of the registered owner, his late wife. The
community; purchase took place prior to the advent of the Family
5. Debts contracted during the marriage without the Code. Is the property conjugal or paraphernal
consent of the other which did not benefit the family; property of his late wife?
6. Ante-nuptial debts by either spouse which did not
benefit the family; A: CONJUGAL. In this case, the provisions of the NCC
7. Taxes incurred on the separate property which is not would apply since the purchase took place before the FC
used by the family; took effect. Under Art. 160 of the NCC, all property of the
8. Expenses incurred during the marriage on a separate marriage is presumed to belong to the conjugal
property if the property is not used by the family and partnership, unless it be proved that it pertains
not for its preservation. exclusively to the husband or the wife. In this case, there
was no proof that the property had been acquired
CONJUGAL PARTNERSHIP PROPERTY exclusively by Yamane's late wife. The mere registration
of a property in the name of one spouse does not destroy
Composition of CPG (1995, 1998, 2004, 2005, 2008 its conjugal nature in the absence of strong, clear and
BAR) (FC, Art. 117) convincing evidence that it was acquired using the
exclusive funds of said spouse (Spouses Go v. Yamane, G.R.
1. Those acquired by onerous title during the marriage No. 160762, May 3, 2006).
with conjugal funds; ---
Q: Dolores seeks to recover a parcel of land, alleging
NOTE: Requisites: that she and her husband acquired such during their
a. Acquisition is made during the marriage, marriage, that it formed part of their conjugal
b. Thru onerous title, properties and that he sold it without her consent. She
c. At the expense of common fund; presents as evidence their marriage contract and the
initial tax declaration over the property.
2. Those obtained from labor, industry, work or
profession of either or both spouses; A: RECOVERY IS NOT WARRANTED. The rule is all
3. Fruits of conjugal property due or received during property of the marriage is presumed to be conjugal in
the marriage and net fruits of separate property; nature. However, for this presumption to apply, the party
who invokes it must first prove that it was acquired during
NOTE: Net fruits refer to the remainder of the fruits the marriage. Here, Dolores' evidence consisted of her
after deducting the amount necessary to cover the marriage contract and the initial tax declaration over the
expenses of administration of said exclusive property. She did not identify when she and her husband
property. first occupied and possessed the land. Neither did she
4. Share of either spouse in hidden treasure; present any witness to prove that they first occupied the
5. Those acquired through occupation such as hunting property during their marriage and that they both worked
or fishing; on the land (Pintiano-Anno v. Anno, G.R. No. 163743,
6. Livestock in excess of what was brought to the January 27, 2006).
marriage;
7. Those acquired by chance such as winnings in The presumption of conjugality of the properties of the
gamblings and bettings (FC, Art. 117). husband and wife applies only when there is proof that
the property was acquired during the marriage. If there is
Property bought through instalment (FC, Art. 118) no showing as to when the properties alleged to be
conjugal were acquired, the presumption does not apply
Requisites: (Francisco v. CA, G.R. No. 102330, November 30, 1998).
1. Property is bought on installment prior to the Proof of acquisition during the coverture is a condition
marriage; and sine qua non to the operation of the presumption in favor
2. Paid partly from exclusive funds and partly from of the conjugal partnership (Pintiano-Anno, v. Anno, et al.,
conjugal funds. G.R. No. 163743, January 27, 2006).
---
Rules in determining ownership: Effect if properties were registered during the
1. If full ownership was vested before the marriage – it marriage
shall belong to the buyer spouse.
2. If full ownership was vested during the marriage – it The fact that the properties were registered in the name
shall belong to the conjugal partnership. of the spouses is no proof that the properties were
acquired during the marriage. It is well-settled that the
NOTE: In either case, any amount advanced by the registration does not confer title but merely confirms one
partnership or by either or both spouses shall be already existing (Jocson v. CA, G.R. No. L-55322, February
reimbursed by the owner/s upon liquidation of the 16, 1989).
partnership. ---
--- Q: H & W got married on October 1926. H
Q: Yamane asserts that the parcel of land, which was subsequently cohabited with X. During the
purchased at auction, belonged to the conjugal cohabitation of H with X, H acquired certain
partnership of him and his late wife. In the title, his properties and places his status as single. What is the

63
 Civil Law
nature of said properties? 1. All the responsibilities of the partnership have
already been covered; and
A: THEY ARE CONJUGAL PROPERTIES. Whether a 2. The spouse who is bound has no exclusive properties
property is conjugal or not is determined by law and not or the same are insufficient.
by the will of one of the spouses. No unilateral declaration
by one spouse can change the character of conjugal Charges:
property. The clear intent of H in placing his status as 1. Personal debts of either spouse contracted before the
single is to exclude W from her lawful share in the marriage which did not redound to the benefit of the
conjugal property. The law does not allow this. The family;
cohabitation of a spouse with another person, even for a 2. Support of the illegitimate children of either spouse;
long period, does not sever the tie of a subsisting previous 3. Fines and indemnities arising from delicts and quasi-
marriage. H and X’s cohabitation cannot work to the delicts.
detriment of W as the legal spouse. The marriage of H and
W continued to exist regardless of the fact that H was If levy was made on the conjugal property by reason of the
already living with X. Hence, all property acquired from husband being a guarantor, the levy is improper. The
the date of their marriage until the death of W are payment of personal debts contracted by the husband or
presumed conjugal. It was neither claimed nor proved the wife before or during the marriage shall not be
that any of the subject properties was acquired outside or charged to the conjugal partnership except as they
beyond this period (Villanueva v. CA, G.R. No. 143286, April redounded to the benefit of the family (FC, Art. 122).
14, 2004). (2000, 2005 BAR)
--- ---
Q: Suppose a property was acquired by one spouse Q: If one of the spouses committed the crime of
while they were living separately, is this property slander and was held liable for damages in a damage
conjugal or not? suit, is it chargeable against the conjugal partnership?

A: It is presumed to be conjugal. All property acquired A: NO. Unlike in the system of absolute community where
during the marriage regardless of whether the spouses liabilities incurred by either spouse by reason of a crime
are living together or not, are presumed to be conjugal or quasi-delict is chargeable to the absolute community of
property (Flores v. Escudero, G.R. No. L-5302, March 11, property, in the absence or insufficiency of the exclusive
1953). property of the debtor-spouse, the same advantage is not
--- accorded in the system of conjugal partnership of gains.
A. CHARGES UPON AND OBLIGATIONS OF THE To reiterate, conjugal property cannot be held liable for
CONJUGAL PARTNERSHIP OF GAINS (CPG) the personal obligation contracted by one spouse, unless
some advantage or benefit is shown to have accrued to the
1. Support of the spouses, their common children and conjugal partnership (Go v. Yamane, G.R. No. 160762, May
the legitimate children of either spouse; 3, 2006).
2. Debts and obligations contracted by one without the ---
consent of the other to the extent that the family B. ADMINISTRATION OF THE CONJUGAL
benefited; PARTNERSHIP OF GAINS (ART. 124)
3. Debts and obligations contracted during the
marriage by an administrator-spouse, both spouses GR: The right to administer the conjugal partnership
or one with the consent of the other; belongs to both spouses jointly.
4. Taxes, liens, charges, expenses, including major or
minor repairs upon conjugal property; XPN:
5. Taxes and expenses for mere preservation made 1. If one spouse is incapacitated or otherwise unable to
during the marriage of separate property; participate in the administration of the common
6. Expenses for professional, vocational or self- properties – capacitated or able spouse may assume
improvement courses of either spouse; sole powers of administration.
7. Ante-nuptial debts to the extent the family has been 2. If a spouse without just cause abandons the other or
benefited; fails to comply with his or her obligations to the
8. Value of what is donated or promised to common family, the aggrieved spouse may petition the court
legitimate children for professional, vocation or self- for sole administration.
improvement courses; 3. During the pendency of a legal separation case, the
9. Expenses of litigation between the spouses unless court may designate either of the spouse as sole
the suit is found to be groundless (FC, Art. 121). administrator.

NOTE: If the conjugal partnership is insufficient to cover But such powers do not include:
the foregoing liabilities, spouses shall be solidarily liable 1. Disposition;
for the unpaid balance with their separate properties. 2. Alienation; or
3. Encumbrance of the conjugal or community
Charges against the Separate Property that may be property.
charged upon the CPG ---
Q: A and B are husband and wife who were under de
Requisites: facto separation. Two of their conjugal properties
were subject of a deed of sale. B, the wife, presented

64
 PERSONS AND FAMILY RELATIONS
an SPA executed by A, her husband, authorizing her to 8. Delivery of the common children’s presumptive
sell the properties. Spouses C and D agreed entered legitimes;
into a deed of sale with B and agreed with the terms 9. Adjudication of conjugal dwelling and custody of
of the payment covering the two parcels of land of common children (FC, Art. 129).
Spouses A and B. However, when B already needed to
turn over the owner’s duplicate copies for both lands, Liquidation of community property if the termination
she was able to turn over only one. Thereafter, the of the marriage by death
spouses found out that said copy of title for the other
parcel of land was in the hands of A’s brother. The Upon termination of marriage by death, the community
spouses C and D met with A’s brother, E, who told property shall be liquidated in the same proceeding for
them that he is the one with the power to sell the the settlement of the estate of the deceased spouse (FC,
property and not Ma. Elena. Nevertheless, spouses C Art. 130).
and D complied with the terms of payment with B. A,
upon knowledge of the sale made by his wife B Support to the surviving spouse and to the children
commenced an action nullifying the deed of sale during liquidation
contending that there was no authority on the part of
B to sell the subject lots. Is A’s contention correct? The support to be given to the surviving spouse and to the
children during liquidation shall come from the common
A: YES. A is correct. The Court ruled that the sale of mass of property and shall be particularly charged against
conjugal property without the consent of the husband was the fruits, rents or income pertaining to their shares to the
not merely voidable but void; hence, it could not be inventories property. But where the support given
ratified. The relevant part of Article 124 of the Family exceeds the fruits, rents or income pertaining to their
Code provides that: xxx In the event that one spouse is shares, the excess shall be deducted from their respective
incapacitated or otherwise unable to participate in shares as these are deemed advances from the
the administration of the conjugal properties, the inventoried property (FC, Art. 133).
other spouse may assume sole powers of
administration. These powers do not include Liquidation of community property in the absence of
disposition or encumbrance without authority of the a judicial settlement proceeding (FC, Art. 130)
court or the written consent of the other spouse. In
the absence of such authority or consent, the In the absence of a judicial settlement proceeding, the
disposition or encumbrance shall be void (Aggabao v. surviving spouse shall liquidate the community property
Parulan Jr. and Parulan, G.R. No. 165803, September 1, either, judicially or extra-judicially within 1 year from the
2010) (BERSAMIN, J.). death of the deceased spouse.
---
Disagreement in the administration of the CPG If during the liquidation of the CP, the conjugal
partnership assets are less than the conjugal partnership
In case of disagreement, the decision of the husband shall liabilities, the surviving spouse and the children shall not
prevail subject to recourse to the court by the wife for be entitled to support.
proper remedy.
Effects if the community property is not liquidated
NOTE: Prescriptive period for recourse is 5 years from (FC, Art. 130)
the date of the contract implementing such decision. 1. Any disposition or encumbrance made by the
(2000, 2002 BAR) surviving spouse involving community property of
the terminated marriage shall be void.
C. DISSOLUTION OF CONJUGAL PARTNERSHIP OF 2. Should the surviving spouse contract a subsequent
GAINS marriage a mandatory regime of complete
separation of property shall govern the property
Conjugal partnership is terminated by: relations of the subsequent marriage.
1. Death of either spouse;
2. Legal separation; III. COMPLETE SEPARATION OF PROPERTY
3. Annulment or Declaration of Nullity; (CSOP)
4. Judicial separation of property during marriage (FC,
Art. 126). The system of complete separation of property will
govern the property relations between the spouses only
D. LIQUIDATION OF THE CONJUGAL PARTNERSHIP in the following cases:
ASSETS AND LIABILITIES
1. When it is expressly provided for in the marriage
1. Inventory of all the properties; settlement
2. Restitution of advances made to each of the spouses; 2. When it is so decreed by a competent court
3. Reimbursement for use of exclusive funds; 3. Mandatory regime of complete separation of
4. Debts and obligations of the CP are paid; property
5. Delivery of exclusive properties; 4. By failure of the surviving spouse to liquidate the
6. Payment of losses and deterioration of movables absolute community or conjugal partnership of gains
belonging to each of the spouses; of a previous marriage which has been terminated by
7. Division of the net conjugal partnership; death within the one-year period required by law

65
 Civil Law
prior to contracting another marriage. The 1. Each spouse shall own, dispose of, administer,
subsequent marriage is mandatorily governed by a possess, and enjoy his or her own separate property,
regime of complete separation. without need of the consent of the other.
2. Each spouse shall own all earnings from his or her
Rules governing the regime of separation of property profession, business or industry and all fruits,
natural, industrial or civil, due or received during the
1. Marriage settlement marriage from his or her separate property (FC, Art.
2. Family Code in supplemental character (FC, Art. 149) 145).

Kinds of separation of property Liabilities of the spouses for family expenses under
the regime of separation of property (FC, Art. 146)
1. As to extent: (FC, Art. 144)
a. Total GR: Both spouses shall bear the family expenses in
b. Partial – In this case, the property not agreed proportion to their income.
upon as separate shall pertain to the absolute
community. XPN: In case of insufficiency or default thereof, to the
current market value of their separate properties.
2. As to kinds of property: (FC, Art. 144)
a. Present property Revival of previous property regime
b. Future property
c. Both present and future property If the spouses opted for voluntary separation of property,
the parties may agree to the revival even in the absence of
Instances when separation of property is allowed a reason/ground. However, a subsequent voluntary
(FC, Art. 134) separation of property is no longer allowed.

1. By agreement through marriage settlement If the separation of property is for a sufficient cause, the
2. By judicial order revival of the previous property regime depends upon the
cessation of the ground which was the basis of the judicial
Sufficient causes for judicial separation of property order. A subsequent judicial separation of property for a
sufficient cause may be allowed so long as there is a new
1. Civil interdiction of the spouse of petitioner; ground to rely on.
2. Judicial declaration of absence;
3. Loss of parental authority as decreed by the court; The procedure of the revival of previous property regime
4. Abandonment or failure to comply with family is the same as those followed upon reconciliation of the
obligation; (2003 BAR) spouses after the finality of legal separation.
5. Administrator spouse has Abused authority;
6. Separation in fact for one year and reconciliation is Transfer of Administration of Exclusive Property to
highly improbable (FC, Art. 135). another Spouse during the Marriage

NOTE: In cases provided in 1, 2 and 3, the presentation of (a) By agreement

the final judgment against the guilty or absent spouse
shall be enough bases for the grant of the decree of judicial Requisites:
separation of property. 1. By means of a public instrument;
2. To be recorded in the registry of property of
Effects of judicial separation of property between the place where the property is located.
spouses
(b) By order of the court upon petition
1. The absolute community or conjugal partnership is
dissolved; Based on these grounds:
2. The liability of the spouses to creditors shall be 1. Other spouse becomes the guardian of the
solidary with their separate properties; other;
3. Mutual obligation to support each other continues 2. The other spouse is judicially declared an
except when there is legal separation; absentee;
4. Rights previously acquired by creditors are not 3. Other spouse is sentenced to a penalty which
prejudiced. carries with it civil interdiction; or
4. Other spouse becomes fugitive from justice
In case of voluntary agreement for the separation of or hiding as an accused in a criminal case (FC,
property, the law does not require specific reasons to Art. 142).
justify the Court in approving the same. The law leaves the
matter to the discretion of the court (Sempio-Diy, 1995).
(2005 BAR)

Rights of the spouses under the regime of separation

of property

66
 PERSONS AND FAMILY RELATIONS
IV. PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE

BASIS ART. 147(1997, 2000, 2006, 2009, 2010 BAR) ART. 148(1992, 1998, 2000, 2006, 2009 BAR)
1. Parties without legal impediment to marry; With legal impediment caused by:
2. Void marriage on the ground of psychological 1. Adulterous relationships
incapacity. 2. Bigamous/polygamous marriages
Applicability 3. Incestuous void marriages under Art. 37
4. Void marriages by reason of public policy (FC,
Art. 38).

1. The man and the woman must be capacitated 1. The man and the woman must be
to marry each other; incapacitated to marry each other or they do
2. live exclusively with each other as husband not live exclusively with each other as
and wife; and husband and wife; and
As to requisites 3. their union is without the benefit of marriage 2. Their union is without the benefit of marriage
or their marriage is void (Mercado-Fehr v. Fehr, or their marriage is void (FC, Art. 148).
G.R. No. 152716, October 23, 2003
Salas, Jr. v. Aguila, G.R. No. 202370, 2013).

Owned in equal shares Separately owned by the parties. If any is

married, his/her salary pertains to the CPG of
Salaries & wages
the legitimate marriage.

Belongs to party Belongs to such party

Property exclusively
upon proof of acquisition through exclusive funds
acquired
Property acquired by Governed by rules of co-ownership Owned in common in proportion to their
both through their respective contributions
work or industry
Property acquired while living together No presumption of joint acquisition.
presumed obtained by their joint efforts, work
or industry and owned by them in equal shares. Actual joint contribution of money, property or
industry shall be owned by them in common
If one party did not participate in acquisition: proportion.
Presumption
presumed to have contributed through care
and maintenance of family and household However, their contributions are presumed
(Buenaventura v. Buenaventura, G.R. No. equal, in the absence if proof to the contrary.
127358, March 31, 2005).

When only one of the parties to a void marriage If one of the parties is validly married to another,
is in good faith, the share of the party in bad faith his/her share in the co-ownership shall accrue to
in the co-ownership shall be forfeited in favor of: the ACP or CPG existing in the marriage.

1. their common children If the party who acted in BF is not validly

Forfeiture 2. in case of default of or waiver by any or all of married to another or if both parties are in BF,
the common children or their descendants, such share be forfeited in manner provided in
each vacant share shall belong to the respective the last par. of Art. 147
surviving descendants
3. In the absence of descendants, such share shall
belong to the innocent party.
Proof of actual Not necessary Necessary
contribution

NOTE: For as long as it is proven that s property was null and void on the ground of psychological
acquired during marriage, the presumption of conjugality incapacity
will attach regardless in whose name the property is
registered. The property relation between the parties is governed by
Art. 147 of the Family Code. Property acquired by both
The presumption is not rebutted by the mere fact that the spouses through their work and industry shall be
certificate of title of the property or the tax declaration is governed by the rules on equal co-ownership. Any
in the name of one of the spouses (Villanueva v. CA, G.R. property acquired during the union is prima facie
No. 143286, April 14, 2004). presumed to have been obtained through their joint
efforts. A party who did not participate in the acquisition
Property regime in case the marriage is declared of the property shall still be considered as having

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 Civil Law
contributed thereto jointly if said party's "efforts them in equal shares and the property acquired by both
consisted in the care and maintenance of the family of them through their work or industry shall be governed
household." Unlike the conjugal partnership of gains, the by the rules of co-ownership.
fruits of the couple's separate property are not included
in the 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, worker industry,
Q: Miko and Dinah started to live together as husband and shall be owned by them in equal shares. A party who
and wife without the benefit of marriage in 1984. 10 did not participate in the acquisition by the other party of
years after, they separated. In 1996, they decided to any property shall be deemed to have contributed jointly
live together again, and in 1998 they got married. On in the acquisition thereof if the former's efforts consisted
February 17, 2001, Dinah filed a complaint for in the care and maintenance of the family and of the
declaration of nullity of her marriage with Miko on household.
the ground of psychological incapacity. The Court
rendered the following decision: Under this article, there is a presumption that the
properties which they acquired during their cohabitation
1. Declaring the marriage null and void; were acquired through their joint efforts, work or
2. Dissolving the regime of Absolute Community of industry. It further provides that a party who did not
Property; and participate in the acquisition thereof shall be deemed to
3. Declaring that a decree of absolute nullity of have contributed jointly in the acquisition thereof if his or
marriage shall only be issued after liquidation, her efforts consisted in the care and maintenance of the
partition, and distribution of the parties’ properties family and of the household.
under Art, 147.
Co-ownership under Art. 148
Dinah filed a Motion for Partial Reconsideration
questioning the portion of the decision on the Co-ownership may ensue in case of cohabitation where,
issuance of a decree of nullity of marriage only after for instance, one party has a pre-existing valid marriage,
the liquidation, partition and distribution of provided that the parties prove their actual joint
properties under Article 147. If you are the judge, contribution of money, property or industry and only to
how will you decide the petitioner’s Motion? Why? the extent of their proportionate interest thereon
(2014 BAR) (Francisco v. Master Iron Works Construction Corp., G.R.
No. 151967, February 16, 2005).
A: I will grant the partial reconsideration. If the marriage ---
is declared void under Art. 36, the provisions of the Family Q: Romeo and Juliet lived together as husband and
Code on liquidation, partition and distribution of the wife without the benefit of marriage. During their
properties on absolute community or conjugal cohabitation, they acquired a house. When they broke
partnership will not apply but rather Art 147 or Art. 148 up, they executed an agreement where he agreed to
depending on the presence or absence of the legal leave the house provided Juliet will pay his entire
impediment between them. share in their properties. She failed to do so but she
also ignored his demand for her to vacate. Romeo
Art. 50 of the Family Code, and Sec. 19 of the Rules on sued her for ejectment which the court granted. Was
Declaration of Nullity applies only to marriages which are the court correct in granting the same?
declared void ab initio or annulled by final judgement
under Art. 40 and 45 of the Family Code. Art. 50 does not A: NO. Under Art. 147 of the Family Code, the property is
apply to marriages which are declared void ab initio co-owned by the parties. In the absence of proof to the
under Art. 36 which should be declared void without contrary, any property acquired by common-law spouses
waiting for the liquidation of the properties of the parties. during their cohabitation is presumed to have been
obtained thru their joint efforts and is owned by them in
In this case, petitioner’s marriage to respondent was equal shares. Their property relationship in such a case is
declared void under Art. 36 of the FC and not under Art. essentially governed by the rules on co-ownership. Thus,
40. Thus, what governs the liquidation of property owned Romeo cannot seek the ejectment of Juliet therefrom. As a
in common by petitioner and respondent are the rules on co-owner, she is as much entitled to enjoy its possession
co-ownership under Art. 496 of the NCC. Partition may and ownership as him (Abing v. CA, G.R. No. 146294, July
be made by agreement between the parties or by judicial 31, 2006).
proceedings. It is not necessary to liquidate the property ---
of the spouses in the same proceeding for declaration of Q: Bert and Joe, both male and single, lived together
nullity of marriage(Dino v. Dino, G.R. No. 178044, January as common law spouses and agreed to raise a son of
19, 2011). Bert’s living brother as their child without legally
--- adopting him. Bert worked while Joe took care of
Co-ownership under Art. 147 their home and the boy. In their 20 years of
cohabitation they were able to acquire real estate
When a man and a woman who are capacitated to marry assets registered in their names as co-owners.
each other, live exclusively with each other as husband Unfortunately, Bert died of cardiac arrest, leaving no
and wife without the benefit of marriage or under a void will. Bert was survived by his biological siblings, Joe
marriage, their wages and salaries shall be owned by and the boy.

68
 PERSONS AND FAMILY RELATIONS
of the Family Code on August 3, 1998, Article 148 applies
a. Can Article 147 on co-ownership apply to Bert and because the said provision was intended precisely to fill
Joe, whereby all properties they acquired will be up the hiatus in Article 144 of the NCC. Before Article 148
presumed to have been acquired by their joint of the Family Code was enacted, there was no provision
industry and shall be owned by them in equal shares? governing property relations of couples living in a state of
b. If Bert and Joe had decided in the early years of adultery or concubinage (Atienza v. De Castro, G.R. No.
their cohabitation to jointly adopt the boy, would 169698, November 29, 2006).
they have been legally allowed to do so? Explain with ---
legal basis _________________________________________________________________

A: THE FAMILY UNDER THE FAMILY CODE

a.NO, Article 147 of the Family Code cannot apply to Bert _________________________________________________________________
and Joe because the law only applies to a man and a
woman who are capacitated to marry each other who live THE FAMILY AS AN INSTITUTION
together as husband and wife without the benefit of
marriage or under a void marriage. In the case of Bert and Being the foundation of the nation, it is a basic social
Joe, they are both men so the law does not apply. institution which public policy cherishes and protects.
(FC, Art. 149).
b. NO, because joint adoption is allowed between husband
and wife. Even if Bert and Joe are cohabiting with each Family relations include:
other, they are not vested with the right to jointly adopt 1. Between husband and wife;
under the Family Code or even under the Domestic 2. Between parents and children;
Adoption Act (Sec. 7, R.A. 8552). 3. Among other ascendants and descendants;
--- 4. Among brothers and sisters, whether of the full or
Q: Benjamin is married to Azucena. While Azucena is half-blood (FC, Art. 150).
out of country, Benjamin developed a romantic
relationship with Sally, but her father was against A suit between a brother-in-law and a sister-in-law is not
this. In order to appease her father, Sally convinced within the coverage of the law, hence, the failure of the
Benjamin to sign a purported marriage contract. plaintiff to allege earnest efforts to effect a compromise is
Eventually, their relationship ended a few years later. not necessary. The relationship is based on consanguinity,
Benjamin asked the court for the partition of the except that of the husband and wife (Gayon v. Gayon, G.R.
properties he acquired with Sally in accordance with No. L-28394, November 26, 1970). The enumeration of
Article 148 of the FC, for his appointment as brothers and sisters as members of the same family does
administrator of the properties during the pendency not comprehend brothers- or sisters-in-law (Guerero v.
of the case. Among the 44 properties which were the RTC, G.R. No. 109068, January 10, 1994).
subject of the partition, 7 were enumerated by
Benjamin while Sally named 37 properties in her Rules to remember:
answer. Is Benjamin’s contention correct?
1. Family relations exists even if they are not living
A: YES. The property relations of Benjamin and Sally is together
governed by Article 148 of the Family Code. They 2. Illegitimate children are not included in the family
cohabitated without the benefit of marriage. Thus, only relations under this Article because they have their
the properties acquired by them through their actual joint own families.
contribution of money, property, or industry shall be 3. Adopted children are included (Minutes of Committee
owned by them in common in proportion to their Meeting of August 24, 1985).
respective contributions. Thus, the 37 properties being
claimed by Sally is excluded as part of her conjugal Rules governing family relations
properties with Benjamin because Sally was not legally
married to Benjamin. As regards the seven remaining Family relations are governed by law. No custom, practice
properties, only one of them is registered in the names of or agreement destructive of the family shall be recognized
the parties as spouses. The other four were registered in or given effect (FC, Art. 149).
the name of either one of them with the description
“married to” and the last two were named to Sally as an NOTE: Even if not all forms of extra-marital relations are
individual. The words “married to” preceding the name of punishable under penal law, the sanctity of marriage is
a spouse are merely descriptive of the civil status of the constitutionally recognized and likewise affirmed by our
registered owner, which do not prove co-ownership. statutes as a special contract of permanent union.
Without proof of actual contribution from either or both Accordingly, the Court has had little qualms with
spouses, there can be no co-ownership under Article 148 penalizing judicial employees for their dalliances with
of the Family Code (Go-Bangayan v. Bangayan, Jr., G.R. No. married persons or for their own betrayals of the marital
201061, July 3, 2013). vow of fidelity (Concerned Employee v. Mayor, A.M. No. P-
--- 02-1564, November 23, 2004).
Retroactive application of Art. 148 of the Family Code
Requisites before a suit between members of the
Although the adulterous cohabitation of the parties or the same family may prosper
acquisition of the property occurred before the effectivity

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 Civil Law
1. Earnest efforts toward a compromise have been constituted as a FH.
made;
2. Such efforts failed; Beneficiaries of a Family Home (FC, Art. 154)
3. The fact that earnest efforts toward a compromise
have been made but the same have failed appears in 1. Husband and wife, or
the verified complaint or petition (FC, Art. 151). 2. Unmarried head of the family,
3. Parents (may include parents-in-law),
This rule shall not apply to cases which may not be subject 4. Ascendants,
of compromise under the Art. 2035 of the New Civil Code. 5. Descendants
6. Brothers and sisters (legitimate or illegitimate)
The following cannot be compromised: living in the FH and dependent on the head of the
family for support.
1. Civil status of persons;
2. Validity of a marriage or legal separation; Requisites to be considered as beneficiary (FC, Art
3. Any ground for legal separation; 156)
4. Future support;
5. Jurisdiction of courts; and 1. They must be among the relationships enumerated
6. Future legitime (NCC, Art. 2035). in Art. 154 of the Family Code;
2. They live in the FH; and
NOTE: A sister-in-law or a brother-in-law is not covered 3. They are dependent for legal support upon the head
by these two provisions. Being an exception to the general of the family.
rule, Art. 151 of the Family Code must be strictly ---
construed (Gayon v. Gayon, G.R. No. L-28394, November 26, Q: On March 30, 2000, Mariano died intestate and was
1970). survived by his wife, Leonora and children, Danilo
and Carlito. One of the properties he left was a piece
THE FAMILY HOME of land in Alabang where he built his residential
house. After his burial, Leonora and Mariano’s
It is the dwelling house where the husband and wife and children extra-judicially settled his estate.
their family reside, and the land on which it is situated. It Thereafter, Leonora and Danilo advised Carlito of
is constituted jointly by the husband and the wife or by an their intention to partition the property. Carlito
unmarried head of a family (FC, Art. 152). opposed invoking Art. 159 of the Family Code. Carlito
alleged that since his minor child Lucasstill resides in
Constitution of Family Home (FH) the premises, the family home continues until the
minor beneficiary becomes of age.
The FH is deemed constituted on a house and lot from the Is the contention of Carlito tenable? (2014 BAR)
time it is occupied as a family residence FC, (Art. 153).
A: NO. To qualify as beneficiary of the FH the person must
Guidelines in the constitution of the Family Home be among those mentioned under Art. 154 of the Family
Code, he/she must be actually living in the FH and must
1. FH is deemed constituted from the time of actual be dependent for legal support upon the head of the
occupation as a family residence; family (Patricio v. Darion, G.R. No. 170829, November 20,
2. Only 1 FH may be constituted; 2006). While Lucas satisfies the first and second
3. Must be owned by the person constituting it; requisites, he cannot, however, directly claim legal
4. Must be permanent; support from his grandmother, Leonora because the
5. Same rule applies to both valid and voidable person primarily obliged to give him support is his father
marriages and even to common law spouses; (FC, Carlito. Thus, the partition may be successfully claimed by
Arts. 147 and 148) Leonora and Danilo.
6. It continues despite death of one, both spouses, or an
unmarried head of the family for 10 years or as long Occupancy of the FH either by the owner thereof or by
as there is a minor beneficiary (FC, Art 159). “any of its beneficiaries” must be actual. That which is
“actual” is something real, or actually existing, as opposed
The heirs cannot partition the same unless the court finds to something merely possible, or to something which is
compelling reasons therefor. This rule shall apply presumptive and constructive. Actual occupancy,
regardless of whoever owns the property or constituted however, need not be by the owner of the house. Rather,
the FH (FC, Art 159). the property may be occupied by the “beneficiaries”
enumerated by Art. 154 of the Family Code (Manacop v.
The FH must be part of the properties of the absolute CA, G.R. No. 97898, August 11, 1997).
community or the conjugal partnership or the exclusive ---
properties of either spouse, with the latter’s consent. It NOTE: This enumeration may include the in-laws where
may also be constituted by an unmarried head of a family the FH is constituted jointly by the husband and wife. But
on his or her own property (FC, Art 156). the law definitely excludes maids and overseers.

NOTE: Property that is subject of a conditional sale on Effect of death of one or both spouses or of the
instalments where ownership is reserved by the vendor unmarried head of the family upon the family home
to guarantee payment of the purchase price may be

70
 PERSONS AND FAMILY RELATIONS
The FH shall continue despite the death of one or both made answerable must have been incurred after the
spouses or of the unmarried head of the family for a effectivity of the Family Code.
period of 10 years or for as long as there is a minor
beneficiary and the heirs cannot partition the same unless 3. And in both cases, whether under the Civil Code or
the court finds compelling reasons therefor. This rule the Family Code, it is not sufficient that the person
shall apply regardless of whoever owns the property or claiming exemption merely alleges that such
constituted the FH (FC, Art. 159). (2010 BAR) property is a FH. This claim for exemption must be
set up and proved (Juanita Trinidad Ramos, et al. v.
GR: FH is exempt from execution, forced sale or Danilo Pangilinan et al. G.R. No. 185920, July 20, 2010).
attachment
Exemption of Family Home must first be set up and
Exemption of Family Home from execution, forced proved
sale or attachment
The FH’s exemption from execution must be set up and
From the time of its constitution and so long as any of its proved to the Sheriff before the sale of the property at
beneficiaries resides therein, the FH continues to be such public auction. It should be asserted that the property is a
and is exempt from execution, forced sale or attachment FH and that it is exempted from execution at the time it
(FC, Art. 153). was levied or within a reasonable time thereafter. It is not
sufficient that the person claiming exemption merely
However, the rule is not absolute. Art. 155 of the Family alleges that such property is a FH. Failure to do so will
Code provides the circumstances wherein the FH will not estop one from later claiming the said exemption (Spouses
be exempt from execution, forced sale of attachment, to Araceli Oliva-De Mesa and Ernesto de Mesa v. Spouses
wit: Claudio D. Acero Jr. and Ma.Rufina D. Acero, Sheriff
Felixberto L. Samonte and Registrar Alfredo Santos, G.R. No.
XPN: Under Art. 155 of the Family Code: 185064, January 16, 2012).
1. Debts due to laborers, mechanics, architects,
builders, material men and others who rendered Requisites for the creditor to avail of the right to
service or furnished materials for the constitution of execute (FC, Art 159)
the building;
2. Non-payment of Taxes; 1. He must be a judgment creditor;
3. Debts incurred Prior to its constitution; 2. His claim must not be among those excepted under
4. Debts secured by Mortgages on the premises before Art. 155;
or after such constitution. 3. He has reasonable grounds to believe that the FH is
NOTE: Exemption is limited to the value allowed in the worth more than the maximum amount fixed in Art.
Family Code. 157.

Rule for the family home to be exempted from Procedure in exercising the right to execute
execution
1. Creditor must file a motion in the court proceeding
1. If the FH was constructed before the effectivity of where he obtained a favorable judgment for a writ of
the FC, then it must have been constituted either execution against the FH;
judicially or extra-judicially as provided under Arts. 2. There will be a hearing on the motion where the
225, 229-231 and 233 of the NCC. Judicial creditor must prove that the actual value of the FH
constitution of the FH requires the filing of a verified exceeds the maximum amount fixed by the Family
petition before the courts and the registration of the Code, either at the time of its constitution or as a
court’s order with the Registry of Deeds of the area result of improvements introduced after its
where the property is located. Meanwhile, constitution;
extrajudicial constitution is governed by Arts. 240 to 3. If the creditor proves that the actual value exceeds
242 of the New Civil Code and involves the execution the maximum amount, the court will order its sale in
of a public instrument which must also be registered execution;
with the Registry of Property. 4. If the FH is sold for more than the value allowed, the
proceeds shall be applied as follows:
2. For FH constructed after the effectivity of the FC, a. The obligations enumerated in Art. 155 of the
there is no need to constitute extra-judicially or Family Code must be paid
judicially, and the exemption is effective from the b. The judgment in favor of the creditor will be
time it was constituted and lasts as long as any of its paid, plus all the costs of execution
beneficiaries actually resides therein. Moreover, the
FH should belong to the absolute community or The excess, if any, shall be delivered to the judgment
conjugal partnership, or if exclusively by one spouse, debtor (FC, Art. 160).
its constitution must have been with consent of the
other, and its value must not exceed certain amounts NOTE: The actual value of the FH shall not exceed, at the
depending upon the area where it is located. Further, time of its constitution, the amount of P300,000 in urban
the debts incurred for which the exemption does not areas, and P200,000 in rural areas, or such amounts as
apply as provided under Art. 155 for which the FH is may hereafter be fixed by law (FC, Art. 157).
---

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 Civil Law
Q: A complaint for damages was filed against Hinahon
in 1986 when she incurred liabilities as early as 1977, Requisites in the sale, alienation, donation,
which action prospered in 1989. The house and lot assignment or encumbrance of the FH
that she owned was levied upon and sold at auction.
She assails the levy and sale on the ground that it was The following must give their written consent:
her family home and therefore exempt from 1. The person who constituted the FH;
execution. Decide. 2. The spouse of the person who constituted the FH;
3. Majority of the beneficiaries of legal age.
A: IT IS NOT EXEMPT. Under Art. 155 of the Family Code,
the FH shall be exempt from execution, forced sale, or NOTE: In case of conflict, the court shall decide.
attachment except for, among other things, debts
incurred prior to the constitution of the FH. The house Limitations on Family Home
and lot was not constituted as a FH, whether judicially or
extra-judicially, at the time that the debtor incurred her 1. Each family can have only one FH. After one FH has
debts. Under prevailing jurisprudence, it is deemed been constituted, no other FH can be established
constituted as such by operation of law only upon the without first dissolving the existing one.
effectivity of the Family Code on August 3, 1988, thus, the 2. FH can be constituted only on the dwelling place, and
debts were incurred before the constitution of the FH therefore in the locality where the family has its
(Gomez-Salcedo, et al. v. Sta. Ines, et al., G.R. No. 132537, domicile.
October 14, 2005). 3. The value of the FH must not exceed the limit fixed by
law (Tolentino, 2013).
Here, the complaint against Hinahon was instituted on
June 17, 1986, to seek redress for damages suffered by _________________________________________________________________
them due to acts and omissions committed by her as early
as 1977. This means that Hinahon’s liability arose long PATERNITY AND FILIATION
before the levied property was constituted as FH by ___________________________________________________________
operation of law in August 1988. It is thus clear that the _
liability incurred by Hinahon falls squarely under one of Paternity is the civil status of a father with regard to the
the instances when a FH may be the subject of execution, child.
forced sale, or attachment to answer for debts incurred
prior to the constitution of the FH (Gomez-Salcedo, et al. v. Filiation is the civil status of a child with regard to his
Sta. Ines, et al., G.R. No. 132537, October 14, 2005). parents.
---
Q : Has the residential house and lot of Cesario Filiation may be by nature or adoption, legitimate or
Montana which he and his family built in 1960 but illegitimate.
which was not constituted as a family home, whether
judicially or extrajudicially, under the NCC been NOTE: Paternity or filiation is established by clear and
constituted as a family home by operation of law convincing evidence (Constantino v. Mendez, G.R. No.
under Art. 153 of the FC, and therefore, exempt from 57227, May 14, 1992).
execution from a money judgement where the debt or
liability was incurred before the effectivity of the FC ? Classifications of filiation (2009 BAR)

A : NO. Under Art. 162 of the Family Code, it is provided I. Natural

that “the provisions of this Chapter shall also govern a. Legitimate – conceived OR born within a valid
existing family residences insofar as said provisions are marriage
applicable.” It does not mean that Arts. 152 and 153 of the b. Illegitimate – conceived AND born outside a
Family Code have a retroactive effect such that all existing valid marriage
family residences are deemed to have been constituted as
a FH at the time of their occupation prior to the effectivity II. Judicial Act
of the FX and are exempt from execution for the payment a. Legitimated – conceived and born outside of
of obligations before the effectivity of the Family Code. wedlock of parents without impediment to
Art. 162 simply means that all existing family residences marry at the time of conception or were so
at the time of the effectivity of the Family Code are disqualified only because either or both of them
considered FH and are prospectively entitled to the were below eighteen (18) years of age(FC, Art.
benefits accorded to a family home under the Family Code 177).
(Manacop v. CA, 277 SCRA 64, August 11, 1997). b. Adopted – a filiation created by law which vests
between two persons a relationship similar to
--- that which results from legitimate paternity and
NOTE: The case of Modequillo v. Breva explicitly ruled filiation.
that the FC does not have a retroactive effect. Thus, prior
to August 5, 1988, the procedure mandated by the CC had I. NATURAL
to be followed for a FH to be constituted as such. There
being no proof that the subject property was judicially or
A. LEGITIMATE CHILDREN
extrajudicially constituted as a family home, it follows
that petitioner cannot avail of the law’s protective mantle.
Legitimate child

72
 PERSONS AND FAMILY RELATIONS
of his mother when the presumption of his legitimacy has
GR: One who is conceived OR born during the marriage of been successfully overthrown.
the parents (FC, Art. 164). ---
Q: What is the effect of the declaration of a wife
XPN: Born outside of a valid marriage (void marriages) against the legitimacy of the child where the child is
but considered as legitimate child: conclusive presumed to be the legitimate child of H
and W?
1. Children of marriages which are declared void under
Art. 36; and A: The child shall still be legitimate, although the mother
2. Children of marriages which are declared void under may have declared against his legitimacy. This law
Art. 53 (Rabuya, 2009). likewise applies to such instances where the mother may
have been sentenced as an adulteress (FC, Art. 167).
Requisites for a child conceived by artificial ---
insemination to be considered legitimate (FC, Art. 166 NOTE: Art. 167 of the Family Code applies only to a
no. 3) situation where the wife denies the paternity of the
husband. Art. 167 does not apply to a situation where a
1. The artificial insemination is made on the wife, not child is alleged not to be the child of nature or biological
on another woman; child of the couple (Rabuya, 2009).
2. The artificial insemination on the wife is done with ---
the sperm of the husband or of a donor, or both the Q: Roderick and Faye were high school sweethearts.
husband and a donor; When Roderick was 18 and Faye, 16 years old, they
3. The artificial insemination has been authorized or started living together as husband and wife without
ratified by the spouse on a written instrument the benefit of marriage. When Faye reached 18 years
executed and signed by them before the birth of the of age, her parents forcibly took her back and
child; and arranged for her marriage to Brad. Although Faye
4. The written instrument is recorded in the civil lived with Brad after the marriage, Roderick
registry together with the birth certificate of the child continued to regularly visit Faye while Brad was away
(FC, Art. 164). at work. During their marriage, Faye gave birth to a
baby girl, Laica. When Faye was 25 years old, Brad
Rights of legitimate children (FC, Art. 174) discovered her continued liaison with Roderick and
in one of their heated arguments, Faye shot Brad to
1. To bear the surname of the father and the mother; death. She lost no time in marrying her true love
2. To receive support from their parents, their Roderick, without a marriage license, claiming that
ascendants, and in proper cases, their brothers and they have been continuously cohabiting for more
sisters; than 5 years.
3. To be entitled to the legitimate and other
successional rights granted to them by Art. 174 of the 1. What is the filial status of Laica?
Family Code. 2. Can Laica bring an action to impugn her own
status on the ground that based on DNA results,
Presumption of legitimacy (2006, 2008, 2010 BAR) Roderick is her biological father? (2008 BAR)

Article 164 of the Family Code provides that the children A:

conceived or born during the marriage of the parents are a) Having been born during the marriage of Faye and
legitimate. Brad, she is presumed to be the legitimate child of
Faye and Brad. This presumption had become
The presumption of legitimacy of children does not only conclusive because the period of time to impugn her
flow out from a declaration contained in the statute but is filiation had already prescribed.
based on the broad principles of natural justice and the
supposed virtue of the mother. The presumption is b) NO, she cannot impugn her own filiation. The law
grounded in a policy to protect innocent offspring from does not allow a child to impugn his or her own
the odium of illegitimacy (Liyao, Jr. v. Tanhoti-Liyao, G.R. filiation. In the problem, Laica’s legitimate filiation
138961, March 7, 2002). was accorded to her by operation of law which may
be impugned only by Brad, or his heirs in the cases
The presumption of legitimacy under Article 164 of the provided by law within the prescriptive period.
Family Code may be availed only upon convincing proof ---
of the factual basis therefor, i.e., that the child’s parents Action to impugn legitimacy v. Action to claim
were legally married and that his/her conception or birth legitimacy
occurred during the subsistence of that marriage. Else,
the presumption of law that a child is legitimate does not BASIS ACTION TO ACTION TO
arise (Angeles v. Maglaya, G.R. No. 153798, September 2, IMPUGN CLAIM
2005). LEGITIMACY LEGITIMACY (FC,
(FC, Art. 166) Art 173)
NOTE: The child by himself cannot choose his own Action to Action to claim
filiation. Neither can he elect the paternity of the husband Remedy impugn legitimacy

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 Civil Law
legitimacy or (compulsory
illegitimacy recognition) 1. Concealed from; or
2. Was unknown to the husband or his heirs, the
GR: Husband GR: Child periods shall be counted from the discovery or
knowledge of the birth of the child or of the act of
XPNs: Heirs, in XPNs: Heirs of the registration of said birth, whichever is earlier (FC,
cases where: child, in cases Art. 170).
1. Husband where:
died before 1. Child died in Grounds in impugning legitimacy of a child (FC, Art.
the state of 166)
expiration of insanity
the period 2. Child died Legitimacy of the child may be impugned only on the
for bringing during minority following grounds:
Real party the action;
in interest 2. Husband NOTE: Must be 1. Physical impossibility for the husband to have
died after filed within 5 sexual intercourse with his wife within the first 120
filing the years. days of the 300 days which immediately preceded
complaint, the birth of the child because of:
without
having a. Physical incapacity of the husband to have
desisted; sexual intercourse with his wife,
3. Child was b. The fact that the husband and wife were living
born after separately in such a way that sexual
the death of intercourse was not possible, or
husband. c. Serious illness of the husband which absolutely
1 year – GR: During the prevented intercourse;
husband resides lifetime of the
in the same child 2. Proved that for biological or other scientific
municipality or reasons, the child could not have been that of the
city where birth XPN: Lifetime of husband, except in the case of children conceived
took place the putative father through artificial insemination;
2 years – 3. In case of children conceived through artificial
Prescription husband does In cases where the insemination, the written authorization or
NOT reside in action is for the ratification of either parent was obtained through
the same recognition of mistake, fraud, violence, intimidation or undue
municipality or illegitimate child influence.
city by “open and
3 years – continuous Sterility and Impotency
husband is possession” of the
living abroad status. Sterility is not synonymous with impotency. Sterility is
the inability to procreate, while impotency is the physical
Person/s who may attack the legitimacy of the child inability to copulate (Menciano v. San Jose, G.R. No. L-1967,
May 28, 1951).
GR: Only the husband can contest the legitimacy of the ---
child. Q: Will an infliction of the last stages of tuberculosis
be a ground for impugnation of the legitimacy of the
XPNs: Heirs of the husband may impugn the filiation of child?
the child within the period prescribed in Art. 170 of the
Family Code only in the following cases: A: Tuberculosis, even in its last stages, is not the kind of
serious illness of the husband that will establish physical
1. If the husband should die before the expiration of the impossibility of access (Andal v. Macaraig, G.R. No. L- 2474,
period fixed for bringing his action; May 30, 1951).
2. If he should die after the filing of the complaint, ---
without having desisted therefrom; or Rule on status of child where the mother contracted
3. If the child was born after the death of the husband another marriage within 300 days after termination
(FC, Art. 171). (2008 BAR) of the former (1999 BAR)

Prescriptive period for filing action impugning the The child shall be considered as conceived during the:
legitimacy of the child (2010 BAR)
1. Former marriage– if child is born:
GR: The prescriptive period for filing action impugning Before 180 days after the solemnization of the
the legitimacy of the child shall be counted from the subsequent marriage, provided it is born
knowledge of birth or its recording in the civil registry. within300 days after termination of former
marriage
XPN: If the birth was: 2. Subsequent marriage –if a child is born:

74
 PERSONS AND FAMILY RELATIONS
180 days after the celebration of the subsequent days after the termination of the former
marriage, even though it be born within 300 marriage.

Illustrations:

1. 180th day takes place before 300th day

180th day from
Former marriage Subsequent marriage solemnization of 300th day from
terminated solemnized subsequent marriage termination of former
marriage

Born during this period:

Born during this period:
Conceived during Former Marriage
Conceived during Subsequent Marriage

2. 180th day takes place after 300th day

Subsequent 300th day from 180th day from
Former marriage marriage termination of solemnization of
terminated solemnized former marriage subsequent marriage

Born during this period: Born during this period:

Conceived during Former Marriage Conceived during Subsequent
Marriage

3. They shall be entitled to support in conformity with

B. ILLEGITIMATE CHILDREN (2005, 2009, 2010 the FC, PROVIDED, only as to the separate property of
BAR) the parent
1. Children conceived and born outside a valid 4. They shall be entitled to a legitime which shall consist
marriage: of ½ of the legitime of a legitimate child (FC, Art.
2. Children born of couples who are not legally married 176).
or of common law marriages;
3. Children born of incestuous marriage; Effect of the recognition of an illegitimate child by the
4. Children born of bigamous marriage; father
5. Children born of adulterous relations between
parents; Such recognition would be a ground for ordering the latter
6. Children born of marriages which are void for reasons to give support to, but not the custody of the child. The law
of public policy under Art. 38, Family Code; explicitly confers to the mother sole parental authority
7. Children born of couples below 18 over an illegitimate child; it follows that only if she
8. Children born of void marriages under art. 35, except defaults can the father assume custody and authority over
where the marriage is void for lack of authority on the the minor (Briones v. Miguel, G.R. No. 156343, October 18,
part of the solemnizing officer, but the parties or 2004).
either of them believed in good faith that the
solemnizing officer had authority, in which case the Also, under the R.A. 9255, the illegitimate child has the
marriage will be considered valid and the children will option to use the surname of the father.
be considered legitimate.
Republic Act 9255
Rights of an illegitimate child (1990, 2003, 2006,
2009, 2010 BAR) This act provides that illegitimate children may optionally
use the father’s surname provided that:
1. They shall use the surname of the mother; 1. Filiation has been recognized by the father through
2. They shall be under the parental authority of the the record of birth appearing in the civil register
mother; 2. Admission in public document OR
3. Private handwritten instrument is made by the father

75
 Civil Law
NOTE: Provided that the father has the right to institute Q: Why is an illegitimate child of a woman, who gets
an action before the regular courts to prove non-filiation married, allowed to bear the surname of her
during his lifetime. subsequent spouse, while a legitimate child may not?

ESTABLISHING ILLEGITIMATE FILIATION (1995, 1999, A: To allow the child to adopt the surname of his mother’s
2005, 2010 BAR) second husband, who is not his father, could result in
--- confusion in his paternity. It could also create the
Q: Julie had a relationship with a married man who suspicion that the child, who was born during the
had legitimate children. A son was born out of the covertures of his mother with her first husband, was in
illicit relationship in 1981. Although the putative fact sired by the second husband, thus bringing his
father did not recognize the child in his birth legitimate status into discredit (Republic v. Vicencio, G.R.
certificate, he nevertheless provided the child with all No. 88202. December 14, 1998).
the support he needed and spent time regularly with ---
the child and his mother. When the man died in 2000, Q: Is it sufficient proof of filiation when it is the father
the child was already 18 years old so he filed a who registers the birth certificate of his illegitimate
petition to be recognized as an illegitimate child of the child?
putative father and sought to be given a share in his
putative father’s estate. The legitimate family A: YES. The birth certificate of Anacleto appearing in the
opposed, saying that under the FC his action cannot Register of Births of the Municipality of Bacong, Negros
prosper because he did not bring the action for Oriental (Exhibits 3, 3-A) showed that Nicolas had himself
recognition during the lifetime of his putative father. caused the registration of the birth of Anacleto. The
If you were the judge, how would you rule? showing was by means of the name of Nicolas appearing
2. Wishing to keep the peace, the child during the in the column "Remarks" in Page 53, Book 4, Register No.
pendency of the case decides to compromise with his 214 of the Register of Births. Based on the certification
putative father’s family by abandoning his petition in (Exhibit 3-B) issued by the Local Civil Registrar of the
exchange for what he would have received as Municipality of Bacong, Negros Oriental, the column in the
inheritance if he were recognized as an illegitimate Register of Births entitled "Remarks" (Observaciones)
child. As the judge, would you approve such was the space provided for the name of the informant of
compromise?(2015 BAR) the live birth to be registered. Considering that Nicolas,
the putative father, had a direct hand in the preparation
A: of the birth certificate, reliance on the birth certificate of
1. If I were the judge, I will not allow the action for Anacleto as evidence of his paternity was fully warranted.
recognition filed after the death of the putative father. An (Alejandra Arado Heirs v. Alcoran and Sunjanco, G. R. No.
illegitimate child who has not been recognized by the 163362, July 08, 2015) (BERSAMIN, J.).
father in the record of birth, or in a private handwritten
instrument, or in a public document and may prove his II. JUDICIAL
filiation based on open and continuous possession of the
status of an illegitimate child but pursuant to Article 175, A. LEGITIMATED CHILDREN
he or she must file the action for recognition during the Legitimated children are those who, because of the
lifetime of the putative father. The provision of Article 285 subsequent marriage of their parents to each other, are by
of the Civil Code allowing the child to file the action for legal fiction considered legitimate.
recognition even after the death of the father will not
apply because in the case presented, the child was no Legitimation (2004, 2010 BAR)
longer a minor at the time of death of the putative father.
Legitimation is a remedy or process by means of which
2. NO, I will not approve the compromise agreement those who in fact not born in wedlock and should
because filiation is a matter to be decided by law. It is not therefore be ordinarily illegitimate, are by fiction,
for the parties to stipulate whether a person is a legitimate considered legitimate.
or illegitimate child of another (De Jesus v. Estate of Dizon
G.R. No. 142877, October 2, 2001). In all cases of It takes place by a subsequent valid marriage between
illegitimate children, their filiation must be duly proved parents. Furthermore, it shall retroact to the time of the
(NCC, Art. 887). child’s birth (FC, Art 180).
---
Illegitimate children may establish their illegitimate NOTE: The annulment of a voidable marriage shall not
filiation in the same way and on the same evidence as affect the legitimation (FC, Art. 178).
legitimate children.
Children entitled to legitimation
The action must be brought in the same period specified
in Art. 173 of the Family Code, except when the action is Only children conceived and born outside of wedlock of
based on the 2nd par. of Art.172 of the Family Code, in parents who, at the time of conception, were not
which case the action may be brought during the lifetime disqualified by any impediment to marry each other or
of the alleged parent (FC, Art. 175). were so disqualified only because either or both of them
--- were below eighteen (18) years of age (Art. 177, FC as
amended by R.A. 9858). (1990, 2004, 2008, 2009 BAR)

76
 PERSONS AND FAMILY RELATIONS
Requisites of legitimation the benefit of marriage. When Faye reached 18 years
of age, her parents forcibly took her back and
1. Child must have been conceived and born outside of arranged for her marriage to Brad. Although Faye
wedlock; lived with Brad after the marriage, Roderick
2. Child’s parents, at the time of former’s conception, continued to regularly visit Faye while Brad was away
were not disqualified by any impediment to marry at work. During their marriage, Faye gave birth to a
each other or were so disqualified only because baby girl, Laica. When Faye was 25 years old, Brad
either or both of them were below eighteen (18) discovered her continued liaison with Roderick and
years of age; in one of their heated arguments, Faye shot Brad to
3. The subsequent valid marriage of the parents. death. She lost no time in marrying her true love
--- Roderick, without a marriage license, claiming that
Q: Who may impugn the legitimation? (FC, Art. 182) they have been continuously cohabiting for more
than 5 years. Can Laica be legitimated by the marriage
A: Legitimation may be impugned only by those who are of her biological parents? (2008 BAR)
prejudiced in their rights, within 5 years from the time
their cause of action accrues, that is, from the death of the A: NO, she cannot be legitimated by the marriage of her
putative parent. biological parents. In the first place she is not, under the
--- law, the child of Roderick. In the second place, her
NOTE: The right referred to are successional rights. biological parents could not have validly married each
Hence, only those whose successional rights are directly other at the time she was conceived and born simply
affected may impugn the legitimation that took place. because Faye was still married to Roderick Brad at that
--- time. Only children conceived or born outside of wedlock
Q: Roderick and Faye were high school sweethearts. of parents who, at the time of the conception of the child
When Roderick was 18 and Faye, 16 years old, they were not disqualified by any impediment to marry each
started living together as husband and wife without other, may be legitimated (FC, Art. 177).

RIGHTS OF LEGITIMATE AND ILLEGITIMATE CHILDREN

NOTE: Legitimated children shall enjoy the same rights as legitimate children. (FC, Art. 179)

BASIS LEGITIMATE CHILDREN ILLEGITIMATE CHILDREN

Bear the surname of either the mother
or the father under R.A. 9255

Bear the surnames of both parents NOTE: Under the amendatory

Surname
(mother and father) provisions of RA 9255, the use of
illegitimate father's surname is
permissive and not obligatory (Rabuya,
2008).
Receive support from: Receive support according to provision
1. Parents; of Family Code
2. Ascendants; and
Support 3. In proper cases, brothers and
sisters under Art. 174 of the
Family Code.

Full Legitimes and other successional Share is equivalent to ½ of the share of

Legitime rights under the New Civil Code a legitimate child

His/her whole lifetime regardless of For primary proof: his/her whole

type of proof provided under Art. 172 lifetime
Period for filing action for of the Family Code
claim of legitimacy or For secondary proof:
illegitimacy only during the lifetime of the alleged
parent

Yes No
Transmissibility of right to file
an action to claim legitimacy

77
 Civil Law
Yes No right to inherit ab intesto from
legitimate children and relatives of
Right to inherit ab intesto father and mother under Art. 992, New
Civil Code
(Iron Curtain Rule)

ACTION TO CLAIM FILIATION b. Admission of legitimate filiation in public

document or private handwritten instrument
Paternity and filiation or the lack of the same is a signed by parent concerned.
relationship that must be judicially established and it is 2. Secondary consists of the ff. (FC, Art 172, 2nd par):
for the court to declare its existence or absence. It cannot a. Open and continuous possession of legitimacy;
be left to the will or agreement of the parties (De Asis v. b. Any means allowed by the Rules of Court and
CA, G.R. 127578, February 15, 1999). special laws.

The manner of claiming filiation is the same for both NOTE: To prove open and continuous possession of the
legitimate and illegitimate children status of an illegitimate child, there must be evidence of
manifestation of the permanent intention of the supposed
Person/s who may file for claim legitimate filiation father to consider the child as his, by continuous and clear
(FC, Art. 173) manifestations of parental affection and care, which
cannot be attributed to pure charity.
GR: The right of claiming legitimacy belongs to the child
Such acts must be of such a nature that they reveal not
XPN: The right is transferred to his heirs when the child only the conviction of paternity, but also the apparent
dies: desire to have and treat the child as such in all relations in
1. During minority or society and in life, not accidentally, but continuously
2. In a state of insanity. (Jison v. CA, G.R. No. 124853, February 24, 1998).
3. After commencing the action for legitimacy
Rules in proving filiation
NOTE: Questioning legitimacy may not be collaterally
attacked. It can be impugned only in a direct action GR: Primary proof shall be used to prove filiation.

Person/s who may file for claim illegitimate filiation XPN: In absence of primary proof, secondary proof may
be resorted to.
GR: The right of claiming illegitimacy belongs to the child
XPN: The right is transferred to his heirs when: Pictures or certificate of baptism do not constitute
1. During minority or authentic documents to prove the legitimate filiation
2. In a state of insanity. of a child
3. After commencing the action for illegitimate filiation
Pictures or canonical baptismal certificate do not
Prescription of action to claim legitimacy or constitute the authentic documents to prove the
illegitimacy legitimate filiation of a child. The baptismal certificate of
the child, standing alone, is not sufficient. It is not a record
An action must be brought: of birth. Neither is it a public instrument nor a private
1. By the child – during his lifetime handwritten instrument (Abelle v. Santiago, G.R. No. L-
2. By his heirs – within 5 years should the child dies 16307, April 30, 1963).
during minority, in a state of insanity or after
commencing the action for legitimacy Baptismal certificate does not prove filiation

NOTE: Provided that the action for illegitimacy is based Just like in a birth certificate, the lack of participation of
on admission of paternity or filiation in a birth certificate the supposed father in the preparation of a baptismal
or written instrument. certificate renders this document incompetent to prove
paternity. And “while a baptismal certificate may be
However, if the action for illegitimacy is based on open considered a public document, it can only serve as
and continuous possession of status of illegitimate evidence of the administration of the sacrament on the
filiation or any other means allowed by the Rules of Court date specified but not the veracity of the entries with
and special laws, the action must be brought during the respect to the child’s paternity. Thus, baptismal
lifetime of the alleged parent. certificates are per se inadmissible in evidence as proof of
filiation and they cannot be admitted indirectly as
Kinds of proof of filiation (1995, 1999, 2010 BAR) circumstantial evidence to prove the same” (Antonio Perla
v. Mirasol Baring and Randy B. Perla, G.R. No. 172471,
Proof of filiation has two kinds (FC, Art 172, 1st par): November 12, 2012).
1. Primary proof consists of the ff.:
a. Record of birth appearing in civil registrar or NOTE: A will which was not presented for probate
final judgment; sufficiently establish filiation because it constitutes a

78
 PERSONS AND FAMILY RELATIONS
public document or private handwritten instrument (Rivera v. Heirs of Romualdo Villanueva, G.R. No. 141501,
signed by the parent concerned. July 21, 2006).
---
Prima facie case of sexual relations with the putative Q: In a complaint for partition and accounting with
father damages, Ma. Theresa alleged that she is the
illegitimate daughter of Vicente, and therefore
A prima facie case exists if a woman declares — entitled to a share in the estate left behind by the
supported by corroborative proof — that she had sexual latter. As proof, she presented her birth certificate
relations with the putative father; at this point, the burden which Vicente himself signed thereby acknowledging
of evidence shifts to the putative father. Further, the two that she is his daughter. Is the evidence presented by
affirmative defenses available to the putative father are: Ma.Theresa sufficient to prove her claim that she is an
(1) incapability of sexual relations with the mother due to illegitimate child of Vicente?
either physical absence or impotency, or (2) that the
mother had sexual relations with other men at the time of A: YES. Ma. Theresa was able to establish that Vicente was
conception (Charles Gotardo v. Divina Buling, G.R. No. in fact her father. The due recognition of an illegitimate
165166, August 15, 2012). child in a record of birth, a will, a statement before a court
--- of record, or in any authentic writing is, in itself, a
Q: Rosanna, as surviving spouse, filed a claim for consummated act of acknowledgment of the child, and no
death benefits with the SSS upon the death of her further court action is required (De Jesus v. Estate of Juan
husband, Pablo. She indicated in her claim that the Dizon, G.R. No. 142877, October 2, 2001. Any authentic
decedent is also survived by their minor child, Lyn, writing is treated not just as a ground for compulsory
who was born in 1991. The SSS granted her claim but recognition; it is in itself a voluntary recognition that does
this was withdrawn after investigation, when a sister not require a separate action for judicial approval (Eceta
of the decedent informed the system that Pablo could v. Eceta, G.R. No. 157037, May 20, 2004).
not have sired a child during his lifetime because he ---
was infertile. However in Lyn’s birth certificate, Pablo Q: Gerardo filed a complaint for bigamy against Ma.
affixed his signature and he did not impugn Lyn’s Theresa, alleging that she had a previous subsisting
legitimacy during his lifetime. Was the SSS correct in marriage when she married him. The trial court
withdrawing the death benefits? nullified their marriage and declared that the son,
who was born during their marriage and was
A: NO. Children conceived or born during the marriage of registered as their son, as illegitimate. What is the
the parents are legitimate (FC, Art. 164). This presumption status of the child?
becomes conclusive in the absence of proof that there is
physical impossibility of access under Art. 166 of the Family A: The first marriage being found to be valid and
Code. Upon the expiration of the periods for impugning subsisting, whereas that between Gerardo and Ma.
legitimacy under Art. 170, and in the proper cases under Theresa was void and non-existent; the child should be
Art. 171, of the Family Code, the action to impugn would regarded as a legitimate child out of the first marriage.
no longer be legally feasible and the status conferred by This is so because the child's best interests should be the
the presumption becomes fixed and unassailable. In this primordial consideration in this case.
case, there is no showing that Pablo, who has the right to ---
impugn the legitimacy of Lyn, challenged her status Q: Gerardo and Ma. Theresa, however, admitted that
during his lifetime. There is adequate evidence to show the child was their son. Will this affect the status of the
that the child was in fact his child, and this is the birth child?
certificate where he affixed his signature (SSS v. Aguas, et
al., G.R. No. 165546, February 27, 2006). A: NO. The admission of the parties that the child was
--- their son was in the nature of a compromise. The rule is
Q: In an action for partition of estate, the trial court that: the status and filiation of a child cannot be
dismissed it on the ground that the respondent, on the compromised. Art. 164 of the Family Code is clear that a
basis of her birth certificate, was in fact the child who is conceived or born during the marriage of his
illegitimate child of the deceased and therefore the parents is legitimate (Concepcion v. CA, G.R. No. 123450,
latter's sole heir, to the exclusion of petitioners. August 31, 2005).
However, trial court failed to see that in said birth ---
certificate, she was listed therein as “adopted.” Was Q: What is the effect of Ma. Theresa’s claim that the
the trial court correct in dismissing the action for child is her illegitimate child with her second
partition? husband, to the status of the child?

A: NO. The trial court erred in relying upon the said birth A: NONE. This declaration – an avowal by the mother that
certificate in pronouncing the filiation of the respondent. her child is illegitimate – is the very declaration that is
However, since she was listed therein as “adopted”, she proscribed by Art. 167 of the Family Code. This
should therefore have presented evidence of her adoption proscription is in consonance with, among others, the
in view of the contents of her birth certificate. In this case, intention of the law to lean towards the legitimacy of
there is no showing that she undertook such. A record of children (Concepcion v. CA, G.R. No. 123450, August 31,
birth is merely prima facie evidence of the facts contained 2005).
therein. It is not conclusive evidence of the truthfulness of ---
the statements made there by the interested parties Q: In a petition for issuance of letters of

79
 Civil Law
administration, Cheri Bolatis alleged that she is the the extremely subjective test of physical resemblance or
sole legitimate daughter of decedent, Ramon and Van similarity of features will not suffice as evidence to prove
Bolatis. Phoebe, the decedent’s second wife, opposed paternity and filiation before courts of law. This only
the petition and questioned the legitimate filiation of shows the very high standard of proof that a child must
Cheri to the decedent, asserting that Cheri’s birth present in order to establish filiation.
certificate was not signed by Ramon and that she had ---
not presented the marriage contract between her
alleged parents which would have supported her Q: Ann Lopez, represented by her mother Araceli
claim. Lopez, filed a complaint for recognition and support
of filiation against Ben-Hur Nepomuceno. She
In said birth certificate, it was indicated that her birth assailed that she is the illegitimate daughter of
was recorded as the legitimate child of Ramon and Nepomuceno submitting as evidence the handwritten
Van Bolatis, and contains as well the word “married” note allegedly written and signed by Nepomuceno.
to reflect the union between the two. However, it was She also demanded for financial support along with
not signed by Ramon and Vanemon Bolatis. It was filial recognition. Nepomuceno denied the assertions
merely signed by the attending physician, who reasoning out that he was compelled to execute the
certified to having attended to the birth of a child. handwritten note due to the threats of the National
Does the presumption of legitimacy apply to People’s Army. RTC ruled in favor of Ann. Is the trial
Cherimon? court correct?

A: NO. Since the birth certificate was not signed by Cher’s A: Ann’s demand for support is dependent on the
alleged parents but was merely signed by the attending determination of her filiation. However, she relies only on
physician, such a certificate, although a public record of a the handwritten note executed by petitioner. The note
private document is, under Sec. 23, Rule 132 of the Rules does not contain any statement whatsoever about her
of Court, evidence only of the fact which gave rise to its filiation to petitioner. It is, therefore, not within the ambit
execution, which is, the fact of birth of a child. A birth of Article 172(2) vis-à-vis Art. 175 of the Family Code
certificate, in order to be considered as validating which admits as competent evidence of illegitimate
proof of paternity and as an instrument of recognition, filiation an admission of filiation in a private handwritten
must be signed by the father and mother jointly, or by instrument signed by the parent concerned.
the mother alone if the father refuses. There having
been no convincing proof of respondent’s supposed The Court is mindful that the best interests of the child in
legitimate relations with respect to the decedent, the cases involving paternity and filiation should be
presumption of legitimacy under the law did not advanced. It is, however, just as mindful of the
therefore arise in her favour (Angeles v. Angeles-Maglaya, disturbance that unfounded paternity suits cause to the
G.R. No. 153798, September 2, 2005). privacy and peace of the putative father’s legitimate
--- family (Ben-Hur Nepomuceno v. Archbencel Ann Lopez,
Q: On the basis of the physical presentation of the represented by her mother Araceli Lopez G.R. No. 181258,
plaintiff-minor before it and the fact that the alleged March 18, 2010).
father had admitted having sexual intercourse with ---
the child's mother, the trial court, in an action to ________________________________________________________________
prove filiation with support, held that the plaintiff-
minor is the child of the defendant with the plaintiff- ADOPTION
minor's mother. Was the trial court correct in holding _________________________________________________________________
such? Adoption is the process of making a child, whether related
or not to the adopter, possess in general, the rights
A: NO. The birth certificate that was presented by the accorded to a legitimate child. It is a juridical act, a
plaintiff-minor appears to have been prepared without proceeding in rem which creates between two persons a
the knowledge or consent of the putative father. It is relationship similar to that which results from legitimate
therefore not a competent piece of evidence on paternity. paternity and filiation. The modern trend is to consider
The local civil registrar in this case has no authority to adoption not merely as an act to establish a relationship
record the paternity of an illegitimate child on the of paternity and filiation, but also as an act which endows
information of a third person. A baptismal certificate, the child with a legitimate status (In the Matter of the
while considered a public document, can only serve as Adoption Stephanie Nathy Astorga Garcia, G.R. No. 148311,
evidence of the administration of the sacrament on the March 31, 2005).
date specified therein but not the veracity of the entries
with respect to the child's paternity (Macadangdang v. CA, The relationship established by the adoption is limited to
G.R. No. L-49542, September 12, 1980). Thus, certificates the adopting parents and does not extend to their other
issued by the local civil registrar and baptismal relatives, except as expressly provided by law. Thus, the
certificates are per se inadmissible in evidence as proof of adopted child cannot be considered as a relative of the
filiation and they cannot be admitted indirectly as ascendants and collaterals of the adopting parents, nor of
circumstantial evidence to prove the same (Jison v. CA, G.R. the legitimate children which they may have after the
No. 124853, February 24, 1998; Cabatania v. CA, G.R. No. adoption, except that the law imposes certain
124814, October 21, 2004). impediments to marriage by reason of adoption. Neither
are the children of the adopted considered descendants of
NOTE: In this age of genetic profiling and DNA analysis, the adopter.

80
 PERSONS AND FAMILY RELATIONS
GR: Has been living in the Philippines for at least 3
Preference in adoption (AID) continuous years prior to the application for
1. Adoption by the extended family; adoption and maintains such residence until
2. Domestic Adoption; adoption decree has been entered.
3. Inter-Country Adoption.
XPNs:
I. DOMESTIC ADOPTION ACT (R.A. 8552) i. He is a former Filipino who seeks to adopt a
relative within the 4th civil degree of
Applies to adoption of Filipino children, where the entire consanguinity or affinity;
adoption process beginning from the filing of the petition ii. He is married to a Filipino and seeks to adopt
up to the issuance of the adoption decree takes place in jointly with his spouse a relative within the 4th
the Philippines (Rabuya, 2009). degree of consanguinity or affinity;
iii. He is married to a Filipino and seeks to adopt the
A. WHEN ALLOWED legitimate or illegitimate child of his Filipino
spouse.
Adoption need NOT be a last resort
Rule on Joint Adoption of Spouses
B. WHO CAN ADOPT
1. Filipino citizens; GR: Husband and wife shall adopt jointly (Sec. 7, Art. 3 or
2. Aliens; RA 8552)
3. Guardians with respect to their ward.
XPNs:
NOTE: A guardian may only adopt his ward after a. One spouse seeks to adopt the legitimate son or
termination of guardianship and clearance of his daughter of the other;
financial accountabilities. b. One spouse seeks to adopt his own illegitimate
son or daughter, PROVIDED, that the other
Qualifications of a Filipino who may adopt
signifies his consent
1. Must be of legal age;
2. In a position to support and care for his NOTE: In seeking to adopt his own illegitimate
children; son or daughter, the law requires that the
3. Good moral character; consent of the spouse of the adopter must be
4. Full civil capacity and legal rights; given to such adoption.
5. Not been convicted of any crime involving moral
turpitude; If on the other hand, the spouse would adopt the
6. Emotionally and psychologically capable of illegitimate son or daughter of the other, joint
caring for children; adoption is still mandatory
7. GR: At least 16 years older than adoptee
c. Spouses are legally separated.
XPN: It is not necessary that adopter be at least 16 years ---
older: Q: Spouses Esteban decided to raise their two nieces,
Adopter is the biological parent of the Faith and Hope, both minors as their own children
adoptee, after their parents died in a vehicular accident. Ten
Adopter is the spouse of adoptee’s years after, Esteban died. Maria later on married her
parent. boss Daniel, a British National who had been living in
the Philippines for 2 years. With the permission of
NOTE: A reading of Arts. 27 and 28 of P.D. 603 clearly Daniel, Maria filed a petition for the adoption of Faith
shows that the temporary residence of the adopting and Hope. She did not include Daniel as her co-
parents in a foreign country does not disqualify them petitioner because for Maria, it was her former
from adopting (Nieto v. Magat, G.R. No. L-62465, May 24, husband Esteban who has raised the kids. If you are
1985). the judge, how will you resolve the petition? (2014
BAR)
Qualifications of an alien who may adopt under R.A.
8552 A: I will dismiss the petition. The husband and wife must
jointly adopt and there are only three recognized
1. Possesses same qualifications as those enumerated for exceptions to the joint adoption: 1) one spouse seeks to
Filipino adopters; adopt the legitimate child of the other; 2) if one spouse
2. His country has diplomatic relations with the seeks to adopt his or her own illegitimate child; 3) if the
Philippines; spouses are legally separated. The case of Maria and
3. His government allows the adoptee to enter his country Daniel does not fall under any of the exceptions,
as his adopted child; accordingly the petition by the wife alone should be
4. He has been certified by his diplomatic or consular dismissed.
office or any appropriate government agency that he ---
has the legal capacity to adopt in their country; Q: Spouses Primo and Monina Lim, childless, were
entrusted with the custody of two minor children, the

81
 Civil Law
parents of whom were unknown. Eager to have by the adopter(s) as his/her own child since
children of their own, the spouses made it appear that minority;
they were the children’s parents by naming them 5. A child whose adoption has been previously
Michelle P. Lim and Michael Jude Lim. Subsequently, rescinded; or
Monina married Angel Olario after Primo’s death. She 6. A child whose biological or adoptive parent(s) has
decided to adopt the children by availing the amnesty died: Provided, that no proceedings shall be initiated
given under R.A. 8552 to those individuals who within six (6) months from the time of death of said
simulated the birth of a child. She filed separate parent(s) (Sec. 8, RA 8552).
petitions for the adoption of Michelle, then 25 years
old and Michael, 18. Both Michelle and Michael gave Child
consent to the adoption. The trial court dismissed the
petition and ruled that Monina should have filed the A child is any person below 18 years old(Sec. 3, RA 8552).
petition jointly with her new husband. Monina, in a
Motion for Reconsideration argues that mere consent Child legally free for adoption
of her husband would suffice and that joint adoption
is not needed, for the adoptees are already A child voluntarily or involuntarily committed to the
emancipated. Is the trial court correct in dismissing DSWD as dependent, abandoned or neglected pursuant to
the petitions for adoption? the provisions of the Child and Youth Welfare Code maybe
subject of Inter-Country Adoption; provided that in case
A: YES. Sec. 7 Art. 3 of R.A. 8552 reads: Sec. 7 – Husband of a child shall be made not earlier that six (6) months
and wife shall jointly adopt xxx. from the date the Deed of Voluntary Commitment was
executed by the child’s biological parent/s. A legally-free
The use of the word “shall” in the above-quoted provision child is freed of his biological parents, guardians, or
means that joint adoption by the husband and the wife is adopters in case of rescission.
mandatory. This is in consonance with the concept of joint
parental authority over the child which is the ideal NOTE: The prohibition against physical transfer shall not
situation. As the child to be adopted is elevated to the level apply to adoption by a relative or children with special
of a legitimate child, it is but natural to require the medical conditions. (Rabuya, 2006).
spouses to adopt jointly. The rule also ensures harmony
between the spouses. Necessity of written consent for adoption under
domestic adoption
The law is clear. There is no room for ambiguity. Monina,
having remarried at the time the petitions for adoption The written consent of the following is necessary for
were filed, must jointly adopt. Since the petitions for adoption:
adoption were filed only by Monina herself, without
joining her husband, Olario, the trial court was correct in a. Biological parent(s) of the child, if known, or the legal
denying the petitions for adoption on this ground (In Re: guardian, or the proper government instrumentality
Petition for Adoption of Michelle P. Lim, In Re: Petition for which has legal custody of the child;
Adoption of Michael Jude P. Lim, Monina P. Lim, G.R. Nos. b. Adoptee, if ten (10) years of age or over;
168992-93, May 21, 2009). c. Illegitimate sons/daughters, ten (10) years of age or
--- over, of the adopter if living with said adopter and the
Joint adoption when the adoptees are already latter's spouse, if any;
emancipated d. Legitimate and adopted sons/daughters, ten (10)
years of age or over, of the adopter(s) and adoptee, if
Even if emancipation terminates parental authority, the any;
adoptee is still considered a legitimate child of the e. Spouse, if any, of the person adopting or to be
adopter with all the rights of a legitimate child such as: (1) adopted.
to bear the surname of the father and the mother; (2) to ---
receive support from their parents; and (3) to be entitled Q: Bernadette filed a petition for adoption of the three
to the legitime and other successional rights. Conversely, minor children of her late brother, Ian. She alleged
the adoptive parents shall, with respect to the adopted that when her brother died, the children were left to
child, enjoy all the benefits to which biological parents are the care of their paternal grandmother, because their
entitled such as support and successional rights. biological mother Amelia went to Italy to work and
has allegedly abandoned her children. This
C. ADOPTEE grandmother died however, and so she filed the
petition for adoption. The minors gave their written
1. Any person BELOW eighteen (18) years of age who consent to the adoption and so did all of her own
has been administratively or judicially declared grown-up children. The trial court granted the decree
available for adoption; of adoption even though the written consent of the
2. The legitimate son/daughter of one spouse by the biological mother of the children was not adduced by
other spouse; Bernadette. Was the trial court correct in granting the
3. An illegitimate son/daughter by a qualified adopter decree of adoption?
to improve his/her status to that of legitimacy;
4. A person of legal age if, prior to the adoption, said A: NO. The rule is adoption statutes must be liberally
person has been consistently considered and treated construed in order to give spirit to their humane and

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 PERSONS AND FAMILY RELATIONS
salutary purpose which is to uplift the lives of
unfortunate, needy or orphaned children. However, the Grounds by which an adopter may disinherit adoptee
discretion to approve adoption proceedings on the part of
the courts should not to be anchored solely on those a. Groundless accusation against the testator of a crime
principles, but with due regard likewise to the natural punishable by 6 years or more imprisonment;
rights of the parents over the child. The written consent b. Found guilty of attempt against the life of the
of the biological parents is indispensable for the testator, his/her spouse, descendant or ascendant;
validity of the decree of adoption. Indeed, the natural c. Causes the testator to make changes or changes a
right of a parent to his child requires that his consent must testator’s will through violence, intimidation, fraud
be obtained before his parental rights and duties may be or undue influence;
terminated and vested in the adoptive parents. In this d. Maltreatment of the testator by word or deed;
case, petitioner failed to submit the written consent of e. Conviction of a crime which carries a penalty of civil
Amelia Ramos to the adoption. This is so under Sec. 9 (b) interdiction;
of R.A. 8552, otherwise known as the Domestic Adoption f. Adultery or concubinage with the testator’s wife;
Act of 1998. Bernadette failed in this respect, thus g. Refusal without justifiable cause to support the
necessitating the dismissal of her petition for adoption parent or ascendant;
(Landingin v. Republic, G.R. No. 164948, June 27, 2006). h. Leads a dishonorable or disgraceful life.
---
Effects of Domestic Adoption Effects of rescission of the adoption under the
Domestic Adoption Act of 1998 (RA 8552)
GR: Severance of all legal ties between the biological
parents and the adoptee and the same shall then be vested 1. If adoptee is still a minor or is incapacitated –
on the adopters (Sec. 16, RA 8552). Restoration of:
b. Parental authority of the adoptee’s biological
XPN: In cases where the biological parent is the spouse of parents, if known or
the adopter; c. Custody of the DSWD;
1. Deemed a legitimate child of the adopter (Sec. 2. Reciprocal rights and obligations of the adopters and
17, RA 8552); adoptee to each other shall be extinguished;
2. Acquires reciprocal rights and obligations 3. Court shall order the civil registrar to cancel the
arising from parent-child relationship; amended certificate of birth of the adoptee and
3. Right to use surname of adopter (NCC, Art. 365); restore his/her original birth certificate;
4. In legal and intestate succession, the adopters 4. Succession rights shall revert to its status prior to
and the adoptee shall have reciprocal rights of adoption, but only as of the date of judgment of
succession without distinction from judicial rescission;
legitimate filiation. However, if the adoptee 5. Vested rights acquired prior to judicial rescission
and his/her biological parents had left a will, the shall be respected.
law on testamentary succession shall govern ---
(Sec. 18, RA 8552). Q: Despite several relationships with different
women, Andrew remained unmarried. His first
Who may file the action for rescission of domestic relationship with Brenda produced a daughter, Amy,
adoption now 30 years old. His second, with Carla, produced
two sons: Jon and Ryan. His third, with Donna, bore
The adoptee has the sole right to severe the legal ties him two daughters: Vina and Wilma. His fourth, while
created by adoption and the one who will file the action Elena, bore him no children although Elena has a
for rescission. However, if the adoptee is still a minor or daughter Jane, from a previous relationship. His last,
above 18 years of age but incapacitated, the Department with Fe, produced no biological children but they
of Social and Welfare Development as the adoptee’s informally adopted without court proceedings,
guardian or counsel may assist the adoptee for rescinding Sandy, now 13 years old, whom they consider as their
the decree of adoption. own. Sandy was orphaned as a baby and was
entrusted to them by the midwife who attended to
The adopter cannot seek the rescission of the adoption Sandy’s birth. All the children, including Amy, now
but he may disinherit the adoptee. live with Andrew in his house.

Grounds upon which an adoptee may seek judicial b. Is there any legal obstacle to the legal adoption of
rescission of the adoption (SARA) Amy by Andrew?
c. To the legal adoption of Sandy by Andrew and
When the adopter has committed the following:
Elena?
1. Repeated physical and verbal maltreatment by the d. In his old age, can Andrew be legally entitled to
adopter despite having undergone counseling; claim support from Amy, Jon, Ryan, d. Vina,
2. Attempt on the life of the adoptee; Wilma and Sandy assuming that all of them have
3. Sexual assault or violence committed against the the means to support him?
adoptee; e. Can Amy, Jon, Ryan, Vina, Wilma and Sandy
4. Abandonment and failure to comply with parental legally claim support from each other?
obligations
f. Can Jon and Jane legally marry? (2008 BAR)

83
 Civil Law
turpitude;
A: e. Eligible to adopt under his national law;
a. NO, there is no legal obstacle to the legal adoption of f. In a position to provide for proper care and support
Amy by Andrew. While a person of age may not be and give necessary moral values;
adopted, Amy falls within two exceptions: (1) she is g. Agrees to uphold the basic rights of the child
an illegitimate child and she is being adopted by her mandated by the UN convention of rights of Child and
illegitimate father to improve her status; and (2) the Philippine Laws;
even on the assumption that she is not an illegitimate h. Comes from a country with which the Philippines has
child of Andrew, she may still be adopted, although of diplomatic relations and adoption is allowed under
legal age, because she has been consistently his national law;
considered and treated by the adopter as his own i. Possesses all the qualifications and none of the
child since minority. In fact, she has been living with disqualifications under the law or other applicable
him until now. Philippine laws.
b. YES. There is a legal obstacle to the adoption of Sandy
by Andrew and Elena. Andrew and Elena cannot Necessity of written consent for adoption in inter-
adopt jointly because they are not married. country adoption
c. YES. Andrew can claim support from all of them,
except from Sandy, who is not his legitimate, The written consent of the following is necessary for
illegitimate or adopted child. adoption:
d. YES. Amy, Jon, Ryan, Vina and Wilma can ask support
from each other because they are half-blood brothers a. Written consent of the adopter’s biological or adopted
and sisters, and Vina and Wilma are full-blood sisters children above ten (10) years of age in the form of sworn
(Art. 195 [5], FC), but not Sandy who is not related to statement is required to be attached to the application to
any of them. be filed with the Family Court or Inter-Country Adoption
e. YES. Jon and Jane can legally marry because they are Board;
not related to each other. Jane is not a daughter of
Andrew. b. If a satisfactory pre-adoptive relationship is formed
--- between the applicant and the child, the written consent
II. INTER-COUNTRY ADOPTION ACT OF to the adoption executed by the DSWD is required.
1995(RA 8043) ---
Q: Sometime in 1990, Sarah, born a Filipino but by
Inter-Country Adoption then a naturalized American citizen, and her
American husband Sonny Cruz, filed a petition in the
It is a socio-legal process of adopting a Filipino child by a Regional Trial Court of Makati, for the adoption of the
foreigner or a Filipino citizen permanently residing minor child of her sister, a Filipina, can the petition be
abroad where the petition is filed, the supervised trial granted? (2000 BAR)
custody is undertaken, and the decree of adoption is
issued outside the Philippines (Sec. 3(a), RA 8043). A: IT DEPENDS. If Sonny and Sarah have been residing in
the Philippines for at least three (3) years prior to the
A. WHEN ALLOWED effectivity of R.A. 8552, the petition may be granted.
Otherwise, the petition cannot be granted because the
Adoption ONLY AS A LAST RESORT: No child shall be American husband is not qualified to adopt.
matched to a foreign adoptive family unless it is
satisfactorily shown that the child cannot be adopted While the petition for adoption was filed in 1990, it was
locally (Sec. 11). considered refiled upon the effectivity of R.A. 8552. This
is the law applicable, the petition being still pending with
the lower court. Under the Act, Sarah and Sonny must
B. WHO MAY ADOPT
adopt jointly because they do not fall in any of the
a. Any alien; exceptions where one of them may adopt alone. When
b. Filipino citizen, both permanently residing abroad. husband and wife must adopt jointly, the Supreme Court
has held in a line of cases that both of them must be
Qualifications needed for a Filipino or alien to adopt qualified to adopt. While Sarah, an alien, is qualified to
(Sec. 9, RA 8043) adopt, for being a former Filipino citizen who seeks to
adopt a relative within the 4th degree of consanguinity or
a. At least 27 years old and 16 years older than the child affinity, Sonny, an alien, is not qualified to adopt because
to be adopted at the time of the application unless: he is neither a former Filipino citizen nor married to a
Filipino. One of them not being qualified to adopt, their
1. adopter is the parent by nature of the child; petition has to be denied. However, if they have been
2. adopter is the spouse of the parent by nature of residents of the Philippines 3 years prior to the effectivity
the child to be adopted of the Act and continues to reside here until the decree of
adoption is entered, they are qualified to adopt the
b. If married, his spouse must jointly file for adoption; nephew of Sarah under Sec. 7(b) thereof, and the petition
c. Has the capacity to act or assume all rights and may be granted.
responsibilities of parental authority;
d. Not been convicted of a crime involving moral C. ADOPTEE

84
 PERSONS AND FAMILY RELATIONS
Only a legally free child may be adopted provided the INTER-COUNTRY ADOPTION BOARD
following are submitted:
a. Child study; Function of Inter-Country Adoption Board
b. Birth certificate/ foundling certificate;
c. Deed of VoluntaryCommitment/Decree of The Inter-Country Adoption Board (ICAB) acts as the
central authority in matters relating to inter-country
Abandonment/Death Certificate of parents;
adoption. The Board shall ensure that all the possibilities
d. Medical evaluation or history; for adoption of the child under the Family Code have been
e. Psychological evaluation; and exhausted and that the inter-country adoption is in the
f. Recent photo. best interest of the child

Child Trial custody

A child is any person below 15 years old (Sec. 3, RA 8043). It is the pre-adoptive relationship which ranges six (6)
months from the time of the placement. It starts from the
NOTE: No child shall be matched to a foreign adoptive actual transfer of the child to the applicant who, as actual
family unless it is satisfactorily shown that the child custodian, shall exercise substitute parental authority
cannot be adopted in the Philippines. over the person of the child.

GR: There shall be no physical transfer of a voluntarily Results of Trial Custody

committed child earlier than 6 months from the date of
execution of Deed of Voluntary Commitment. 1. If unsatisfactory – the relationship shall be
suspended by the board and the foreign adoption
XPN: agency shall arrange for the child’s voluntary care.
1. Adoption by relative; 2. If satisfactory – the Board shall submit the written
2. Child with special medical condition. consent of the adoption to the foreign adoption
agency within 30 days after the request of the latter’s
request.

NOTE: The child shall be repatriated as a last resort if

found by the ICAB to be in his/her interests.

Dictinction Between Domestic Adoption Act and Inter-country Adoption Act

DOMESTIC ADOPTION ACT (R.A. INTER-COUNTRY ADOPTION ACT

8552) (R.A. 8043)
Governing body DSWD Inter-country Adoption Board (ICAB)

When may adoption be resorted to Adoption need not be the last resort Adoption only as last resort: No child
shall be matched to a foreign adoptive
family unless it is satisfactorily shown
that the child cannot be adopted locally
(Sec. 11).

Who may adopt 1. Any FILIPINO CITIZEN 1. FILIPINO CITIZEN permanently

(regardless of where residing) residing abroad may file an
application for inter-country
a. Of legal age; adoption of a Filipino child if
he/she:
b. At least sixteen (16)
years older than the a. Is at least twenty-seven
adoptee, (may be waived (27) years of age;
when the adopter is the
biological parent of the b. At least sixteen (16)
adoptee, or is the spouse years older than the
of the adoptee’s parent; child to be adopted, at
the time of application
c. In possession of full civil unless the adopter is the
capacity and legal rights; parent by nature of the
child to be adopted or
d. Of good moral character, the spouse of such
has not been convicted parent
of any crime involving
moral turpitude,
emotionally and

85
 Civil Law
psychologically capable c. Has the capacity to act
of caring for children; and assume all rights
and and responsibilities of
parental authority
e. Who is in a position to under his national laws,
support and care for and has undergone the
his/her children in appropriate counseling
keeping with the means from an accredited
of the family. counselor in his/her
country;
2. Any ALIEN possessing the same
qualifications as above stated for d. Has not been convicted
Filipino nationals, Provided; of a crime involving
moral turpitude;
a. That he/she has been
living in the Philippine e. Is in a position to
for at least three (3) provide the proper care
continuous years prior and support to give the
to the filing of the necessary moral values
application for adoption and example to all his
and maintains such children including the
residence until the child to be adopted;
adoption decree is
entered; f. If married, his/her
spouse must jointly file
b. That his/her country has for the adoption;
diplomatic relations
with the Republic of the g. Is eligible to adopt
Philippines; under his/her national
law;
c. He/she has been
certified by his/her h. Agrees to uphold the
diplomatic or consular basic rights of the child
office or any appropriate as embodied under
government agency that Philippine laws, the U.N.
he/she has the legal Convention on the
capacity to adopt in Rights of the Child and
his/her country; to abide by the rules and
regulations issued to
d. That his/her implement the
government allows the provisions of this Act;
adoptee to enter his/her
country as his/her
i. Comes from a country
adopted son/daughter;
with whom the
and
Philippines has
diplomatic relations and
e. That the requirements
whose government
on residency and
maintains a similarly
certification to adopt in
authorized and
his/her country may be
accredited agency and
WAIVED for the
that adoption is allowed
following:
under his/her national
laws; and
i. A former
Filipino citizen
who seeks to j. Possesses all the
adopt a qualifications and none
relative within of the disqualifications
the fourth (4th) provided herein and in
degree of other applicable
consanguinity Philippine laws.
or affinity; or
2. ALIEN with above qualifications
ii. One who seeks
to adopt the

86
 PERSONS AND FAMILY RELATIONS
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.

3. The GUARDIAN with respect to

the ward after the termination of
the guardianship and clearance of
his/her financial accountabilities
(Sec. 7).

Who may be adopted a. Any person below eighteen a. Filipino children [Sec. 3(a)];
(18) years of age who has b. Below 15 years of age [Sec.
been administratively or 3(b)]; and
judicially declared available c. Who are legally free,
for adoption; meaning children who have
b. The legitimate son/daughter been voluntarily or
of one spouse by the other involuntarily committed to
spouse; the DSWD [Sec. 3(f) and Sec.
c. An illegitimate son/daughter 8)].
by a qualified adopter to
improve his/her status to
that of legitimacy; NOTE:IRR of 2004 adds that: Any child
d. A person of legal age if, prior who has been voluntarily or
to the adoption, said person involuntarily committed to the
has been consistently Department as dependent, abandoned
considered and treated by or neglected pursuant to the
the adopter(s) as his/her provisions of the Child and Youth
own child since minority; Welfare Code may be the subject of
e. A child whose adoption has Inter-Country Adoption xxx (Sec. 26).
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. 8).

Venue Petition for adoption shall be filed with Either with the Philippine RTC having
Family Court of the province or city jurisdiction over the child, or with the
where the prospective adoptive Inter-country Board through an
parents reside (Rule on Adoption, Sec. intermediate agency, in the country of
6). the adoptive parents (Sec. 10).

IRR of 2004 provides that: Application

87
 Civil Law
shall be filed with the Board or the
Central Authority or the Foreign
Adoption Agency in the country where
the applicant resides. In case of foreign
nationals who file petition for adoption
under RA 8552 or Domestic Adoption
Law, the Court after finding petition to
be sufficient in form and substance and
proper case for inter-country adoption
shall immediately transmit the
petition to the board for appropriate
action (Sec. 30).

Trial Custody Takes place in the Philippines Where adoptive parents reside

Rescission Only upon petition of adoptee, never No provision limiting act of rescission
by adopters (Sec.19). only to adoptee. In IRR, the procedure
is provided for when adoption process
is terminated:

SECTION 47. DISRUPTION AND

TERMINATION OF PLACEMENT. - In
the event of serious damage in the
relationship between the child and the
applicant/s where the continued
placement of the child is not in his/her
best interests, the Central Authority
and/or the
FAA shall take the necessary measures
to protect the child, in particular, to
cause the child to be withdrawn from
the applicant/s and to arrange for
his/her temporary care. The Central
Authority and/or FAA shall exhaust all
means to remove the cause of the
unsatisfactory relationship which
impedes or prevents the creation of a
mutually satisfactory adoptive
relationship. A complete report should
be immediately forwarded to the
Board with actions taken as well as
recommendations and appropriate
plans. Based on the report, the Board
may terminate the pre-adoptive
relationship.

SEC. 48. NEW PLACEMENT FOR

CHILD. In the event of termination of
the pre-adoptive relationship, the
Board shall identify from the Roster of
Approved Applicants a suitable family
with whom to place the child. The
Central Authority and/or the FAA may
also propose a replacement family
whose application shall be filed for the
approval of the Board. No adoption
shall take place until after the Board
has approved the application of such
replacement family.

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 PERSONS AND FAMILY RELATIONS
_________________________________________________________________ c. Descendants, whether legitimate or illegitimate;
d. Brothers and sisters, whether legitimately or
SUPPORT illegitimately related (Rabuya, 2009).
_________________________________________________________________
It comprises everything indispensable for sustenance, PERSONS OBLIGED TO SUPPORT
dwelling, clothing, medical attendance and
transportation, in keeping with the financial capacity of Persons obliged to support each other (2008 BAR)
the family, including the education of the person entitled
to be supported until he completes his education or 1. Spouses;
training for some profession, trade or vocation, even
beyond the age of majority (FC, Art. 194). (2010 BAR) NOTE: The spouse must be the legitimate spouse in
order to be entitled to support
Characteristics of support
2. Legitimate ascendants & descendants;
1. Personal; 3. Parents and their legitimate children, and the
2. Reciprocal on the part of those who are by legitimate and illegitimate children of the latter;
law bound to support each other; 4. Parents and their illegitimate children, and the
3. Intransmissible; legitimate and illegitimate children of the latter;
4. Mandatory; 5. Legitimate brothers and sisters whether full or half-
5. Provisional character of support judgment; blood (FC, Art. 195).
6. Exempt from attachment or execution; and
7. Not subject to waiver or compensation NOTE: Brothers and sisters not legitimately related
likewise bound to support each other. However,
COMPOSITION OF SUPPORT when the need for support of the brother or sister,
being of age, is due to a cause imputable to the
Support comprises everything indispensable for: claimant’s fault or negligence, in this case, the
a. Sustenance; illegitimate brother or sister has no right to be
b. Dwelling; supported (FC, Art. 196;Rabuya, 2009).
c. Clothing; ---
d. Medical attendance; Q: Rule when:
e. Education – includes schooling or training for some 1. Two or more persons are obliged to give
profession, trade or vocation, even beyond the age of support;
majority; 2. Two or more recipients at the same time claim
f. Transportation – includes expenses going to and support from the same persons who does not
from school, or to from place of work. have sufficient means to satisfy all claims

Kinds of support A:
1. The payment of the same shall be divided between
1. Legal – required or given by law; them in proportion to the resources of each.
2. Judicial– required by court; May be: However, in case of urgent need and by special
a. Pendente lite circumstances, the judge may order only one of
b. In a final judgment them to furnish support provisionally, without
3. Conventional – by agreement. prejudice to his right to claim reimbursement from
the other obligors of their corresponding shares
Rules on support of illegitimate children of either (FC, Art. 200).
spouse 2. The order established under Art. 199 of the Family
Code shall be followed, unless the concurrent
1. It depends upon the property regime of the spouses. obliges should be the spouse and a child, in which
case, the child shall be preferred (FC, Art. 200).
ACP or CP- For the support of the following:
Sources of Support
a. spouses;
b. common children of the spouses; and SOURCES OF SUPPORT
c. legitimate children of either spouse During After
Pending Litigation
Marriage Litigation
NOTE: If the community property or the conjugal Spouses
partnership is insufficient to cover them, the spouses ACP GR: No
shall be solidarily liable for the unpaid balance with GR: From the obligation to
their separate properties. community property support
From the assets
2. Separate property of person- For the support of the community XPN: If there is
property XPN: If Art. 203 Legal
following:
applies, that if the Separation. In
claimant spouse is which case, the
a. Illegitimate children;
the guilty spouse, court may
b. Legitimate ascendants;

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 Civil Law
he/she is not entitled require the Q: Marcelo and Juana called Dr. Arturo to their house
to support. guilty spouse to render medical assistance to their daughter-in-law
to give support who was about to give birth to a child. He performed
CPG the necessary operation. When Dr. Arturo sought
Support is payment, Marcelo and Juana refused to pay him
considered an without giving any good reason. Who is bound to pay
advance of such the bill for the services rendered by Arturo?
spouses’ share.
A: HER HUSBAND, not her father and mother- in-law. The
NOTE: The rule does rendering of medical assistance in case of illness is
not apply if the comprised among the mutual obligations to which the
spouses are under spouses are bound by way of mutual support (FC, Arts.
ACP based on Art. 142 and 143). If every obligation consists in giving, doing
153. or not doing something (NCC, Art. 1088), and spouses are
Children mutually bound to support each other, there can be no
From the question but that, when either of them by reason of illness
From the should be in need of medical assistance, the other is under
From the community separate
community the unavoidable obligation to furnish the necessary
property properties of
property services of a physician in order that health may be
the spouses
restored, and he or she may be freed from the sickness by
Liability to support (FC, Art. 199) which life is jeopardized (Pelayo v. Lauron, G.R. No. L-4089,
January 12, 1909).
The liability to support should be observed in the ---
following order: Q: Cheryl married Edward Lim and they begot three
a. Spouse; children. Cheryl, Edward and their children lived at
b. Descendants in the nearest degree; the house of Edward’s parents, Prudencio and
c. Ascendants in the nearest degree; Filomena, together with Edward’s ailing grandmother
d. Brothers and sisters. and her husband. Edward was employed with the
--- family business, which provided him with a monthly
Q: Belen, in behalf of her minor children, instituted a salary of P6,000 and shouldered the family expenses.
petition for declaration of legitimacy and support Cheryl had no steady source of income. Cheryl caught
against Federico, their alleged father, and Francisco, Edward in “a very compromising situation” with the
father of Federico. It appears that the marriage of the midwife of Edward’s grandmother. After a violent
two was annulled due to the minority of Federico. May confrontation with Edward, Cheryl left the Forbes
Francisco be ordered to give support? Park residence. She subsequently sued, for herself
and her children, Edward, Edward’s parents and
A: YES. There appears to be no dispute that the children grandparents for support. Edward and his parents
are indeed the daughters of Federico by Belen. Under Art. were ordered by the RTC to “jointly” provide, monthly
199 of the Family Code, “Whenever two or more persons support to Cheryl and her children. Is the court’s
are obliged to give support, the liability shall devolve judgment in making Edward’s parents concurrently
upon the following persons in the following order herein liable with Edward to provide support to Cheryl and
provided: her children correct?

1. The spouse; A: YES. However, the Supreme Court modified the

2. The descendants in the nearest degree; appealed judgment by limiting liability of Edward’s
3. The ascendants in the nearest degree: and parents to the amount of monthly support needed by
4. The brothers and sisters. Cheryl’s children. Edward’s parents are liable to provide
support but only to their grandchildren. By statutory and
The obligation to give support rests principally on those jurisprudential mandate, the liability of ascendants to
more closely related to the recipient. However, the more provide legal support to their descendants is beyond cavil.
remote relatives may be held to shoulder the Petitioners themselves admit as much — they limit their
responsibility should the claimant prove that those who petition to the narrow question of when their liability is
are called upon to provide support do not have the means triggered, not if they are liable.
to do so. Here, since it has been shown that the girls'
father, Federico, had no means to support them, then There is no showing that private respondent is without
Francisco, as the girls’ grandfather, should then extend means to support his son; neither is there any evidence to
the support needed by them. prove that petitioner, as the paternal grandmother, was
willing to voluntarily provide for her grandson's legal
NOTE: The second option in Art. 204 of the Family Code, support. Cheryl is unable to discharge her obligation to
that of taking in the family dwelling the recipient, is provide sufficient legal support to her children. It also
unavailing in this case since the filing of the case has shows that Edward is unable to support his children. This
evidently made the relations among the parties bitter and inability of Edward and Cheryl to sufficiently provide for
unpleasant (Mangonon, et al. v. CA, et al., G.R. No. 125041, their children shifts a portion of their obligation to the
June 30, 2006). ascendants in the nearest degree, both in the paternal
--- (petitioners) and maternal lines, following the ordering in

90
 PERSONS AND FAMILY RELATIONS
Article 199 (Spouses Lim v. Cheryl Lim, G.R. No. 163209, The right to support does not arise from mere fact of
October 30, 2009). relationship but from imperative necessity without which
--- it cannot be demanded. The law presumes that such
SUPPORT DURING MARRIAGE LITIGATION necessity does not exist unless support is demanded.

During the pendency of the action for annulment or Effect of Reaching Age of Majority
declaration of absolute nullity of marriage and action for
legal separation, the court shall provide for the support of If a person is of age and no longer studies, he still entitled
the spouses and their common children in the absence of to support unless there are just reasons for the
a written agreement between the spouses. (FC, Art. 49). extinguishment of the right. (Javier v. Lucero, 94 Phil. 634).
If, upon the other hand, he has not yet finished his studies
Sources of support shall be the properties of the absolute even if already of age, he still entitled generally to be
community or conjugal partnership. supported. Of course, if the person supporting dies, the
obligation ceases (Falcon v. Arca, L-18135, July 31, 1963).
Mutual support of the spouses after the final
judgment granting the petition for legal separation, MANNER OF PAYMENT
annulment and declaration of nullity of marriage
Payment shall be made within first five days of each
GR: Spouses are no longer obliged to render mutual corresponding month. In case of death of the person
support after final judgment. The obligation of mutual entitled to receive support, his heirs shall not be obliged
support ceases after final judgment. to return what he has received in advance for such
support. (FC, Art. 203).
XPN: In case of legal separation the Court may order that
the guilty spouse shall give support to the innocent one. Payment by Third Person Under Article 208

Effect of adultery of the wife The obligation to reimburse under this article is one that
likewise arises from quasi-contract. As distinguished
Adultery of the wife is a valid defense in an action for from articles 206 of the Family Code and 2164 of the Civil
support. If adultery is proved and sustained, it will defeat Code, “the obligor unjustly refuses or fails to give
the action for support. But if both are equally at fault, the support.” The law creates a promise of reimbursement on
principle of in pari delicto applies in which the husband the part of the person obliged to furnish support, inspite
cannot avail of the defense of adultery. of the deliberate disregard of his legal and moral duty
--- (Rabuya, 2006).
Q: H and W are living separately. Both had been
unfaithful to each other. After their separation, H had OPTIONS
been giving money to W for her support.
Subsequently, W brought an action against H for Options given to persons giving support
separate maintenance. Will the action prosper?
a. To give a fixed monthly allowance; or
A: YES. The principle of in pari delicto is applicable. Both b. To receive and maintain the recipient in the giver’s
are at fault. Consequently, H cannot avail of himself of the home or family dwelling (FC, Art. 204).
defense of adultery of W. Besides, the act of H in giving
money to W is implied condonation of the adultery of W If support is given by a stranger without the
(Amacen v. Baltazar, G.R. No. L-10028, May 28, 1958). knowledge of the person obliged to give support;
---
AMOUNT GR: The stranger shall have the right of reimbursement

Amount shall be in proportion to the resources or means XPN: Unless it appears that he gave it without any
of the giver and to the necessities of the recipient (FC, Art. intention of being reimbursed (FC, Art. 206).
201).
NOTE: If the person obliged to give support unjustly
Support may be decreased or increased proportionately refuses or fails to give it when urgently needed, any third
according to the reduction or increase of the necessities person may furnish support to the needy individual, with
of the recipient and the resources of the person obliged to a right of reimbursement (FC, Art. 207).
furnish the same (FC, Art. 202).
ATTACHMENT
WHEN DEMANDABLE
Attachment or execution of the right to receive
The obligation to give support is demandable from the support (FC, Art. 208)
time the person who has a right to receive support needs
it for maintenance. GR: The right to receive support and any money or
property obtained as support cannot be attached nor be
The support shall be paid only from the date of judicial or subject to execution to satisfy any judgment against the
extrajudicial demand. recipient.

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 Civil Law
XPN: In case of contractual support or support given by support to the needy individual, with right of
will, the excess in amount beyond that required for legal reimbursement from the person obliged to give support.”
support shall be subject to levy on attachment or The resulting juridical relationship between the Edward
execution. and Noel is a quasi-contract, an equitable principle
enjoining one from unjustly enriching himself at the
NOTE: Contractual support shall be subject to adjustment expense of another (Lacson v. Lacson, et al., G.R. No.
whenever modification is necessary due to changes in 150644, August 28, 2006).
circumstances beyond the contemplation of the parties. ---
--- Q: Fe and her son Martin sued Martin’s alleged
Q: Jurisdictional questions may be raised at any time. biological father Arnel for support. Arnel denied
What is the exception with respect to the provisional having sired Martin, arguing that his affair and
character of judgment for support and the application intimacy with Fe had allegedly ended in long before
of estoppel? Martin’s conception. As a result, Fe and Martin moved
for the issuance of an order directing all the parties to
A: Judgment for support is always provisional in submit themselves to DNA paternity testing. The said
character. Res Judicata does not apply. The lower court motion was granted by the court. Did the order of the
cannot grant a petition based on grounds, such as bigamy, court convert the complaint for support to a petition
not alleged in the petition. Such a decision based on for recognition?
grounds not alleged in the petition is void on the ground
of no jurisdiction. A: The assailed order did not convert the action for
support into one for recognition but merely allowed Fe to
However, if the lower court’s void decision is not assailed prove their cause of action. But even if the order
on appeal which dealt only with the matter of support, the effectively integrated an action to compel recognition
losing party is now estopped from questioning the with an action for support, such was valid and in
declaration of nullity and the SC will not undo the accordance with jurisprudence. The integration of an
judgment of the RTC declaring the marriage null and void action to compel recognition with an action to claim one’s
for being bigamous. inheritance is allowed (Tayag v. CA, G.R. No. 95229, June 9,
1992). A separate action will only result in a multiplicity
It is axiomatic that while a jurisdictional question may be of suits. Furthermore, the declaration of filiation is
raised at any time, this however admits of an exception entirely appropriate to the action for support (Agustin v.
where estoppel has supervened (Lam v. Chua, G.R. No. CA, G.R. No. 162571, June 15, 2005).
131286, March 18, 2004). ---
--- Q: Can DNA testing be ordered in a proceeding for
Q: Edward abandoned his legitimate children when support without violating the constitutional right
they were minors. After 19 years from the time against self-incrimination?
Edward left them, they, through their mother, finally
sued him for support, which the court granted. The A: YES. Compulsory DNA testing and the admissibility of
court ordered him to pay 2M pesos as support in the results thereof as evidence are constitutional (People
arrears. v. Yatar, G.R. No. 150224, May 19, 2004). Moreover, it has
mostly been in the areas of legality of searches and seizure
Edward assails the grant of the support in arrears as and in the infringement of privacy of communication
erroneous since under Art. 203 of the FC, there was where the constitutional right to privacy has been
never any demand for support, judicial or extra- critically at issue.
judicial, from them. Is his contention right?
If, in a criminal case, an accused whose very life is at stake
A: NO. Edward could not possibly expect his daughters to can be compelled to submit to DNA testing, so much more
demand support from him considering their tender years so may a party in a civil case, who does not face such dire
at the time that he abandoned them. In any event, the consequences, be likewise compelled. DNA testing and its
mother of the girls had made the requisite demand for results is now acceptable as object evidence without
material support although this was not in the standard running afoul self-incrimination rights of a person
form of a formal written demand. Asking one to give (Agustin v. CA, G.R. No. 162571, June 15, 2005).
support owing to the urgency of the situation is no less a ---
demand just because it came by way of a request or a plea _________________________________________________________________
(Lacson v. Lacson, et al., G.R. No. 150644, August 28, 2006).
PARENTAL AUTHORITY
Q: Noel helped Lea by extending financial help to _________________________________________________________________
support Lea’s children with Edward. May Noel seek
reimbursement of his contributions? If yes, from Parental Authority is “the mass of rights and obligations
whom may he do so? which parents have in relation to the person and property
of their children until their emancipation and even after
A: YES. Pursuant to Art. 207 of the Family Code, Noel can this under certain circumstances” (Sempio-Diy, 1995).
rightfully exact reimbursement from Edward. This
provision reads that “[W]hen the person obliged to support Parental authority includes
another unjustly refuses or fails to give support when
urgently needed by the latter, any third person may furnish

92
 PERSONS AND FAMILY RELATIONS
1. Caring for and rearing of such children for civic Q: Carlitos Silva and Suzanne Gonzales had a live-in
consciousness and efficiency; relationship. They had two children, namely, Ramon
2. Development of their moral, mental and physical Carlos and Rica Natalia. Silva and Gonzales eventually
character and well-being (FC, Art. 209). separated. They had an understanding that Silva
would have the children in his company on weekends.
Characteristics of parental authority Silva claimed that Gonzales broke that understanding
on visitation rights. Hence, Silva filed a petition for
1. Jointly exercised by the father and mother; custodial rights over the children before the RTC. The
2. Natural right and duty of the parents; petition was opposed by Gonzales who claimed that
Silva often engaged in gambling and womanizing
GR: Cannot be renounced, transferred or waived; which she feared could affect the moral and social
XPN: In cases authorized by law such as in cases of values of the children. In the meantime, Suzanne had
adoption, guardianship and surrender to a children's gotten married to a Dutch national. She eventually
home or an orphan institution (Santos v. CA, G.R. No. immigrated to Holland with her children Ramon
113054, March 16, 1995). Carlos and Rica Natalia. Can Silva be denied visitation
rights?
3. Purely personal;
4. Temporary. A: GR: NO.

Exercise of parental authority XPN: If the fears and apprehensions were founded as to
the father’s corrupting influence over the children and if
The father and the mother shall jointly exercise parental it is proven therefore that indeed the father is a negative
authority over the persons of their common children. In influence because of reasons like immorality,
case of disagreement, the father’s decision shall prevail drunkenness, etc. on the children, the court, taking into
unless there is a judicial order to the contrary (FC, Art. consideration the best interest of the children, can deny
211). his petition for the exercise of his visitation rights (Silva v.
CA, G.R. No. 114742, July 17, 1997).
If the child is illegitimate, parental authority is with the ---
mother. Parental preference rule

NOTE: Parental authority and responsibility are The natural parents, who are of good character and who
inalienable and may not be transferred or renounced can reasonably provide for the child are ordinarily
except in cases authorized by law. The right attached to entitled to custody as against all persons.
parental authority, being purely personal, the law allows
a waiver of parental authority only in cases of adoption, NOTE: Tender-Age Presumption
guardianship and surrender to a children's home or an
orphan institution (Arts. 222-224, FC; Act No. 3094). No child under seven years of age shall be separated from
the mother, unless the court finds compelling reasons to
Visitation rights order otherwise [FC, Art 213(2)]. (2006 BAR)

It is the right of access of a noncustodial parent to his or The paramount consideration in matters of custody of a
her child or children. child is the welfare and well-being of the child

Who are entitled of visitation rights The use of the word “shall” in Art. 213 of the FC is
mandatory in character. It prohibits in no uncertain
1. The non-custodial parent in cases of: terms the separation of a mother and her child below 7
a. Legal separation; years, unless such separation is grounded upon
b. Separation de facto; compelling reasons as determined by a court (Lacson v.
c. Annulment; San Jose-Lacson, G.R. No. L-23482, August 30, 1968).
d. Declaration of nullity on the ground of
psychological incapacity or failure to comply “Compelling Reasons”
with the requirements of Article 52;
2. Illegitimate father over his illegitimate child. The so-called “tender-age presumption” under Article 213
of the Family Code may be overcome only by compelling
NOTE: In case of annulment or declaration of absolute evidence of the mother’s unfitness. The mother has been
nullity of marriage, Article 49 of the Family Code grants declared unsuitable to have custody of her children in one
visitation rights to a parent who is deprived of custody of or more of the following instances:
his children. Such visitation rights flow from the natural
right of both parent and child to each other’s 1. Insanity
company. There being no such parent-child relationship 2. Abandonment
between them, a person has no legally demandable right 3. Neglect
of visitation (Concepcion v. CA, G.R. No. 123450, August 31, 4. Drug addiction
2005). 5. Affliction with a communicable disease
--- 6. Maltreatment of the child
7. Immorality

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 Civil Law
8. Unemployment guardianship, support, personal status and minors in
9. Habitual drunkenness conflict with the law (Pablo-Gualberto v. Gualberto, G.R.
No. 154994/G.R. No. 156254, June 28, 2005).
NOTE: In one case, the SC ruled that sexual preference or
moral laxity alone does not prove parental neglect or SUBSTITUTE PARENTAL AUTHORITY
incompetence; to deprive the wife of custody, of her
minor child, her moral lapses must have an adverse effect Substitute Parental Authority (2004 BAR)
on the welfare of the child or it must have distracted the
offending spouse from exercising proper parental care It is the parental authority which the persons designated
(Pablo-Gualberto v. Gualberto, G.R. No. 154994 & 156254, by law may exercise over the persons and property of
June 28, 2005). unemancipated children in case of death, absence or
unsuitability of both parents or in default of a judicially
Exercise of parental authority in case of absence, appointed guardian.
death, remarriage of either parent, or legal or de facto
separation of parents Order of substitute parental authority

a. Absence or death of either parent – parent present 1. Surviving Grandparent;

shall continue exercising parental authority
b. Remarriage of either parent – it shall not affect the NOTE: The law considers the natural love of a parent
parental authority over the children, unless the court to outweigh that of the grandparents, such that only
appoints another person to be the guardian of the when the parent present is shown to be unfit or
person or property of the children (FC, Art. 213). unsuitable may the grandparents exercise substitute
c. Legal or de facto separation of parents – the parent parental authority (Santos v. CA, G.R. No. 113054,
designated by the court. March 16, 1995).

Considerations in the designation of child custody 2. Oldest brother or sister, over 21 years unless unfit or
disqualified;
The Court shall take into account all relevant 3. Actual Custodian over 21 year unless unfit or
considerations in the designation of the parent, especially disqualified (FC, Art. 216);
the choice of the child over seven years of age except
when the parent chosen is unfit. 4. In case of foundlings, abandoned, neglected or
abused children similarly situated, parental
NOTE: The relevant Philippine law on child custody for authority shall be entrusted in summary judicial
spouses separated in fact or in law (Art. 213, 2nd par.) is proceedings to heads of children’s homes,
also undisputed: “no child under seven years of age shall orphanages and similar institutions duly accredited
be separated from the mother x x x.”(This statutory by the proper government agency (FC, Art. 217).
awarding of sole parental custody to the mother is ---
mandatory, grounded on sound policy consideration, Q: Bonifacia Vancil, a US citizen, is the mother of
subject only to a narrow exception not alleged to obtain Reeder C. Vancil, a US Navy serviceman who died in
here.) Clearly then, the Agreement’s object to establish a the USA on December 22, 1986. During his lifetime,
post-divorce joint custody regime between respondent Reeder had two children named Valerie and Vincent
and petitioner over their child under seven years old by his common-law wife, Helen G. Belmes. Bonifacia
contravenes Philippine law. The Philippine courts do not obtained a favorable court decision appointing her as
have the authority to enforce an agreement that is legal and judicial guardian over the persons and
contrary to law, morals, good customs, public order, or estate of Valerie Vancil and Vincent Vancil, Jr. She
public policy (Dacasin v. Dacasin, G.R. No. 168785, alleged that Helen was morally unfit as guardian of
February 5, 2010). Valerie considering that Helen’s live-in partner raped
--- Valerie several times. Can Bonifacia exercise
Q: If the parents are separated de facto, who between substitute parental authority over Valerie and
them has custody over their child/ children? Vincent?

A: In the absence of a judicial grant of custody to one A: NO. Bonifacia, as the surviving grandparent, can
parent, both of them have custody over their exercise substitute parental authority only in case of
child/children death, absence or unsuitability of Helen. Considering that
Helen is very much alive and has exercised continuously
The parent who has been deprived of the rightful custody parental authority over Vincent, Bonifacia has to prove, in
of the child may resort to the remedy of habeas corpus asserting her right to be the minor’s guardian, Helen’s
(Salientes v. Abanilla, G.R. No. 162734, August 29, 2006). unsuitability. Bonifacia, however, has not proffered
--- convincing evidence showing that Helen is not suited to
NOTE: The general rule that children less than 7 years of be the guardian of Vincent. Bonifacia merely insists that
age shall not be separated from the mother finds its raison Helen is morally unfit as guardian of Valerie considering
d'etre in the basic need of minor children for their that her live-in partner raped Valerie several times. (But
mother's loving care. This is predicated on the "best Valerie, being now of major age, is no longer a subject of
interest of the child" principle which pervades not only this guardianship proceeding).
child custody cases but also those involving adoption,

94
 PERSONS AND FAMILY RELATIONS
Exercised in case of: Exercised
Even assuming that Helen is unfit as guardian of minor (DAU) concurrently with
Vincent, still Bonifacia cannot qualify as a substitute the parental
guardian. She is an American citizen and a resident of 1. Death, authority of the
Colorado. Obviously, she will not be able to perform the 2. Absence, or parents;
responsibilities and obligations required of a guardian. In 3. Unsuitability of Rests on the theory
fact, in her petition, Bonifacia admitted the difficulty of parents. that while the child
discharging the duties of a guardian by an expatriate, like is in the custody of
her. To be sure, she will merely delegate those duties to the person
someone else who may not also qualify as a guardian exercising special
(Vancil v. Belmes, G.R. No. 132223, June 19, 2001). parental authority,
--- the parents
Special Parental Authority (2003, 2004, 2005, 2010 temporarily
BAR) relinquish parental
authority over the
It is the parental authority granted by law to certain child to the latter.
persons, entities or institutions in view of their special
relation to children under their supervision instruction or EFFECTS OF PARENTAL AUTHORITY UPON THE
custody. It is denominated as special because it is limited PERSON OF THE CHILDREN
and is present only when the child is under their
supervision instruction or custody. It can also co-exists Right to Child’s Custody
with the parents’ parental authority.
The right of parents to the custody of their minor children
Persons who may exercise special parental authority is one of the natural rights incident to parenthood, a right
(FC, Art. 218) supported by law and sound public policy. The right is an
inherent one, which is not created by the state or
a. The school; decisions of the courts, but derives from the nature of the
b. School administrators; parental relationship (Sagala-Eslao v. CA, G.R. No. 116773,
c. School teachers; January 16, 1997).
d. Individual, entity or institution engaged in child
care. Parents’ right to custody of the child

Scope of special parental authority GR: Parents are never deprived of the custody and care of
their children.
The scope of special parental authority and responsibility
applies to all authorized activities, whether inside or XPNS:
outside the premises of the school, entity or institution. 1. For cause;

NOTE: The nature of the liability of persons having special NOTE: the law presumes that the child’s welfare
parental authority over said minors for their acts or will be best served in the care and control of his
omissions causing damage to another is principal and parents.
solidary. The parents, judicial guardians or the persons
exercising substitute parental authority over said minor 2. If in consideration of the child’s welfare or well-
shall be subsidiarily liable (FC, Art. 219). (2003, 2010 being, custody may be given even to a non-relative.
BAR)

Substitute parental authority vis-à-vis Special

Basis for the duty to provide support
parental authority
Family ties or relationship, not parental authority.
SUBSTITUTE PARENTAL SPECIAL PARENTAL
AUTHORITY AUTHORITY NOTE: The obligation of the parents to provide support is
not coterminous with the exercise of parental authority.

Rule on the parent’s duty of representation

GR: Parents are duty-bound to represent their minor

children in all matters affecting their interests;

NOTE: This duty extends to representation in court

litigations.

XPN: A guardian ad litem may be appointed by the court

to represent the child when the best interest of the child
so requires.

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 Civil Law
Scope of the parent’s right to discipline the child (FC, its maximum period, a fine of not less than Fifty
Art. 223) thousand pesos (P50,000), and the loss of parental
authority over the minor.
Persons exercising parental authority may: d. Any person, owner, manager or one entrusted
1. Impose discipline on minor children as may be with the operation of any public or private place
required under the circumstances; of accommodation, whether for occupancy, food,
2. Petition the court for the imposition of appropriate drink or otherwise, including residential places,
disciplinary measures upon the child, which include who allows any person to take along with him to
the commitment of the child in entities or institutions such place or places any minor as described in
engaged in child care or in children’s homes duly the law shall be imposed a penalty of prision mayor
accredited by the proper government agency. in its medium period and a fine of not less than Fifty
thousand pesos (P50,000), and the loss of the license
NOTE: Such commitment must not exceed 30 days. to operate such a place or establishment.
e. Any person who shall use, coerce, force or
Limitations on the exercise of the right to discipline intimidate a street child or any other child to:
the child and its consequences
1. Beg or use begging as a means of living;
Persons exercising such right are not allowed to: 2. Act as conduit or middlemen in drug
1. Treat the child with excessive harshness or cruelty; trafficking or pushing; or
or 3. Conduct any illegal activities, shall suffer
2. Inflict corporal punishment. the penalty of prision correccional in its
medium period to reclusion perpetua.
Otherwise, the following are its consequences:
1. Parental authority may be suspended; The penalty for the commission of acts punishable under
2. Parent concerned may be held criminally liable for Articles 248, 249, 262, paragraph 2, and 263, paragraph 1
violation of RA 7160 (Special Protection of Children of Act No. 3815, as amended, the Revised Penal Code, for
against Abuse, Exploitation and Discrimination Act) the crimes of murder, homicide, other intentional
mutilation, and serious physical injuries, respectively,
CHILD ABUSE LAW (R.A. 7610) SEC.10 shall be reclusion perpetua when the victim is under
twelve (12) years of age. The penalty for the commission
Section 10. Other Acts of Neglect, Abuse, Cruelty or of acts punishable under Article 337, 339, 340 and 341 of
Exploitation and Other Conditions Prejudicial to the Act No. 3815, as amended, the Revised Penal Code, for the
Child's Development. – crimes of qualified seduction, acts of lasciviousness with
the consent of the offended party, corruption of minors,
and white slave trade, respectively, shall be one (1)
a. Any person who shall commit any other acts of child degree higher than that imposed by law when the victim
abuse, cruelty or exploitation or to be responsible for is under twelve (12) years age.
other conditions prejudicial to the child's
development including those covered by Article 59 The victim of the acts committed under this section shall
of Presidential Decree No. 603, as amended, but be entrusted to the care of the Department of Social
not covered by the Revised Penal Code, as Welfare and Development(Sec. 10, R.A. 7610).
amended, shall suffer the penalty of prision mayor
in its minimum period. Liabilities of Parents under Art. 59 of Presidential
b. Any person who shall keep or have in his company a Decree No. 603 (Child and Youth Welfare Code)
minor, twelve (12) years or under or who in ten (10)
years or more his junior in any public or private
place, hotel, motel, beer joint, discotheque, Article 59. Crimes. - Criminal liability shall attach to any
cabaret, pension house, sauna or massage parlor, parent who:
beach and/or other tourist resort or similar 1. Conceals or abandons the child with intent to make
places shall suffer the penalty of prision mayor in its such child lose his civil status.
maximum period and a fine of not less than Fifty 2. Abandons the child under such circumstances as to
thousand pesos (P50,000): Provided, That the deprive him of the love, care and protection he needs.
provision shall not apply to any person who is related 3. Sells or abandons the child to another person for
within the fourth degree of consanguinity or affinity valuable consideration.
or any bond recognized by law, local custom and 4. Neglects the child by not giving him the education
tradition or acts in the performance of a social, moral which the family's station in life and financial
or legal duty. conditions permit.
c. Any person who shall induce, deliver or offer a 5. Fails or refuses, without justifiable grounds, to enroll
minor to any one prohibited by the Act to keep or the child as required by Article 72.
have in his company a minor as provided in the 6. Causes, abates, or permits the truancy of the child
preceding paragraph shall suffer the penalty of from the school where he is enrolled. "Truancy" as
prision mayor in its medium period and a fine of not here used means absence without cause for more
less than Forty thousand pesos (P40,000); Provided, than twenty schooldays, not necessarily consecutive.
however, That should the perpetrator be an 7. It shall be the duty of the teacher in charge to report
ascendant, stepparent or guardian of the minor, to the parents the absences of the child the moment
the penalty to be imposed shall be prision mayor in these exceed five schooldays.

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 PERSONS AND FAMILY RELATIONS
8. Improperly exploits the child by using him, directly In this case, the petitioners’ negligence and failure to
or indirectly, such as for purposes of begging and exercise the requisite degree of care and caution was
other acts which are inimical to his interest and demonstrated by the following: (i) petitioner school did
welfare. not take affirmative steps to avert damage and injury to
9. Inflicts cruel and unusual punishment upon the child its students although it had full information on the nature
or deliberately subjects him to indignation and other of dangerous science experiments conducted by the
excessive chastisement that embarrass or humiliate students during class; (ii) petitioner school did not install
him. safety measures to protect the students who conduct
10. Causes or encourages the child to lead an immoral or experiments in class; (iii) petitioner school did not
dissolute life. provide protective gears and devices, specifically goggles,
11. Permits the child to possess, handle or carry a deadly to shield students from expected risks and dangers; and
weapon, regardless of its ownership. (iv) petitioner Tabugo (the teacher) was not inside the
12. Allows or requires the child to drive without a license classroom the whole time her class conducted the
or with a license which the parent knows to have experiment, specifically, when the accident involving the
been illegally procured. If the motor vehicle driven student occurred (St. Joseph’s College v. Miranda, G.R. No.
by the child belongs to the parent, it shall be 182353, June 29, 2010).
presumed that he permitted or ordered the child to ---
drive(Art. 59, PD 603). EFFECTS OF PARENTAL AUTHORITY UPON THE
PROPERTY OF THE CHILDREN
Liability of persons exercising special parental
authority over the child (FC, Art. 219) Legal guardianship can be exercised by the father or
mother, jointly, without need of court appointment over
They are principally and solidarily liable for damages the property of an unemancipated child.
caused by the acts or omissions of the child while under
their supervision, instruction or custody. NOTE: In case of disagreement, the father’s decision shall
prevail unless there is a judicial order to the contrary (FC,
NOTE: Parents, judicial guardians or those exercising Art. 229).
substitute parental authority over the minor are
subsidiarily liable for said acts and omissions of the Kinds of properties of a minor
minor.
--- ADVENTITIOUS PROSFECTITIOUS
Q: Jayson and his classmates were conducting a
1. Earned or acquired by 1. Property given by the
science experiment about fusion of sulphur powder
the child through his parents to the child for
and iron fillings under the tutelage of Tabugo, the
work or industry by the latter to administer;
subject teacher and employee of St. Joseph College.
onerous or gratuitous 2. Owned by the parents;
Tabugo left her class while the experiment was
title; 3. Parents are
ongoing without having adequately secured the
2. Owned by the child; usufructuary;
students from any untoward incident or occurrence.
3. Child is also the 4. Property administered
In the middle of the experiment, Jayson checked the
usufructuary, but the by the child.
result of the experiment by looking into the test tube
child’s use of the
with magnifying glass and it was moved towards his
property shall be
eyes. At that instance, the compound spurted from the
secondary to all
test tube and several particles hit Jayson’s eyes. His
collective daily needs
left eye was chemically burned, for which he had to
of the family;
undergo surgery and spend for medication. Jayson
4. Administered by the
filed a complaint for damages against the school and
parents.
Tabugo. Can the said school and its teacher, Tabugo,
be held liable for the unfortunate incident of Jayson?
Necessity of posting a bond by the parents
A: YES. The proximate cause of the student’s injury was
the concurrent failure of petitioners to prevent the A parent is required to post a bond if the market value of
foreseeable mishap that occurred during the conduct of the property or the annual income of the child exceeds
the science experiment. Petitioners were negligent by Php 50,000.
failing to exercise the higher degree of care, caution and
foresight incumbent upon the school, its administrators NOTE: The bond shall not be less than 10% of the value of
and teachers. Art. 218 of the Family Code, in relation to the property or annual income (FC, Art. 225).
Art. 2180 of the New Civil Code, bestows special parental
authority on a school, its administrators and teachers, or Rules regarding the use of the child’s property (FC,
the individual, entity or institution engaged in child care, Art. 226)
and these persons have 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.

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 Civil Law
1. The property of minor children shall be devoted to
their support and education unless the title or If the ground for suspension of parental authority is civil
transfer provides otherwise. interdiction, the suspension is automatic so as its
2. The parents have the right to use only the fruits and reinstatement.
income of said property for the following purposes:
a. Primarily, to the child’s support; Revocation of suspension of Parental Authority and
b. Secondarily, to the collective daily needs of the its revival
family.
The suspension may be revoked and parental authority
Rule on lease of property belonging to minor children revived by filing a case for the purpose, or in the same
proceeding if the court finds that the cause therefore had
GR: The parents, as legal guardians of the minor’s ceased and will not be repeated.
property, may validly lease the same, even without court
authorization, because lease has been considered as an Transfer or renunciation of Parental Authority
act of administration.
GR: Parental authority and responsibility are
XPNs: Court authorization is required if: inalienableand may not be transferred and renounced.

1. If the lease will be recorded in the Registry of Property; XPN: In cases authorized by law.
2. If the lease is for a period of more than one year,
because this is already deemed an act of dominion. Loss of parental authority over the minor under the
Child Abuse Law (RA 7610)
SUSPENSION OR TERMINATION OF PARENTAL
AUTHORITY When an ascendant, stepparent or guardian of the minor,
induces, delivers or offers him to any person who would
Grounds for Termination of Parental Authority keep or have in his company such minor, twelve (12)
years or under or who in ten (10) years or more his junior,
1. Permanently: in any public or private place, hotel, motel, beer joint,
a. Death of parents; discotheque, cabaret, pension house, sauna or massage
b. Emancipation of the child; parlor, beach and/or other tourist resort or similar places.
c. Death of child (FC, Art. 228).
Corporal punishment
2. Temporarily:– it may be revived
a. Adoption of the child; It is the infliction of physical disciplinary measures to a
b. Appointment of general guardian; student. This is absolutely prohibited under the Family
c. Judicial declaration of abandonment of the child Code (Sta. Maria, 2010).
in a case filed for the purpose;
d. Final judgment divesting parents of parental NOTE: While a teacher is administratively liable or civilly
authority; liable in the event that he or she inflicts corporal
e. Incapacity of parent exercising parental punishment to a student, it has been held that where there
authority; was no criminal intent on the part of the teacher who
f. Judicial declaration of absence or incapacity of angrily and repeatedly whipped a student resulting in
person exercising parental authority (FC, Art. slight physical injuries to the said student and where the
229). purpose of the teacher was to discipline a student, the said
teacher cannot be held feloniously liable for the criminal
NOTE: In case of temporary termination of parental offense of slight physical injuries(Bagajo v. Marave, G.R.
authority, parental authority may be revived thru a No. L-33345, November 20, 1978).
court judgment (Rabuya, 2009). _________________________________________________________________

Grounds for suspension of Parental Authority EMANCIPATION

_________________________________________________________________
1. Gives corrupting orders, counsel or example; It is the release of a person from parental authority
2. Treats child with excessive harshness and cruelty; whereby he becomes capacitated for civil life.
3. Subjects/allows child be subjected to acts of
lasciviousness (FC, Art. 231); Emancipation takes place by attainment of majority at the
4. Conviction of crime with penalty of civil interdiction age of (18) eighteen years (FC, Art. 234, FC, as amended by
(FC, Art. 230); RA 6809). (2010 BAR)
5. Culpable negligence of parent or person exercising
parental authority; Effects of emancipation
6. Compels the child to beg.
1. Parental authority over the person and property of
NOTE: If the person exercising Parental Authority has the child is terminated.
subjected the child or allowed him to be subjected to 2. Child shall be qualified and responsible for all acts of
sexual abuse, he/she shall be permanently deprived of civil life, save exceptions established by existing
PA. laws.

98
 PERSONS AND FAMILY RELATIONS
3. Contracting marriage shall require parental consent effectivity of the FC, Art. 173 of the Family Code cannot be
until the age of 21. given retroactive effect because it will prejudice the
4. The responsibility of parents or guardians for vested rights of petitioners transmitted to them at the
children and wards below 21 under the second and time of the death of their father, Eutiquio Marquino.
third paragraphs of Art. 2180 of the New Civil Code "Vested right" is a right in property which has become
shall not be derogated. fixed and established and is no longer open to doubt or
_________________________________________________________________ controversy. It expresses the concept of present fixed
interest, which in right reason and natural justice should
RETROACTIVITY OF FAMILY CODE be protected against arbitrary State action (Marquino v.
_________________________________________________________________ IAC, G.R. No. 72078, June 27, 1994).
_________________________________________________________________
GR: The Code shall have retroactive effect (FC, Art. 256).
FUNERALS
XPN: When retroactivity would prejudice vested rights. _________________________________________________________________
(2005, 2010 BAR)
General Guidelines:
Vested right 1. Duty and right to make arrangements in funerals in
accordance with Art. 199, FC:
Some right or interest in property that has become fixed a. Spouse;
or established, and is no longer open to doubt or b. Descendants in the nearest degree;
controversy. Rights are vested when the right to c. Ascendants in the nearest degree;
enjoyment, present or prospective, has become the d. Brothers and sisters.
property of some person as present interest.
--- NOTE: In case of descendants of the same degree, or
Q: Antonia Aruego and her sister Evelyn filed a of brothers and sisters, the oldest shall be preferred.
petition in the courts seeking Jose Aruego, Jr. and his
five children to recognize them as illegitimate In case of ascendants, the paternal shall have a better
children and compulsory heirs of Jose. They claim right (NCC, Art. 305).
that there is open and continuous possession of status
of illegitimate children of Jose who had an amorous 2. Funeral shall be:
relationship with their mother Luz Fabian until the a. In keeping with the social position of the
time of the death of Jose. The court declared that deceased;
Antonia Aruego is an illegitimate daughter of the b. In accordance with the expressed wishes of the
deceased with Luz Fabian while Evelyn is not. Antonia deceased;
and Evelyn contested the decision citing provisions of c. In absence of the expressed wishes, his religious
the Family Code particularly Art. 127 on Filiation, beliefs or affiliation shall determine;
Art.172 on illegitimate children’s filiation, and d. In case of doubt, the form of funeral is to be
Art.256 on the retroactivity of the code. Whether the decided upon by the person obliged to make
provisions of the Family Code can be applied arrangements for the same, after consulting the
retroactively and will it impair the vested rights of the other members of the family (NCC, Art. 307).
respondents?
3. Any person who:
A: The action for compulsory recognition and a. Shows disrespect to the dead, or
enforcement of successional rights which was filed prior b. Wrongfully interferes with a funeral shall be
to the advent of the Family Code, must be governed by Art. liable to the family of the deceased for damages,
285 of the New Civil Code and not by Art. 175, par. 2 of the material and moral (NCC, Art. 309).
Family Code. The present law cannot be given retroactive 4. Funeral expenses are chargeable against the
effect insofar as the instant case is concerned, as its property of the deceased. However, if the deceased is
application will prejudice the vested right of private one of the spouses, they are chargeable against the
respondent to have her case decided under Art. 285 of the conjugal partnership property (NCC, Art. 310).
New Civil Code. The right was vested to her by the fact ---
that she filed her action under the regime of the New Civil Q: Adriano and Rosario are married to each other.
Code. Prescinding from this, the conclusion then ought to However, their marriage turned into sour and they
be that the action was not yet barred, notwithstanding the were eventually separated-in-fact. Years later,
fact that it was brought when the putative father was Adriano met Fe which he courted and eventually
already deceased, since private respondent was then still decided to live together as husband and wife while his
a minor when it was filed, an exception to the general rule marriage with Rosario is still subsisting. Adriano
provided under Art. 285 of the New Civil Code. Hence, the later died while Rosario and the rest of his family are
trial court, which acquired jurisdiction over the case by in the United States spending their Christmas
the filing of the complaint, never lost jurisdiction over the vacation. When Rosario learned of Adriano’s death,
same despite the passage of E.O. No. 209, also known as she immediately called Fe for the delay of Adriano’s
the Family Code of the Philippines (Aruego v. CA, G.R. No. interment which was unheeded by Fe. The remains of
112193, March 13, 1996). Adriano were interred at the mausoleum of Fe’s
--- family allegedly according to Adriano’s oral request
NOTE: If an action for recognition was filed prior to the

99
 Civil Law
from her. Who between Rosario and Fe is entitled to has been expressly
the remains of Adriano? recognized by the
father through the
A: The law gives the right and duty to make funeral record of birth
arrangements to Rosario, she being the surviving legal appearing in the
wife of Atty. Adriano. The fact that she was living civil register; or
separately from her husband and was in the United States 2. When an admission
when he died has no controlling significance. To say that of paternity is made
Rosario had, in effect, waived or renounced, expressly or by the father in a
impliedly, her right and duty to make arrangements for public document or
the funeral of her deceased husband is baseless. The right private
and duty to make funeral arrangements, like any other handwritten
right, will not be considered as having been waived or instrument (Art.
renounced, except upon clear and satisfactory proof of 176, FC, as amended
conduct indicative of a free and voluntary intent to that by RA 9255).
end.
Under the amendatory
Even assuming, ex gratia argumenti, that Atty. Adriano provisions of RA 9255,
truly wished to be buried in the Fe’s family plot at the the use of the
Manila Memorial Park, the result remains the same. illegitimate father's
Article 307 simply seeks to prescribe the "form of the surname is PERMISSIVE
funeral rites" that should govern in the burial of the and not obligatory
deceased. The right and duty to make funeral (Rabuya, 2009).
arrangements reside in the persons specified in Article Conceived prior to
305 in relation to Article 199 of the Family Code. Even if Father’s
annulment of marriage
Article 307 were to be interpreted to include the place of Conceived after
burial among those on which the wishes of the deceased Mother’s
annulment of marriage
shall be followed, Dr. Arturo M. Tolentino (Dr. Tolentino),
an eminent authority on civil law, commented that it is Rule with regard to the use of surname of a married
generally recognized that any inferences as to the wishes woman
of the deceased should be established by some form of
testamentary disposition (Valino v. Adriano, G.R. No. FACTUAL
182894, April 22, 2014). SURNAME TO BE
CIRCUMSTANCE OF THE
________________________________________________________________ USED
WIFE
1. First name and
USE OF SURNAMES maiden name (Her
_________________________________________________________________ maiden first name
and surname (FC,
Rule with regard to the use of surname by a child who Art. 370).) +
is (1) legitimate, (2) legitimated, (3) adopted and (4) husband’s surname
illegitimate 2. First name +
husband’s surname
CHILD CONCERNED SURNAME TO BE USED Valid marriage (before 3. Husband’s full name
Legitimate husband dies) + prefix indicating
Legitimated NCC, Art. 370 that she is his wife
Natural child (e.g. Mrs.)
acknowledged by both Father’s 4. Retain the use of her
parents maiden name
Natural children by
legal fiction *Use of husband’s
Natural child surname is not a duty
acknowledged by only Recognizing Parent but merely an option for
one parent the wife
Adopted Adopter’s Wife is the Shall resume using her
Mother’s or Father’s if guilty party maiden name
requisites of R.A. 9255 Choices:
are complied with 1. Resume using her
Marriage
is maiden name
Annulled 2. Continue using
Illegitimate Wife is the
NOTE: An illegitimate husband’s surname
(NCC, Art. innocent
child shall have the 371) party
"option" to use the Unless:
surname of the father in a. Court decrees
the following instances: otherwise;
1. If his/her filiation b. She or the former

100
 PERSONS AND FAMILY RELATIONS
husband is married 3. Petition must be verified (Sec. 2, Rule 103, Rules of
again to another Court).
person ---
Q: Virginia Remo, a Filipino citizen, is married to
Wife shall continue Francisco Rallonza. In her passport, the following
using the name and entries appear: "Rallonza" as her surname, "Maria
Legally Separated Virginia" as her given name, and "Remo" as her
surname employed by
(NCC, Art. 372) middle name. Prior to the expiration of her passport,
her prior to the legal
separation. Virginia applied for the renewal of her passport with
She may use the the DFA, with a request to revert to her maiden name
Widowed Spouse deceased’s husband’s and surname in the replacement passport. Virginia,
(NCC, Art. 373) surname as though he relying on Article 370 of the Civil Code, contends that
is still living. the use of the husband’s surname by the wife is
Divorced (at least if they Choices same as permissive rather than obligatory. Is Virginia
allow it later or for those widowed spouse. correct?
who got divorced during
the Japanese occupation) A: NO. A married woman has an option, but not a duty, to
use the surname of the husband in any of the ways
Grounds for change of name which have been held provided by Art. 370 of the New Civil Code. However, R.A.
valid 8239 or the Philippine Passport Act of 1996 limits the
instances when a married woman applicant may exercise
1. One has Continuously used and been known since the option to revert to the use of her maiden name. These
childhood by a Filipino name and was unaware of are death of husband, divorce, annulment, and
alien parentage; declaration of nullity of marriage.
2. The change results as a Legal consequence, as in
legitimation; In case of renewal of passport, a married woman may
3. There is a sincere desire to adopt a Filipino name to either adopt her husband’s surname or continuously use
erase signs of former alienage, all in good faith and her maiden name. However, once she opted to use her
without prejudicing anyone; husband’s surname in her original passport, she may not
4. The change will avoid confusion; revert to the use of her maiden name, except if any of the
5. The new first name or surname has been habitually four grounds provided under R.A. 8239 is present.
and continuously used by the petitioner and is
publicly known by that first name or nickname Further, even assuming R.A. 8239 conflicts with the Civil
(Pineda, 2010). Code, the provisions of R.A. 8239 which is a special law
6. The name is: specifically dealing with passport issuance must prevail
a. Ridiculous, over the provisions of the Civil Code which is the general
b. Extremely difficult to write or pronounce, law on the use of surnames. A basic tenet in statutory
c. Dishonorable. construction is that a special law prevails over a general
--- law (Remo v. Sec. of Foreign Affairs, G.R. No. 169202, March
Q: Can a person change his registered first name and 5, 2010).
sex on the basis of a sex reassignment?
Identity of names and surnames
A: NO. Before a person can legally change his given name,
he must present proper or reasonable cause or any In case of identity of names and surnames, the younger
compelling reason justifying such change. In addition, he person shall be obliged to use such additional name or
must show that he will be prejudiced by the use of his true surname as will avoid confusion (NCC, Art. 374).
and official name. Under the Civil Register Law, a birth
certificate is a historical record of the facts as they existed In case of identity of names and surnames between
at the time of birth. Thus, the sex of a person is ascendants and descendants, the word "Junior" can be
determined at birth, visually done by the birth attendant used only by a son. Grandsons and other direct male
(the physician or midwife) by examining the genitals of descendants shall either:
the infant. Considering that there is no law legally
recognizing sex reassignment, the determination of a 1. Add a middle name or the mother's surname, or
person’s sex made at the time of his or her birth, if not 2. Add the Roman Numerals II, III, and so on (NCC, Art.
attended by error, is immutable (Silverio v. Republic, G.R. 375).
No. 174689, October 22, 2007).
--- NOTE: No person can change his name or surname
Procedural requirements for a petition for change of without judicial authority (NCC, Art. 376).
name
Elements of usurpation of name
1. 3 years residency in the province where the change
is sought prior to the filing (Sec. 2, Rule 103, Rules of 1. Actual use of another’s name by the defendant;
Court); 2. Use is unauthorized;
2. Must not be filed within 30 days prior to an election 3. Use of another’s name is to designate personality or
(Sec. 3, Rule 103, Rules of Court); identify a person.

101
 Civil Law
middle name and his father's surname as his surname (In
Remedies available to the person whose name has Re: Petition for Change of Name of Julian Wang v. Cebu Civil
been usurped Registrar, G.R. No. 155966, March 30, 2005).
---
1. Civil – insofar as private persons are concerned: Q: Honorato filed a petition to adopt his minor
a. Injunction illegitimate child Stephanie. Stephanie has been using
b. Damages her mother's middle name and surname. He prayed
2. Criminal – when public affairs are prejudiced. that Stephanie's middle name be changed from
"Astorga" to "Garcia," which is her mother's surname
NOTE: If the purpose of the usurpation is to conceal and that her surname "Garcia" be changed to
ones true identity then, he is guilty of concealing true "Catindig," which is his surname. This the trial court
name under Art.178 of the RPC (Pineda, 2010). denied. Was the trial court correct in denying
Honorato’s request for Stephanie’s use of her
It can also be a violation of CA 142 or the Anti-Alias mother’s surname as her middle name?
Law
A: NO. The name of an individual has two parts – the given
Use of another’s name is not always actionable name or proper name and the surname or family name.
The given name may be freely selected by the parents for
GR: The unauthorized or unlawful use of another person’s the child, but the surname to which the child is entitled is
surname gives a right of action to the latter (NCC, Art. fixed by law. The Civil Code (Arts. 364 to 380) is silent as
378). to the use of a middle name. Even Art. 176 of the Family
Code, as amended by RA 9255 (An Act Allowing
XPN: It is not actionable when it is used as stage, screen Illegitimate Children to Use the Surname of Their
or pen name. Father) is silent as to what middle name a child may use.

Provided: An adopted child is entitled to all the rights provided by

1. Use is in good faith; law to a legitimate child without discrimination of any
2. No injury is caused to the rights of the person kind, including the right to bear the surname of her father
whose name was used; and her mother. As she had become a legitimate child on
3. Use is motivated by: account of her adoption, it follows that Stephanie is
a. Modesty entitled to utilize the surname of her father, Honorato
b. Desire to avoid unnecessary trouble Catindig, and that of her mother, Gemma Garcia.
c. Other reason not prohibited by law or
morals. Since there is no law prohibiting an illegitimate child
adopted by her natural father, like Stephanie, to use, as
MIDDLE NAME middle name her mother's surname, the High Court found
no reason why she should not be allowed to do so.
A middle name has practical or legal significance as it
serves to identify the maternal pedigree or filiation of a NOTE: The Supreme Court granted the petition for 2
person and distinguishes him from others who may have reasons:
the same given name and surname as he has. Art. 364 of 1. The adopted child's continued use of her
the Civil Code states that legitimate and legitimated mother's surname as her middle name will
children shall principally use the surname of their father. maintain her maternal lineage; and
Art. 174 of the Family Code gives legitimate children the 2. It will also eliminate the stigma of her
right to bear the surnames of the father and mother, while illegitimacy.
illegitimate children, under Art. 176, as amended by R.A.
9255, shall use the surname of their mother, unless their The Supreme Court, in granting the petition, predicated
father recognizes their filiation, in which case, they may its ruling upon the statutory principle that adoption
bear the father's surname. In the case of these children, statutes, being humane and salutary, should be liberally
their registration in the civil registry requires that their construed to carry out the beneficent purposes of
middle names be indicated therein, apart of course from adoption. The modern trend is to consider adoption not
their given names and surnames (In re: Petition for merely as an act to establish a relationship of paternity
Change of Name and/or Correction of Entry in the Civil and filiation, but also as an act which endows a child with
Registry of Julian Lin Carulasan Wang, G.R. No. 159966, legitimate status (In the Matter of the Adoption of
March 30, 2005 Stephanie Nathy Astorga Garcia, G.R. No. 148311, March
--- 31, 2005).
Q: Does an illegitimate child have a middle name? ---
Q: The petition filed by the parents in behalf of their
A: NO. An illegitimate child whose filiation is not minor son Julian Lin Carulasan Wang sought the
recognized by the father bears only a given name and his dropping of the latter's middle name, "Carulasan."
mother's surname, and does not have a middle name. It is The parents averred that their plan for Julian to study
only when the illegitimate child is legitimated by the in Singapore and adjust to its culture necessitates the
subsequent marriage of his parents or acknowledged by drop since in that country, middle names or the
the father in a public document or private handwritten mother's surname are not carried in a person's name.
instrument that he bears both his mother's surname as his They therefore anticipate that Julian may be

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 PERSONS AND FAMILY RELATIONS
subjected to discrimination on account of his middle of Gianna in her birth certificate from “legitimate
name, which is difficult to pronounce in light of child of Andy and Aimee” to “illegitimate child of
Singapore's Mandarin language which does not have Andy and Aimee” will amount to indirectly
the letter "R" but if there is, Singaporeans pronounce impugning her filiation as the child of Aimee’s
it as "L." Should the petition for the dropping of his husband in a proper action. What cannot be done
middle name be granted? directly cannot be done indirectly.

A: NO. Petitioners’ justification for seeking the change in b. A judicial action to change the surname of Gianna
the name of their child, that of convenience, was from the surname of Andy to the maiden surname of
characterized by the Supreme Court as amorphous, to say Aimee is also not allowed. Gianna, being presumed to
the least, and would not warrant a favorable ruling. As be the legitimate child of Aimee’s husband is
Julian is only a minor and has yet to understand and required by law to be registered under the surname
appreciate the value of any change in his name, it is best of Aimee’s husband. While it is true that Gianna’s
that the matter be left to his judgment and discretion registered surname is erroneous, a judicial action for
when he reaches legal age. correction of entry to change the surname of Gianna
The State has an interest in the names borne by to that of Aimee’s maiden surname will also be
individuals and entities for purposes of identification, and erroneous. A judicial action to correct an entry in the
that a change of name is a privilege and not a right, such birth certificate is allowed to correct an error and not
that before a person can be allowed to change the name to commit another error.
given him either in his birth certificate or civil registry, he
must show proper or reasonable cause, or any compelling Alternative Answers: It may be noted that the
reason which may justify such change. Otherwise, the problems does not show whether Gianna was born
request would be denied (In Re: Petition for change of while Aimee was living with her ex-husband. Neither
name and/or correction/cancellation of entry in civil does it show who filed the judicial action to correct
registry of Julian Lin Carulasan Wang, G.R. No. 159966, the entries.
March 30, 2005).
--- If the problem is intended only for purpose of
NOTE: The touchstone for the grant of a change of name determining whether factual changes are in order,
is that there be proper and reasonable cause for which the then the answers are:
change is sought. a. A change from “legitimate” to “illegitimate” is
--- proper upon proof of lack of marriage between
Q: Giana was born to Andy and Aimee, who at the time Andy and Aimee.
of Giana’s birth were not married to each other. While b. If the child is considered illegitimate, then she
Andy was single at that time, Aimee was still in the should follow the surname of her mother.
process of securing a judicial declaration of nullity on
her marriage to her ex-husband. Gianna’s birth c. Under R.A. 9048, only typographical errors are
certificate, which was signed by both Andy and Aimee, allowed to be corrected administratively. The change
registered the status of Gianna as “legitimate”, her of status from legitimate to illegitimate is not a
surname carrying that of Andy’s, and that her parents typographical error and even assuming that it is, its
were married to each other. administrative correction is not allowed under R.A.
9048. Typographical errors involving status, age,
Can a judicial action for correction of entries in citizenship, and gender are expressly excluded from
Gianna’s birth certificate be successfully maintained what may be corrected administratively.
to:
a. Change her status from “legitimate” to The change of the surname is also not allowed
“illegitimate”; and administratively. R.A. 9048 provides for an
b. Change her surname from that of Andy’s to administrative procedure for change of first name
Aimee’s maiden surname? only and not for change of surname.
c. Instead of a judicial action, can administrative
proceedings be brought for the purpose of d. NO, Gianna will not be legitimated. While the court
making the above corrections? may have declared the marriage void ab initio and,
d. Assuming that Aimee is successful in declaring therefore, no marriage took place in the eyes of the
her former marriage void, and Andy and Aimee law, Gianna will still not be legitimated. This is
subsequently married each other, would Gianna because at the time she was conceived and born, her
be legitimated? (2008 BAR) biological parents could not have validly married
each other. For their marriage to be valid, the court
A: must first declare the first marriage null and void. In
a. A judicial action cannot be maintained to change the the problem, Gianna was conceived and born before
status of Gianna from “legitimate” to “illegitimate” the court has decreed the nullity of her mother’s
child of Andy and Aimee. While it is true that Gianna previous marriage.
is the biological daughter of Andy and Aimee ---
conceived and born without marriage between them, NOTE: The word "principally" as used in the codal
Gianna is presumed, under the law as the legitimate provision is not equivalent to "exclusively" so that there
child of Aimee and her husband. This filiation may be is no legal obstacle if a legitimate or legitimated child
impugned only by the husband. To correct the status should choose to use the surname of its mother to which

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 Civil Law
it is equally entitled. If the mother's surname is used by 1. Spouse present, except, when legally separated.
the child since childhood and the child has been using it 2. In the absence of spouse, any competent person
already in various records, then there is an ample (NCC, Art. 383).
justification for the continuation of the use of the mother’s
surname. It is therefore, not whimsical, but on the NOTE: The administrator of the absentee's property shall
contrary, is based on a solid and reasonable ground, i.e. to be appointed in accordance with the same order.
avoid confusion (Alfon v. Republic, G.R. No. L-51201, May
29, 1980). DECLARATION OF ABSESNCE
_________________________________________________________________
Requisites (NCC, Art. 384):
ABSENCE
_________________________________________________________________ 1. The absentee have disappeared from his domicile;
The special status of a person who has left his domicile 2. His whereabouts are not known; and
and thereafter his whereabouts and fate are unknown, it 3. He has been absent without any news for 2 years, if
being uncertain whether he is already dead or still alive nobody was left to administer his property or 5 years
(Olaguiviel v. Morada, 63 O.G. 4940). if somebody was left to administer such property.

Kinds of absence Absence may be judicially declared if (NCC, Art. 387):

1. Physical Absence 1. The absentee left no agent to administer his

2. Legal Absence property- after two (2) years without any news about
the absentee or since receipt of the last news.
3 Stages of Absence 2. The absentee has left a person to administer his
property- after five (5) years.
1. Provisional Absence – when a person disappears
from his domicile his whereabouts being unknown, Person who may ask for the declaration of absence
without leaving an agent to administer his property (NCC, Art. 385)
(NCC, Art. 381).
2. Declared Absence– when a person disappears from 1. Spouse present;
his domicile and 2 years thereafter have elapsed 2. Heirs instituted in a will;
without any news about him or since the receipt of 3. Relatives who may succeed by intestacy;
the last news, or 5 years have elapsed in case he left 4. Persons who may have over the property of the
a person to administer his property (NCC, Art. 384). absentee some right subordinated to the condition of
3. Presumptive Death – the absentee is presumed dead his death.
(Jurado, 2011).
Effectivity of judicial declaration of absence
Provisional absence
Judicial declaration of absence takes effect six (6) months
1. When a person disappears from his domicile after its publication in a newspaper of general circulation.
2. His whereabouts are unknown and:
a. he did not leave any agent; or NOTE: A judicial declaration of absence is necessary for
b. he left an agent but the agent’s power has interested persons to be able to protect their rights,
expired interests and benefits in connection with the person who
has disappeared. It is also necessary to protect the
Remedy of an interested party, a relative or a friend interest of the absentee (Sta. Maria, Jr., 2010).
of the absentee to protect the latter's interest
ADMINISTRATION OF THE PROPERTY OF THE
They may petition the Court for the appointment of a ABSENTEE
representative to represent the absentee in all that may
be necessary. Administration of the property of the absentee ceases
when (NCC, Art. 389):
Duty of the Court after appointing the representative
1. Absentee appears personally or by means of an
The Court shall: agent.
1. Take the necessary measures to safeguard the rights 2. Death of the absentee is proved and his testate or
and interests of the absentee; intestate heirs appear.
2. Specify the powers, obligations, and remuneration 3. A third person appears, showing by a proper
of the representative; document that he has acquired the absentee's
3. Regulate the powers, obligations and remuneration property by purchase or other title.
according to the circumstances by the rules
concerning guardians (NCC, Art. 382). PRESUMPTION OF DEATH

Order of preference in the appointment of a Kinds

representative

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 PERSONS AND FAMILY RELATIONS
1. Ordinary presumption- ordinary absence; absentee only question upon which a competent court has to
disappears under normal conditions without danger pass?
or idea of death.
2. Extraordinary presumption- qualified absence; A: NO. Under the NCC, the presumption of death is
disappearance with great probability of death. established by law and no court declaration is needed for
the presumption to arise. Moreover, it is clear that a
Rules in ordinary presumption of death (NCC, Art. judicial declaration that a person is presumptively dead,
390) being a presumption juris tantum only, subject to contrary
proof, cannot become final. If a judicial decree declaring a
In case of: person presumptively dead, cannot become final and
1. Disappearance upon or before reaching the age of executory even after the lapse of the reglementary period
seventy five (75) years: within which an appeal may be taken, then a petition for
a. After an absence of seven (7) years -the such a declaration is useless, unnecessary, superfluous
absentee is presumed dead for all purposes and of no benefit to the petitioner.
except, succession. ---
b. After an absence of ten (10) years - the absentee Q: Juana married Arturo in January 1973. However,
is presumed dead for all purposes including because the latter was unemployed the spouses
succession. constantly argued. Thus, Arturo left the conjugal
2. Disappearance at the age of seventy six (76) years or dwelling on October 1975. Years passed without any
older, after an absence of five (5) years -the absentee word from Arturo. Juana didn’t hear any news of
is presumed dead for all purposes including Arturo, his whereabouts or even if he was alive or not.
succession. Believing that Arturo was already dead, Juana
married Dante on June 1986. Subsequently, however,
NOTE: The word “absence” in the rule that a presumption Dante's application for naturalization filed with the
of death is raised by the “absence” of a person from his United States Government was denied because of the
domicile when unheard of for seven years, means that a subsisting marriage between Juana and Arturo.
person is not at the place of his domicile and his actual Hence, on March, 2007, Juana filed a Petition for
residence is unknown, and it is for this reason that his declaration of presumptive death of Arturo with the
existence is doubtful, and that, after seven years of such RTC. The RTC dismissed the petition on the ground
absence, his death is resumed. But removal alone is not that Juana was not able to prove the existence of a
enough (Gorham v. Settegast, 98 SW 655, also cited by Sta. well-grounded belief that her husband Arturo was
Maria, 2010). already dead as required under Article 41 of the
Family Code.
Presumption of death of absentee under an ordinary
presumption a. Was the RTC correct in dismissing the petition
based on Article 41 of the Family Code?
Absentee is presumed to have died under an ordinary b. Will the petition for declaration of presumptive
presumption at the end of the five, seven or ten year death, therefore, prosper?
period, as the case may be.
A:
Presumption of death for all purposes a) NO. Since the marriages were both celebrated under
the auspices of the Civil Code, it is the Civil Code that
The following are presumed dead for all purposes applies to this case not Art. 41 of the Family Code.
including the division of estate among heirs in case of Under the Civil Code, proof of well-founded belief is
extraordinary presumption of death (NCC, Art. 391): not required. Juana could not have been expected to
1. Person on board a vessel lost during a sea voyage, or comply with the requirement of proof of "well-
an airplane which is missing, who has not been heard founded belief" since the FC was not yet in effect at
of for four (4) years since the loss of the vessel or the time of her marriage to Dante. Moreover, the
airplane; enactment of the FC in 1988 does not change this
2. Person in the armed forces who has taken at in war, conclusion. The FC shall have no retroactive effect if
and has been missing for four (4) years; it impairs vested rights. To retroactively apply the
3. Person who has been in danger of death under other provisions of the FC requiring Juana to exhibit "well-
circumstances and his existence has not been known founded belief" will, ultimately, result in the
for four (4) years. invalidation of her second marriage, which was valid
at the time it was celebrated. Such a situation would
Presumption of death of absentee under an be untenable and would go against the objectives
extraordinary presumption that the Family Code wishes to achieve.

The absentee presumed to have died under an b) NO. Under the NCC, the presumption of death is
extraordinary presumption at the time of disappearance. established by law and no court declaration is
e.g. when the calamity took place. needed for the presumption to arise. For the
--- purposes of the civil marriage law, Art. 83 of the Civil
Q: May a petition for the declaration of presumptive Code, it is not necessary to have the former spouse
death be the subject of a judicial declaration, if it is the judicially declared an absentee. The law only
requires that the former spouse has been absent for

105
 Civil Law
seven consecutive years at the time of the second the petitioner against her absent husband. Neither is
marriage, that the spouse present does not know his there a prayer for the final determination of his right
or her former spouse to be living, that such former or status or for the ascertainment of a particular fact,
spouse is generally reputed to be dead and the for the petition does not pray for a declaration that
spouse present so believes at the time of the the petitioner's husband is dead, but merely asks for
celebration of the marriage. Since death is presumed a declaration that he be presumed dead because he
to have taken place by the seventh year of absence, had been unheard of for seven years. In sum, the
Arturo is to be presumed dead starting October 1982. petition for a declaration that the petitioner's
husband is presumptively dead, even if judicially
Further, the presumption of death cannot be the made, would not improve the petitioner's situation,
subject of court proceedings independent of the because such a presumption is already established
settlement of the absentee’s estate. In case the by law (Valdez v. Republic, G.R. No. 180863, September
presumption of death is invoked independently of 8, 2009).
such an action or special proceeding, there is no right
to be enforced nor is there a remedy prayed for by ---

Declaration of presumptive death for purpose of contracting subsequent marriage v.Opening succession and
declaration of absence under the Rules of Court

DECLARATION OF PRESUMPTIVE DEATH FOR THE PURPOSE OF:

CONTRACTING SUBSEQUENT DECLARATION OF ABSENCE
OPENING OF SUCCESSION
MARRIAGE
Applicable laws
NCC, Arts. 390-396 Arts. 41-44, Family Code Rule 107, Rules of Court
Who may file petition
1. Spouse present;
2. Heirs instituted in the will;
Absentee’s co-heirs, heirs, 3. Relatives who will succeed by intestacy;
assigns, representative or Spouse present or
successors-in-interest 4. Those who have over the property of the
absentee some right subordinated to the
condition of his death (Sec. 2, Rule 107).
Purpose of petition
To appoint an administrator over the
For the purpose of contracting
properties of the absentee. This is proper
To open succession subsequent marriage by spouse
only where the absentee has properties to
present
be administered
When to file petition
GR: 4 consecutive years absence of
spouse – and the spouse present has a
After 2 years:
GR: Absence of ten years. well-founded belief that the absent
1. From his disappearance and without
spouse was already dead
any news about the absentee; or
XPN: If he disappeared after the
2. From the last news about the
age of seventy-five years, an XPN: 2 consecutive years absence of
absentee.
absence of five years shall be spouse – In case of disappearance
sufficient in order that his where there is danger of death under
After 5 years: If he left an administrator of
succession may be opened the circumstances set forth in the
his property (Sec. 2).
provisions of Article 391 of the Civil
Code (Art. 41, FC)
Effect of reappearance
If the absentee appears, or It does not automatically terminate The trustee or administrator shall cease in
without appearing his existence the subsequent marriage. To cause the performance of his office, and the
is proved, he shall recover his the termination of the subsequent property shall be placed at the disposal of
property in the condition in marriage, the reappearance must be those who may have a right thereto.
which it may be found, and the made in an affidavit of reappearance
price of any property that may and the recording of a sworn
have been alienated or the statement of the fact and
property acquired therewith; but circumstances of such reappearance
he cannot claim either fruits or in the civil registry.
rents. (Art. 392, Civil Code)
If, however, there was previous
judgment annulling or declaring the
prior marriage void, then the
reappearance of the absent spouse,
the execution of the affidavit, and the

106